Brendan Schwab was appointed Executive Director of the World Players Association in July 2015, which collectively represents 85,000 athletes to champion the dignity of the player and the humanity of sport. Between 2007-2015, Brendan served as Vice President, Board member and Chair of FIFPRO Asia/Oceania – the world footballers association. He also co-founded the Australian Athletes’ Alliance and Professional Footballers Australia (PFA) and served as PFA's long-serving Chief Executive and General Counsel, and later as Chair. Follow Brendan @BrendanSchwab
What responsibility -- legal or otherwise -- lies with FIFA over human rights abuses related to the World Cup in Qatar?
FIFA’s fateful decision of 2 December 2010 to select Qatar as the host of the 2022 FIFA World Cup was made despite – or because of – the host projecting expenditures totalling US$200 billion due, in part, to the scale of the construction undertaking involved. A decade later, it is understood that more than 6,500 migrant workers from India, Pakistan, Nepal, Bangladesh and Sri Lanka have died in Qatar.
While the primary duty to protect the rights of those workers lies with the State of Qatar, FIFA is a transnational business of considerable scale which, like the International Olympic Committee (IOC), purports to act autonomously and exercise powers to make and enforce legally binding regulations which impact people in far reaching ways. Indeed, Sports Governing Bodies (SGBs) such as FIFA and the IOC have developed a specific ‘global law without the state’. SGBs are, in other words, transnational corporations with exceptional powers of leverage.
In June 2011, the UN Human Rights Council (UNHRC) unanimously endorsed the United Nations Guiding Principles on Business and Human Rights (UNGPs). The UNGPs set out the corporate responsibility to respect human rights which is ‘a global standard of expected conduct for all business enterprises wherever they operate’. According to the architect of the UNGPs, the late Professor John Ruggie of Harvard University, the corporate responsibility to respect human rights applies to SGBs because ‘the fact is that international sports associations like FIFA do conduct significant levels of commercial activity’.
In November 2018, the UN General Assembly – which had earlier delighted the IOC in recognising the autonomy of sport – called on ‘relevant entities involved in delivering mega sport events [MSEs] to respect applicable laws and international principles, including the [UNGPs’] “Protect, Respect and Remedy” Framework’.
The corporate responsibility to respect human rights encompasses all ‘internationally recognised human rights’. According to the UNGPs, these are ‘understood, at a minimum, as those expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the Declaration on Fundamental Principles and Rights at Work of the International Labour Organization (ILO). Furthermore, depending on the circumstances, businesses may need to consider additional standards elaborated by the UN, such as those applicable to women, children, people with disabilities, indigenous peoples, migrants, and members of the LGBTI+ community.
What human rights complaints have been made against FIFA?
In May 2015, Building and Wood Workers International (BWI), the Global Union Federation grouping free and democratic unions with members in the building, building materials, wood, forestry, and allied sectors, filed a complaint against FIFA with the National Contact Point (NCP) of Switzerland set up under the OECD Guidelines for Multinational Enterprises (OECD Guidelines), which draw upon the UNGPs. The complaint asserted that it ‘was clear from the outset that the level of construction required to deliver the 2022 FIFA World Cup would increase significantly the number of migrant workers living and working in Qatar and thereby increase the violations of human rights’ including restrictions on a worker’s right to freedom of movement due to the kafala system, the confiscation of passports, discrimination with regard to salaries and other working conditions, the non-payment of wages, the imposition of high recruitment fees on migrant workers, unsafe working conditions resulting in serious injuries and death, being unable to form or join trade unions (unlike Qatari workers), altered employment contracts, detention, appalling living conditions, and lack of access to an effective remedy.
The complaint was informed by reports of DLA Piper, Amnesty International (AI), Human Rights Watch (HRW), the BWI and the International Trade Union Confederation (ITUC), as well as a seminal report dated 23 April 2014 of the UN’s Special Rapporteur on the human rights of migrants, François Crépeau, which made detailed findings and recommendations to the UNHRC. The BWI’s complaint also cited the separate complaint dated 28 September 2012 against Qatar filed by the ITUC with the ILO, which resulted in the ILO’s Committee on Freedom of Association recommending to the ILO Governing Body that Qatari law be changed ‘so as to give effect to the fundamental principles of freedom of association and collective bargaining’, with the expectation ‘that this labour reform process will include the full participation of the social partners’.
The BWI’s complaint asserted that FIFA, as a multinational enterprise, had ‘a separate responsibility under the [OECD Guidelines] to respect the human rights of migrant construction workers who are building the Stadiums and infrastructure for the FIFA 2022 World Cup’. FIFA ‘knew, or should have known, at the time of its decision that appointing Qatar as the host country for the FIFA 2022 World Cup would result in adverse human rights impacts on hundreds of thousands of migrant workers’. Instead, FIFA had failed to: (1) address human rights in the 2010 bidding process; (2) conduct ongoing due diligence to identify, prevent and mitigate actual and potential adverse human rights impacts; and (3) avoid contributing to those impacts.
