Human rights in sport regulations???

The practice of sport is a human right. Every individual must have the possibility of practicing sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play. The enjoyment of the rights and freedoms set forth in this Olympic Charter shall be secured without discrimination of any kind, such as race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status.

In February 2017, following the adoption of the Olympic Agenda 2020 in December 2014, explicit obligations focusing on the protection of human rights were added to the Host City Contract (HCC) for the 2024 Games.

The majority of Games-related human rights abuses may potentially fall into one of the following categories:

(i) violation of labour rights; (ii) forced evictions; (iii) repression of civil rights, in particular the right to freedom of expression and the right to peaceful assembly.

It is important to note that the UN Guiding Principles referred to in Article 13.2.b 2024 HCC is a non-binding legal framework intended to minimize adverse human rights impacts triggered by business activities. The core human right provision i.e. article 13 HCC 2024 does not specify which human rights the Host City, the Host National Olympic Committee (NOC) and the Organizing Committees for the Olympic Games (OCOG) should respect and protect.

SFT JUDGEMENTS DEALING WITH THE APPLICATION OF HUMAN RIGHTS BY THE CAS

4A_558/2011 Matuzalem, 27 March 2012 : The threat of an unlimited occupational ban based on Art. 64 (4) of the FIFA Disciplinary Code constitutes an obvious and grave encroachment in the Appellant’s privacy rights and disregards the fundamental limits of legal commitments as embodied in Art. 27 (2) Swiss Code of Obligations (SCO). Should payment fail to take place, the award under appeal would lead not only to the Appellant being subjected to his previous employer’s arbitrariness but also to an encroachment in his economic freedom of such gravity that the foundations of his economic existence are jeopardized without any possible justification by some prevailing interest of the world football federation or its members. In view of the penalty it entails, the CAS arbitral award of June 29, 2011
contains an obvious and grave violation of privacy and is contrary to public policy(Art. 190 (2) (e) PILA) (at 4.3.5).

4A_260/2017 Seraing, 20 February 2018 : Within the scope of substantive public policy, the appellant attacked the CAS award for violation of Art. 27 (2) Swiss Civil Code that prohibits excessive commitments (at 5.4.1). The SFT reiterated that there needs to be a severe and obvious violation of Art. 27 (2) CC to fall within the scope of substantive public policy, a condition that was not fulfilled in this case: By prohibiting Third Parties’ Ownerships (TPOs), FIFA is restricting the economic freedom of the clubs for certain types of investment but does not suppress it. Clubs remain free to pursue investments, as long as they do not secure them by assigning the economic rights of the players to third party investor (at 5.2).

4A_486/2019 Trabzonspor c. TFF, Fenerbahce et FIFA, 17 August 2020 : The SFT has confirmed that violations of Article 6§1 of the ECHR cannot be considered by the SFT, unless they match with other grounds for appeal listed in the Swiss Act on International Law (PILA) (art. 190 §2). The argument was raised in relation to the refusal of CAS to hold a public hearing. A party to the arbitration agreement cannot complain directly to the Federal Supreme Court in a civil action against an award that the arbitrators have violated the ECHR, even though the principles deriving from the ECHR can be used, where appropriate, to give concrete form to the guarantees invoked on the basis of Art. 190 para. 2 PILA. Since a breach of treaty law does not per se coincide with a breach of public policy within the meaning of Article 190(2)(e) PILA, it is for the appellants to show how the alleged breach of Article 6 § 1ECHR constitutes a breach of public policy in procedural terms.

4A_248_2019 & 4A 398_2019 Caster Semenya & ASAF v. IAAF, 25 August 2020 : The SFT dismissed the appeal made by Caster Semenya and the ASAF against the CAS decision upholding the CAS’s ruling that had found that, while the Difference in Sexual Development (DSD) regulations were discriminatory, “such discrimination is a necessary, reasonable and proportionate means of achieving the legitimate objective of ensuring fair competition in female athletics in certain events and protecting the ‘protected class’ of female athletes in those events”. It considered that fairness in sport is a legitimate concern and forms a central principle of sporting competition. The SFT stressed that it is also an aspect important to the ECtHR. The decision is also compatible with public order regarding the athlete personality and human dignity.

4A 318/2020 Sun Yang V. AMA & FINA, 22 December 2020 : The SFT admitted Sun Yang’s application for review of the CAS award of 28 February 2020. The appellant’s submission that he discovered, in May 2020, the existence of circumstances likely to cast serious doubt on the impartiality of the president of the panel, the subsequent challenge of the president of the panel on the basis of Art. 121 (a) of the SFT Act and the annulment of the CAS award have been admitted. The SFT that the decisive factor is whether a party’s apprehensions about a lack of impartiality on the part of an arbitrator can be regarded as objectively justifiable. An arbitrator must be and must also appear to be independent and impartial. While agreeing that an arbitrator is, in principle, free to defend his convictions on social media, in this case, the cause for animal rights, an arbitrator must still express any opinions with a certain restraint and irrespective of whether he is acting in his capacity as an arbitrator. It is certain terms used in the tweets published by the arbitrator that are problematic. In particular, the use of the terms “yellow face” are racist qualifiers and are inadmissible. In view of the fact that the arbitrator made such remarks, not only on two occasions, but also after his appointment as president of a Panel, it must be admitted that the appellant’s apprehensions, a Chinese citizen, as to the possible bias of the arbitrator may be regarded as objectively justified. The circumstances considered from the standpoint of a reasonable third party with knowledge of them are such as to raise doubts about the impartiality of the arbitrator and create the appearance of prevention.

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