The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
In this article, originally published on the Asser International Sports Law Blog, Tomáš Grell discusses whether FIFA’s Statutes tie it to responsibility for the conditions endured by migrant workers building the stadiums for the Qatar 2022 FIFA World Cup.
On 2 December 2010, the FIFA Executive Committee elected Qatar as host of the 2022 FIFA World Cup (‘World Cup’), thereby triggering a wave of controversies which underlined, for the most part, the country’s modest size, lack of football history, local climate, disproportionate costs or corruption that accompanied the selection procedure. Furthermore, opponents of the decision to award the World Cup to the tiny oil-rich Gulf country also emphasized the country’s negative human rights record.
More than six years later, on 3 January 2017, the Commercial Court of the Canton of Zurich (‘Court’) dismissed the lawsuit filed against FIFA jointly by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam (‘Plaintiffs’)2. The Plaintiffs requested the Court to find FIFA responsible for alleged human rights violations of migrant workers in connection with the World Cup in Qatar. Had the Plaintiffs’ claims been upheld by the Court, such decision would have had far-reaching consequences on the fate of thousands of migrants, mostly from India, Nepal and Bangladesh, who are currently working on the construction of sporting facilities and other infrastructure associated with organization of the World Cup.
Based on the above, this two-part blog seeks to provide a general overview of the respective proceedings before the Court, focusing primarily on the key legal arguments regarding FIFA’s responsibility for human rights abuses committed in the territory of a State being charged with organization of the World Cup. The first part will briefly describe the dire humanitarian conditions for migrant workers in Qatar following the country’s successful bidding contest in 2010 and summarize the central claims advanced by the Plaintiffs. The second part will shed its light on the reasoning which led the Court to reject the Plaintiffs’ claims. It will also examine the conclusions reached by the Court in context of the responsibilities of transnational corporations for extra-territorial human rights abuses they might have directly or indirectly triggered.
In conformity with its Constitution3 and international law4 , Qatar as a sovereign State shall ensure that human rights are respected within its jurisdiction. Qatar holds the world’s highest ratio of immigrants to citizens, the latter representing only 10% of the country’s overall population which is estimated at two million. It has been suggested that the number of male migrant workers in Qatar has more than doubled since 2010, from 800,000 to approximately 1.7 million at present5 . According to the report published by the International Trade Union Confederation, more than 7,000 workers might die before the new stadiums finally open their gates for spectators in late November 2022. Regardless of the large volume of construction works which have to be done before the World Cup in Qatar actually kicks off, such figure simply cannot be ignored. To put this into some perspective, deaths of eight workers had been reported shortly before the start of the latest FIFA World Cup in Brazil.
The vast majority of alleged human rights violations in Qatar stems from domestic labour law regulation which, until very recently, prescribed the so-called kafala system. Under the system, foreign workers are tied to their employers or sponsors, known as kafeels, that retain the final word on their legal residence in Qatar. Should a foreign worker wish to change his or her job within the country, an explicit consent is required from the kafeel. In this regard, François Crépeau, United Nations Special Rapporteur on the Human Rights of Migrants, characterized the kafala system as ‘a source of abuse’ and carried on to conclude that ‘there is no valid justification for maintaining this system’. In a similar vein, several non-governmental organizations condemned the kafala system. For instance, Amnesty International has identified eight particular ways in which some migrants working on the refurbishment of the Khalifa International Stadium in Doha are being exploited, ranging from forced labour to appalling living conditions. The nature of the kafala system could well be illustrated against the background of Zahir Belounis‘ case, a French-Algerian football player and former captain of Qatari club El Jaish. After his employment contract had been prematurely terminated by El Jaish, Belounis brought legal action against the club’s directors6 for unpaid wages. As a counteraction, the Qatari club refused to grant him an exit visa and, as a result, he remained trapped in the country without income for more than two years. However, there is a significant difference between the circumstances of Mr. Belounis’ case and those migrants who are currently working on construction sites. While the former was in a position to pursue legal redress, the latter normally lack the necessary financial resources to do so.
