Shannon Morgan
Ever since Colin Kaepernick famously sat during the national anthem in 2016, athlete activism has been taken to new heights. From the National Basketball Association (“NBA”) and Women’s National Basketball Association (“WNBA”) putting the Black Lives Matter movement at the forefront of their respective summer seasons,[1] to the National Football League (“NFL”) launching their voting initiative, “NFL Votes”, to Naomi Osaka donning seven masks with the names of Black people whose lives have been tragically taken away,[2] athletes more than ever are using their platform to advocate for a better, more equitable society for all. Therefore, at a time when it seemed like the sports world is embracing athlete activism, it came as an unwelcomed surprise when the International Olympic Committee (“IOC”) issued guidelines earlier this year that prohibit certain acts of protests and demonstrations at the Olympic Games.
Rule 50, which has been in the Olympic Charter for years, states “[n]o kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas.”[3] Up until January of this year, there had been little guidance on exactly what Rule 50 meant, let alone what counts as a demonstration or propaganda. However, on January 9, 2020, the IOC Athletes’ Commission issued guidelines that provided clarity on the purpose and goals of Rule 50. The guidelines state that Rule 50 is guided by the “fundamental principle that sport is neutral and must be separate from political, religious, or any other type of interference.”[4] In order to maintain the image of peace and harmony propagated by the Olympics, the IOC has banned protests and demonstrations because they could be “divisive” and could “drive a wedge between individuals, groups and nations” at all Olympic venues.[5] Banned protests include gestures of political nature (e.g., kneeling), displaying political messages, and refusing to follow protocol.[6]
Unsurprisingly, athletes and organizations from all over the world have called for the repeal of Rule 50 on the grounds that it stifles freedom of expression and freedom of speech by silencing athletes. The U.S. Olympic and Paralympic Committee Athletes’ Advisory Council and Global Athlete both issued statements calling for the abolition of Rule 50,[7] and German athletes represented by Athleten Deutschland, an independent organization that uplifts the voices of top-level German athletes and advocates for their inclusion in high-level decision making, have called for a comprehensive review of the Rule.[8] Given the opposition to Rule 50 and the new guidelines issued by the IOC, it is important to consider what a legal challenge to Rule 50 would look like.
According to the Olympic Charter, all disputes must be settled exclusively through the Court of Arbitration For Sport,[9] which is headquartered in Switzerland and applies Swiss law if parties do not agree on what law should govern.[10] Article 16 of the Federal Constitution of the Swiss Confederation states “freedom of expression. . .is guaranteed” and “every person has the right freely to form, express, and impart their opinions.”[11] The guarantee of freedom of expression as a fundamental right under the Swiss Constitution appears to be in direct contrast to the prohibition of freedom of expression under Rule 50. Therefore, it would appear that athletes from around the world could potentially challenge Rule 50 via the Court of Arbitration For Sport under Swiss law. As the Tokyo 2021 games draws nearer, it remains to be seen whether the IOC will follow the lead of other sports organizations and let athletes use their platform to advocate for social change.
[1] Pendarvis Harshaw, Professional ‘Bubble Ball,” in the NBA and WNBA, is Leading By Example, kqed, https://www.kqed.org/arts/13884595/professional-bubble-ball-at-the-nba-and-wnba-is-leading-by-example.
[2] Sanya Mansoor, Naomi Osaka Says She Wore 7 Masks About Black Lives During This Year’s U.S. Open to ‘Make People Start Talking,’ Time (Sept 13, 2020), https://time.com/5888583/naomi-osaka-masks-black-lives-matter-us-open/.
[3] IOC Athletes’ Commission, Rule 50 Guidelines, https://www.olympic.org/-/media/document%20library/olympicorg/news/2020/01/rule-50-guidelines-tokyo-2020.pdf.
[4] Id.
[5] Id.
[6] Id.
[7]@USOPC_AAC, Twitter (June 27, 2020, 12:12 PM), https://twitter.com/USOPC_AAC/status/1276911255266168832; Global Athlete Statement on Olympic Charter Rule 50, Global Athlete (June 14, 2020), https://globalathlete.org/our-word/ioc-rule-50.
[8] Craig Lord, German Athletes Welcome Bach Readiness To Relax Rule 50 & Allow Peaceful Protest, Swimming World (June 16, 2020), https://www.swimmingworldmagazine.com/news/german-athletes-welcome-bach-readiness-to-relax-rule-50-allow-peaceful-protest/.
[9] International Olympic Committee, Olympic Charter, https://stillmed.olympic.org/media/Document%20Library/OlympicOrg/General/EN-Olympic-Charter.pdf.
[10] Frequently Asked Questions, Tas / Cas Tribunal Arbitral Du Sport Court of Arbitration For Sport, https://www.tas-cas.org/en/general-information/frequently-asked-questions.html.
[11] Bundesverfassung [BV] [CONSITUTION] Apr. 18, 1999, art. 16 (Switz).