Sport and Human Rights: Can Sport Change the World?

Sport and Human Rights: Can Sport Change the World?

2019 Higinbotham Oration

Craig Foster

17 September 2019, RMIT, Melbourne

“Finally, this nightmare has ended, I am very happy to see everyone happy with me at this moment, thank you for all my support and I wold (sic) like to say thank you Australia.”

The wife of Hakeem al-Araibi.

INTRODUCTION

Powerful sentiments from new Australian citizen, Hakeem al-Araibi’s wife and a sound starting point for tonight’s exploration of sport’s social obligation to positively change the world.

But we will challenge the global sports industry1 further,and ask whether sport might contribute to saving it by making a decisive contribution to the fruition of the unfulfilled dream of the past three quarters of a century for a truly universal standard of human conduct.

My thesis tonight is that sport can do so through two core aspects: the social currency of athletes to amplify important discussions; and most powerfully the sport and rights movement which not only gives credence to the athlete’s message and brings sport and athletes together in shared advocacy, but is enabling sport to promote international rights instruments on a truly global level.

Much of our focus will be on the lessons from the campaign to free Hakeem al-Araibi early this year, and we will ask whether anything has actually been learnt?

Along the way I will again call on FIFA to urgently abide by their human rights obligations, as we did for Hakeem early this year because the human cost of delay is tragic; contend that human rights increase the legitimacy of the athlete voice; urge Australia to join the movement including the need for a sport and rights institute; and ask the football community to join me in advocating for action on climate change given that we are uniquely affected.

A mighty challenge in the next forty minutes, undoubtedly, in fact we could say we’re aiming for the title, trying to beat the buzzer. You get the point and best prepare yourself for plenty more sporting metaphors and truisms. Ready. Set. But will sport go where it, as yet, daren’t?

THE SPORT AND HUMAN RIGHTS MOVEMENT

I. THE ATHLETE VOICE

Sport is in large part powerful because it brings humans together on the basis of shared, agreed rules. In football, the field represents contest boundaries, fairly drawn. 211 countries come together, of every background, religion, race, colour and gender and are equal. It teaches us to be global citizens and the concept of sport, and its players advocating for global standards of human interaction is completely natural to our mind.

So, we shouldn’t be surprised when, given athletes’ careers depend on the fair application of rules, they take visceral offence and feel a need to use their voice to expose injustice in their sport, community or world. In fact, we should welcome it, and by bringing human rights into the athlete’s lens, their protests become more impactful, aligned with social reform and principles of equality for all.

Of course, historians know that sport by its very nature has an element of defiance built into its competitive fabric. When the Blues and Greens chariot teams, about to race in 532 A.D. in Constantinople demanded that the Emperor, Justinian, pardon from execution several of their, what we’d now call ‘fans’, or ‘supporters’, his refusal set off six weeks of rioting and the deaths of 30,000.

Although the Presidents of sporting organisations have, not infrequently, been accused of acting like quasi-emperors, we thankfully did not need to act quite so destructively earlier this year when campaigning to free our young friend from a Bangkok prison of which more, later.

We have countless examples of athlete activism which were founded on human rights and breaches of humanitarian law that needed to be brought to light. Even if sport didn’t conflate the two, which is a defining characteristic of many of the most famous sporting moments in history.

Internationally, for example, the raised black gloves in the 1968 Olympic Games in Mexico2 to protest racial discrimination is iconic for the very reason that it stood against not only prejudice, but prevailing social wisdom and policy, both sport and government, of the day.

Athletes have the same frailties and flaws as anyone else, they are not superhuman rather it is their refusal to give in to these weaknesses, that is so meritorious. We see desirable qualities in their struggles and triumphs, and even in their very public failures are lessons to be drawn. And we live vicariously through their journey, because it is ours, only on camera.

So, when I talk about athlete voice, I am not referring to moral worthiness, or the ‘role model’ trope, rather I am proposing we accept that sport, and its most famous proponents have social power which is very well earned, the question is how they spend it?

We are all aware of athletes of prominence who answer the responsibility to return the support and opportunities that they have been provided. And in my view it is in supporting a civil society, fundamental human rights and advocating for humanitarian values that this debt is repaid.

I argue that it is through a rights-based approach that the athlete is liberated from the constraints of political or commercial concerns that sport often imposes, whether explicitly or implicitly. It allows them to use their voice to support those being violated and to educate the next generation about the rights they hold individually and between each other, as equal members of the human race.

Surely, free and equal in dignity and rights, endowed with reason and acting towards one another in a spirit of brother (and sister) hood3 is the very essence of the sporting ethos, is it not?

In the domestic context, when four time Paralympian Kurt Fearnley, or wheelchair tennis and basketball dual international, Dylan Alcott challenge perceptions of what an athlete can achieve in a wheelchair, hurtling headlong down the track or across the court with immense courage and dexterity one moment, and advocating for the rights of the disabled in the next, they fertilize the rights of others.

When proud Adnyamathanyha and Narungga man, Adam Goodes performs a beautiful, stirring, ancient Aboriginal war dance with such unmistakable pride in his culture and people, how must this resonate with indigenous youth who are facing discrimination and wondering, can I really succeed by being a black man, or must I act white, or grey, or some shade in between? Then they see an Aboriginal man, proud to the depths of his soul, standing for indigenous rights and this progresses the case for reform. More on Adam’s case, shortly.

And when our most loved National sporting team,4 the Matildas challenge the heavily discriminatory FIFA prizemoney distribution5, it’s important. Not only to other teams globally and women’s sport generally, but the principle of gender equality itself.

So, too when LGBTI members of the team such as Chloe Logarzo stand proudly in who they are, likewise the admirable US Women’s National Team Captain, Megan Rapinoe, and it must give heart to others to do likewise.

