FIFA’s Human Rights Policy: A Critical Analysis
I. Introduction
Following criticism of FIFA’s decision to award the hosting rights to the 2018 and 2022 World Cups to Russia and Qatar respectively, FIFA implemented a new human rights policy[1] where it obliged itself to recognise several human rights treaties in accordance with the UN Guiding Principles on Business and Human Rights (UNGPR). Although FIFA has promised to protect and remedy human rights breaches by host countries, and has made human rights issues a mandatory consideration for host nations when bidding for World Cup hosting rights[2] the policy remains inadequate in some respects. This essay will highlight the key deficiencies in FIFA’s policy by firstly exploring the inadequacies of the Court of Arbitration for Sport (CAS) in resolving human rights issues. It will then examine the ambiguities in FIFA’s policy in specifying what remedies parties may be entitled to for breaches of the policy as well as criticising FIFA’s reluctance to enforce its own obligations. The final part of this article will addressing some potential avenues for reform to FIFA’s policy.
II. The inappropriateness of CAS to hear human rights issues
Under articles 57-59 of FIFA’s statutes and in FIFA’s bidding regulations for the 2026 World Cup, all member associations are required to accept the CAS’ jurisdiction for matters relating to FIFA’s regulations and for dispute resolution[3]. However there are significant issues with how this operates in practice.
CAS can be considered an inappropriate venue for hearing human rights matters. CAS was initially set up with the objectives of resolving commercial disputes between sporting parties and its dispute resolution framework lacks substantive reference to human rights standards in particular[4]. This is further reinforced by the fact that of the more than 300 arbitrators listed as being available to hear matters at CAS, only a very small number of them have been listed as having any experience in dealing with human rights issues[5]. This is in addition to the time consuming and expensive nature of a CAS appeal and the fact that the hearings are often heard behind closed doors, contrary to the idea that human rights are a public concern[6]. The recent decision of Semenya exemplifies the difficulties CAS has in applying human right standards. In Semenya, Caster Semenya brought an action against World Athletics claiming that their new regulations were discriminatory in that it prevented her from competing in the women’s competitions because she had naturally high levels of testosterone. Although CAS agreed with her that the regulations were discriminatory it nevertheless found in favour of World Athletics[7]. This was overturned once Semenya appealed to the European Court of Human Rights which found breaches of procedural fairness in the CAS trial[8] suggesting an inability of CAS to effectively consider human rights standards.
Because of the shortcomings of CAS with respect to human rights matters, an athlete may instead prefer to have their matter heard at a more specialised human rights tribunal. However, the presence of these forced arbitration clauses in the agreements they sign with FIFA means that such an outcome is largely impossible. A recent example can be observed during the 2015 Women’s World Cup in Canada were several players brought claims of gender discrimination to the Human Rights Tribunal of Ontario[9]. Whilst it would have been completely acceptable for these players to bring a claim to the tribunal outside of FIFA’s regulations these players where allegedly threatened from competing if they continued to bring the claim in breach of their arbitration clauses. It is also worth noting that athletes typically accept these agreements where they have little bargaining power because international sporting federations such as FIFA have a monopoly over their sport[10]. The athlete is forced to surrender their rights to an effective remedy under a specialist human rights tribunal to compete at the World Cup. Such a situation can be considered significantly unfair since the aim of arbitration was to provide an alternative to courts rather than a mandate.[11]
Limitations with FIFA’s human rights policy also extends to their application to non-athlete victims of sporting events such as migrant workers and forced labour during the 2022 World Cup in Qatar[12]. FIFA’s human rights policy acknowledges that forced labour is a significant risk during the preparation period before a World Cup[13] however there is no direct course of action available for migrant workers against FIFA. This is because the labourer has no direct contract with FIFA, therefore there is no arbitration clause to enforce[14]. The only course of action this labourer would have would be under domestic legislation, however there is the possibility that the host nation’s legislation may be in conflict with human rights standards. In such a case it would be extremely difficult if not impossible for the victim to receive an appropriated remedy. The only way for FIFA to get involved in this situation would be to bring a case against the state to which the abuse is taking place, but there are further issues with this process as the next part of this article will hence discuss.
III. The practical weaknesses of FIFA’s Human Rights Policy: Remedy and Enforcement
Although FIFA has implemented a human rights policy it is considerably vague when it comes to identifying remedies for when a state has been involved in a breach. Article 6 commits FIFA to promote access to remediation for breaches and article 11 reiterates these objectives[15] but there lacks any specific mention of a grievance procedure. This is despite the UNGPR emphasising not only the importance of this principle, but imposing an obligation on organisations to remove the barriers to remedies[16]. FIFA’s commitment to this principle appears to be significantly weak with the imposition of remedies decided at its own discretion.
