Challenging the Olympic Charter at the Swiss OECD National Contact Point

In January 2020, the International Olympic Committee (IOC) issued guidelines to clarify the content of the controversial Rule 50 of the Olympic Charter (OC). Rule 50 prohibits any ‘kind of demonstration or political, religious or racial propaganda in any Olympic sites, venues or other areas’. It was introduced to the OC during the 1970s, following one of the most iconic moments of sports history when sprinters Tommie Smith and John Carlos raised their black-glowed fists to protest against racial injustice during a medal ceremony at the 1968 Olympics in Mexico City.

The adoption of the Rule 50 Guidelines follows circumstances reminiscent of the circumstances leading to the adoption of the Rule 50 itself. In August 2019, the U.S. Olympic and Paralympic Committee placed two athletes under a 12 month long probation as a result of their protests on the medal stand during the Pan American Games in Peru. Hammer thrower Gwen Berry had raised her fist and fencer Race Imboden had taken a knee to protest against various forms of injustice. The Rule 50 Guidelines, which were introduced by the IOC soon after, sound suspiciously specific, when their ‘non-exhaustive list’ of what constitute a protest in the meaning of Rule 50 includes the display of ‘any political messaging, including signs or armbands’ and ‘gestures of a political nature, like a hand gesture or kneeling’.

The impact of Rule 50 on the freedom of speech and expression of the athletes and potential redress avenues were addressed in a recent Opinio Juris post by Dhananjay Dhonchak, including international and domestic courts and arbitral tribunals. In this post, I suggest another potential redress mechanism: the grievance procedure at the OECD National Contact Point  (NCP) of Switzerland (where the IOC is registered).

Unlike some other NCPs, the Swiss NCP has shown willingness to extend the application of the OECD Guidelines for Multinational Enterprises (the OECD Guidelines) to non-profit making entities including the World Wide Fund for Nature International (WWF) and non-governmental sports organisations such as the Fédération Internationale de Football Association (FIFA) and the International Ice Hockey Federation (IIHF). I argue that a procedure against the IOC before the Swiss NCP can be an effective way to address the controversies regarding Rule 50 of the Olympic Charter.

In what follows, I briefly introduce the OECD NCPs and describe the two-prong test which the Swiss NCP adopted in order to determine whether an entity, irrespective of its legal form, can be brought within the scope of the OECD Guidelines. Next, I apply this test to IOC and conclude by offering some thoughts as to how this mechanism can be used to address the contentious Rule 50 of the OC.

OECD National Contact Points for Responsible Business Conduct

OECD NCPs are agencies established by governments. There are currently 49 NCPs of which 37 are located in OECD member countries and 12 are located in OECD adhering countries that are non-OECD states. NCPs have a two-fold mandate: promoting the OECD Guidelines and providing a grievance mechanism (known as ‘specific instances’) to resolve cases relating to non-observance of the Guidelines. Arguably, the most important role of the NCPs is the handling of specific instances. A specific instance procedure entails three phases which in practice sometimes overlap. Following the initiation of the NCP procedure, the concerned NCP engages in an initial assessment of the complaint which involves decisions on both admissibility and merits. In the second phase the NCP facilitates mediation between the parties and offers ‘good offices’ to resolve the issue in question. The third and the final phase of the specific instance involves the publication of a final statement with the outcome of the complaint procedure. 

While initially only trade unions could submit complaints to the relevant NCPs, the 2000 revision of the OECD Guidelines opened up the specific instance procedure to NGOs and individuals. The 2000 review of the Guidelines also encouraged enterprises to respect human rights, while the most recent revision in 2011 updated nearly all of the existing chapters and added a full chapter on human rights to the Guidelines (Chapter IV).

Specific Instances against Not-for-profit Entities

The OECD Guidelines are aimed at multinational enterprises (MNEs). However, MNEs are only loosely defined in the instrument (Chapter 1, Paragraph 4) leading to divergent interpretations of the scope of the Guidelines. On several occasions, NCPs have had to decide whether complaints can be brought against NGOs. One of the earlier cases, 129 Roma in Kosovo v Norwegian Church Aid, was found inadmissible by the Norwegian NCP on the grounds that it was not brought ‘against an enterprise in the sense of the Guidelines’ making the complainants to argue that the Norwegian NCP was ‘unjustly narrow[ing] the definition of the OECD Guidelines’.

