ATHLETES’ RIGHTS AND RESPONSΙBILITIES, CHALLENGES AND PRESSURES

“Athletes are the centre of the Olympic events and of the Olympic Movement. It is only thanks to the athletes that the Olympic aims of understanding, friendship, peace and non-discrimination, equal opportunities and loyalty can be attained.” (Thomas Bach, Speech at the 22^nd Session of the International Olympic Academy, 1982)

“The Olympic Games are competitions between athletes in individual or team events and not between countries.” (IOC, Olympic Charter, Rule 6)

“Olympic flag (…) represent the union of the five continents and the meeting of athletes from throughout the world of the Olympic Games” (IOC, Olympic Charter, Preamble)

“(…) the athletes, whose interests constitute a fundamental element of the Olympic Movement” (IOC Olympic Charter, Rule 1.3)

“Athletes are the heart of the Olympic Movement” (IOC, Olympic AI Agenda).

I. THE RIGHTS AND DUTIES OF ATHLETES IN THE OLYMPIC GAMES OF ANTIQUITY: DUTY-CENTRED RULES

In the Olympic Games of antiquity, there were already various rules regarding athletes’ rights and duties.

From the outset, there were eligibility rules that established which athletes could take part in the competition.

For example, only free citizens could take part in the Games, whatever their social status, although given the costs of training and travel, participation was far more accessible to the citizens from the highest classes, who had more time, and, above all, more money.

Furthermore, only Greeks could take part in the Games. The athletes had to be the legitimate sons of Greek citizens, racially pure, without any mixed-race heritage, i.e. of Greek maternal and paternal lineage, as confirmed by the birth records of the city of origin.

Likewise, only men could compete in the Games, from which women were excluded^[1]. The penalty for the violation of this ban was death, and the woman concerned was thrown from the Typaion rock.

Similarly, citizens, whose rights of citizenship had been forfeited because of the commission of a civil or religious offence, could not take part in the Games. Athletes, who had ever been convicted could not compete in the Games, e.g. those guilty of murder, or negligent homicide. Basically, athletes on whom the penalty of athymia, i.e. withdrawal of civil rights, has been imposed, because of a serious offence, were banned from the Games, as were athletes guilty of sacrilege.

Athletes guilty of blasphemy were likewise banned from the Games.

Additionally, participation in the Games was also dependent compliance with an obligatory registration time limit, which required athletes to register in a special list, the leucoma, one month prior to the Games.

Athletes, who arrived late for the Games, were also excluded, unless they provided an acceptable explanation for their late arrival.

Likewise, athletes, who had not paid taxes demanded by the state, were also excluded from the Games. This rule was also an indirect means to coerce tax debtors to pay their taxes.

In events subject to age requirements regarding citizens, or horses, it was necessary to prove inclusion in the respective category – youth or adult; horse or colt, although this proof was difficult because there were no birth records at that time. This meant that appearance was inevitably the decisive criterion.

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Athletes were also required to compete naked.

It is finally noteworthy that while most sources point to the fact that competition in the Games was free of charge, i.e. there was no registration fee, some sources refer to a requirement that athletes must hail from a city pacified by Zeus that paid a certain tribute.

We must also mention the Olympic Truce, a formal proclamation of the inviolability of the regions in which religious festivals and sports competitions were taking place. The Truce was specifically applied to the Olympic Games, via a declaration that the territory of Elis was neutral, inviolable, and sacred. The Truce required troops that entered Elis to surrender their arms, which they could only recover on leaving Elis, as in capitulation agreements, which include an appeal to the good faith of the adversaries. This gave freedom of movement and immunity to all those who travelled to Olympia, in particular the athletes.

It is evident that the rules applicable to athletes in the Olympic Games of Antiquity focused primarily on athletes’ duties, and that their main aim was to ensure the equality of all participants. Those rules imposed strict compliance with an obligatory 10-month pre-event training period, on all athletes. For the same reason, all athletes were required to report in Elis, a city located 57 km from Olympia, one month prior to the start of the Games, in order to undergo a joint and simultaneous training control, in uniform infrastructural conditions, which included access to identical human resources, and a dietary regime. Only in this way could equality, equal conditions, and effective comparison, or measurement, of forces between adversaries, be ensured.

Athletes were also required to expressly submit to the rules of the Games by making the Olympic Oath. In this way, the athletes committed themselves to strict compliance with the training regulations for ten successive months, and not to have recourse to magical or unfair procedures, or take bribes[2], and to respect the confidential nature of certain, on pain of perjury.

