The issues with new rules on athlete activism and protests at the Tokyo Olympics

By Professor Mark James, Professor in Sports Law at Manchester Metropolitan University’s Institute of Sport and Manchester Law School.

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, would now be in breach of Rule 50 of the Olympic Charter, meaning the athletes face potential disqualification from their events, removal of official Olympic accreditation and expulsion from the athletes’ Village and the Games.

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.”

Following the worldwide protests about the killing of George Floyd, many athletes decided to show their support for causes aligned to combatting social and racial injustice by, amongst other things, taking the knee before the start of their sporting fixtures. Others, such as US hammer thrower Gwen Berry, drew inspiration from Smith and Carlos and stood on the podium with a fist raised.

In response to this increased 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.

In other physical and digital settings, freedom of expression is protected. This includes gestures made on the field of play prior to 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.

This appears to mean that demonstrating against social or racial injustice, or discrimination in general, would be allowed, but supporting a specific political party would or targeting a issues in a specific country would not be.

Although this revised guidance moves away from the absolute prohibition in Rule 50.2, it lacks clarity and is open to inconsistent application by different sports and the each of the competing National Olympic Committees (NOCs).

At present, there is no clear definition of what could constitute a prohibited gesture. It can be assumed that this would include taking the knee or raising a fist 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. However, others that have remained silent on the issue may not be as supportive of their athletes.

Similarly, international sports federations have taken different stances. FIFA, the world governing body for football, is accepting and allows players to take the knee, and the Australian women’s football team was allowed to stand behind the Aboriginal flag, instead of the national flag, before its first game against New Zealand.

In contrast, FINA, the corresponding world body for swimming, has stated that no such gestures are allowed poolside, despite being allowed by the IOC.

At present, there is no clear definition of what could constitute a prohibited gesture. It can be assumed that this would include taking the knee or raising a fist but says nothing of an athlete saluting their flag or placing their hand on their heart when their national anthem is playing.

Rule 50.2 also applies in the Olympic Village. The Korean delegation was informed that if it didn’t remove banners quoting from a 16th century Admiral’s speech when defeating the Japanese navy, they would be considered to be engaging in political propaganda in breach of Rule 50.2.

There are likely to be several key flashpoints over the course of the Games.

First, the lack of a clear definition of what is a ‘political gesture’ will cause confusion over what is, and is not, allowed.

Secondly, there will be an inconsistency of approach to interpreting Rule 50.2, with some NOCs and sports supporting their competitors and others insisting that all gestures are prohibited.

There are also sport-specific loopholes. 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 as these elements of the performance cannot be censored by officials.

Finally, there will undoubtedly be incidents on the podium and potentially at the closing ceremony.

A breach of Rule 50.2 could see the IOC bring action either before its own Disciplinary Commission, as stated in the Guidance, or more likely before the Court of Arbitration for Sport (CAS), as mandated by the Olympic Charter.

Appeals from CAS can be made to the Swiss Federal Tribunal and, ultimately, to the European Court of Human Rights. The Guidance has raised at least as many questions as it has answered, ensuring that this is a rapidly emerging area of Olympic Law will be tested to its limits at Tokyo 2020 and again in a few months’ time at the Beijing Winter Olympics 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 the following panel hosted by the Asser International Sports Law Institute: