SII Focus 9th May 2017

Pressure builds to secure fair athlete rights & representation

Pressure is building to secure fair rights for athletes in sport, through recent initiatives designed to commit sports governing bodies to binding principles designed to ensure fair treatment. Last week, the World Players Association (World Players) announced that it is finalising the text of its Universal Declaration of Player Rights, which it will be pressing to be entrenched into international sports law. This follows Baroness Tanni Grey-Thompson’s assertion at the Sport Resolutions conference that she will be pressing for UK Sport to require the recommendations outlined in her Duty of Care in Sport Report to be implemented across sport.

Concerns have also recently been expressed by athletes that the anti-doping system fails to adequately protect clean athletes. There is a growing feeling that athletes who did not intend to cheat are being punished, whilst intentional cheats are being allowed to continue competing, due to commercial and political interests overriding the rights of the athlete.

This feeling was exacerbated by the decisions taken surrounding the Rio 2016 Olympic Games. The International Olympic Committee (IOC) allowed Russian athletes to compete despite the systemic doping uncovered by World Anti-Doping Agency (WADA) investigations, whilst Kuwaiti athletes were banned due to their government’s interference in sport, despite having done nothing wrong.

In an extreme case, US volleyball player Maxwell Holt was allowed to compete at the Rio 2016 Olympics, whilst Russia player Alexander Markin was not, due a combination of WADA and IOC anti-doping rules. Both players were given meldonium at exactly the same time by their team coach.

Universal Declaration on Player Rights & regulatory change

World Players will finalise the text to a Universal Declaration on Player Rights in June. “At the moment, there is what we call a ‘legitimacy deficit’, where global sports law trumps national sports law in many ways”, explains Brendan Schwab, World Players Executive Director. “It is put together without the consent of those that are bound by it – namely the players”.

Delegates at the World Player Conference in Paris

At the recent World Player Development Conference in Paris, an expert group was appointed to finalise the text of the Declaration on Player Rights, which will then be put to sporting organisations. Schwab explains that historically, sport has been unaccountable and has been able to operate outside of the law because of the global arbitration system.

For example, Article 3 of the FIFA Statutes, which commits FIFA to recognising human rights principles, only came into force on 27 April last year. The 2015 version of its Statutes does not mention human rights.

“Sport is now accepting that it is bound by the UN Guiding Principles on Business and Human Rights, explains Schwab. “That turns the whole regulatory situation on its head. The Olympic Charter does refer to human rights; the FIFA Statutes refer to human rights. We need to build on those commitments.”

Brendan Schwab, World Players Executive Director

The Declaration and the UN Guiding Principles will provide the leverage for World Players to discuss the rights of players with international sporting federations, says Schwab. “If you’re going to make $8 billion over a four-year cycle from the work of athletes and you’re going to ask athletes from a young age to commit to a short-term, precarious and intense career, then we need to make sure that they’re reaching their full human potential”, he argues. “The existence of the UN Guiding Principles on Business and Human Rights has been revelatory, because we haven’t had to have a discussion about what the rules are. You can imagine how impossible that would have been.”

World Players’ negotiating point is underpinned by the fact that the UN Economic, Scientific and Cultural Organisation’s (UNESCO) International Charter on Physical Education, Physical Activity and Sport acknowledges that International Labour Organisation (ILO) standards apply to the work of professional athletes. World Players said that the ILO has committed to holding a ‘global dialogue’ to ensure that ILO standards are applied to sport.

It is also in sport’s interest to embrace the human rights principles and new governance structures in order to mitigate risk. Historically, one of the issues with regulating sport is that it operates in a vacuum – a situation that sports lawyers often refer to as the ‘autonomy of sport’. Sports governing bodies make their own rules and regulations which are not subject to regulatory oversight, and this makes them both responsible and culpable when things go wrong.

For example, holding the World Cup in Russia and Qatar may be good for football in financial terms, however when potential human rights abuses connected to both events were uncovered, the buck stopped with FIFA. Schwab argues that this shouldn’t be the case. “That issue can be referred to an independent institution that has integrity and is effective”, argues Schwab. “All the policy statements in the world still won’t translate into protections on the ground unless there’s some form of institutional protection for those who are adversely affected by these events”.

