In a recent blog post we briefly discussed the current approach in England and Wales to the regulation of sport in a legal context, and the appropriateness of using judicial review as a legal framework for considering the rationality, lawfulness and/or legality of the actions and omissions of sporting bodies.
Our last blog post is here. In summary, sport is in a regulatory grey zone, and while the courts have been reticent to permit judicial review of sporting bodies, the door has not been firmly shut. Courts in other jurisdictions we looked at take a more active approach in considering the actions and inactions of sporting bodies in judicial review, and there is scope for the role of the courts to be broadened in England and Wales.
Our colleague Tom Herbert has written separately on this blog about the Independent Expert Report by Prince Zeid Ra’ad Al Hussein and Rachel Davis concerning responsibilities owed by the International Olympic Committee (IOC) and wider Olympic community responsibilities towards athletes’ internationally recognised human rights and basic dignity.
Since then, we have noticed an increase in discussion about the appropriateness of Team GB competing at the 2022 Beijing Winter Olympic Games, as well as UK involvement in sporting events hosted in countries which are accused of committing atrocities and crimes against humanity, or breaching standards of human rights. For example, as reported by the BBC, a coalition of more than 180 human rights organisations have written to governments calling on them to boycott Beijing 2022 because of reported human rights abuses against ethnic minorities, including genocide against Uighur people in Xinjiang. The coalition is composed of groups representing Tibetans, Uighurs, Inner Mongolians, residents of Hong Kong and others.
While the original founding ideal for the Olympic Games was to provide a short period of respite when the continually warring city states of Ancient Greece could forgo their differences and come together in peace for sport, modern Olympic Games have been subject to a number of successful and unsuccessful boycotts. For example, the 1980 Moscow Summer Olympic Games was boycotted by many diverse nations, including the United States and China, and there was a less successful movement to boycott the 1936 Berlin Summer Olympics. However, the argument persists that the original ethos of the Greek Olympics still applies, and hence it must be arguable that any decision not to attend the Olympics because of differences with the host nation, however well founded and profound those differences might be, would be wholly contrary to the founding raison d’etre of the Olympic movement.
While we are not in a position to conclusively assess the veracity of the claims made by those calling for a boycott of Beijing 2022, the situation raises an important question of whether sporting stakeholders such as athletes, human rights organisations, sporting bodies, or even individuals, could seek to issue a judicial review challenge against any decision of the British Olympic Association (which is the UK’s National Olympic Committee) to send Team GB to participate in the games.
Such a judicial review challenge could be structured similarly to the NZ judicial review Finnigan (considered in our last blog on this topic) where a rugby union player successfully challenged a decision of the NZRFU to send the All Blacks on a tour of South Africa, which was at that time subject to its system of Apartheid. As in Finnigan, an applicant for judicial review in the present context would likely have to tie the decision of the British Olympic Association to proceed with participation in the 2022 Games to a breach of the Olympic Charter, or to a breach of the Terms of Reference and Constitution of the Association itself. In this way, the court could assess the evidence and arguments, and make a determination in the context of deciding whether the British Olympic Association was “acting within its lawful powers” in deciding to proceed.
More broadly still, it might be argued that participation in the games infringes against a need for sporting bodies, especially those in receipt of very substantial amounts of public funding, to be properly held to account given the public interest in their decisions and actions, and that the severity of the allegations in Xinjiang, and also in Hong Kong where the UK arguably has more direct obligations and rights under public international law, gives rise to circumstances where the prevailing assumption in the Aga Khan decision (that sports governing bodies are unlikely to be subject to judicial scrutiny) ought to be set aside.
Whereas the British Olympic Association is somewhat independent of the UK Government, and therefore arguably not so squarely amenable to judicial review challenge, the body is supported with funding from the UK Government itself. In that case, it might be argued that the funding of British involvement in the Games, and any other endorsement of that participation by the UK Government itself, contravenes against the UK’s international law commitments. Such commitments include possible infringement of the UK’s active duty under the 1948 Convention on the Prevention and Punishment of Crime of Genocide, particularly if any link can be established between the Games and alleged crimes in Xinjiang.
In considering a judicial review case, a court may need to consider and weigh up competing claims by individual athletes, some of whom may ask to participate as interested parties, and even for the representatives of other governments or organisations. For example, some athletes may argue that a decision taken at a national level to boycott the Games, and therefore prevent them from competing, could have a potentially huge impact on an individual’s Olympic career, and their personal sporting aspirations. This is particularly important for many athletes who have devoted so much to achieving pinnacle performance, and who consider it would be unfair if they were deprived of the opportunity of representing their country at the Olympic Games.