Banned countries, compression of the freedom to express one’s thoughts, health treatments, states’ sovereignty, and power of sports institutions. The analysis of Andrea Monti, professor of fundamental of sports law and legislation, University of Chieti-Pescara – Initially published in Italian by Formiche.net
The Tokyo 2020 edition of the Olympics has also had its share of geopolitical impact on the international stage. There have been the ‘usual’ cases of nationalistic contrasts, requests for political asylum, claims of oppressed or discriminated minorities and respect for human dignity.
While athletes have always used the Olympic stage to send political messages, sporting institutions had interpreted their (relatively) discreet (geo)political role. It is no longer the case, and post-Westphalian international governance has a new interlocutor.
Three themes deserve attention in order to understand the new scenario.
THE BAN ON PARTICIPATION IN THE OLYMPICS AS AN INTERNATIONAL SANCTION
The first issue is the four-year ban from international competitions applied by the World Anti-doping Association (WADA) to Russia and its subsequent de facto readmission after a decision by the Court of Arbitration for Sport that halved the duration of the ban and allowed athletes to compete under the auspices of the Russian Olympic Committee instead of flying the national flag.
If a country decides to boycott the Games, it does so within the scope of its sovereign prerogatives and foreign policy. A profoundly different situation is that of a sports institution that decides not whether an individual athlete but whether a nation can or cannot participate in the Olympics. The problem, to be clear, is not the disqualification of Russia (Iran, for example, could suffer a similar fate) but the fact that the decision affected a sovereign state. In other words, the Olympic ban becomes a sanction that is entirely part of the escalation of relations between countries. It does not matter if it did not follow the rules of international law.
THE COMPRESSION OF THE ATHLETES’ FREEDOM TO EXPRESS THEIR THOUGHTS
The second issue is the International Olympic Committee’s decision to ban athletes from supporting political or humanitarian causes, thereby restricting human rights such as the right to freedom of thought and expression.
No Western democracy could limit the fundamental rights of the individual without guarantees that the measure is exceptional and that effective remedies are available against possible abuses. It prevents censorship and the adoption of repressive methods by the police forces of a country. If this is true, it becomes complicated to sustain the existence of a right of the International Olympic Committee that would justify the compression of the athletes’ freedom of manifestation of thought concerning themes of civil and political commitment.
THE IMPOSITION OF MEDICAL TREATMENT AS A CONDITION FOR COMPETING
The third issue, which is highly delicate and linked to the previous one, is that of gender identity, which could also be called, in this case, “genetic equality” involving human dignity.
There are two relevant cases: the admission of a transgender athlete to the Olympics, who had to lower her naturally produced testosterone artificially, and the case (mirroring the previous one) of the South African sprinter Caster Semenya, who was initially, unfairly and incredibly ‘indicted’ by the sport justice system because of her genetic heritage, and therefore artificially lowering the levels of naturally produced testosterone that makes her stronger than other athletes.
Allowing only those who, finding themselves in certain conditions, agree to undergo (de facto) compulsory health treatment to compete is a blatant violation of the dignity of the person, and regardless of whether it serves to allow a transgender athlete to compete with women, or the other athletes to compete ‘on par’ with a woman with a genetic capability that makes her stronger.
SPORTING INSTITUTIONS AND THE EXERCISE OF POLITICAL SOVEREIGNTY
We may limit ourselves to these cases and disregard many other aspects, such as the political value of choosing which sport to include or exclude from Olympic competitions. Nonetheless, it is clear that the “Olympic spirit” narrative has lost its meaning (if it ever had any) and has now been replaced by a vision based on realpolitik, if not actually on machtpolitik.
It is important to remember that the modern Olympics are a nineteenth-century invention, that they have no relation to the Greek ones and that practically from the outset, the International Olympic Committee established institutional relations with the various countries to the point of achieving a de facto commingling of the political and sporting levels.
Another element to be considered is the substantial regulatory autonomy that characterises the sports system. The rules of the world of amateur sport (i.e. those that have the Olympics as their reference point) have long been considered “irrelevant” to the state legal system. In other words, the state does not care why the oval is only passed backwards in a rugby match or why a double fault is a fault in tennis. If there are disputes, do not bother the courts, the State says.
This approach has changed drastically over time, and Olympic sport is not completely independent of state rules. However, the fact remains that, as the above examples show, the (albeit relative) autonomy of sports institutions allows them to impose rules that a Western democracy would find challenging to accept.
To a first approximation, therefore, it is possible to try to establish some take-away points.
It is undoubtedly true, taking up Santi Romano’s theory of the plurality of legal systems, that the sporting system is fully entitled to regulate the subjects that choose to be part of it autonomously.
It is equally reasonable to manage the competitions’ rules with complete autonomy.
What is becoming less and less easy to accept is the extension of the power of sports regulating bodies into areas where they should not have a say.
It is clear that, as has been said, states are fully involved in the management of the Olympic movement and that it would be somewhat naive to think that they do not use it as part of broader strategies of international relations. It is, however, questionable that this power can reach areas, such as fundamental rights, where the centrality of the dialectic between the state and the citizen is the only possible forum. It is the umpteenth shift of the exercise of sovereignty from parliaments to abroad and, therefore, ultimately, further compression of the spaces of democracy.