Dirty Play: Evaluating the Power of International Human Rights Law to Curb the Practice of Sportswashing
Sportswashing is the state-sponsored use of a sports league or team’s goodwill and fandom to cleanse the public image of a political regime or operation. While international mega sporting events like the Olympics and the FIFA World Cup have often been used as political tools, the practice has infiltrated mainstream teams and leagues within the past two years. The issue with recent acquisitions is the lack of an international controlling organization such as FIFA or the International Olympic Committee to provide a check on the new owners. Using Saudi Arabia as an example, this blog will evaluate if international business and human rights law can provide a check on sportswashing by states known to have committed human rights violations.
Saudi Arabia’s Public Investment Fund
Saudi Arabia is no stranger to allegations of human rights violations. According to the 2021 Country Report on Human Rights Practices, the U.S. State Department found credible reports of numerous human rights violations, including executions for nonviolent offenses, forced disappearances, torture and cruel treatment of prisoners, civilian casualties in Yemen, and more. Throughout the period of those occurrences, Saudi Arabia’s state-operated Sovereign Wealth Fund, the Public Investment Fund (PIF), acquired a controlling stake in Newcastle United F.C. of the Premier League and founded their global golf tour, LIV Golf. Among the public, there is no question these entities are effectively owned and operated by the Saudi Royal Government through the PIF. The strategy and success of the PIF raises an important question: when a team or league does not have an international governing body, is there any way to combat sportswashing via a private entity in our society?
United Nations Guiding Principles
In 2011, the Office of the United Nations High Commissioner for Human Rights (OHCHR) released its Guiding Principles on Business and Human Rights (UNGPs), which recognize the role of business enterprises and their states in upholding human rights throughout their operation. The UNGPs establish responsibilities for both corporations and states through two of their three “pillars”:
- The State Duty to Protect against human rights abuses by third parties, including business enterprises, through appropriate policies, regulation, and adjudication;
- The Corporate Responsibility to Respect Human Rights, meaning that businesses should act with due diligence to avoid infringing on the rights of others and to address adverse impacts in which they are involved;
Under the UNGPs, states shall ensure that all businesses in their territory respect human rights throughout their operations by enforcing laws requiring businesses to respect human rights. Further, businesses, regardless of their size, sector, and operational structure, have their own responsibility to prevent and mitigate adverse human rights impacts that are directly linked to their operations, products, or services by their business relationships, even if they have not contributed to those impacts (emphasis added). These principles are broad enough to impose responsibilities on states and businesses to avoid the impact of contracting with PIF-owned sporting entities. The practicality of these restrictions, however, is a different story.
The most significant hurdle facing the UNGPs is that states and businesses are encouraged to act pursuant to its standards, but are not legally required. Accordingly, we have continued to see businesses partner with PIF-owned entities without inference from their state. For instance, golf courses within the United States, Australia, Spain, and England are home to an event on LIV’s 2023 tour schedule. Similarly, another PIF entity, Newcastle United, is a member of the London-based English Premier League. The UK refused to get involved in the PIF/Premier League deal for Newcastle United. Additionally, the league itself refused to intervene despite having the power to prevent such an acquisition. The Premier League’s Owners and Directors Test gives them the power to prevent those with criminal convictions, breaches of key football regulations, or bans from sporting entities from owning a team. Thus, while the UNGPs call for a constraint on the practice of sportswashing, these examples show the ineffectiveness of the UNGPs to prevent businesses from dealing with known human rights violators, even when the business or states have the capability to do so.
Transition to Hard Law?
Recognizing the UNGPs struggle for legitimacy, the initial draft of a treaty to build off the UNGP requirements was created in 2019. Officially titled the “Revised Draft of a Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and other Business Enterprises” (RDLBI), the treaty would require states to mitigate human rights violations by their businesses while dropping direct restrictions on the businesses themselves (in accordance with International Law). Included in the draft treaty is the mandate for all state parties to effectively regulate the activities of business enterprises within their territory to ensure that these business activities respect internationally recognized human rights. Notably, these requirements span a business’s relationships, which could provide the avenue for states to legally restrict businesses from partnering with Saudi-owned sporting entities. If ratified, we would see the United Kingdom being legally required to restrict the PIF from owning a team within their domestic leagues or the United States to regulate hosting LIV Golf events within the country.
