Monday, December 21, 2015

FIFA's Responsibility to Respect Human Rights--John Ruggie to Report in March 2016 on Incorporation of the UN Guiding Principles for Business and Human Rights to Sports League

(Pix © Larry Catá Backer 2015)

Fédération Internationale de Football Association's (FIFA)s scandals are by now well known.
Fifa, football's world governing body, has been engulfed by claims of widespread corruption since summer 2015, when the US Department of Justice indicted several top executives.

FifA's president Sepp Blatter has always denied any wrongdoing - but in September, he too was made the subject of a Swiss criminal investigation, launched alongside the US inquiry.

The scandal erupted in May, with a raid on a luxury hotel in Zurich and the arrest of seven Fifa executives - conducted at the behest of the US authorities.

In May the US indicted 14 current and former Fifa officials and associates on charges of "rampant, systemic, and deep-rooted" corruption following a major inquiry by the Federal Bureau of Investigation (FBI).

And in December, 16 more officials were charged following the arrest of two Fifa vice-presidents in at the same hotel in Zurich. Former Brazil football federation chief Ricardo Teixeira was among those accused of being "involved in criminal schemes involving well over $200m (£132m) in bribes and kickbacks". Fifa corruption crisis: Key questions answered, BBC News Online Dec. 3, 2015
Does FIFA have autonomous responsibility to respect human rights in its activities?  Does FIFA have a responsibility to engage in substantial human rights due diligence respecting the operations of all entities (and states) with which it deals in connection with its activities? If banks are increasingly understood to have a responsibility to respect human rights in the context of its lending activities ought sports leagues to bear that same responsibility, and if so to what extent?  These are the questions that now face the architect of the U.N. Guiding Principles for Business and Human Rights as John Ruggie is tasked to formulate "human rights requirements for World Cup hosts and sponsors of the scandal-tarnished governing body."  (Associated Press, Human Rights Requirements for World Cup Hosts, FIFA Sponsors,  The New York Times, Dec. 15, 2015).  By March 2016, he "will provide a report in March showing how business and human rights principles he conceived for the United Nations can speedily become part of FIFA's statues." (Ibid).

There is little doubt that these scandals will broaden as FIFA's responsibility to respect human rights becomes entangled with its recent trubles (e.g., Daniel Augenstein on "Free Trade, Football and Beer: What’s in for Human Rights?"October 31, 2015) ("FIFA, by contrast, is increasingly put under political pressure by human rights NGOs such as Human Rights Watch and Amnesty International and international organizations including the International Labor Organization (ILO) and the Organization for Economic Cooperation and Development (OECD). In October 2015, the Swiss National Contact Point established under the OECD Guidelines for Multinational Enterprises held FIFA responsible for the upholding of human and labor rights of workers employed in Qatar on World Cup related projects.").  But FIFA is not an enterprise and it produces no "product".  Indeed FIFA styles itself "The Fédération Internationale de Football Association (FIFA) is an association governed by Swiss law founded in 1904 and based in Zurich. It has 209 member associations and its goal, enshrined in its Statutes, is the constant improvement of football." (See here)

Rightly so--the responsibility to respect human rights ought to extend to all enterprises engaged in any collective activity, whether it is Apple, Inc. or Amnesty International.  It stands to reason that organizations creating a "constitutional order" for sport must be understood as subject to responsibility for their actions at least equivalent to the scope of their authority. Such leagues, which represent the aggregate power of a number of subsidiary companies organized as teams, and the related production chains that produce sports as an enterprise, create an autonomous regulatory order which operates very much like MNEs within their own better recognized production chains.  That one produces "things" and the other "sport" ought to make no difference--product designed to result in profit, or in the production of something of value, are actors within the societal sphere.  And as such they each ought to bear a responsibility to respect rights.  It follows that such organizations--from FIFA to the U.S. National Football League--ought to be sensitive to their responsibilities to respect human rights--even if the states in which their activities occur might not adhere strictly to their duty to protect human rights.  More importantly, corruption might well be understood as a gateway breach--one that makes it more likely that the rights of others will be compromised for the benefit of others with no entitlement to that benefit.  This applies especially to the corporate obligation to respect human rights (e.g., The Norwegian Sovereign Wealth Fund Reconsiders Observation of Siemens--Changing Behavior Through Investment One Entity at a Time).  It is in this context that the U.N.'s Guiding Principles for Business and Human Rights ought to serve as a foundational guide.  

One wishes Professor Ruggie well, and expect he will successfully be able to develop those approaches that embed human rights due diligence within FFA.  It is to be hoped, as well, that such embedding is not limited to FIFA itself.  It ought to extend down the production chain--to FIFA teams and to those enterprises, organizations and others that contribute to the production of the "entertainment" product that is sport.  That means that the entire organizational hierarchy of FIFA, from its regional and national associations to its teams, ought each independently to bear responsibility to respect human rights. And those obligations ought to be coordinated with that of FIFA.   In that respect, civil society and affinity group actors also ought also to be bound up in the web of human rights due diligence--from supporters groups to states that are associated with, have a role in the management of, regulate or otherwise are entangled in the production chain that is sport.  The Guiding Principles are meant to reach down the production chain--and they are operative in their own right at each level of that production chain.  To limit the application of the Guiding Principles only to the top of those chains effectively absolves all other actors of their duty--or worse, it suggests that that only the top of production chains have a positive obligation to respect human rights--for the rest the obligation is passive and reactive--to comply with the human rights related directives of head-of-production-chain enterprises. Every entity, every actor in the societal sphere who participates in economic activity has or ought to have an independent and autonomous responsibility to respect human rights.  The rest is a matter of harmonizing interpretation and application of that responsibility in the specific context of production--in this case of the global production of "sport".