As regards the proceedings under scrutiny, the Plaintiffs contend that the kafala system violates Qatari domestic law, Swiss law and international labour and human rights law7 . In particular, they argue that Qatar facilitates forced labour8 by:
• the employer’s control over residence permits;
• prohibiting workers to switch employer;
• allowing abusive contracts;
• allowing high recruitment fees;
• not effectively opposing passport confiscation; and
• the lack of effective redress and legal enforcement of the protection of workers’ rights9 .
Given that their passports are routinely being retained10 , migrant workers are also constrained in their freedom of movement11 . Owing to the fact that Qatari domestic law prohibits migrant workers from organizing in trade unions, their freedom of association12 is virtually non-existent13 . Furthermore, the Plaintiffs invoke14 the violation of the fundamental right not to be discriminated against15 and the right to an effective remedy16 .
In response to public outrage generated by the kafala system, Qatari government has been recently compelled to introduce certain reforms to its labour laws. Nonetheless, the ILO Committee of Experts on the Application of Conventions assumes that the respective changes will have little impact on observance of human rights in relation to migrant workers residing in Qatar. The ILO has already notified Qatar that, should not the humanitarian conditions for migrant workers be ameliorated before March 2017, it will subsequently launch a Commission of Inquiry. It is important to note, however, that the ILO’s enforcement mechanisms are rather weak17 .
The previous section has demonstrated the existence of reasonable doubts regarding Qatar’s compliance with its human rights obligations. In order to hold FIFA accountable for Qatar’s failure to respect human rights, a linkage needs to be established between FIFA’s conduct and the respective violations occurring in the Gulf country. This section takes a closer look at how the Plaintiffs, from a legal point of view, strive to establish such linkage in their lawsuit.
Pursuant to Article 3 of the 2016 FIFA Statutes, FIFA commits itself to preservation of ‘all internationally recognised human rights’. Article 4 thereof provides that ‘discrimination of any kind against a country, private person or group of people on account of race, skin colour, ethnic, national or social origin, gender, disability, language, religion, political opinion or any other opinion, wealth, birth or any other status, sexual orientation or any other reason is strictly prohibited and punishable by suspension or expulsion’. FIFA supports its commitment to protect and promote human rights also by communicating its visions, such as the one to build a better future for all through football. That being said, the Plaintiffs argue that FIFA’s obligation to respect human rights does not flow only from its internal regulations. In their view, FIFA shall bear responsibility primarily under Swiss law and (to a certain extent) also under international law.
FIFA’s responsibility under Swiss law
The Plaintiffs assert that Swiss tort law applies to the present case by virtue of the choice-of-law rules set forth in the Swiss Act on Private International Law (IPRG)18 . In respect of FIFA’s responsibility under Swiss tort law, the Plaintiffs’ core argument rests on the so-called endangerment principle. According to this principle, a person that brings about a dangerous situation shall take the necessary precautions in order to prevent potential harm. Applied to the case at hand, FIFA’s responsibility emanates primarily from its decision to award the World Cup to Qatar without simultaneously demanding that the country gets rid of the kafala system. The Plaintiffs firmly state that FIFA has the power to make such demands from World Cup-hosts.
With regard to the strong position that FIFA holds vis-à-vis World Cup-hosts, the key features of the bidding procedure and subsequent coordination between FIFA and the elected country require further elaboration. Article 37 of the 2010 FIFA Statutes stipulates that ‘the Organising Committee for the FIFA World Cup shall organise the FIFA World Cup in compliance with the provisions of the regulations applicable to this competition, the List of Requirements and the Organising Association Agreement’19 . This Organising Association Agreement is signed with all countries (their national football associations) that wish to participate in the selection procedure. It contains the List of Requirements. The underlying purpose of such documentation is to ensure that potential World Cup-hosts are prepared to abide by FIFA’s requirements in case they are eventually selected20 .