What commitments, if any, has FIFA made to protect human rights?
The appalling abuse and tragic loss of lives of migrant workers in Qatar was a tipping point for the intersection between sport and human rights.
By an open letter dated 11 June 2014 to then FIFA President Joseph S Blatter, Professor Ruggie and Mary Robinson, the former President of Ireland and UN High Commissioner for Human Rights, wrote that ‘[a]ll countries face human rights challenges, but more effective and sustained due diligence is clearly needed with respect to decisions about host nations and how major sporting events are planned and implemented’. Accordingly, SGBs such as FIFA should ‘[m]ake an explicit commitment to respect human rights and establish a strategy for integrating a human rights approach based on the [UNGPs] into the [SGBs] operating procedures’. Global sport was at risk of losing its ‘social licence’ (‘the legitimacy required in the eyes of a community for a particular activity’).
At its February 2016 congress, FIFA incorporated a new article 3 entitled ‘Human rights’ into the FIFA Statutes, which reads:
FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights.
FIFA’s Human Rights Policy May 2017 edition was developed in response to an April 2016 recommendation of Professor Ruggie to FIFA to ‘Adopt a Clear and Coherent Human Rights Policy’ as it is ‘the first step for any organization on the path to respecting human rights.’ The policy’s four pillars commit FIFA to respecting human rights in accordance with the UNGPs, requiring FIFA to engage ‘in an ongoing due diligence process to identify, address, evaluate and communicate’ human rights risks, including by ‘providing for or cooperating in remediation where it has caused or contributed to adverse human rights impacts’. FIFA’s human rights commitments are ‘binding on all FIFA bodies and officials’, including when ‘interpreting and enforcing FIFA rules’. Other important initiatives of FIFA included the March 2017 establishment of the (since disbanded) independent FIFA Human Rights Advisory Board (which made and published recommendations to FIFA on the implementation of its human rights commitments), publication of activity updates on human rights including progress being made in the implementation of the Advisory Board’s recommendations, and the incorporation of human rights requirements in the criteria for the bidding and awarding of the FIFA World Cup.
How can FIFA act to help protect the human rights of migrant workers in Qatar?
The 2022 FIFA World Cup Qatar has been the exhaustive focus of the trade union movement, civil society, UN agencies including the ILO, FIFA and the event’s two principal organisers – FIFA’s local organising committee and the Supreme Committee for Delivery and Legacy, which is responsible for host country operations.
Recommendations of the FIFA Human Rights Advisory Board provide a good insight into the principal human rights challenges associated with the event and, importantly the solutions that follow, both in terms of enabling individual access to remedy for the victims of abuse and the delivery of systemic change to prevent and mitigate against further harm. The Advisory Board’s recommendations address:
- workers’ rights, including an evidence-based minimum wage law, decent work and living conditions, heat stress, fair recruitment, and the payment of missing wages. This has involved expanding the scope of activity beyond construction workers to service workers including those in security, accommodation, hospitality and transportation;
- FIFA using its leverage to ‘engage with the host government about the impact of the kafala system on migrant workers involved in World Cup-related construction’. This has involved high level representation to bring about the abolition of the kafala system, a system described by the ITUC as being akin to ‘modern slavery’;
- the development of independent monitoring mechanisms and other institutional protections including the ILO and agreements with the BWI to ensure implementation; and;
- other human rights concerns, such as access for people with disability and the prevention of discrimination against LGBTO+ spectators.
These reforms are historic and, unquestionably, were only possible because of the visibility and accountability associated with the FIFA World Cup.
Under the UNGPs and the OECD Guidelines, where FIFA is responsible for causing or contributing to adverse human rights impacts, FIFA must take action to address those impacts including by providing access to effective remedy where needed. Where FIFA is merely linked with such impacts, it must exercise leverage to address harm and prevent further harm from occurring. The advent of ‘sportswashing’ – which is clearly driving Qatar’s political and financial investment in global sport – arguably makes a linked harm one FIFA has contributed to by providing reputational cover for the regime. The United Arab Emirates, Saudi Arabia, Bahrain, Russia, Azerbaijan and China – all states with poor human rights records – have all invested heavily in global sport in recent years.
In 2018 and 2019, FIFA explored whether it could expand the 2022 FIFA World Cup, which would require co-hosting rights to be granted to nations possibly including Bahrain, Kuwait, Saudi Arabia, Oman and the United Arab Emirates. The FIFA Human Rights Advisory Board recommended that any expansion be subject to the requisite human rights due diligence process and protections, which would encompass:
(a) the results of a robust assessment of the specific human rights risks involved; (b) an evaluation of the likely impact of proposed mitigation measures to address those risks, given the unusually short time frame; (c) whether the prospective host government or governments have made clear, credible and timely commitments to address the specific human rights risks connected to hosting the tournament; and (d) an assessment of FIFA’s ability to hold additional host governments to these commitments.