Sport can shift conversations because it is a very rare phenomenon, a social institution where we share lasting emotions, in a predominantly safe way, with tribalism that means little in a substantive sense but is hugely enjoyable nonetheless and perhaps more so for this very reason. As the Polish, Pope John Paul II famously said in relation to my game, ‘amongst all unimportant subjects, football is the most important’ and that is precisely the point.6

It will be even more important, though, when sporting bodies accept the right of athletes to promote and protect other humans, and we will return to this friction in a moment.

Australians feel good about, and we join together through sport in a way that is arguably of ever-increasing value in a fractious world. If sport is the universal language of the world, then, how powerful can it be in the promulgation of universal rights?

II. PROTECTION OF ATHLETES – HAKEEM AL-ARAIBI

We have the perfect, probative example of the fusion of ‘sport and rights’ in the campaign to free Hakeem who was facing the threat of refoulement to Bahrain from where he fled, having been tortured as part of the crackdown on high profile athletes in the Arab Spring.7

Granted a protection visa in Australia, he bravely spoke out in 2016 against then FIFA Presidential election candidate and President of the Asian Football Confederation, Sheikh Salman bin Ibrahim Al Khalifa, which likely cost Salman the most powerful seat in world sport. Salman was President of the Bahrain Football Federation when Hakeem was incarcerated and tortured years before and yet did not come to his aid. Late last year, Hakeem and his young wife travelled on their honeymoon to Bangkok, and were detained on an improper Interpol Red Notice at Bahrain’s request, pending extradition.

The challenge of the campaign to free him was to maintain a rigorous focus on a multi-partisan, apolitical message, even more so because his case was potentially so politically voltaic. A young, Muslim male at a time when some of this community have rightly expressed feelings of marginalisation in Australian society8 and a refugee who came to Australia by plane which somehow makes one different to the poor souls who undertake the journey in a barely, if not un-seaworthy vessel.9

Hakeem was, then, a plane person and his good fortune, and I use the term advisedly as the young man has suffered detestable treatment at the hands of several Governments,10 was to play football. You see, not only did this mean that the international community could be activated in his defense, and that his status as a sportsperson made him more relatable, more human than the millions of other equally as worthy asylum seekers, he also had the benefit of the entire international human rights framework.

In fact, he had greater recourse to international standards as a registered footballer, than he did under Australian, Bahraini or Thai domestic law.

Following the awarding of FIFA (Federation International de Football Association)11 World Cups to both Russia and Qatar and the associated human cost and reputational damage from the deaths of migrant workers12, the human rights community was able to encourage football to adopt a robust human rights policy.13 This obligates all official bodies to uphold, protect and promote all internationally-recognised human rights of those in, and through the game.14

Though crises were the genesis and FIFA’s will to implement its provisions is always under scrutiny as we will touch on shortly, I congratulate the governing body for having made the strongest commitment in international sport.

Are we now seeing sport brought back inside the international rule of law? An emergent paradigm in a world where sport has created its own lex sportive, a so-called global law without the state?15 It is immensely exciting to consider what we may achieve in a bold new world where sport must uphold the universal values which are, in reality, anything but universal.

Because while the principles of the UN Universal Declaration of Human Rights have been embedded in the constitutions or law of over 90 countries,16 FIFA’s membership stands at a hefty 211.17 Qatar is proof that while adherence to UN instruments is voluntary,18 membership of global sport is something that citizens will not see put at risk. Restrict free press,19 discriminate on the basis of sexual orientation and against women’s rights,20 sure, but get kicked out of FIFA? No, way.

Can football achieve what domestic law in its 211 Member Federations is often unwilling, or incapable?

Article 7 of the FIFA Human Rights Policy of 2017, states for example that:

Where national laws and regulations and international human rights standards differ or are in conflict with each other, FIFA will follow the higher standard without infringing upon domestic laws and regulations. Where the national context risks undermining FIFA’s ability to ensure respect for internationally recognised human rights, FIFA will constructively engage with the relevant authorities and other stakeholders and make every effort to uphold its international human rights responsibilities.

We had to make an undue effort to acquire every effort from FIFA and the reality is that the players, public and sport and rights movement saved him, not the institutional football system, by creating intolerable pressure that opened a political solution.

It is nevertheless vital to understand that the Football Federations of Thailand21 and Bahrain22 were obligated to protect Hakeem’s rights under the Convention Relating to the Status of Refugees23 and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment and Punishment24 rather than domestic refugee or human rights law. In the event of inconsistency between the two, officials were duty bound to use the considerable leverage of their position to work with their own Governments to Hakeem’s benefit.

Most failed miserably to do so but, in the past, we would have been merely appealing to their better nature, morality or values of the game and I need not remind the human rights or legal fraternity about the efficacy of that approach when money, self-interest or politics are involved, as all three almost always are, in contemporary sport.

This also meant that the international sport and human rights community,25 who led the creation of the groundbreaking policy, were deeply committed to its obedience in Hakeem’s case and poised to apply leverage on Government and sporting stakeholders alongside the global campaign.26

More than once did we reflect throughout that, if Hakeem was a swimmer, table tennis player or a sprinter, for example, he may still be in that prison cell. His expertise with the round ball begat trouble due to his profile in 2012, and saved his life in 2019.

I don’t recall exactly how I became involved in the pursuit of a young man that I didn’t know, though as a refugee ambassador for Amnesty Australia I would have been the obvious port of call. But I immediately felt an unbreakable conviction that, as a former player in a position, and with a public platform to assist, I was obligated to do so and thus began a campaign that carried me around the world, to the highest levels of sport and with Australia, the wind at my back.

Hakeem stands with us today as a living reminder of what Australia can achieve in the name of humanity, compassion and empathy, and I believe one day these qualities will be acknowledged as national strengths, not weaknesses.

And of how we can overcome the dizzying barrage of messages that dehumanize real living and breathing human beings, families, kids, and that has led to incomprehensible treatment of vulnerable people in our name.

