Is UEFA on “the Other Side of the Rainbow”?

UEFA Euro 2020 is one of the biggest sport events in the world taking place this year. In several European cities (including Munich) 24 national men teams are taking part in the football tournament to win the famous Henri Delaunay trophy. However, as the sporting rivalry is closing to its final phase, the tensions grow also outside the field, especially for the German “Mannschaft” and its captain Manuel Neuer. In three games of the group stage, the goalkeeper of the German team was playing with the traditional captain band in the colors of a rainbow, symbolizing solidarity with the fight against discrimination of the LGBT community. Especially in light of the third game to settle the final squad of the play-offs phase against Hungary, the captain band has gained wider attention since the governing Fidesz party is following an aggressive policy against the Hungarian LGBT community. Also, among Hungarian football fans sentiments against the LGBT community are widespread as could be seen on one of the banners shown during the game in Budapest stating “Anti-LMBTQ”.

Against this background, UEFA opened disciplinary proceedings against Manuel Neuer to investigate a potential breach of Law 4 of the FIFA Laws of the Game.((Equipment must not have any political, religious or personal slogans, statements or images. Players must not reveal undergarments that show political, religious, personal slogans, statements or images, or advertising other than the manufacturer`s logo. For any offence the player and/or the team will be sanctioned by the competition organiser, national football association or by FIFA)) Although the proceedings ended quickly with the statement that no offence was committed because “the rainbow bandage is evaluated as a sign of support for diversity and thus for a ‘good cause’”, the issue represents a broader problem of UEFA: sport governing bodies (SGBs) still massively limit the freedom of political expressions by the athletes during big sporting events. The main legal issue related to this situation is the problem of the horizontal relation between the athletes and SGBs, which makes the protection of their fundamental rights more complicated. However, as I have argued elsewhere, the recent jurisprudence of the Court of Justice of the European Union (CJEU) may offer solutions to the protection deficit.

What is political? Who is bound by the principle of political impartiality of sport

The case of Manuel Neuer’s rainbow armband is the newest example of the wider campaign that the SGBs directed towards any signs of political opinion expressed by participating athletes during the sport events. The SGBs justify their action with the principle of political autonomy of global sports, anchored in the Fundamental Principles of Olympism and replicated in the statutes of the international SGBs in all disciplines. In short, this principle stipulates that the sporting movement should remain independent from any form of political pressure. Maintaining this independence should be guaranteed not only by personal and structural separation (not always strictly observed), but also by imposing disciplinary measures, bans, and fines. The most discussed example of such practices are the (in)famous Guidelines of the International Olympic Charter on the Rule 50 of the Olympic Charter.

Yet, though the Olympic Charter declares political neutrality as one of its purposes, sport events are regularly used by various politicians to achieve their political objectives. Dating back to the 1936 Olympic Games in Nazi Germany, sport has been used by political leaders to advance their political goals and popularity, and to consolidate support for aggressive behavior in international relations. Though these reasons are often not very noble, SGBs have profited from this political dimension since politicians have been happy to spend public money for bidding process and thus have increased revenues for SBGs. In return, SGBs guarantee that political manifestations are kept outside from the events or will even be severely punished.

In this context, it may even be surprising that the response of UEFA to Manuel Neuer’s statement was so mild since his rainbow armband may indeed become a problem for the Hungarian Prime Minister (a big football fan in himself and a co-host of the tournament) and turn international attention towards his anti-LGBT legislation.

Yet, though UEFA’s decision to refrain from disciplinary measures was the only decent outcome, the sole fact that the proceedings have been opened may lead to a chilling effect regarding the willingness of other participants to execute their fundamental rights, in particular the right to express political views. Even if Neuer is free to keep on wearing his armband, the question whether a private association like UEFA is allowed to interfere in the player’s fundamental rights is thus of highest democratic, but also of political importance.

Horizontal or vertical

So can athletes invoke their fundamental rights against actions by the SGBs, frequently private law associations registered in Switzerland, in the first place? Sport and the EU law have a long story of entanglement. In 1974, the CJEU stated for the first time that anti-discrimination provisions of the Treaty are horizontally applicable to sport (Walrave and Koch). Bosman, the case in which the CJEU famously declared horizontal effect with regard to freedom of movement was decided in 1995. However, the confirmation that horizontal direct effect can be extended also to the fundamental rights enshrined in fundamental principles of EU law and covered by the Charter is a novel direction taken by CJEU in the recent judgements Egenberger and Bauer. Although the background of these cases was not related to sport, there are good reasons to apply the arguments developed by the CJEU to the horizontal relations between the athletes and SGBs.

In the present case, Manuel Neuer, citizen of Germany, and thus the EU, is protected by the Grundgesetz and the Charter of Fundamental Rights of the EU in situations covered by EU law. Legally, he can be regarded as a worker expressing his political sympathy during his worktime while practicing economic activity with cross-border relevance. Any suppression of this behavior may thus be equal to discriminatory treatment of his political opinion (a violation of Article 21 of the Charter) and limitation of freedom of expression (protected by the Article 11 of the Charter). As the Court of Justice of the European Union explicitly confirmed direct horizontal effect of Article 21 in the Egenberger case, it would allow football players to invoke this provision to demand protection against punitive actions by UEFA. This finding results from para 78 of the Egenberger judgement that reads

“[Article 21] is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer on individuals a right which they may rely on as such”.

Though the nature of the relationship between the athletes and SGBs is horizontal in theory but vertical in practice, invoking fundamental rights seems not only justified but also necessary. The imbalance of power, the transnational context of activity, the self-regulatory autonomy of the SGBs, but also the lack of transparency and accountability of their actions call for the mobilization of public law when regulating the relationship between SGBs and players. Therefore any potential of the EU law to counter-balance fundamental rights limitations by private actors should be explored to strengthen the weaker side of the formally inter pares relation between athletes and SGBs. It would significantly contribute to strengthening basic European fundamental rights standards. In this context, I concur to the idea of A. Duval to introduce a sport-specific Solange formula as a method of drawing the line between respect for the autonomy of SGBs and ensuring effectiveness of the EU fundamental rights. This formula would stipulate that the actions of SGBs may remain free from any legal and political interference, as long as their standards guarantee the observance of the fundamental rights of the athletes acknowledged in the law of the EU. The case of Manuel Neuer shows that it is high time to demand that SGBs provide standards compatible with the values of the EU and objectives of the sport policy of the EU defined in Art. 165 TFEU, fair procedures and proper checks and balances with regard to their immense power and arbitrariness of their decisions. Applying fundamental rights horizontally would be a needed step in this direction.