For example, the Organising Association Agreement concluded between FIFA and the South African Football Association ahead of the 2010 FIFA World Cup comprises a variety of requirements concerning, inter alia, infrastructure, security, broadcasting rights, intellectual property rights or financing. It is critical to note, however, that human rights demands are conspicuously absent from the agreement in question. The said agreement explicitly provides that ‘FIFA owns the championship and all rights relating thereto on an exclusive worldwide basis, including all organisation, marketing, broadcast and other rights to the matches and other events’. The Plaintiffs categorize the FIFA World Cup as ‘take-it-or-leave-it’ deal, claiming that host States are not in a position to negotiate about the requirements imposed by FIFA21 .
Indeed, the fear of losing the privilege to organize the prestigious FIFA World Cup serves as a significant impulse for World Cup-hosts to adhere to FIFA’s standards. The Plaintiffs further note that FIFA uses its tremendous influence to force host States to modify their domestic laws for the duration of the tournament. In this regard, they particularly refer to the well-known ‘Budweiser Law’ – a law enacted by Brazil in the run-up to the 2014 FIFA World Cup which essentially allowed beer sales at match venues despite the fact that the sale of alcohol had been prohibited in Brazil’s stadiums for nearly 10 years.
Alternatively, the Plaintiffs put forward that, being aware of Qatar’s unwillingness or inability to improve the human rights situation in the country, FIFA should have excluded Qatar from the bidding procedure22 . Examples like that of Indonesia which was ruled out from the World Cup selection procedure because it did not provide sufficient government guarantees, demonstrate that FIFA possesses the power to take such action. In addition, the Plaintiffs suggest that FIFA may suspend a member in line with its Statutes23 .
As recently as 28 October 2016, Guatemala was suspended from international football due to the refusal of its national football federation (FEDEFUT) to recognize the mandate of a normalisation committee established by FIFA predominantly in order to bring the FEDEFUT internal regulation in line with the FIFA Statutes. One of the most prominent cases of suspension dates back to the summer of 2014 when the FIFA Emergency Committee suspended the Nigeria Football Federation on account of government intervention. Earlier precedents show that FIFA had suspended its members also by reasons of negative human rights record (South Africa during the apartheid era or former Yugoslavia during the period of war in the Balkans)24 . The Plaintiffs further maintain that FIFA’s responsibility under Swiss tort law is also triggered by its ongoing failure to improve the plight of migrant workers trapped in Qatar by not demanding the Gulf country to efficiently set aside its controversial labour laws25 .
FIFA’s responsibility under international law
The lawsuit filed with the Court refers to soft law provisions enshrined in the Guiding Principles on Business and Human Rights (‘UN Guiding Principles’) unanimously endorsed by the United Nations Human Rights Council in 2011. These principles address the corporate responsibility to respect human rights. United Nations High Commissioner for Human Rights, Mr. Zeid Ra’ad Al Hussein, described the UN Guiding Principles as ‘the global authoritative standard, providing a blueprint for the steps all states and businesses should take to uphold human rights’. Although the said principles do not constitute a binding source of international law, FIFA has already communicated its positive commitment to abide by these principles. At the same time, FIFA has announced that, starting from the 2026 FIFA World Cup, bidding regulations would incorporate human rights-related criteria. That being said, coupled with FIFA’s large-scale commercial activities, the UN Guiding Principles seem to be more than a reasonable point of reference in this regard.
In April 2016, Professor John Ruggie, the author of the UN Guiding Principles, completed the report on what it would entail for FIFA to embed human rights compliance across its global operations. His team has elaborated 25 specific recommendations which might be roughly summarized as follows:
• adopt a clear and coherent human rights policy;
• embed respect for human rights;
• identify and evaluate human rights risks;
• address human rights risks;
• track and report on implementation; and
• enable access to remedy.
Likewise the lawsuit, the respective report articulated that FIFA shall use ‘every opportunity to press host countries to support [FIFA’s] new statutory human rights commitment’.
In light of the foregoing considerations, the Plaintiffs asked the Court to oblige FIFA to redress the persistent human rights violations of migrant workers by compelling the competent Qatari authorities to bring about the necessary change. As an alternative, they requested the Court to declare the mere illegality of those human rights abuses. The monetary compensation sought by the Plaintiffs amounted to relatively modest sums26 .
In sum, the lawsuit under examination in this blog raises a number of remarkable challenges which would undoubtedly deserve a fair share of attention. The portrayal of FIFA as a stronger party in its relations with World Cup-hosts underscores the blurring distinction between the role of sovereign states and non-state actors in contemporary international society27 .
In fact, it raises crucial questions from the perspective of international legal theory. How is it possible that transnational corporations can interfere with the principle of state sovereignty? Is it only the consent of the state concerned that is involved? Where does this cornerstone principle of international law have its limits and to what extent is it relevant in current international relations? Although the Court does not give clear-cut answers to these questions, its position with respect thereto could be inferred from its ruling. This is exactly what remains to be tackled in the second part of this blog that will be published in the coming days.
1. Our most sincere acknowledgement goes to Prof. Liesbeth Zegveld who has kindly provided us with the relevant documentation and information that is subject to analysis in the present blog.↩
2. Ruling of the Commercial Court of the Canton of Zurich, HG160261-O, 3 January 2017↩
3. The Permanent Constitution of the State of Qatar, 2004, Art. 6↩
4. Qatar is a State Party, inter alia, to the following international human rights law treaties: (i) Arab Charter on Human Rights; (ii) International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’); (iii) Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment; or (iv) United Nations Convention against Transnational Organized Crime and its accompanying Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (also referred to as the Palermo Protocol). In addition, Qatar is a Member State of the International Labour Organization (‘ILO’) and has ratified six out of the eight ILO Conventions.↩
5. Lawsuit submitted to the Court by the Plaintiffs on 8 December 2016, para. 97↩
6. In fact, some of the club’s directors were high-ranked members of Qatari government.↩
7. Supra note 5, para. 259↩
8. See the ILO 1930 Convention concerning Forced or Compulsory Labour (No. 29); the ILO 1957 Convention concerning the Abolition of Forced Labour (No. 105)↩
9. Supra note 5, para. 160↩
10. Ibid., para. 231↩
11. See Art. 13 of the Universal Declaration of Human Rights; Arts. 26, 27 of the 2004 Arab Charter on Human Rights; Art. 5 (i) (d) CERD↩
12. See Arts. 20, 23 (4) of the Universal Declaration of Human Rights; Arts. 24, 35 of the 2004 Arab Charter on Human Rights; Art. 5 (e) (ii) CERD; the ILO Declaration on Fundamental Principles and Rights at Work.↩
13. Supra note 5, para. 232 ff.↩
14. Ibid., para. 239 ff.↩
15. See the 1958 ILO Convention concerning Discrimination in Respect of Employment and Occupation; Art. 7 of the Universal Declaration of Human Rights; Arts. 3, 11 of the 2004 Arab Charter on Human Rights; Art. 5 CERD↩
16. See Art. 8 of the Universal Declaration of Human Rights; Arts. 12, 22, 23 of the 2004 Arab Charter on Human Rights↩
17. A. Erfani, ‘Kicking Away Responsibility: FIFA’s Role in Response to Migrant Worker Abuses in Qatar’s 2022 World Cup‘, (2015) 22 (2) Jeffrey S. Moorad Sports Law Journal 623, at 641↩
18. See Art. 133 (2) IPRG↩
19. Reference is being made to the 2010 FIFA Statutes since they were in force at the time when the World Cup was awarded to Qatar (i.e. on 2 December 2010). Art. 37 of the 2010 FIFA Statutes is now reflected in Art. 43 of the 2016 FIFA Statutes.↩
20. Supra note 5, para. 75↩
21. Ibid., para. 267↩
22. Ibid., para. 285↩
23. See Art. 14 of the 2010 FIFA Statutes (now reflected in Art. 16 of the 2016 FIFA Statutes)↩
24. Supra note 5, para. 288↩
25. Ibid., para. 293↩
26. Supra note 2, p. 2-3↩
27. H. Meier, B. García, ‘Protecting Private Transnational Authority against Public Intervention: FIFA’s Power over National Governments‘, (2015) 93 (4) Public Administration 890↩
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