Let us hope that Hakeem’s case can be a light in the darkness from which we can navigate a way forward. I’m certain that most Australians, like me, have had enough of the constant stories of suffering of people whose only ‘transgression’ was to seek refuge. As the families of so many of you in the audience tonight and listening, or reading around the nation have done, or would do in the same circumstances. As would I.

I had the profound pleasure of working with one who became an icon, Laszlo Urge, whose family paid people smugglers to get to Australia from Hungary in 1957 and for whom sport was the propellant, through broadcasting, to a life of celebrated achievement and recognition from the Governments of both Australia and Hungary.

Today, the confronting truth is that Les might be on Manus Island or Nauru. He tried to travel there, in fact, to report and support people just like him. And I cannot work with someone that Australia loved, or come to know this amazing young, new Australian named Hakeem and his extraordinary wife, and yet look away when the Les’ or Hakeem’s of today are being harmed. And I pray, Australia, neither can you.

I believe the better nature of Australians which I know, and Hakeem shows exists, will prevail. We need to find a better way to have the necessary and desirable control over borders without damaging people’s lives. There won’t be a perfect solution and we’ll need to be pragmatic, but we must move forward. Please.

Because if Hakeem is proof of anything, it is that when we are united as people and stand for what is right and just, we can achieve extraordinary things. And I hope that the Hakeem campaign was nourishment for our national soul. We need to keep feeding it, constantly, with good deeds.

Given the multicultural DNA of football in this country, our community has a wonderful opportunity to show leadership by raising our voice in support of humane treatment of asylum seekers. That’s not politics. That’s pure, human, rights.

And here’s where athletes can ground their advocacy safely in an apolitical place. They can know that human rights transcend sports, and governments. When we advocate for humane laws and treatment of vulnerable people, based on international instruments, it is not about the political right, left or centre. We are all united through our immutable rights that underpin or sit above politics, whichever you prefer.

This is why in the #SaveHakeem campaign, I was careful to work with all parties, all leaders, and continue to do so, to demonstrate that there are fundamental standards and values which exist independently of any party policy. And advocating for vulnerable people, of any distraction, is certainly one.

Without the decisive work of Foreign Minister, Marise Payne and the Australian Ambassador-Designate, Allan McKinnon and the Embassy staff in Bangkok, along with the strong public support and mandate of the Australian Prime Minister, Scott Morrison he would have been beyond our reach, nevertheless the FIFA policy provided a benchmark for accountability in what was a seminal test of the new sports world.

III. ONGOING FAILURE OF GOVERNANCE ACCOUNTABILITY

The problem is that Hakeem was a unique victim in many ways. A footballer. A refugee. Based in Australia where there is a national reverence for sport, a strong player union framework and ethos of solidarity between athletes and a generation of former players with three decades of experience fighting for player rights.

By activating sport we, and I mean every single person who contributed to the campaign, faced down a military junta and two monarchies and there can rarely have been a greater example of how sport connects across all geographic and social (artificial) boundaries. But there are other victims in sport who don’t possess these advantages and for them, the system must be satisfactorily operational. It is not.

At a time when we should be focused on the incredible global opportunity for women’s rights through sport, the failure to stand by this vision has resulted in tragedy.

Sadly, in the past week we have seen the death of an Iranian female football fan, Sahar Khodayari who self-immolated in protest at the Iranian Government’s discriminatory refusal to allow women to attend football matches.27 Despite statutory gender equality provisions, FIFA has watched women being detained, imprisoned and beaten, all the while failing to impose the sanction of suspension or expulsion that is expressly provided for.28

It is significant that, although FIFA made clear that sporting sanctions on Bahrain and Thailand were not possible in Hakeem’s case, our insolent promotion of the threat (although, in truth empty) of being kicked out of international competition cut through deeply to the Thai, football loving population. Sport has always, and will always capture a nation’s attention, and that of its political leaders. And we offered to assist FIFA with the legal case for bringing sanctions to life. They are necessary to protect lives, as Sahar demonstrates.

The Asian Confederation has done too little for the women of Iran, as they did nothing for Hakeem and not only should FIFA be holding the AFC to account, I call on them to apply their statutes immediately and ban the Islamic Republic of Iran from international competition until such time as women have equal rights to watch football. And for the sport and human rights community to take a more proactive approach to ongoing failures by governing bodies.

The Iranian women campaigned for years, but where could they prosecute their case? As this audience well knows, rights and policies are one thing, remedy another. This is the next step of the sport and human rights journey which raises the question as to whether a new remedial chamber is necessary. One with specific human rights expertise that the Court of Arbitration for Sport (CAS)29, for example, lacks, a point made by former UN Secretary-General’s Special Representative for Business and Human Rights, Professor John Ruggie.30

This is even more critical in light of the failure of the FIFA Code of Ethics31 to hold officials to account such as, for example the President of Iranian football32, Mehdi Taj, who was elected in April as a Vice President of the AFC amid the complete failure of his governing body.

Similarly, the Secretary-General of the Afghanistan Football Federation33, Sayed Ali Reza Aghazada was elected to the Executive Committee of the Asian Football Confederation (AFC), even though at that time suspended by the Afghan Attorney General’s office for alleged sexual abuse of women national team players.34 These decisions have real impacts on lives. Sahar’s blood has been spilt. And football will try to avoid the question, on whose hands does it lie?

Much work is required to ensure that football acts in a timely manner in moments of crises and FIFPro, the global players’ body needs to do more, in my view as a former Chairman of our own domestic Union. It is the players who are bearing the cost of abuse, along with fans. Despite a flagrant breach of his human rights obligations to Hakeem, the AFC President, Salman remains beyond challenge, has garnered Australia’s vote for reelection and calls for accountability are illusory. It is FIFPro’s responsibility to challenge any official whose conduct threatens player rights.

