Introduction

The UK government’s sanctions on the assets of Russian oligarch Roman Abramovich- the owner of Chelsea Football Club (Chelsea) – have brought to light English football’s problematic relationship with foreign capital. Abramovich along with six other oligarchs have been sanctioned for their close relationship with Putin. Abramovich has been deemed to be complicit in the Russian invasion of Ukraine by the UK government.  

In a neo-liberal globalized world, football ownership is internationalised, with billionaires and sovereign wealth funds enjoying State patronage, investing in English football clubs. Increasingly, football clubs are regarded as vehicles of advancing soft power and tools for re-working the global image of States with questionable human rights records. This phenomenon is so commonplace that we now have a dictionary term for it: sportswashing. Sportswashing is a major hindrance to positive advancement of human rights. This is because States are allowed to conceal human rights violations when they are able to receive positive international recognition on the back of sporting achievements.

Sportswashing, by generating favourable press and capturing the minds and souls of civil society suppresses public reaction to human rights violations. It is a subtle yet powerful threat to human rights and must be identified as such. Football clubs are ‘central to the local identity and woven into the fabric of community life’ in the UK. It is this incredible power of football, as a vital cultural good that makes it susceptible to sportswashing.

Abramovich’s ownership of Chelsea is one of the foremost examples of sportswashing in the Premier League (PL). Chelsea fans singing his name during a scheduled applause for Ukraine suggests that he has been overwhelmingly successful in his endeavor.

In this article, I aim to examine whether and how international human rights law can respond to sportswashing in English football?

Legal framework to address sportswashing

Due to its subtle and incidental nature, it is difficult to litigate concerns against sportswashing in the form of specific human rights challenges before the judiciary. The current human rights framework in the UK i.e the Human Rights Act, 1998 which was formulated to incorporate the European Convention on Human Rights (ECHR) aims to primarily regulate the vertical relationship between the State and individuals. Although the ECHR does have the potential to be applied horizontally between individuals and businesses, it is only operationalised when there is an infraction of a specific statutory right.[1] A simple textual reading of the Section I of the ECHR indicates that it is impossible to theorise sportswashing within one of the explicit rights enumerated in the ECHR.

On the other hand, international soft law principles such as the  UN Guiding Principles on Business and Human Rights (UNGPBHR) are more useful in addressing sportswashing. Principle 2 of the UNGPHR requires States to ensure that businesses domiciled in their territory respect human rights abroad. It requires States to examine the extraterritorial activities of businesses. Further, as per Principle 4 of the UNGPBHR, the responsibility on States is greater when they are themselves supportive of such business enterprises. Evidently, the UK government is falling short of these obligations as the de-facto owners of Newcastle football club- the Kingdom of Saudi Arabia- executed 81 people on 12^th March and continue to brutally crackdown on the LGBTQ+ community.

Additionally, Chapter 2 of the UNGPBHR imposes human rights responsibilities directly on businesses such as the PL. Prasad and Mishra argue that Principles 11 (duty to respect human rights),13 (duty to mitigate adverse human rights impacts),17 (duty to conduct human rights due diligence to assess potential human rights impacts) and 18 (duty to conduct periodic human rights due diligence) of the UNGPBHR obligate the PL to adopt redressal mechanisms against sportswashing and constantly review its impact on human rights. Although the UNGPBHR is non-binding, it is indicative of the proper practices that businesses across the world must adopt.

Therefore, international soft law demands an urgent ‘legislative’ response to sportswashing. I use the term ‘legislative’ loosely to indicate that remedial measures can be adopted by the PL itself or can be imposed on it through governmental intervention.

Two-Tier Legislative Response

There are two ways which can be employed to deal with sportswashing: 1) a reformed owners’ and directors’ test and 2) stricter application of PL’s Profit and Sustainability (P&S) Rules and Union of European Football Associations’ (UEFA) Financial Sustainability Regulations. These are pre-existing mechanisms which can be re-tooled based upon the suggestions of MP Tracey Crouch’s report.

A. Integrity Test

Although the report does not address sportswashing, it argues for the introduction of an integrity component in the owners’ and directors’ test which would assess whether the proposed owner is of good character, capable of owning a community asset. This integrity component can be modified further to evaluate the human rights record of the prospective owner. Such an integrity component in the owners’ and directors’ test would be a form of prospective ‘due diligence’ as required by the UNGPBHR principles.

B. Stricter application of P&S Rules and Financial Sustainability Regulations

The central idea behind sportswashing is to achieve prompt ‘sporting success’, thrusted by the billions of the new owner. It is unlikely that Chelsea fans and ex-captains would still cheer for Abramovich if they had not enjoyed the most successful period in their history under his ownership. This sporting success is achieved by spending vast amounts of money loaned by the owner. For instance, Newcastle spent $120 million in their first transfer window under the ownership of the Saudi state. In comparison, Newcastle had an average net spend of 12.6 million euros in the last 19 windows.

The Crouch report suggests imposing limits on the amount of money an owner can inject in their club. These subsidies by the owner can be restricted in proportion to the revenue that a club generates and can be incorporated as part of the PL’s P&S Rules and UEFA’s Financial Sustainability Regulations. With their increased spending and consequent sporting success, clubs bolstered by foreign investment are bound to gain entry into UEFA competitions, thereby bringing them within the purview of UEFA’s Regulations.

I contend that stricter application of these rules would make it difficult to simply buy sporting success by loaning billions of dollars- as done by Abramovich. Consequently, sportswashing projects would become more cumbersome and long drawn. This would have the overall effect of disincentivising states and individuals from viewing the PL as an attractive sportswashing destination.

Conclusion

The sanctions on Abramovich have provided a unique opportunity for the PL and the UK. Sportswashing and its relationship with British football has never been clearer. It is crucial that the UK government and the PL move away from only reactionary actions – as in the case of Abramovich- when the human rights violation is simply too inconvenient to ignore. It must establish measures that safeguard human rights in the long run. 

Dhananjay Dhonchak is a law student at The National Academy of Legal Studies And Research, Hyderabad, India. He is interested in sports law- including human rights obligations of transnational sporting organisations, technology law and constitutional law.

Learn more about this topic in “Mega-Sporting Events and Human Rights—A Time for More Teamwork?,” by Lucy Amis, from Business and Human Rights Journal.

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[1] David Hoffman, The Impact Of The UK Human Rights Act On Private Law, pp. 16-47 (Cambridge University Press 2011).