After years of debate, including athlete consultations, the International Olympic Committee (IOC) has missed the mark again, continuing to ban free expression by Olympians competing at the rescheduled Tokyo Olympic and Paralympic Games opening July 23.
While media indicate they are softening their position to allow freedom of expression in more Olympic venues, the IOC continues to deny athletes their inalienable human right to free expression on the podium and in the opening and closing ceremonies; critical moments where live TV cannot edit minority views.
Freedom of expression
International human rights laws guarantee freedom of expression. Restrictions can be imposed by law for national security or public order or “any advocacy” that incites violence or discrimination.
Freedom of expression is an enabling right, facilitating the exercise of other human rights. For women and minority Olympians, the IOC has additional positive obligations to ensure their voices and opinions are heard. Once they have earned their Olympic power on the field, there is a lot to gain from the international spotlight provided during the medal ceremony.
In Australia, a recent case found that a protestor law, despite having a “legitimate purpose,” was still invalid. In Brown v TAS, the High Court found the law burdened the implied freedom of political communication because it was not “reasonably appropriate and adapted or proportionate” to the legitimate purpose.
Despite the IOC moving “forward with its human rights approach,” the organisation has failed on freedom of expression. The stated purpose of protecting “the neutrality of sport” and that the podium is a place of “peace and harmony,” may be legitimate, however their total podium ban satisfies neither Australian nor international law.
In an ongoing effort to “control the podium” Rule 50.2 of the Olympic Charter reads, “No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas”. However, the rule, and several iterations of guidelines provide no lawful justification for the podium ban.
Despite Rule 50.2, there have been breaches over the past 50+ years. Athletes at the Olympics and World Championships have protested racial, ethnic, gender, and indigenous discrimination, LGBT+ rights, and doping. In Australia, two famous podium protests were made by Peter Norman and Mack Horton.
Punishment is inconsistent because there are no clear procedural or substantive rules for a breach and sanctions often fall on the National Olympic Committee (NOC) responsible for the citizen-athlete. While Cathy Freeman was eventually able to express her Aboriginal identity in Sydney 2000, her fellow athlete, Damien Hooper was shamed by the Australian National Olympic Committee for wearing an Aboriginal flag t-shirt in London 2012.
Lack of remedial process
The Olympic Charter lists drastic penalties (loss of medals), but no process for how a breach is reviewed or what a breach entails. The IOC Athletes’ Commission called on the IOC to clarify this, but with days to go, the lack of due process will be a problem in Tokyo.
The IOC gains its power through NOCs who control each Olympic athlete through a contract they must sign or are denied their meritoriously earned Olympic position. Usually these athlete agreements mirror the Olympic Charter, bringing it to life in each nation-state.
In America, the commercial crown jewel in the Olympic Movement thanks to NBC’s media rights valued at US$7.75bn, the US Olympic and Paralympic Committee (USOPC) has not mirrored the Olympic Charter and said it will not enforce Rule 50.2 against their athletes.
Rather, the USOPC collaborated with and listened to their athletes, creating their own guidelines that support American athletes’ rights to express themselves freely and lawfully. While the USOPC makes clear they cannot control what the IOC will do, they “will not participate in imposing any sanctions on R[acial] & J[ustice] demonstrations.”
In line with international human rights and European law, the German Athletes group issued their position paper after athlete consultation. The “invoking and practicing freedom of expression comes with duties and responsibilities… [and] any restrictions… must be applied as carefully as possible… examined for its proportionality on an individual case basis”.
The IOC Athletes’ Commission also surveyed Olympic athletes. This author completed the survey along with 3,546 other Olympians and elite athletes from 185 NOCs. There were no gender or racial breakdowns of the data, only competition-nationality. It did not use human rights language or include human rights education.
The summary by the IOC Athletes’ Commission favoured the IOC rule, “A clear majority of athletes believe that it is not appropriate for athletes to demonstrate or express their views” on the podium (67%), the field of play (70%) or opening ceremony (70%).
Yet in another question 63% of athletes said they would exercise their freedom of expression and/or would not be opposed to other athletes doing so.
The IOC’s failure to view Rule 50.2 through human rights law means a clash will unfold in Tokyo when Olympians inevitably podium protest. How the IOC responds will set the tone for the next decade of proposed human rights reforms and what is the true meaning of the Olympic spirit.
Nikki Dryden is an Australian Human Rights Institute Associate, a human rights lawyer and board co-chair of the Centre for Sport and Human Rights in Geneva.