How are officials, who stood by when the Afghan women were abused, when the Iranian women fans faced constant discrimination which has now led to an avoidable death, when Hakeem was sleeping on a concrete floor facing certain torture, still being elected to high office? We have to ask whether we have learnt anything from the campaign early this year?

When fans’ or players’ rights are in jeopardy, officials have to deliver and Sahar stands as the tragic cost of delay that we feared Hakeem would become. But who is going to make them act?

The obvious absence of an answer to this question is precisely why we confronted the politics of the game head on by gatecrashing FIFA, refused to let political compromise shape the outcome and forced football to act. But we shouldn’t have to.

IV.. MEGA SPORTS EVENTS (MSE’S)

When sport uses its newfound humanitarian muscle, the effects can be extremely powerful not just for one young man, but countries and continents. We can only wonder what effect embedding human rights provisions in bidding contracts for Mega Sporting Events might have in future given the disastrous consequences for many sectors of society when the roadshow descends. A show that captivates us all, while it lets others down.

And the trend towards ‘sportwashing’35 or using mega events to burnish a country’s image and bury human rights abuses, increases the urgency to give affected people a ‘sporting’ chance.

Child labor, supply chain abuse and construction worker deaths are but a molecule of the historic, human impact of FIFA World Cups and Olympic Games. The displacement of vulnerable people from event zones for construction or competition alone, reached as many as 1.5 million at Beijing 2008, saw 9,000 homeless citizens issued with a citation as part of the ‘Clean the Streets’ programme for Atlanta 1996, most of them African Americans as well as the forced eviction of 30,00036, between 250,000 and 1.5 million for Brazil 201437 and a further 6,600 families for Rio 2016.38

Awarding of the FIFA World Cup to Qatar, in 2010 was destined to increase the number of migrant workers required in the construction of a reported $200 billion of infrastructure and lead to increased violations such as the restriction of the movement of workers, confiscation of passports, non-payment of wages, unsafe working conditions leading to serious injury and death, and appalling living conditions.39 You get the point.

Which is that, prior to human rights policies in sport, these horrendous impacts were largely considered the host nation’s problem. No longer. Now, sport must account for its own business, and force states to adapt.

Late last year, the state of Qatar made long awaited changes to its labour code and kafala system40 that removed the right of employers to deny exit permits to migrant workers. Much more needs to be done, but sport created an important, first step. One that saves lives.

And in a significant sign of change, human rights considerations were one factor taken into account in FIFA’s decision not to extend the Qatar World Cup from 32 to 48 teams which would have necessitated matches being held in neighboring countries with ongoing breaches of international standards such as Bahrain, Kuwait, Oman, Saudi Arabia or the UAE.41 What pressure might this bring for reform?

The International Olympic Committee (IOC)42 responded to concerns relating to the human rights impact of the Games through provisions in the ‘Operational requirements’ of its Host City Contract and an Advisory Committee on Human Rights chaired by HRH Prince Zeid Ra’ad Al Hussein, the former UN High Commissioner for Human Rights43 who is reviewing the institutional need for policy. A major opportunity for progress.

Another test is looming for the IOC and Olympic athletes with the Beijing 2022 Winter Olympics and the egregious abuse being perpetrated on the Uyghur population in Northwestern China, for which the hosts can rightly expect to attract the ire of the sport and rights community. And the Commonwealth Games Federation’s (CGF) Human Rights Policy Statement was adopted in October, 201744 and just in the last few weeks it has made a welcome commitment to a binding policy.

Even if you do not share my faith, therefore, that the synthesis of human rights with the lure of major sporting events will change the world, it is demonstrably already changing the lives of tens of millions.

VI. INDIVIDUAL CASES

Now well into the second half with the clock ticking down and the ‘game on the line’, let us maintain our ‘game face,’ ‘dig in’ as the ‘going gets tough’ and turn to some individual cases to stress both the value of sport’s social perforation, and of a human rights approach.

We return to Adam Goodes. If the AFL was similarly obligated under international human rights law, what might have been different in the career of a great Australian? Racial vilification contravenes international law45 and on the FIFA policy model, the AFL, and his club would have been duty bound to not only protect, but actively promote Adam’s rights.

This might in future mean an obligation to actively confront racially discriminatory commentary and to assist Adam in ensuring a safe workplace through challenging stereotypes.

Thus an important discussion is amplified in a positive, educative way, a circumstance now occurring through the thought provoking and restorative documentary, The Australian Dream alongside Wiradjuri man, Stan Grant, and perhaps that will be the greatest gift that Adam can give, nevertheless who knows whether a brilliant career could have been saved? Hopefully, this never happens again but, if it does, what will sport do?

Australian Rugby Union player, Israel Folau is another, highly contentious and yet salient example and I can hear half the audience draw breath, the other draw bows, because it’s a difficult issue particularly when we lack the context in which to approach it.

Within a human rights framework, the discussion would have been not about contractual rights, but universal instruments and an appropriate balance between freedom of speech and religious views, and the right to non-discrimination on behalf of the communit(ies) impugned. Risks would have been identified during the audit process and both the athlete, and the LGBTI community’s concerns listened to, and addressed.

It would be a very different discussion that would raise the rights discourse, not threaten it and one reason why many of us believe that such divisive debates could be avoided should Australia implement a Charter of Rights46 as the only western democracy to have failed to do so.

I feel for the sport, for Israel and particularly for the LGBTI community who have had to fight far too many battles over far too many decades, and it might have been managed less controversially with the appropriate processes, and expertise in place. It is, in fact, the model case for the movement and could have been an opportunity to shape the public mind towards a fairer, safer society for all.

The balance is not always a simple one to strike, but human rights is the bedrock on which the discussion must rest.