Schwab thinks that recent events off the field of play, such as the Department of Justice’s (DoJ) FIFAGate investigation and the systemic doping uncovered in Russia, means that sport has reached a turning point. Up until now, because of the autonomy of sport, the only way that sporting rules could be changed is for an athlete to challenge them. And this approach requires a brave athlete to sacrifice part – if not all – of their career. Obviously, this approach is not one that World Players is comfortable with.

Recently, the international basketball federation (FIBA) overturned its controversial headgear ban, which had the effect of preventing women from wearing the hijab whilst competing. However it took approximately three years. If sport is able to recognise and implement the UN Guiding Principles, then such an issue would be unlikely to arise in the first place.

“Under the UN Framework, sport has a proactive responsibility to carry out human rights due diligence”, explains Schwab. “If it was proactively undertaking that human rights due diligence, it would have seen that the headgear rule indirectly discriminates against muslim women. It would have realised that it had a duty to mitigate that impact. Because they’ve not been operating under this due diligence framework and because they’re not under an obligation to act proactively, the onus is squarely on the athlete.”

“FIBA didn’t have a human rights policy”, continues Schwab. “FIBA didn’t carry out due diligence on human rights grounds. The player, despite being discriminated against on the basis of her gender and her faith, could not access a remedy. They are the three critical aspects of the UN guiding principles.”

Bilqis Abdul-Qaadir, the former star player at the University of Memphis concerned, has been barred from playing for three seasons due to her commitment to wearing a hijab during games. “She can’t get those three years back”, argues Schwab.

Collective Bargaining & organisation

Athletes are increasingly recognising that they suffer from a lack of any meaningful representation in sport. However, there are signs that this is beginning to change. A recent study by Braham Dabscheck, Senior Fellow at the University of Melbourne, reveals that of 174 player and athlete associations worldwide, 80 have been formed since the year 2000. Five emerged in 2016 alone.

“There are two types of rights”, explains Schwab. “There are simple types of rights such as a minimum wage or a contract. But we then have what we call enabling rights, such as the right to organise and the right to collectively bargain. This is a fundamental right. It is expressly referred to in the United Nations Guiding Principles. But sporting bodies, such as WADA, insist on an Athletes Committee which is largely appointed by the Director General. The IOC insists on an Athletes Commissions. The Australian Olympic Committee, for example, asks its Athletes Commission members to sign a contract stating that that they will act in the best interests of the AOC! These things all interfere with the fundamental rights of players under international law.”

Recently, we have seen increasing player activism in action, especially in team sports. The US women’s ice-hockey team successfully negotiated improved terms for its players following fraught negotiations over participation in the International Ice Hockey Federation (IIHF) World Championships last month. The Republic of Ireland’s women’s team was forced to hold a press conference in order to secure basic items such as a nominal match fee, their own kit and reimbursement of lost earnings.

What links the two stories is an apparent lack of a collective bargaining process between the players and governing bodies. “If you look at the US sports, wherever there’s been sustainable progress for players, it’s been through turning these policy commitments into agreements, which have normally been the result of collective bargaining”, argues Schwab. “That’s our objective – to turn these things into a collective process”.

Duty of Care in Sport

Governments are increasingly coming alive to the fact that they need to put safeguards in place relating to the regulation of sport. FIFA is now embroiled in three separate criminal investigations involving the US DoJ, the Swiss Office of the Attorney General (OAG) and the French public prosecutor’s office. The Culture, Media and Sport (CMS) Committee of the UK Parliament’s investigations into doping have served to highlight that the desire to win often takes priority over the welfare of individual athletes. The recent sexual abuse scandal in UK football also served to illustrate that athletes are in a vulnerable position that can be exploited by those that are often closest to them – their coaches.