As far as athletes' rights are concerned, it is noteworthy that sports justice already existed at that time, in the sense that an athlete, who did not agree with a sanction imposed on him, had the right to appeal to the Olympic Senate.

II. THE RIGHTS AND DUTIES OF ATHLETES IN THE OLYMPIC GAMES OF THE MODERN ERA: FROM THE ROBUST IMPOSITION OF DUTIES TO A GRADUAL INCREASE IN THE PROVISION OF RIGHTS

II. 1. THE GRANTING OF RIGHTS TO ATHLETES AND THEIR SUBJECTION TO DUTIES UNDER THE INTERNATIONAL OLYMPIC COMMITTEE RULES

There is now a considerable body of rules regarding the rights and (above all) duties of athletes as members of the Olympic Movement, which is the fruit of the IOC’s very intelligent, and effective legislative technique, which targets various public and private stakeholders, particularly athletes.

IOC stipulates the following forceful corpus of rules: (i) In order to participate in the Olympic Games, athletes must respect and comply with the Olympic Charter, the World Anti-Doping Code, and the Olympic Movement Code on the Prevention of the Manipulation of Competitions[3]; (ii) Compliance with the World Anti-Doping Code and the Olympic Movement Code on the Prevention of the Manipulation of Competitions is mandatory for the entire Olympic Movement, namely for athletes[4]; (iii) Athletes must comply with the rules in the Olympic Charter, the World Anti-Doping Code and the Olympic Movement Code on the Prevention of the Manipulation of Competitions, as a condition precedent to their participation in the Olympic Games[5]; (iv) Athletes must comply with the entry procedure prescribed by the IOC Executive Board, including the signing an entry form, which includes the obligation to comply with the Olympic Charter, the World Anti-Doping Code and the Olympic Movement Code on the Prevention of Manipulation of Competition[6].

Furthermore, IOC turns mandatory the compliance with the IOC Code of Ethics, which is an integral part of the Olympic Charter that applies to "all participants in the Olympic Games"[7]. By defining those addressed by the Olympic Charter in this way, the IOC ensures that none of the actors who want to enter and participate in the Olympic Games, namely the athletes, can do so without complying with the required ethical conditions.

According to Rule 59, point 2.1. of the Olympic Charter, athletes, who do not comply with these conditions are subject to measures and sanctions, namely: “(…) temporary or permanent ineligibility or exclusion from the Olympic Games, disqualification, or withdrawal of accreditation; in the case of disqualification or exclusion, the medals and diplomas obtained in relation to the relevant infringement of the Olympic Charter shall be returned to the IOC. In addition, at the discretion of the IOC Executive Board, a competitor (…) may lose the benefit of any ranking obtained in relation to other events at the Olympic Games at which he or it was disqualified or excluded; in such case the medals and diplomas won by him, or it shall be returned to the IOC (Executive Board)”.

This body of rules, also includes, the ‘Athletes’ Rights and Responsibilities Declaration’, approved by the IOC Session[8], which “(…) consolidates a set of aspirational rights and responsibilities for athletes within the Olympic Movement. It is a historic initiative whose purpose is to ensure that sports organisations and athletes discuss and address the matters that affect them most and which are: protection from discrimination, clean sport, access to information, access to education and work while actively training and competing, opportunities to generate income in relation to their sporting careers, fair and equal gender representation, the protection of mental and physical health from abuse and harassment, athlete representation within sports organisations, ability to report unethical behaviour without fear of retaliation, right to privacy, freedom of expression, and due process. In addition to the 12 athletes’ rights, the Declaration also encourages athletes to respect a set of 10 responsibilities towards sports organisations and their fellow athletes bases on the Olympic values and Fundamental Principles of Olympism, ranging from integrity, solidarity, ethics and clean sport, to non-discrimination and athlete representation, among others.”[9]

As far as responsibilities are concerned, the Declaration is based on encouragement: ("The Declaration encourages athletes to: (...)"; while regarding rights, the discourse is even less imperative: "The Declaration aspires to promote the ability and opportunity of athletes to: (...)". Notwithstanding the value of the document and the way in which the IOC promotes it and seeks its implementation, particularly by the IFs and NOCs, the timidity of its terms, which are more akin to a declaration of intent, or a recommendation, or some other non-binding document, than to a binding mandatory text, is regrettable. This regret becomes more acute when it is noted that the Olympic Charter, particularly its latest revision focuses above all on the duties of athletes, and when it proclaims sport to be a human right, it does so in the context of 'Sport for All' and not of competitive sport or sport of excellence, in which there is no real right to participate but rather an "opportunity" (subject to the eligibility rules of international sports federations)[10]. It is even more lamentable that while it is true that the other documents in the body of rules referred to above seek to protect athletes by ensuring that they take part in fair sporting events, it is also true that to this involves the creation of many more duties than rights. We accordingly consider that a more mandatory Declaration would be welcome. [11][12]