The nature of using a treaty for international law provides its own practical barriers to solving sportswashing. Namely, each state’s ratification is completely voluntary and previous multi-lateral treaties governing business operations have not been widely ratified. The Convention Concerning Occupational Safety and Health and the Working Environment, for example, sought to set labor standards for states to enforce on their domestic businesses. Only 75 states ratified the convention. In addition, the RDLBI has not received the same support as the UNGPs had. The United States and EU have both opted-out of directly participating in the drafting process, suggesting the RDLBI will not garner support from this group of states. While the RDLBI would mandate its signatories to regulate their domestic businesses partnerships with the PIF, it’s impact would fall short of impacting states who refuse to ratify the treaty.
Michael Rosenberg, Sportswashing is Everywhere, but it’s Not New, Sports Illustrated (Dec. 29, 2022), http://www.si.com/olympics/2022/12/29/sportswashing-olympics-world-cup-daily-cover. ↑
See James Stout, The Brutal Story of the 1936 Popular Olympics: A Boycott of Fascism and Hitler, Nat’l Geographic (July 19, 2021), http://www.nationalgeographic.com/history/article/brutal-story-1936-popular-olympics-boycott-fascism-hitler; Kenn Rishworth, Football as a Weapon of Soft Power: The Beautiful Game Hiding the Ugly Truth, Manchester 1824, (July 11, 2022), http://sites.manchester.ac.uk/political-perspectives/2022/07/11/football-as-a-weapon-of-soft-power-the-beautiful-game-hiding-the-ugly-truth/. ↑
U.S. State Dept., 2021 Cnty. Rep. on Hum. Rts. Practices: Saudi Arabia (2021). ↑
Joel Beall, The LIV Golf Series: What we Know, What we Don’t, and the Massive Ramifications of the Saudi-Backed League, Golf Digest (June 8, 2022), http://www.golfdigest.com/story/saudi-golf-league-2022-primer; Rick Kelsey, Newcastle United Takeover: What is PIF, the Main Owner of the Club? BBC (Oct. 10, 2021), http://www.bbc.com/news/newsbeat-58842557. ↑
Scott G. Alvarez, Soverign Wealth Funds, Federal Reserve (Mar. 05, 2008), http://www.federalreserve.gov/newsevents/testimony/alvarez20080305a.htm; see also Dylan Dethier, Phil Mickelson claims his “Scary M—f—” Chat was off the Record. Here’s What we Know, Golf.Com (Oct. 13, 2022), http://golf.com/news/phil-mickelson-alan-shipnuck-interview-saudi-comments.
(LIV tour star Phil Mickelson apologized for comments that included: referring to the PIF as “scary m—–f—-s,” admitting that the league is nothing more than “sportswashing,” and recognizing Saudi Arabia’s involvement in Jamal Khashoggi’s death and their record on human rights.) ↑
U.N. Human Rights Office of the High Commissioner, Guiding Principles on Business and Human Rights, U.N. Doc. HR/PUB/11/04 (2011), available at http://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf. ↑
Id. at 1. ↑
Id. at 3. ↑
Id. at 14. ↑
Brigitte Hamm, The Struggle for Legitimacy in Business and Human Rights Regulation – a Consideration of the Processes Leading to the UN Guiding Principles and an International Treaty, 23 Hum. Rts. Rev. 103, 110 (2021). ↑
2023 Events, LIV Golf (last visited Feb. 5, 2023), http://www.livgolf.com/2023-events. ↑
The Football Association Premier League Limited, Premier League Handbook 141-47 (2022), https://resources.premierleague.com/premierleague/document/2022/12/13/af4dc48c-3761-4a15-97b4-b8b6aa4e95f2/PL_Handbook_2022-23_DIGITAL_13.12.pdf. ↑
Colin George & Kate Whannel, Newcastle United: UK Blocks Details of Premier League Talks to Protect Saudi Relations, BBC (Oct. 8, 2021), http://www.bbc.com/news/uk-politics-58840820. ↑
Premier League Handbook, supra note 12. ↑
Third Revised Draft of a Legally Binding Instrument to Regulate, In International Human Rights Law, The activities of Transnational Corporations and Other Business Enterprises, (Aug. 17, 2021) available at http://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/WGTransCorp/Session6/LBI3rdDRAFT.pdf. ↑
Occupational Safety and Health Convention, June 22, 1981, 1331 U.N.T.S. 22345. ↑
International Labour Organization, Ratifications of C155 – Occupational Safety and Health Convention, 1981 (No. 155), https://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:312300 (last visited Feb. 5, 2023). ↑
Hamm, supra note 16 at 116. ↑
Jeffrey Dunoff, Monica Hakimi, Steven Ratner & David Wippman, International Law: Norms, Actors, Process 185 (Rachel Barkow et al. eds., 5th ed. 2020). ↑
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