To focus only on FIFA, on the one hand, or to focus solely on FIFA's relationship to states, on the other, will substantially weaken the effectiveness of a robust exercise of a responsibility to respect human rights. To limit the focus of human rights due diligence to FIFA itself is to increase the risk of developing a beautiful but empty vessel.To limit the focus to states with which FIFA deals would put FIFA in an impossible position of proxy for an international community that itself has never shown much willingness to compel states to adhere to their duty to protect human rights--even in the diluted forms of such duty as embraced by states under principles of international law.

It is to be hoped, as well, that this responsibility to respect human rights, and the human rights due diligence that will serve as an operationalization technique, will focus faithfully on an internationalized and societal coherent approach to the responsibility to respect.  Fracturing the responsibility to respect human rights to suit the tastes of states, which have their own autonomous duty to protect human rights in accordance with their own national idiosyncrasies (constitutional traditions, regulatory tastes, political authority, and the like), could substantially weaken both the coherence and power of the autonomous responsibility of enterprises to respect human rights, understood quite specifically through its core in the International Bill of Human Rights.

The news story describing Professor Ruggie's appointment, and his task, follows:
Human Rights Requirements for World Cup Hosts, FIFA Sponsors
By THE ASSOCIATED PRESS DEC. 14, 2015, 11:16 A.M. E.S.T.

LONDON — FIFA has tasked a Harvard professor with formulating human rights requirements for World Cup hosts and sponsors of the scandal-tarnished governing body.

John Ruggie will provide a report in March showing how business and human rights principles he conceived for the United Nations can speedily become part of FIFA's statues.

"I hope everyone at FIFA is taking these issues seriously because the future of FIFA is at stake," Ruggie told The Associated Press. "I suspect given the pressure FIFA is under they should look to it as a helpful tool and get on with it."

Following Ruggie's review, such requirements will be an integral condition for countries entering bidding for the 2026 World Cup, with the process yet to be launched.

FIFA prioritizing human rights issues in every aspect of its operations — from competitions to day-to-day contracts — appears to be a response to concerns about worker rights in Qatar in the five years since the Gulf nation won the right to stage the 2022 World Cup.

"If the guiding principles had been in place in the context of the (2022) FIFA bidding requirements, the requirements themselves would have looked very different," Ruggie said in response to questions about Qatar.

"We are not asking FIFA to solve every global human rights problem but what the recommendations will require is that they become aware of the human rights impact of their own activities, relationships and events, and they have adequate procedures in place to avoid those adverse consequences."

Qatar organizers say no workers have died during 14 million man hours on stadium projects, which have more stringent regulations than the country's own laws. The scrutiny of Qatar has centered on non-World Cup projects, with the government yet to approve much-talked about labor reforms.

"These reforms may not be coming quick enough for some people but our focus is on sustainable change," 2022 World Cup organizing head Hassan Al Thawadi said Monday on the supreme committee's website.

If Ruggie's envisaged proposals to FIFA had been in place at the time of the 2022 World Cup vote, Qatar would have been mandated to commit then to overhauling its labor laws.

"A host country would have had two choices: either not to bid or agree to the conditions in which the bid was reviewed and accepted," Ruggie said.

Ruggie's rules will not just cover construction workers at stadiums but also, for example, security forces protecting World Cup venues, ensuring they are adequately trained in the use of firearms and crowd control while controlling demonstrations without violence.

A source of anger in Brazil ahead of the 2014 World Cup was over the displacing of communities to build stadiums, which is unacceptable to Ruggie without the agreement of locals.

"There are international rules that go along with needing to adequately consult and compensate communities," Ruggie said. "You don't just send in the bulldozers to raze homes to the ground so you can build a stadium."

The new regulations will also cover the working practices of FIFA sponsors. Adidas, for example, would have to prove that its workers operate in good conditions and are adequately paid to make World Cup balls.

For many years, the Adidas Group has been committed to ensuring fair labor practices, fair wages and safe working conditions in factories throughout our global supply chain," the German sportswear giant said in a statement.

Ruggie said it is important for FIFA to "conduct adequate due diligence to make sure that none of the activities that they themselves control or are otherwise involved in infringe upon the human rights of individuals or harm communities that they impact."

After initially being approached in August by now-suspended FIFA President Sepp Blatter, Ruggie has spent the last four months in talks with the governing body to ensure he had editorial control of the final report.

"That was the most difficult issue," Ruggie said. "They wanted certain powers of review ... but ultimate editorial control remains with me and Harvard."

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