Sports personalities are often subject to sporting rules that restrict their ability to make political statements or promote religious ideology when competing. Furthermore, contractual provisions can also mean that statements made in their personal capacity while off duty, for example on social media, can lead to disciplinary action or worse. Can such restrictions be challenged on the basis of human rights? Does it make a difference if the athlete genuinely holds the views (e.g. because of religious or cultural beliefs)?
In short, the approach taken by sporting organisations will inevitably turn on the facts of each case – a typical lawyer’s answer, we know! The application of human rights law – and, in particular, the rights to freedom of thought, conscience and religion, and freedom of expression – usually involves balancing competing interests, as these rights are not absolute. However, it would appear that in practice, genuinely held beliefs can be a mitigating factor in such circumstances.
This is best illustrated by way of two recent examples in the world of professional sport:
Pep’s yellow ribbon
In March this year, Manchester City boss Pep Guardiola was fined £20,000 by the FA for repeatedly wearing a yellow ribbon whilst on the touchline. The yellow ribbon is a symbol closely associated with the Catalan independence movement in Spain. When Guardiola first started wearing one in October 2017, Catalan independence was the subject of widespread media attention.
Regulation A4 of the FA’s Kit and Advertising Regulations prohibits players, club officials and match officials from wearing clothing with “any political message” during the period of a match. The FA notified Guardiola of its concerns but Guardiola denied any political connection, claiming that he wore the ribbon in solidarity with those Catalans imprisoned as a result of the independence movement. Despite receiving several warnings from the FA that he was in breach of the Regulation, which could result in disciplinary action, Guardiola continued to wear the ribbon.
In its written reasons, the FA acknowledged that whilst the yellow symbol is “undoubtedly a symbol of protest against the imprisonment of Catalonian independence figures…it has become synonymous with support for Catalan separatists”. The FA applied a strict interpretation to the Regulation, finding that the ribbon was a political message. Guardiola’s initial fine of £30,000 was reduced by one third “given all the particular circumstances”. Whilst it is not explicit from the statement, we understand that the fine was reduced not only to reflect Guardiola’s acceptance of the charge but because his political beliefs were genuinely held.
Folau’s divisive beliefs
The current media storm surrounding Australian rugby union player Israel Folau demonstrates the reluctance of some sporting bodies to take action against their stars – no matter how divisive the views in question. Folau, who plies his trade for the Waratahs and Australia, has not faced any sanctions from club or country for the recent religious statements he made on Instagram concerning Christianity and homosexuality.
Commercial partners of the player, his club and country acted quickly to distance themselves from the fallout, including Qantas and Land Rover. However, Rugby Australia chose not to sanction the player. Chief Executive Raelene Castle said that it was a “difficult issue when you think you’re trying to combine religious beliefs, freedom of speech, inclusion, respect and the use of social media”.
Folau’s very public religious convictions clearly shielded the player from disciplinary action. However, some organisations are not willing to tolerate athletes taking a stand, especially where there is an impact on the bottom line. A recent example is the NFL which announced last week that it has introduced a ban on kneeling during the national anthem at the start of its games. This sign of protest (initiated by San Francisco 49ers quarterback Colin Kaepernick in 2016), was designed to highlight social inequality for minorities in the USA. It was clearly motivated by a genuinely held belief, however, the media and politicians portrayed it as unpatriotic, resulting in a decline in viewers and revenue for the sport. It will be very interesting to see whether the NFL enforce the policy and impose fines on teams, as it will be entitled to do if the protests continue.