Introduction
In today’s day and age the growth of social media has starkly induced people to start sharing their own opinions. Especially when it comes to high-performance professional athletes, it is understood that they have a certain impact on people where their actions and words can make people act in a certain way or choose to think in a certain way. Particularly in the United States of America in leagues like the NBA and the NFL, athletes were making their positions clear about the ‘Black Lives Matter’ Movement, and on the killings of George Floyd and Breanna Taylor where most athletes voiced their concerns and thoughts out on social media. The fans and the people are automatically anxious and want to hear what the athletes have to say about certain political and public issues as the people feel that the athletes are their representatives on the court or the field. But seldom do we stop to think, what if athletes’ views and our own do not coincide? What if the athletes have certain beliefs and prefer to act in a certain way which others do not believe in or agree with?
Here is where there is a sort of dichotomy where the people do not think of athletes as regular human beings and that they are on a different standing. We however need to acknowledge that athletes are regular human beings first and can have their own thoughts, views and do have their rights just like everyone else does. Here is where the freedom of choice comes in.
It is fairly obvious that everyone has a freedom of choice and expression and they can choose if they want to do something or recuse themselves out if it affects them personally. For athletes however, who are constantly in the public domain and who are surrounded by teams and people who depend on them, sometimes their choices may have a negative impact on others around them. There is an invisible line that must be drawn as to when exactly the athlete’s choice can be overridden by the authorities. This essay will delve into the freedom of choice and expression that the athletes have and when some of these rights and freedoms can be taken away from them, primarily focusing on the example of the COVID virus and vaccination, highlighting two notable cases from the NBA and the NFL.
What exactly is the freedom of expression for athletes, and what is the existing problem?
The freedom of expression is seen as one of the most important pillars of a fully democratic society and one that is important for the progress and development of people. This entails the “right to shock and disturb the state or sector of the population”.[1] The various sporting organisations have tried to vehemently limit this right in relation to the freedom of expression of athletes.[2] This is in accordance to the IOC (International Olympic Committee) to remain strictly politically neutral at all times.[3] The reason why this rule is in place and is upheld by the IOC and International Sports federations is because the IOC views political neutrality as a universal fundamental ethical principle which is linked to world sports.[4] It is also believed that prohibiting the athletes from expressing their political ideologies in sports arenas is protecting the moral force of the sports organisations and upholding the autonomy of sports by keeping sports and politics separate. This rule has been followed for a long time now as maintaining the autonomy of sports and was even applied in a historic ‘Black power salute’ protest in the New Mexico Olympics of 1968.[5] However recently, the number of instances of investigations for provocative political behaviour have increased drastically.
Pep Guardiola, the Manager of Manchester City was fined for wearing a yellow ribbon in solidarity for the arrested Catalonian leaders during the referendum in 2017.[6] Many are now criticising these rules as it does not respect the freedom of expression of the athletes and questions are being raised as to whether they are undermining or diminishing the civil liberties of the athletes.
The IOC are now promoting human rights and human dignity, but this arguably stands contrary to their rules on being politically neutral. This contradiction was evident in the recent Black Lives Matter movement which was sparked by the George Floyd murder where may athletes protested at the arenas.[7] These protests indeed were investigated. The IOC reiterated that athletes were prohibited from protesting at arenas even when many International Sports Federations took steps to allow such protests [8]. However the US Olympic and Paralympic Committee’s athletic advisory committee asked the IOC to strike down Rule 50 of the Olympic Charter stating that it is not correct to punish athletes for standing up and speaking up for what they believe in when these beliefs are a part of the Olympic Movement itself as, athletes’ freedom is an important topic of discussion. However It must also be acknowledged that the IOC Athletes Commission gave a clarification on Rule 50 of the IOC where it stated that even though rule 50 includes gestures of political nature like kneeling, displaying political messages, athletes must have the chance to freely express themselves during press conferences, media day interviews, or on digital media which fall in the mixed zones. It also was to be noted that expressing opinions are different from protests and demonstrations[9]. The question is raised as to how can the old tradition of political neutrality in sport be effectively balanced with freedom of expression and what kind of limitations can be placed on athlete’s public statements?