Can sport help us all have difficult, national discussions in a reasonable, measured manner that carries Australia, issue by issue, to a better place? If we can teach the next generation how to approach complex issues through, firstly, recognizing the underlying rights they all possess and must respect in others, then sport will have achieved something very meaningful, indeed.

And need we spend countless hours debating whether Caster Semenya, the Olympic Gold medal-winning South African middle distance runner should, as part of a cohort of female athletes with differences of sex development (DSD), undergo treatment to lower her testosterone to fit within the sports’ regulatory framework, as is the wish of the International Association of Athletics Federation (IAAF) and as legitimized by CAS? No. We’ve got better things to do, frankly.

Caster’s rights to the ‘dignity, bodily integrity and bodily autonomy of (her) person’ are paramount in the new sports world, a point made by the UN Human Rights Council in March this year.47 Now that Caster is a footballer, having joined a women’s professional team in South Africa, the question, for now is moot, as she is protected by the very policy, the absence of which was her undoing. Or, rather, her sports’ undoing in the long run. But what about her successor?48

President of the IAAF, Sebastian Coe even went so far as to state that:

The IAAF is not a public authority, exercising state powers, but rather a private body exercising private (contractual) powers. Therefore, it is not subject to human rights instruments such as the Universal Declaration of Human Rights or the European Convention on Human Rights.49

It’s staggering that a sport can purport to have no obligation to human rights and the IAAF stands almost alone as an impedance against universal protections. Again, her case is not straightforward, but if the answer is to chemically or surgically alter the body of the person to fit the sport, we’ve truly lost our way.

VII. Sport, and Rights

So I propose to you tonight that the implementation of human rights in sport will be a key driver in fulfilling the elusive dream of human rights universality.

There will be growing pains, as sport recalibrates its approach to both be more proactive, and to accept that today’s educated, socially informed generation of athletes have a right and responsibility to speak out and, whenever governing bodies try to limit the athlete voice, they should be mindful that history very often vindicates the athlete.

The International Olympic Committee considered the historic protest by Tommie Smith and John Carlos in 1968 as ‘a deliberate and violent breach of the fundamental principles of the Olympic spirit.’50 Many Australians would know that silver medalist on that day, Peter Norman who stood in solidarity with his American colleagues and wore an ‘Olympic Project for Human Rights’ badge on the podium, only received an apology from the Parliament of Australia fifty years later,51 one that the Olympic movement considered unnecessary.52 And Cathy’s first attempt to display her indigenous pride at the Commonwealth Games was controversial and led to a ‘flag ban’.53

Even though all of these acts of social advocacy were well founded, not only on principles of equality and social justice but on international, humanitarian law. And are iconic today.

In Hakeem’s case, with the preponderance of global football investment coming from the Gulf region, superstar footballers were ironically among the most difficult advocates to acquire.

Olympians, Steve Hooker and Kim Brennan, football legend Frank Farina, cricket World Cup winner Greg Dyer and Olympic walker Jane Saville, to name just a few were part of 30 Australian athletes who made a call for action for Hakeem to the Australian Prime Minister, which is to be commended.54

Presently, athletes often, and often have to, speak to social causes through their representative body, or Union. Professional Footballers Australia (PFA) under CEO, John Didulica and particularly the global professional athlete Union, World Players United, led by brilliant Australian lawyer and leading proponent of the global movement for athlete rights, Brendan Schwab, were forceful allies.

As was FIFPro Vice President, Australian lawyer and former Socceroo, Francis Awaritefe and Head of Communications of the global footballer’s Union, another Australian, Andrew Orsatti and I acknowledge and thank them all.

As you can very clearly see, it was overwhelmingly players who represented the sport in advocacy despite the human rights policy binding the officials. And this is the vacuum that needs to be filled.

The players didn’t have a policy. We didn’t have statutory obligations, an ethics chamber to supposedly hold us to account, or a FIFA Human Rights Advisory Board to report on our progress or lack thereof. We just had our love of the game and belief in the values of solidarity that we hope to keep alive and pass onto the next generation.

And a deep conviction that stepping forward to help someone in need, cutting to the heart of the matter and refusing to give a single inch, is as Australian as it gets.

VIII. AUSTRALIAN SPORT AND RIGHTS INSTITUTE

It is time for Australia to consider an independent sport and rights institute, potentially under the Australian Human Rights Commission and a Human Rights Advisory Board which would work with all professional sport. This would assist with the necessary due diligence and risk assessment based on the Business and Human Rights ‘Protect, Respect, Remedy’ framework and would develop an holistic approach to the identification, mitigation and avoidance of human rights impacts, as well as the provision of positive rights throughout the entire sports architecture.

It would also assist in the analysis and legacy planning for Major Sports Event bids and their execution such as the Football Federation Australia bid for the 2023 FIFA Women’s World Cup.55

Leadership by the Coalition of Major Professional & Participation Sports (COMPPS)56 and the Australian Athletes Alliance (AAA)57, as the peak representative bodies, would benefit both and provide a framework that builds on their social responsibility in a strategic way. As well as provide a bridge between them when athletes stand up, and speak out.

With the NSW Government alone aiming for ten sporting World Cups in ten years,58 we had better get a move on.

IX. SPORT AND SOCIAL JUSTICE – A RIGHTS- BASED

APPROACH

Sport must be a safe space where everyone in society has a right to feel protected, respected and of equal value. And can cast off its shackles and stand proudly for social justice through a rights perspective without scoring points as to whether racquet, goggles or ball is more onside with the party, or policy of the day.

Should all sports have stepped forward for LGBTI rights? They would in fact be obligated under the International Covenant on Civil and Political Rights59 which prohibits discrimination in Article 2(1)60 without distinction of any kind including on the basis of sexual orientation. This is not an opinion, a personal view, a bias. It is a universal right that the LGBTI community possesses and the support of football (FFA), rugby league (NRL), AFL, Cricket Australia, Netball Australia, basketball and others was recognition of the social duty of sport.61 Bravo.