At this point, we open a small but necessary parenthesis to note that the context of this significant document is two relatively recent and intertwined realities, namely the creation of entities/bodies/movements to represent/defend athletes' rights and, the adoption of documents that list/typify athletes' rights, and also their duties, but to a lesser extent. Athletes are seeking a place at the centre of decision-making, within new, or existing, bodies, and even extra-organisationally, in order to influence sports policies, which affect them directly and primarily. In our opinion, the most significant of these complementary documents are the 'Universal Declaration of Players Rights', approved by the World Players Association[13] and the 'Athletes' Anti-Doping Rights Act'[14], approved by WADA's Executive Committee - despite not being binding[15]. Also noteworthy is a text entitled the 'Déclaration Universelle des Droits des Athlètes' written by a French lawyer and former high-performance athlete, Thierry Aballéa, which he presented at a recent sports law conference[16]. As far as the representation of athletes is concerned, a good example is the major role of the IOC Athletes' Commission - “acting as their [athletes] supreme representative on all Olympic Games and related matters”[17], of the World Olympians Association[18] and of the European Elite Athletes Association[19].

It can be seen from the above that the IOC, which is a Swiss private law association, ensures that athletes all over the world comply with a vast body of regulations, which creates a series of rights and a wide range of duties.

There is therefore no way for an athlete, as a member of the Olympic Movement, to evade this body of rules issued by the IOC and the World Anti-Doping Agency.

II.2. THE RIGHTS AND DUTIES OF ATHLETES IN THE CONTEXT OF THE INTERNATIONAL FEDERATIVE (PYRAMIDAL) MODEL

However, this does not exhaust the full extent of the various types of athletes’ rights and duties, because they also exist in the context of the international federative model, based on a pyramidal structure, with IOC is at the apex, and the athletes at its base. Accordingly, when an athlete joins a club, they submit to its rules, and also to the rules to which the club is subject, i.e. the rules governing the club's vertical relationship with the territorial association (if any) to which it belongs; the territorial association is, in turn, subject to the rules of the sport federation to which it belongs, and the federation is subject to the rules of the international sport federation; the international federation recognises continental confederations, and requires them to comply with its bylaws, regulations and directives. The governance structure of this model - the so called ‘European sports model’ - involves a cascade of rules, and a hierarchy that involves top-down subordination.

As the athletes are at the base of the pyramid, it is easy to realise that the mere fact that they join a club means that they simultaneously submit to the rules issued by the national and international sport organisations that govern the sport, although they are unaware of this, in most cases. It all starts when an athlete joins a club, either at trainee/amateur level, by signing a membership registration form, or at a more professional level, by signing a sports employment contract. This gives rise to a series of rights, and more often than not, to a myriad of legal, contractual, and regulatory duties.

Take, for example, the case I know best, the Portuguese case. According to the law governing sports employment contracts[20], the duties of professional sportspersons include a duty "[t]o undertake the sport activity for which they are engaged, and to take part in training, training events, and other preparatory sessions for competitions, with the determination and diligence corresponding to their mental, physical and technical preparedness, in accordance with the rules of the corresponding sport, and the instructions of the sports employer” and “to ensure that they are always in a physical condition that enable them to participate in the sport competition referred to in the contract”.

To these duties are added other, disparate, or linked, duties that arise from the current Collective Bargaining Agreement and above all from internal regulations and codes of conduct, i.e.: (i) The athlete's duty not to undertake any other physical activity, even during rest periods; (ii) The duty of the athlete to go to bed early, and sometimes at a time predetermined by the employer, and, in some cases, subject to sleep-laboratory monitoring; (iii) The duty of the athlete not to go out at night, even during rest periods, and particularly not to go to bars, discotheques, and other public entertainment locations; (iv) The duty of the athlete not to travel outside of a fixed kilometre radius, at night; (v) The duty of the athlete not to consume alcoholic beverages and to keep their weight stable, even during holiday periods; (vi) The duty of the athlete not to have sexual relations on the eve of games; (vii) The duty of the athlete not to grant interviews, create personal blogs, post videos, photos, or to write, on social networks, without the prior authorisation of the employer (club/sport company).

III. THE CHALLENGES TO AND PRESSURES ON THE RIGHTS AND DUTIES OF ATHLETES: FOR AN EVOLUTION TO INCREASED MANDATORY COMPLIANCE WITH AND ENFORCEMENT OF THE RULES

Some of the examples we have given show a restriction, if not complete obstruction, of the enjoyment of fundamental rights/human rights by athletes. However, there are many other examples that can also be given.