Notable case-laws with regard to freedom of expression and choice
In the case of Jibril Rajoub V FIFA[10] the president of the Palestine Football Association was fined 20,000 Swiss francs and was banned from attending football matches for 12 months due inciting a protest during a match of the Israel National team. He publicly asked the Argentinian national team to boycott this match against Israel which was supposed to happen in Jerusalem and he said that if they do not follow this then global star Lionel Messi will be targeted and disrespected by the people of Palestine. The court accepted that Mr. Rajoub could have his opinion and could publicly declare his opinion and emphasised the fact that FIFA’s interest in placing a punishment on Rajoub’s conduct must be balanced against the interest of Mr. Rajoub to exercise his free speech.[11] The court stated that the ECtHR balances state criminal law against individual’s freedom of speech but in this case there are no specific criminal law interests. Instead, FIFA’s interests as the governing body of football globally is at stake and that the association based on its special contractual legal obligation can impose stricter duties on its members than criminal law does.[12] Associations have a wider freedom to manage and mitigate their affairs and these obligations would no longer apply to Mr. Rajoub if he resigned from his role as a FIFA official. In this case it was seen as justified to fine Rajoub as Lex Sportiva is considered as contractual governing law and in this case the limitation imposed on Rajoub with regard to freedom of expression was because Rajoub’s membership was voluntary and because it is the legitimate interest of FIFA to limit some statements that go against their policy.[13]
Recently there were two other famous international cases where the athlete’s freedom of speech and expression came into question with regard to expressing their opinion about justice issues, the Black Lives Matter movement in particular where a man named George Floyd was murdered by a Minnesota police officer.[14] Colin Kaepernick an American footballer initiated the trend of athletes expressing their opinions during games where he took the knee during the national anthem and raised his fist in solidarity of police violence against black people.[15] This even spread to Germany where we saw English footballer Jadon Sancho wear a t-shirt which had the words “Justice For George Floyd” under his Borussia Dortmund team jersey.[16]
There was another scenario where a German national basketball player named Joshiko Saibou openly disagreed with necessary measures that the German Government had implemented like social distancing, wearing a mask etc. He also actively participated in a large protest against the government’s measures for COVID and posed a safety threat to many. His playing contract was terminated by the club he played for. The case of Saibou was one of the first ever cases where a player was fired for behaving and expressing his views in relation to COVID. These two cases provide us a fair idea as to when free speech and expression can be overridden or curtailed. In the case of Jadon Sancho, the DFB (German Football Association) rule book[17] states that “Players must not reveal undergarments that show political, religious or personal slogans. The DFB did investigate Jadon Sancho’s shirt which had the George Floyd message on it and theoretically it should have been a clear breach of the rules but Jadon Sancho did not receive punishment. The reason being that the DFB does not support racism and is in fact in the fight against racism and as a result of this, neither did his club punish him.
Return for part 2 next week..
References
[1] mark tushnet, advanced introduction to freedom of expression (2018).
[2] Lindholm, ‘From Carlos to Kaepernick and Beyond: Athletes’ Right to Freedom of Expression’ (2017) 17 The International Sports Law Journal 2
[3] Rule 50, INTERNATIONAL OLYMPIC COMMITTEE. (1982). Olympic charter, 1983. Lausanne, Comité International Olympique
[4] IOC,Code of ethics, edition 2020, Article 1.21
[5] Gary Younge, The man who raised a black power salute at the 1968 Olympic Games The Guardian (2012),https://www.theguardian.com/world/2012/mar/30/black-power-salute-1968-olympics (last visited Nov 25, 2021).
[6]Ryan Kelly, why does pep guardiola wear a yellow ribbon? the meaning behind man city boss' gesture | goal.com (2018), https://www.goal.com/en/news/why-does-pep-guardiola-wear-a-yellow-ribbon-meaning-man-city/f30sgxrtdlp51q3cnryk7iwxn (last visited nov 25, 2021).
[7] Karolos Grohmann, IOC wants athletes' dialogue as protest calls grow louder Reuters (2020), https://www.reuters.com/article/us-olympics-ioc-idUSKBN23H2SE (last visited Nov 25, 2021).
[8] Ben Bloom, Athletes taking a knee at Tokyo 2021 Olympics and Paralympics face bans The Telegraph (2020),https://www.telegraph.co.uk/olympics/2020/06/09/athletes-taking-knee-tokyo-2021-olympics-paralympics-face-bans/ (last visited Nov 25, 2021).
[9] Rule 50 Guideline, Tokyo 2020, available at https://www.olympic.org/-/media/document%20library/ olympicorg/news/2020/01/rule-50-guidelines-tokyo-2020.pdf (last visited Oct 13, 2020).
[10] Jibril Rajoub v. Fédération Internationale de Football Association (FIFA) (2019) Court of arbitration of sport 2018/A/6007.
[11]Ibid. at para 92.
[12] Ibid. at para 93.
[13] Leonardo V. P. De Oliveira, Lex sportiva as the contractual governing law, 17 The International Sports Law Journal 101–116 (2017).
[14] Person & Jeff Mason, George Floyd's family lobbies Biden for U.S. police reform on anniversary of death Reuters (2021), https://www.reuters.com/business/legal/year-since-george-floyds-murder-americans-reflect-his-legacy-2021-05-25/ (last visited Nov 25, 2021).
[15] Rory Carroll, NFL's Kaepernick kneels during national anthem, continuing protest Reuters (2016), https://www.reuters.com/article/us-nfl-kaepernick-sit-idUSKCN11806U (last visited Nov 25, 2021).
[16]Ansgar Faßbender, Dwayne Bach & Martin Schimke, Freedom of speech vs. employment obligations in Germany – the cases of Joshiko Saibou & Jadon SanchoLawInSport (2020), https://www.lawinsport.com/topics/item/freedom-of-speech-vs-employment-obligations-in-germany-the-cases-of-joshiko-saibou-jadon-sancho#_ftn17 (last visited Nov 26, 2021).
[17]German Football Association Rule book, Rule 4 No. https://www.dfb.de/fileadmin/_dfbdam/225053-Fussball-Regeln_2020_21_RZ.indd.pdf (last visited Sept 22, 2020).
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