In May 2019, FIFA announced it would not be expanding the tournament. It is now moot, of course, whether the same conditionality had applied to the 2010 award of hosting rights to Qatar.
Can players feel confident they will be protected if they were to speak out on human rights issues in Qatar?
With MSEs increasingly being held in nations openly engaging in sportswashing, SGBs such as FIFA and the IOC are playing a very dangerous double game by engaging quite openly with such regimes and at the same time trying to silence athletes. The IOC maintained bans on protest from the podium and in the arena at the recent Tokyo and Beijing Olympics ‘to protect the neutrality of sport and the Olympic Games’. According to many athlete activists, silence isn’t neutral, it’s censorship.
The role of human rights defenders in raising awareness and campaigning publicly through legitimate and peaceful activities for human rights abuse to be addressed is an essential element of the international human rights discourse and, accordingly, recognised in the UNGPs. The targeting of athlete activists in connection with sport by repressive States such as Afghanistan, Bahrain, Belarus and Iran has demonstrated that athlete activists are most certainly human rights defenders and face some unique vulnerabilities due to their profiles and the visibility of sport.
During qualification for the 2022 FIFA World Cup Qatar, players demonstrated their deep awareness of the human rights impacts of the entirety of the event’s lifecycle, from its corrupt awarding by FIFA in 2010 to its legacy beyond 2022. Finland’s Tim Sparv has written brilliantly on it from a players’ perspective, having met with workers and their families in Qatar through the BWI and FIFPRO. Sparv ‘just wish[es] more players would speak up about it’, although there will be ‘consequences’, a ‘backlash’, and he ‘know[s] players who know they’ll be in big trouble if they speak about issues like Qatar. They are afraid’. He also knows players can be a systemic ‘gamechanger’, not just to FIFA or football, but the State of Qatar:
FIFA is talking about tangible change, so will the kafala system be abolished forever? Will the reforms be implemented across the country and beyond 2022? Will the workers get their basic rights? Normally people forget about the host country once the tournament is over. That cannot be allowed to happen here.
When players such as Jaidon Sancho demonstrated on the playing field for ‘justice for George Floyd’ and received a yellow card, FIFA President Gianni Infantino said Sancho’s actions deserved ‘an applause, not a punishment’. However, as the kick-off to the actual football in Qatar approaches, we are seeing a concerning shift in the dialogue away from respect for human rights to respect for the State of Qatar. In the coming months, we are likely to see sportswashing on turbo charge.
Lise Klaveness, President of the Norwegian Football Federation, was criticised heavily for speaking out on human rights against the decision to award the World Cup to Qatar at the March 2022 FIFA Congress. Officials said ‘this is not the place’ to discuss such matters, while the Supreme Committee demanded she inform herself on such matters before speaking on them. Shortly afterwards, Infantino said FIFA had helped give the migrant workers abused in Qatar ‘dignity and pride’.
Despite the obvious risks that players will face if they do speak out, they also face another risk by failing to do so – that is that they may be seen as being ignorant, uncaring or even benefitting from the human rights atrocities including the deaths in the construction of the stadia in which they are playing. Silence may therefore misrepresent a player’s human rights consciousness. Players who do speak out for human rights can rely on the full support of FIFPRO and the World Players Association, who will take action to ensure the players human right of freedom of expression is fully recognised and upheld in accordance with FIFA’s own Statutes and international law.
What is the role of corporate sponsors in relation to human rights and the FIFA World Cup? Are they speaking out on human rights?
Corporate sponsors and broadcasters have precisely the same responsibility under the UNGPs to respect human rights as does FIFA. Adidas, Coca Cola and Visa were among FIFA’s major corporate backers to call for human rights to be at the heart of the FIFA reform process in 2016. Like FIFA, its sponsors are transnational corporations with significant human rights impacts and which also face the same threats to their social licence should they fail to respect human rights. Additionally, some are now vastly experienced in the practice of business and human rights and well placed to help global sport meet its human rights responsibilities. Adidas, for example, has conducted its business and human rights program since 1997 and reports transparently on its human rights performance, including on the pointed subject of access to effective remedy through its third-party complaints mechanism.
International events like the FIFA World Cup and the Olympic Games are a powerful way to connect the global community. How can FIFA ensure that it fully represents that global community, while still protecting the human rights of workers in countries with track records of worker exploitation?
This question is probably best reversed. Human rights, including labour rights, form the very foundation of our global community. FIFA can only genuinely represent that community if it respects the very guarantees to which every individual is entitled on the basis of their inherent dignity. Workers on the construction sites, the local communities around stadia, fans, journalists and players are all part of the global community and have the same rights as everyone else. If FIFA wants to be a legitimate connector of the world, a facilitator of international understanding, sustainable development and peaceful competition, it must ensure that the fundamental human rights of all are protected.