For example, although FIFA did establish a “Legacy Fund’ before the 2022 World Cup to create a labour excellence hub in Qatar to promote adherence to International Labour Organisation standards[17] the fund failed to provide an avenue for direct compensation for workers who suffered abuse whilst building the necessary infrastructure[18]. FIFA President Gianni Infantino stated that this was a matter for the Qatari Government rather than FIFA, but workers within Qatar face significant obstacles in making claims such as the Qatari government refusing to investigate claims and the capping of payments[19]. This is in clear violation of the UNGPR and under FIFA’s own policies since it is not ‘using its leverage’ under article 4 of its own policy[20] to remove the barriers to effective compensation.
Further problems with FIFA’s policy also exist when it is considered how reliant FIFA is on the host nation once a World Cup bid has been accepted and confirmed. Consider the following scenario, Country A and Country B both bid for the 2030 World Cup hosting rights and are required as part of the bidding process to demonstrate its commitment to the UNGPR[21]. Country B wins the bid in 2024 but in 2028 it becomes clear that Country B lied about its commitments to the UNGPR. There would be incentives against FIFA bringing an action against Country B considering the short time frame between the next World Cup gives other countries and FIFA itself little time to prepare and there is no direct course of action available for external victims of Country B’s human rights abuses.
Country A would then be the only body that not only has standing to sue FIFA at CAS[22] but also has the cash and incentives to do so. However, it is unclear what remedies would be available. There is no explicit mention of remedies within the Bidding Regulations[23] and questions remain as to whether CAS would be able to order a new bidding process[24]. FIFA would have the power to sanction the member federation, but there are strong incentives for FIFA to continue with Country B at this point given the short time frame available for another country to step in and host.
Because of these practical weaknesses when it comes to remedies and enforcement, there is a strong need to consider additional reforms to FIFA’s human rights policy, as the next part of this essay will now consider.
IV. Reform options for FIFA’s Human Rights Policy
In light of the issues displayed with FIFA’s human rights policy above, this essay makes several recommendations that could be considered to strengthen FIFA’s commitments to human rights.
Establishment of grievance mechanisms for local organising committees.
Under FIFA’s current policy, there is no obligation for local organising committees to establish grievance procedures where there are human rights violations[25]. The establishment of local grievance mechanisms, with a clear set of criteria for when a matter can be escalated to FIFA should be considered as this will allow people who are indirectly affected by FIFA related harms to gain access to a remedy.
A model that could be considered could be based on what happened at the 2010 World Cup in South Africa. FIFA was able to use its leverage to encourage the South African government to instal an additional 56 temporary courts across host cities to reduce crime and enforce FIFA specific regulations such as in regard to ticket resales and ambush marketing[26]. It possible to imagine a situation where FIFA mandates host nations to establish human rights tribunals for dispute resolution in relation to breaches of the UNGPR. Furthermore, if such avenues were also made available to athletes then this would also resolve the problems of forced arbitration at CAS as athletes will be able to access a body that has been designed to deal with human rights breaches.
Reformation of Swiss law
As FIFA is an association established under the law of Switzerland another way to hold FIFA accountable for human rights violations of host nations could be through Swiss law. A proposal was put forward by the Swiss Coalition for Corporate Justice to update the Swiss Federal Constitution to hold companies liable for human rights breaches occurring abroad and allowed victims to seek remedies from Swiss courts[27]. Although the proposed amendment was ultimately unsuccessful in gaining the necessary support and it was unclear whether or not the amendment would have applied to FIFA anyway since it is registered as a not-for-profit organisation rather than a corporation, such reforms should be considered as they would provide an obligation on FIFA to proactively act to investigate and redress human rights breaches or they would suffer penalties by the Swiss courts.
European Court of Human Rights (ECtHR)
The ECTtHR provides an option for individuals, organisations and countries to bring a complaint against a member state at the ECtHR by invoking the European Convention on Human Rights. If a state loses a case at the Court, it is obliged to do everything possible to prevent the breach as such it can provide a powerful option for those seeking redress. However, in its current form complaints would be unable to be made against FIFA because it is a private organisation[28]. Although an action could be made indirectly by holding Switzerland as a member state liable for failing prevent human rights breaches by organisations under its laws such an action could be difficult to bring since the extraterritorial aspect of FIFA’s operations makes it difficult to argue that FIFA is under Swiss control [29]. What would be more effective is the ECHR is interpreted in line with modern standards to apply to non-state organisations rather than just states as this would allow direct complaints against FIFA.
V. Conclusion
FIFA’s human rights policy in its current form is inadequate to deal appropriately with human rights breaches. The use of CAS as a venue for resolving human rights disputes is inadequate when it is considered that firstly, CAS was never equipped to deal with human rights issues in the first place and secondly it provides no course of action for third parties (such as labourers) that are indirectly affected by FIFA harms. There are also significant limitations on FIFA’s enforcement of its human rights obligations and provisions of adequate remedies. The reforms discussed in the final part of this essay would go a considerable way of providing practical access to remedies under FIFA’s policies and hold FIFA accountable through State and International Courts to enforce these.