Should all sport feel comfortable advocating for indigenous rights in this country, for reconciliation, constitutional recognition and truth telling of our history? Yes indeed, it would be their obligation under the UN Declaration on the Rights of Indigenous Peoples.62.

In fact, Football Federation Australia is bound to this instrument under FIFA’s policy and it is hugely exciting to ponder what effects this might have on the rights of indigenous Australians to play football. This is an issue about which I am especially interested. National Rugby League (NRL)63 and Richmond Football Club,64 in particular have been outstanding representatives for indigenous recognition. Beautiful to see. In a sport and rights world, so would all others.

And should all sport involve itself in working towards a sustainable planet on behalf of its participants? Of course. Aside from being part of the Sustainable Development Goals,65 it is arguably a human right66 as we have seen for example in the Leghari case in Pakistan67 and the landmark decision in Urgenda68 just last year where the Hague Court of Appeal ruled that the Dutch Government had a duty to safeguard against dangerous climate change.

The preambular statement in the Paris Agreement that parties ‘respect, promote and consider their respective obligations on human rights’ when taking action to address climate change is also noteworthy.69

In Australia’s case, this discussion is far from being only about global citizenry, though, it’s aspirational and intergenerational. An opportunity to participate in an industry transformation that can underwrite both the wellbeing, and prosperity of the nation for our kids, and theirs.

I welcome the commitment by FIFA to the UN Sports for Climate Action Framework,70 along with the Union of European Football Associations (UEFA), the World Surf League, Tennis Australia, the IOC, the National Basketball Association (NBA) and 47 other sporting organisations and call on the football community to join me in placing our shoulder to the global wheel.

The unifying power of football is unparalleled and as the global game, we are uniquely impacted. Notwithstanding that every region of the world is part of our family, the increased displacement of people, so called climate migration71 is deeply worrying, given what we have discussed in the local context tonight.

And, finally, we cannot discount the ‘cool’ factor. Through sport, the very concept and content of international human rights instruments would not only be more widely understood but perhaps, as member of the Indian sports law fraternity suggested recently at a conference that I attended in Bangalore,72 they might even become ‘cool’.

In this way ‘rights’ may lend some of sport’s luminescence. And I can think of nothing cooler than Australian kids understanding, and possessing the language to stand up for themselves and others.

Moreover, the appreciation is, hopefully, mutual. When former Australian Human Rights Commission President and now UN Assistant SecretaryGeneral, Gillian Triggs73 told me recently that human rights needs sport, I replied that, yes, that is true, but sport needs the human rights community in equal measure to reestablish the humanitarian values which have undoubtedly been waylaid as both Hakeem, and the hundreds of thousands if not millions of people who fought for his freedom, can attest.

CONCLUSION

When it comes to sport and human rights, Australia is still stretching behind the blocks and going through our warm-up exercises when the gun has long blown. We need to join the sport and rights race in earnest and why not become an international leader in the field?

It will give administrators the jurisdiction, justification, and obligation to support essential social change, give athletes absolute freedom to raise their voices for a better society, and can change the world for the better. In fact, sport is so powerful, so captivating for people and polity alike that it might even save it. But that is another discussion, again. And the final whistle has blown.

Let us finish with the great Nelson Mandela, who embodied the too rare triumvirate of compassion, leadership and political life, and fittingly with a well-worn sporting cliché:

For to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others.

Because of sport, Hakeem al-Araibi was shackled and through its remarkable power he is now free.

But sport, too, is at last becoming unchained and the human race will be the winner.

Notes

1 Including in the fast emerging e-sports industry.

2 Andrew Webster, ‘Finally, the real story about Peter Norman and the black power salute’, Sydney Morning Herald (online), 20 Oct 2018 < https://www.smh.com.au/sport/finally-the-real-story-about-peter-norman-and-the-black- power-salute-20181018-p50abm.html> From a human rights perspective, the protest accorded with the right to non-discrimination on the basis of colour, United Nations Universal Declaration of Human Rights, 1948.

3 United Nations, The Universal Declaration of Human Rights, Article 1<https://www.un.org/en/universal- declaration-human-rights/>.

4 Ministry of Sport, The Matilda’s are Australia’s most-loved sporting team <https://ministryofsport.com.au/the- matildas-are-australias-most-loved-sporting-team/>.

5 ABC News, PFA launches campaign for pay equity in men’s and women’s soccer on eve of Women’s World Cup 4 June 2019 < https://www.abc.net.au/news/2019-06-04/pfa-steps-up-fight-for-world-cup-pay-equity-for- matildas/11177058>.

7 National Geographic, What was the Arab Spring and how did it spread? < https://www.nationalgeographic.com/culture/topics/reference/arab-spring-cause/>.

8 Professor Andrew Markus, ‘Mapping Social Cohesion’, (The Scanlon Foundation Surveys 2018).

9 The Economist, Far more would be refugees arrive in Australia by plane than by boat, (accessed 7 September 2019) <https://www.economist.com/asia/2019/09/07/far-more-would-be-refugees-arrive-in-australia-by-plane-than-by- boat>.

10 Americans for Democracy and Human Rights in Bahrain, HRC40 Written Statement Torture Victim Hakeem Alaraibi Detained in Thailand for 76 Days (27 February 2019) <https://www.adhrb.org/2019/02/hrc40-written-statement- torture-victim-hakeem-alaraibi-arbitrarily-detained-in-thailand-for-76-days/>.

11 https://www.fifa.com.

12 Business and Human Rights resource Centre, Labour Rights and the Qatar World Cup <https://www.business- humanrights.org/en/major-sporting-events/labour-rights-and-the-qatar-world-cup-2022>.