For example, there are still cases in which women's access to the practice of sport is restricted, at all levels; there is a pay gap between the men and women in terms of salaries and prize money; some women's sports are not included in the standard sports event programme, while the corresponding male sport is so included.

There is also discrimination on the basis of disability. For example, sports organisations that refuse to provide disabled people with the opportunity to train or take part in recreational or competitive sport. failure to comply with the legislation regarding access, for example by preventing access to sports facilities by persons with reduced or limited mobility, and failure to ensure the safety and comfort of such persons; pay gaps; and different levels of event media coverage.

Furthermore, many children are victims of sexual abuse, endure excessive intensive training loads and forced labour, not to mention the trafficking of children in connection with sport.

Racial discrimination in terms of access to and the conduct of competitions and racist acts committed by players, athletes and spectators, continue to exist.

It is beyond comprehension that discrimination on the grounds of sexual orientation, or against the LGBTI+ community generally and against transgender players and athletes still proliferates in the 21st century.

Likewise, sports rules violate the right to nationality ("legal nationality” v “sporting nationality"), the right to privacy (e.g. in doping cases and extra-competition doping controls and the whereabouts system, or club rules that violate players' and athletes' right to private life) and/or human dignity, often on the grounds of public health, sports ethics and integrity.

For example, players and athletes are still deprived of their fundamental rights (sometimes in an arbitrary and disproportionate manner) and the freedom of expression of players, athletes and spectators is limited in order to protect the albeit legitimate and important sporting and commercial interests of organisers of sports events, e.g. in order to protect "Olympic Property" or combat phenomena such as ambush marketing. The famous Rules 40 and 50 of the Olympic Charter are precisely connected with these issues.

The organisation of some major sports events sometimes involves child labour and the death of workers as a consequence of work overload or absence of technical, health and safety rules. the relocation of owners of land within the sites of sports events and imposition of restrictions on journalists regarding criticism of sport event host cities.

Moreover, the prohibition of clothing with religious connotations, such as the hijab, can be a violation of freedom of thought, conscience and religion, in the absence reasons touching the safety of players and athletes, or equal use of sports equipment and materials.

Likewise, practices, such as requirements that athletes or players train separately, amount to harassment, which affects the right to work, a right which is also violated when disproportionate disciplinary penalties are imposed, or when transfers are blocked unjustifiably.

There are also cases of intimidation and/or detention of athletes defenders of human rights when they meet in order to demonstrate, which can amount to a violation of freedom of assembly, or rules that require the creation of associations, as a prerequisite for the obtaining of any right/support, which raises issues in terms of freedom of association.

Furthermore, players are sometimes compelled to cheat and vitiate the results of games in which they play, on pain of serious consequences, which amounts to degrading treatment and violates the prohibition of torture.

Finally, "sports justice", i.e. sports federation dispute resolution mechanisms and sports arbitration do not always fully respect the right of access to the courts, a standard principle in the Constitutions of democratic states, when they completely prohibit access to ordinary courts of law, or when access to "sports justice" is very expensive. There are also cases involving the strict liability of sportspersons, which violate the principle of the presumption of innocence.

All these examples show that it is appropriate to query whether these situations are unavoidable because of the specificities of an athlete's career, or whether the balance between that specificity and the protection of athletes' rights should be improved, via an increase in the mandatory effect of the existing legal instruments, where this is lacking or insufficient, and via increased supervision and enforcement where this mandatory effect already exists.

It is also worth questioning why it is easy to impose duties and responsibilities on athletes, but not so easy to give them rights, as an alternative to the frequent recourse to terms such as “opportunity"; "ability"; "aspirational rights" and "recommended rights"

The path ahead for athletes, their duties, and also their rights is fraught with challenges and pressures, as we have seen.

[1] There are even a few sources that indicate that the ban only included married women.

[2] The fact that the oath refers to a commitment that the various sports actors would not become involved in acts of corruption, indicates that corrupt practices that sought to distort the results of events did exist, and that the oath was intended to prevent and combat this scourge.

[3] Rule 40 of the Olympic Charter.

[4] Rule 43 of the Olympic Charter

[5] Bye-law to Rule 44, no. 4 of the Olympic Charter.

[6] Bye-law to Rule 44, no. 6 of the Olympic Charter.

[7] Article 1 of the 'Rules regarding the application, during the Olympic Games, of Articles 7 to 10 of the IOC Code of Ethics and the 'Code of the Olympic Movement on the Prevention of Manipulation of Competitions'.