Other NCPs, however, have been willing to extend the application of the Guidelines to NGOs.  Most notably and of particular relevance here is the practice of the Swiss NCP.  The Swiss NCP has adopted a two-pronged test to determine whether the activities of a non-profit making entity would fall within the ambit of the Guidelines by assessing (i) whether the entity conducts international operations and has a multinational scope, and (ii) whether the activities of the entity are of commercial nature independently of its legal form.

The NCP makes the latter assessment on a case-by-case basis since the activities of a not-for-profit entity may not per se be qualified as commercial. For example, activities of FIFA were not found to be within the scope of the Guidelines in a case concerning selection procedure of candidates for the FIFA presidential election since this was considered as an internal issue that is not directly linked to specific commercial activities of the association. However, another submission against FIFA, alleging violations of migrant workers’ rights related to the construction of facilities for the FIFA 2022 World Cup in Qatar, was found admissible as ‘FIFA’s involvement in the organisation of the FIFA 2022 World Cup and in particular the contractual relationship with its direct counterparties [were] considered as activities of commercial nature, to which the OECD Guidelines are applicable’.

In another submission against WWF, the complainants alleged that the organisation failed to observe the OECD Guidelines, inter alia, by not making its support to the government of Cameroon for the demarcation of environmentally protected areas conditional upon the free, prior and informed consent of the Baka people of southeast Cameroon. The Swiss NCP concluded that WWF’s approach to conservation is to a certain extent market-based. It also concluded that WWF undertakes commercial activities by generating income from royalties and from other trading activities, for example, selling collectors’ albums and licensing the panda emblem for environmentally friendly products. According to the NCP, ‘this would not be possible without projects such as the ones in southeast Cameroon which are part of its activities to protect the environment. Therefore, WWF’s involvement in the establishment and maintenance of protected areas in southeast Cameroon can also be considered as activities of commercial nature, to which the OECD Guidelines are applicable’. 


Similarly, when Polish ice hockey players brought a complaint against the IIHF with regards to its governance practices linked to the Polish Ice Hockey Federation and its ongoing labour conflict with Polish players, the Swiss NCP examined, in particular, those tournaments in which the Polish national ice hockey team participated (World Championship in 2017 and 2018) and the extent to which these can be considered as commercial activities of the IIHF. The NCP concluded that IIHF was, directly, or indirectly through its national member associations, involved in commercial activities with regard of the organisation of these events, thereby bringing the Federation within the scope of the Guidelines.     

A Specific Instance against the IOC?

As mentioned above, NCPs have to make several interrelated decisions at the initial assessment stage before offering ‘good offices’ and mediation. These decisions concern the identity of the party submitting the claim and its interest in the matter, the link between the enterprise’s activities and the issue, the relevance of applicable law and procedures, whether the issue is material and substantiated, and the contribution to the purpose and effectiveness of the OECD Guidelines. Here, I address only one of the decisions that would have to be taken in a potential submission against IOC.

I would argue that the IOC could potentially be captured by the test adopted by the Swiss NCP as an MNE within the meaning of the OECD Guidelines. The IOC is overseeing the collaboration of the activities of the entire ‘Olympic family’ from National Olympic Committees to the International Sports Federations. Thus it fulfils the ‘multinational’ criteria. Although the ‘commercial nature test’ would depend on the particular circumstances of the claim, it is not difficult to see how this could be met since the IOC generates revenues with the Olympic Games and other events that it organises through the sale of broadcasting and marketing rights, as well as other income streams. According to the ICO’s website, the revenue for the Olympiad that spans 2013 to 2016, covering the Olympic Winter Games Sochi 2014 and the Olympic Games Rio 2016, was USD 5.7 billion.

Conclusion

Substantively, the OECD Guidelines could offer relief for complainants. A specific instance to address the impact of the Rule 50 on freedom of expression and opinion could be brought under paragraph 2 and/or paragraph 6 of Chapter II (General Policies). Paragraph 2 refers to the enterprise’s respect for the internationally recognised human rights of those affected by their activities and paragraph 6 refers to good governance practices. A specific instance could also be brought under various paragraphs of the Chapter IV (on human rights).

A specific instance claim can be submitted by any party as long as they can provide sufficient information regarding their interest in the issues raised. Various athletes and organisations have already expressed their strong discontent with Rule 50 and urged the IOC to amend it calling on the association to have a more inclusive and transparent consultation process with athletes and respect all internationally recognised human rights. A procedure before the Swiss NCP could potentially achieve this and help bring relief to those who are impacted by the contentious Rule 50.