13 This followed an open letter calling for action by FIFA in June, 2014 from the former UN Secretary-General’s Special Representative for Business and Human Rights, Professor John Ruggie of Harvard University and Mary Robinson, former President of Ireland and UN High Commissioner for Human Rights. The later report, ‘FIFA and Human Rights’ by Professor Ruggie, made 25 recommendations to align the sport, and particularly major sporting events (MSE’s) with the UN Business and Human Rights Guiding Principles (UNGP’s): FIFA, ‘Report by Harvard expert Professor Ruggie to support development of FIFA’s human rights policies’, 14 April 2016 <https://www.fifa.com/about-fifa/who-we-are/news/report-by-harvard-expert-professor-ruggie-to-support- development-of-fi-2781111>.

14 FIFA, ‘Human Rights Policy’ (May 2019 Edition).

15 Duval, Antoine, ‘The FIFA Regulations on the Status and Transfer of Players: Transnational Law-Making in the Shadow of Bosman’ (April 1, 2016). Forthcoming, A. Duval and B. Van Rompuy, The Legacy of Bosman, Springer, T.M.C. Asser Press, 2016 ; T.M.C. Asser Institute for International & European Law 2016-6.

16 Stand Up Human Rights, The Universal Declaration of Human Rights 70th Anniversary <https://www.standup4humanrights.org/layout/files/proposals/UDHR70-MediaFactSheet.pdf>.

17 Fifa.com, FIFA - Associations and Confederations - FIFA.com <https://www.fifa.com/associations/>.

18 Human Rights Watch, World Report 2019: Rights Trends in Qatar (2019-01-17) <https://www.hrw.org/world- report/2019/country-chapters/qatar>.

19 Richard J. Roth, 'Opinion | Awaiting a Modern Press Law in Qatar', The New York Times 20130508 2013 <https://www.nytimes.com/2013/05/09/opinion/global/Awaiting-a-Modern-Press-Law-in-Qatar.html>.

20 Qatar Legal Portal, 'Issuing the Penal Code' (2004) <https://www.unodc.org/res/cld/document/qat/penal- code_11_2004_html/2014_Penal_Code_Law_11_2004_26.pdf>.

21 Football Association of Thailand, http://fathailand.org.

22 Bahrain Football Association, http://www.bfa.bh/en.

23 United Nations High Commissioner for Refugees, 'The 1951 Refugee Convention' (2019) < https://www.unhcr.org/en-au/1951-refugee-convention.html>.

24 United Nations High Commissioner for Refugees, 'Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ' (1984).

25 Including World Players United (WPU), Professional Footballers Australia (PFA), FIFPro, Human Rights Watch, Amnesty International, the Gulf Institute for Democracy and Human Rights (GIDHR)25, the Bahrain Institute for Rights and Democracy (BIRD), the Centre for Sport and Human Rights and the Sports and Rights Alliance.

26Minky Worden, Hakeem Al-Araibi’s case is a true test of Fifa’s new human rights policy (2018-12-06) <https://www.hrw.org/news/2018/12/06/hakeem-al-araibis-case-true-test-fifas-new-human-rights-policy>.

27 Al-Jazeera, ‘Blue girl: Iran’s football fan, denied stadium entry, dies’, 11 Sept 2019 < https://www.hrw.org/news/2019/08/19/afghanistan-fifa-sexual-abuse-investigations-stall>.

28FIFA Statutes 2018 Edition, Article 4: Non-discrimination, equality and neutrality <https://resources.fifa.com/image/upload/the-fifa-statutes-2018.pdf?cloudid=whhncbdzio03cuhmwfxa>.

29 T. A. S. C. A. S. Court of Arbritation for Sport, Latest news and media releases <https://www.tas- cas.org/en/index.html>.

30 See above n8, p26.

31 FIFA Code of Ethics 2018 Edition < https://resources.fifa.com/image/upload/fifa-code-of-ethics-2018-version- takes-effect-12-08-18.pdf?cloudid=uemlkcy8wwdtlll6sy3j>.

32 Football Federation Islamic Republic of Iran < http://www.ffiri.ir/en/>.

33 Afghanistan Football Federation < https://aff.org.af>.

34 Minky Worden, ‘Football leaders stand by as human rights abuses pile up,’ Human Rights Watch 7 April 2019 < https://www.hrw.org/news/2019/04/08/football-leaders-stand-human-rights-abuses-pile>

35 Barney Ronay, Sportwashing and the tangled web of Europe’s biggest clubs, The Guardian, 16 February 2019 < https://www.theguardian.com/football/2019/feb/15/sportswashing-europes-biggest-clubs-champions-league- owners-sponsors-uefa>.

36 Brendan Schwab, Protect, Respect and Remedy: Global Sport and Human Rights (2019) Sweet & Maxwell’s International Sports Law Review 3, p 54.

37 Arjyo Mitra, ‘An Ethical Analysis of the 2014 FIFA World Cup in Brazil’ (2015) 2 Law and Business Review of the Americas 21, 1 p 13.

38 UNHCR, 2016 Global Report on Internal Displacement – Brazil: Olympic Games preparations displace thousands in Rio de Janeiro, 1 May 2016 < https://www.refworld.org/docid/57a98bfa30b.html>.

39 See above n30.

40 Following a number of complaints by among others the International Trade Union Confederation (ITUC) and the International Labour Organisation (ILO) in 2012, the UN Special Rapporteur on the human rights of migrants in 2014 and Building and Wood Workers International the following year.

41 Minky Worden, FIFA Expansion Plan for 2022 World Cup Halted (2019-05-24) <https://www.hrw.org/news/2019/05/24/fifa-expansion-plan-2022-world-cup-halted>.

42IOC - International Olympic Committee (2019-09-11) @olympics <https://www.olympic.org/the-ioc>.

43 'IOC sets up Advisory Committee on Human Rights chaired by HRH Prince Zeid Ra’ad Al Hussein - Olympic News' (2019) (2019-02-06) .