[1] FIFA, FIFA’s Human Rights Policy May 2017 Edition accessed 23 September 2023 Art 2.
[2] FIFA, Guide to the bidding process for the 2026 FIFA World Cup accessed 23 September 2023 32.
[3] FIFA, FIFA Statutes August 2018 Edition accessed 23 September 2023 Art 57-59; FIFA, FIFA Regulations for the selection of the venue for the final completion of the 2026 FIFA World Cup 2017 accessed 23 September 2023 Art 3.6.2, Art 12.17.
[4] Millie Jones ‘No right without a remedy: Integrating human rights protection into sports dispute resolution’ (2022) Australian and New Zealand Sports Law Journal 15(1) 1, 19.
[5] Daniel West ‘Revitalising a Phantom Regime: The Adjudication of Human Rights Complaints in Sport’ (2019) The International Sports Law Journal 19(2) 2, 7.
[6] Classes Cronstedt and Robert C Thompson ‘An International Arbitration Tribunal on Business and Human Rights – Version Five’ Working Paper Business and Human Rights Resource Centre (2015) <https://media.business-humanrights.org/media/documents/files/documents/Tribunal_Version_5.pdf> accessed 23 September 2023.
[7] Stephanie David ‘The Final Yards of Caster Semenya’s Human Rights Appeal: Background and Broader Implications’ (LawInSport, 13 April 2021) <https://www.lawinsport.com/topics/item/the-final-yards-of-caster-semenya-s-human-rights-appeal-background-broader-implications> accessed 23 September 2023.
[8] Mokgadi Caster Semenya v Switzerland (2023) ECHR 219.
[9] John G Ruggie ‘For the Game: For the World. FIFA and Human Rights’ Report Corporate Responsibility Initiative Harvard Kennedy School (2016) accessed 23 September 2023 25-26.
[10] Jan Lukomski ‘Arbitration Clauses in Sport Governing Bodies’ statutes: Consent or Constraint? Analysis from the perspective of Article 6(1) of the European Convention on Human Rights (2013) The International Sports Law Journal 13(1) 60, 68.
[11] Ibid.
[12] Annie Kelly ‘Ten years of hurt: how the Guardian reported Qatar’s World Cup working conditions’ (The Guardian, 19 November 2022) <https://www.theguardian.com/global-development/2022/nov/19/qatar-working-conditions-world-cup-guardian-reporting> accessed 23 September 2023.
[13] FIFA (n 1) art 5.
[14] Bobo P. Bützler and Lisa Schöddert, ‘Constitutionalising FIFA: Promises and Challenges’ (2020) Tilburg Law Review 25(1) 41, 50.
[15] FIFA (n 1) Art 6, Art 11.
[16] Human Rights Council, Guiding Principles on Business and Human Rights, UN DOC A/HRC/17/31 (16 June 2011) Art 26.
[17] FIFA, ‘FIFA World Cup Qatar 2022 Legacy Fund to benefit people most in need’ (FIFA, 19 November 2022) <https://www.fifa.com/tournaments/mens/worldcup/qatar2022/media-releases/fifa-world-cup-qatar-2022-tm-legacy-fund-to-benefit-people-most-in-need> accessed 23 September 2023.
[18] Amnesty International, ‘FIFA Misleading world on remedy for migrant workers’ (Amnesty International, 12 December 2022) <https://www.amnesty.org/en/latest/news/2022/12/fifa-misleading-world-on-remedy-for-migrant-workers/> accessed 23 September 2023.
[19] Ibid.
[20] FIFA (n 1) Art 4.
[21] FIFA (n 2) and FIFA (n 3).
[22] Bützler and Schöddert (n 14) 50-51.
[23] FIFA (n 3) Art 12.
[24] Bützler and Schöddert (n 22).
[25] FIFA (n 1).
[26] Rob Hughes ‘Swift and Severe Justice at World Cup Courts’ (The New York Times, June 20, 2010) <https://www.nytimes.com/2010/06/21/sports/soccer/21iht-wcsoccer.html> accessed 23 September 2023.
[27] Swiss Coalition for Corporate Justice, ‘Details about the Responsible Business Initiative’ (Corporatejustice.ch, 1 December 2020) <https://corporatejustice.ch/about-the-initiative/> accessed 23 September 2023.
[28] G.Leenknegt ‘The Goal That Still Needs To Be Scored: A Study on FIFA’s Human Rights Responsibilities Under Hard and Soft Law Mechanisms (Bachelor of Human Rights Law thesis, Tilburg University, 24 December 2020) 15.
[29] Ibid.