[8] Pursuant to Rule 2.10 of the Olympic Charter, it is the IOC Session’s competence “(…) to amend the Athlete’s Rights and Responsibilities Declaration upon recommendation of the Athletes’ Commission and to prompt respect for this Declaration within the Olympic Movement.”

[9] Athletes’ Declaration Implementation Guide – Practical recommendations, useful resources and best practices for IFs and NOCs, IOC, December 2023.

[10] It is noted that the source of the idea of an "opportunity" to compete, rather than a right to compete, may be the United States of America, where it was decided that there is no right to compete in organised sports competitions, and where Congress declined to legislate a right of athletes to compete internationally, but instead opted to establish an "opportunity" to compete. This option was adopted when Congress was called on to counterpose the rights of athletes to choose the sport in which they wish to compete, and "organisational rights", i.e. the right to determine the eligibility of athletes, or players, or of the team to which they belong, to compete in a competition, i.e. factors such as age, weight, and amateur, or professional, status, and obviously the performance of the athlete, or player. This approach is in line with an arbitration award of the Court of Arbitration for Sport in Lausanne, which could not now be so assertive, in the light of the bolstering of the text of the Fourth Fundamental Principle of the Olympic Charter. In a case in September 2000 (Arbitration in the CAS ad hoc Division, at the Sydney Olympic Games, Case 00/001, USOC and USA Canoe/Kayak -v- IOC, judgment of 13 September 2000, § 2) the Panel decided that: “(…) there is no rule of “fairness”, to be derived from the Olympic Charter's acknowledgement that the practice of sport is a fundamental human right, which would under such circumstances create an outer time limit of Olympic ineligibility.”

[11] Pursuant to Rule 2.10 of the Olympic Charter, it is the IOC Session’s competence “(…) to amend the Athlete’s Rights and Responsibilities Declaration upon recommendation of the Athletes’ Commission and to prompt respect for this Declaration within the Olympic Movement.”

[12] Athletes’ Declaration Implementation Guide – Practical recommendations, useful resources and best practices for IFs and NOCs, IOC, December 2023.

[13] This Declaration provides 16 articles with different kinds of athletes rights and ends (Article 17) stating that “[e]very player has a duty to respect the rights of his or her fellow players under this Declaration, and to respect the fundamental human rights of everyone involved with or affected by sport.” Impressively, point VI of the Preamble states that “[e]very sport must (…) recognise that the player is, first, a human person and, then, an athlete”.

[14] The list of the rights is the following: “1. Equality of opportunity”; “2. Equitable and fair testing programs”; “3. Medical treatment and protection of health rights”; “4. Right to justice”; “5. Right to accountability”; “6. Whistleblower rights”; “7. Right to education”; “8. Right to data protection”; “9. Rights to compensation”; “10. Protected person rights”; “11. Rights during a sample collection session”; “12. Right to B sample analysis”; “13. Other rights and freedoms not affected”; “14. Application and standing”.

[15] In the Preamble of this document one can read: “It [This Act] is not a legal document; athlete’s legal rights in the context of anti-doping are only those rights that are set forth in the Code and International Standards regardless of how they are described in this Act.” Part Two is entitled “Recommended Athlete Rights”- “(…) are not rights under the Code or International Standards”.

[16] There are 12 articles, of which we highlight Article 1, entitled "Dignity and respect" and Article 10, entitled "Freedom of association". It is noteworthy that the Preamble to the Declaration states, on the one hand, that athletes are "essential actors" and, on the other, that athletes are "(...) structurally weak with regard to their rights, in terms of learning about them, or knowing what they are, and how to enforce them".

[17] Rule 2.7 of the Olympic Charter.

[18] WOA was established in 1995. Its mission “(…) is to unite Olympians, represent them, serve their needs throughout their lives and to promote Olympism”- see Article 3.1 of the WOA Constitution. Further to Article 2 (3) of The Rules of the WOA, among other objectives, WOA aims “(…) to defend the rights of players and athletes by encouraging the growth and development of player and athlete associations. International human rights standards including freedom of association and the right to organise and collectively bargain, and if, necessary to strike, must be fully established for all in the Sector.”

[19] This association was founded in 2008 “(…) in order to defend and promote athlete’s rights and interests”. We would like to underline EUA conception that “Athlete rights are human rights”; EUA focus on “Dual career, personal development and wellbeing” and the fact that “EU Athletes has also been involved in the case related to the International Skating Union’s eligibility rules and the right of athletes to take part in commercial events organized by independent parties.”

[20] The “Duties of sportspersons” are stipulated in Article 13 of the Law 54/17.