44 Commonwealth Games Federation, Human Rights Policy Statement, 5th October 2017 <https://thecgf.com/sites/default/files/2018-03/CGF-Human-Rights-Policy-Statement-17-10-05_0.pdf>.

45International Convention on the Elimination of All Forms of Racial Discrimination <https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx>.

46 Charter of Human Rights, Australian Charter of Human Rights | Join the campaign <https://charterofrights.org.au/charter-of-rights>.

47 UNOHCHR, Mandates of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; the Special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; and the Working Group on the issue of discrimination against women in law and in practice: Letter to IAAF President Coe, (18 September 2018) <https:??www.ohchr.org/Documents/Issues/Health/Letter_IAAF_Sept2018.pdf>.

48 Guardian sport, 'Caster Semenya starts 'new journey' after joining football team', The Guardian 6 September 2019

2019 <http://www.theguardian.com/sport/2019/sep/06/caster-semenya-starts-new-journey-after-joining-football- team>.

49 International Association of Athletics Federation, “IAAF publishes briefing notes and Q & A on female eligibility regulations”, (7 May 2019) <https://www.iaaf.org/news/press-release/questions-answers-iaaf-female -eligibility- reg>.

50 BBC Home, On This Day: 1968 Black athletes make social protest < http://news.bbc.co.uk/onthisday/hi/dates/stories/october/17/newsid_3535000/3535348.stm>.

51 Andrew Leigh MP, Parliament apologises to Peter Norman, 11 October 2019 < http://www.andrewleigh.com/3389>.

52 The Conversation, ‘I will stand with you: finally, an apology to Peter Norman’, 13 October 2012 < https://theconversation.com/i-will-stand-with-you-finally-an-apology-to-peter-norman-10107>.

53 See above n4.

54 PFA, Australian athletes request Prime Minister Morrison facilitate immediate release of detained athlete Hakeem al-Araibi, 24 January 2019 < http://pfa.net.au/news/australian-athletes-request-prime-minister-morrison-facilitate- immediate-release-of-detained-athlete-hakeem-al-araibi>.

55 FIFA Human Rights Advisory Board, 'Terms of Reference' (2019) <https://resources.fifa.com/image/upload/human-rights-advisory-board-terms-of- reference.pdf?cloudid=uvmsynwru9dpmyu5rgmi>.

56 The Coalition of Major Professional & Participation Sports < https://www.compps.com.au>.

57 Australian Athletes Alliance < https://ausathletesall.com.au>.

58 N. S. W. Government, 10 world cups in 10 years NSW Government <https://www.nsw.gov.au/your- government/the-premier/media-releases-from-the-premier/10-world-cups-in-10-years/>.

59OHCHR | International Covenant on Civil and Political Rights <https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>.

60 Australian Human Rights Commission, 'Section 4-Human rights and discrimination on the basis of sexual orientation or gender identity - Addressing sexual orientation and sex and/or gender identity discrimination: Consultation Report (2011) | Australian Human Rights Commission' (2019) <https://www.humanrights.gov.au/our- work/section-4-human-rights-and-discrimination-basis-sexual-orientation-or-gender-identity>.

61 Josh Butler, How Australian Sport is Supporting Marriage Equality, Huffington Post 19 September 2017 <https://www.huffingtonpost.com.au/2017/09/18/how-australian-sport-is-supporting-marriage- equality_a_23206923/.

62 United Nations, United Nations Declaration on the Rights of Indigenous Peoples <https://www.un.org/development/desa/indigenouspeoples/wp- content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf>.

63 Preston Campbell, ''A country where all kids have equal opportunity for their dreams'', The Sydney Morning Herald 23 June 2019 <https://www.smh.com.au/sport/nrl/a-country-where-all-kids-have-equal-opportunity-for- their-dreams-20190621-p52063.html>.

64 Parliament of Australia, Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples: 14/08/2014: Public consultation for constitutional recognition < https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p>.

65 United Nations Development Programme, Sustainable Development Goals, Goal 13 < https://www.undp.org/content/undp/en/home/sustainable-development-goals.html>.

66Sustainable Development Goals | UNDP <https://www.undp.org/content/undp/en/home/sustainable- development-goals.html>.

67Ashgar Leghari v. Federation of Pakistan (W.P. No. 25501/2015), Lahore High Court Green Bench, Orders of 4 Sept. and 14 Sept. 2015 <https://elaw.org/pk_Leghari> (Leghari).

68The State of the Netherlands v Urgenda Foundation, The Hague Court of Appeal (9 October 2018), case 200.178.245/01 (English translation) <https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2018:2610> (State v Urgenda).

69 United Nations Climate Change, What is the Paris Agreement? < https://unfccc.int/process-and-meetings/the- paris-agreement/what-is-the-paris-agreement>.

70UNFCC and FIFA join forces to combat climate change <https://www.un.org/sustainabledevelopment/blog/2016/09/unfccc-and-fifa-join-forces-to-combatclimate- change/>.

71 United Nations Sustainable Development Goals, Let’s Talk About Climate Migrants, Not Climate Refugees, 6 June

2019 < https://www.un.org/sustainabledevelopment/blog/2019/06/lets-talk-about-climate-migrants-not-climate- refugees/>.

72 GoSports Foundation & LawNK, The Sports Law & Policy Symposium 2019 < http://sportslaw.in/home/wp- content/uploads/2019/07/0B8DB76D-BB45-43CD-B735-EFDA2A23DDE2.pdf>.

73 United Nations, Secretary-General Appoints Gillian Triggs of Australia Assistant High Commissioner, Office of United Nations High Commissioner for Refugees, 8 August 2019 < https://www.un.org/press/en/2019/sga1897.doc.htm>. *Many thanks to Alice Richardson of RMIT Graduate School of Business and Law for assistance with footnote referencing in this paper.