As the hospitalisation of Aaron Lennon and the recent Sports Resolutions conference recently served to illustrate, sport is also doing a poor job at enduring the mental health of athletes – especially after their sporting career ends. “There is a really high level of anxiety about the well-being of athletes in their post careers”, explains Schwab. “There’s a complete absence of any global standard or any minimum conditions which sport should try to uphold in terms of the development of players”.

At the Sport Resolutions conference, Olympic badminton medalist Gail Emms MBE referred to “grieving an identity” after retirement from sport, and said that athletes were not given the chance to grieve for the loss of a major part of their lives. Former Leicester Tigers player Leon Lloyd said that he struggled seeing the team go on without him – especially somebody else pulling on ‘his’ shirt. “I wanted them to miss me”, he said.

Jess Varnish

As with Lloyd’s retirement due to injury, the transition from elite athlete to ‘member of the public’ can be brutal. Just ask Jess Varnish. British Cycling launched an investigation over a year ago after Varnish learned that her contract would not be renewed through a newspaper interview given by British Cycling’s Performance Director Shane Sutton. She has since found out that eight of the nine allegations of sexism she levelled against the organisation have been rejected, and is launching an appeal.

The results of British Cycling’s investigation have yet to be published. Varnish has been out of the sport for over a year whilst the governing body she accuses of discriminating against her completes its own internal report. It doesn’t need an integrity expert to recognise the conflict of interest here.

Protection for athletes against such treatment prompted the UK Department for Culture, Media and Sport (DCMS) to commission its Duty of Care in Sport Report, which was published on 21 April. The report was compiled by Baroness Tanni-Grey Thompson, a Paralympian medalist who now sits in the House of Lords, the upper house of the UK Parliament.

The Report recommends that:

• the UK government should create a Sports Ombudsman, a body that would hold sporting organisations to account for the duty of care that they provide to athletes;
• an independent benchmark survey should be used to measure the duty of care that sport provides to its athletes;
• a Duty of Care Guardian should feature on the Board of all sports governing bodies;
• induction training should be provided to all athletes entering elite levels of sport, indicating what standards of care they can expect;
• an exit survey and interview should be performed on all elite athletes leaving sport, so that their concerns can be taken into account;
• a Duty of Care Charter, established by government for sport;
• independent government funding for the British Athletes Commission (BAC).

Baroness Grey-Thompson is committed to ensuring that the recommendations are implemented and is understood to have the support of UK Sport. “I’ve got a really long time to work on this”, she said, pointing out that many members of the House of Lords are in their 90s.

Doping

The focus on doping in sport over the last couple of years has led to realisation that only a tiny minority of athletes intend to cheat. The vast majority of athletes who are sanctioned for doping offences are guilty of little more than making a mistake.

Due to the ‘autonomy of sport’, anti-doping is thought to be the only judicial area where the onus is on the accused to prove that they are innocent. This is a reversal of the basic legal principle that one is innocent until they are proven guilty. An athlete is guilty of doping unless they can prove that they are innocent.

Issues such as the debacle over the Rio 2016 Olympics has led to a “complete lack of trust” in the system, says Schwab. As such, anti-doping faces an uncertain future. In December 2015, the IOC proposed the creation of an independent testing authority (ITA), a concept that WADA agreed to explore at it November 2015 Foundation Board meeting.

However, over a year later, the concept appears to have stalled. “The feeling was that it might suit international federations to have a completely independent agency”, said WADA President Sir Craig Reedie at the November 2016 Foundation Board meeting. “It may be that it is a separate agency from WADA. If the sports movement wants to fund it, then yes, it can be done.”

Again, WADA’s focus appears to be on what might suit international federations, rather than what would suit athletes. This is perhaps understandable, given that the regulations formed by WADA focus on catching doping cheats in sport.

‘Every year the membership of the Committee will be reviewed by the Chairperson, in consultation with the WADA Director General and the Chair of the Foundation Board’, reads the WADA Athlete Committee Terms of Reference. ‘Rotation of Committee members will be carried out in a manner that ensures continuity of Committee experience and expertise, generally one third per year’.

