There is a long and rich history of athlete activism and protest at the Olympic Games. From the iconic Black Power salute involving Tommie Smith, John Carlos and Peter Norman at Mexico 1968, to lesser known protests by Vincent Matthews and Wayne Collett, Vera Caslavska and Fiyesa Lilesa, athletes have used their moment on the podium and on the track to bring issues of social, racial and political injustice to a worldwide audience.
Despite being an integral part of the exhibitions at the Olympic Museum in Lausanne, the iconic actions of Smith, Carlos and Norman, as well as others emulating them like US hammer thrower Gwen Berry , would now be in breach of Rule 50 of the Olympic Charter:
Rule 50.2 of the Olympic Charter states that:
No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas.
In response to the recent increase in athlete activism, the International Olympic Committee (IOC) has for the first time issued guidance on how Rule 50.2 will apply at Tokyo 2020 and beyond. This guidance prohibits all protests during medal ceremonies, the opening and closing ceremonies, during competition on the field of play and in the Olympic Village. If breached, athletes face disqualification from their events, removal of official Olympic accreditation and expulsion from the athletes’ Village and the Games.
In other physical and digital settings, freedom of expression is protected. This includes gestures made on the field of play before the start of the competition provided that the expression or the gesture is consistent with the Fundamental Principles of Olympism, is not targeted against specific people, countries, organisations and/or their dignity, is not disruptive and is not prohibited or otherwise limited by the rules of the relevant National Olympic Committee (NOC) and/or the competition regulations of the relevant International Federation.
The key problem with this revised guidance is that it lacks clarity and is open to inconsistent application by different sports and by each NOC. At present, there is no clear definition of what constitutes a prohibited gesture. It can be assumed that taking the knee or raising a fist are prohibited, but says nothing of an athlete saluting their flag or placing their hand on their heart when their national anthem is playing.
Further, some NOCs, for example the British Olympic Association and the United States Olympic and Paralympic Committee, have stated publicly that they will not sanction athletes who take the knee or engage in other appropriate forms of expression or protest. Most others have remained silent on the issue and may not be as supportive of their athletes.
Similarly, international sports federations have taken different stances. FIFA has been supportive, allowing players to take the knee before kick-off, and the Australian women’s team was allowed to stand behind the Aboriginal flag before its first game against New Zealand. In contrast, FINA has stated that no such gestures are allowed poolside, despite being allowed by the IOC’s guidance.
The complexity of the issues involved can be seen in two very different situations. During the gymnastics team competition, Luciana Alvarado of Costa Rica incorporated both taking the knee and raising her fist into the artistic element of her floor routine, moves that cannot be sanctioned under Rule 50.2 as these elements of the performance cannot be censored by officials. Meanwhile in the men’s cycling time trial, German coach Patrick Moster was heard making racist comments as encouragement to one of his riders. Although condemned by the UCI and now sent home by the German Olympic Federation, no further official action has been taken against Moster. It is absurd to think that athletes protesting against discrimination, social and racial injustice are under threat of expulsion from the Games, but those engaging in racist behaviour not similarly sanctioned.
The Guidance has raised at least as many questions as it has answered, ensuring that this rapidly emerging area of Olympic Law will be tested to its limits at Tokyo 2020 and again in a few months’ time at Beijing 2022. The IOC will have to weigh very carefully the potential damage to its reputation for enforcing Rule 50.2 and its desire for a politically neutral Olympic Games.
For further information and discussion on these issues see: Rule 50 of the Olympic Charter and the Right to Free Speech of Athletes, hosted by the Asser International Sports Law Institute.
Professor Mark James, Professor in Sports Law at Manchester Metropolitan University’s Institute of Sport and Manchester Law School.