As can be seen from this, athletes have just a single input into the anti-doping system that goes against legal principles by assuming that they are guilty until they can prove their innocence. Such a situation underlines the need for a truly representative athlete voice within the anti-doping system.

World Players favours a collective bargaining approach to anti-doping. “Doping is the only sphere where we try a single global regulatory system”, argues Schwab. “We think that all sports should have the right to collectively bargain, but there probably ought to be a chapter written into the Code in relation to professional team sports, which states that they are different”.

A World Players policy statement on anti-doping argues that player associations should be responsible for collectively bargaining anti-doping regulations in association with sports governing bodies. That would reverse the balance in a system which is currently heavily weighted against athletes and leaves them with little recompense when incorrect decisions are inevitably made.

And mistakes are made. Liverpool footballer Mamadou Sakho was exonerated last year, due to doubts over whether higenamine is a beta-2 agonist and therefore prohibited. Mexican fencer Paola Pliego was unable to attend the Rio 2016 Olympic Games after testing positive for modafinil, which was understood to be a false positive. Both athletes must be wondering why they were not afforded the same treatment as Roberto Heras, who was awarded €724,000 in compensation by the Spanish Supreme Court which judged he was incorrectly sanctioned for doping. Such inconsistency merely underlines the need for athletes to be given fairer representation within anti-doping.

Accountability

The specificity of sport uses a horrible word to describe a nebulous legal concept. According to the European Commission, the specificity of sport ‘refers to the inherent characteristics of sport which set it apart from other economic and social activities, as recognised in the amended Treaty of the European Union in 2009’.

The Treaty on the Functioning of the European Union (TFEU) states that the European Union ‘shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and educational function’. At the time, sporting federations were hoping for a much wider definition that protected their autonomy to make decisions without recourse to ordinary courts of law.

Even today, provisions within the athlete agreement adopted by most sports governing bodies prevent athletes from recourse to ordinary courts of law, by accepting the jurisdiction of the Court of Arbitration for Sport (CAS) to resolve disputes. For example, Article 68.2 of the FIFA Statutes prevents recourse to ordinary courts of law, as does Article 11 of the International Triathlon Union (ITU) Athlete Agreement; as does the German Alpine Association (DAV) Athlete Agreement and many more.

The origins of this are in a Bye-law 6 to Article 44 of the Olympic Charter, which reads as follows: ‘All participants in the Olympic Games in whatever capacity must comply with the entry process as prescribed by the IOC Executive Board, including the signing of the entry form, which includes an obligation to (i) comply with the Olympic Charter and the World Anti-Doping Code and (ii) submit disputes to CAS jurisdiction’.

This position has been strengthened by Article 13.2 of the World Anti-Doping Code, which requires any signatory to accept the jurisdiction of the CAS. Given that it is now accepted that the IAAF delayed the announcement of Russian adverse analytical findings (AAFs) ahead of the London 2012 Olympic Games and Moscow 2013 World Championships, quite why athletes should agree that disputes should be settled within sport is open to serious question.

“Why do these sports fear accountability?” argues Schwab. “I think that’s the leap that we want to make. They should feel empowered by accountability and should be in a stronger position because of it.”

As World Players, Schwab, Tanni-Grey Thompson, Damian Collins MP and others have realised, sport can no longer hide behind the argument that it is unconnected to ordinary economic activity, so should not be regulated as such. As FIFA and IAAF actions have shown, that argument is dead in the water.

However, as the saying goes, ‘money talks…’. Sport has powerful financial incentives for maintaining the status quo. The Olympic movement is one of the few areas of economic activity that is not required to remunerate its participants. The Rio 2016 Olympics is understood to be the most lucrative Games in history for the IOC, with over $4 billion in broadcasting revenue set to flow towards Lausanne. This seems almost absurd when you consider the issues that athletes had to endure on the ground, including the Zika virus, water pollution and athlete accommodation issues.

As has previously been discussed, athletes are still happy to compete at the Games without being directly financially rewarded. However given that they do not share in the massive wealth that they help create, it seems only reasonable that they should be given more seats at the table.

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