Blog by Michael Minasian, Senior Associate

FIFA’s Human Rights Policy begins by stating that “FIFA is committed to respecting human rights in accordance with the UN Guiding Principles on Business and Human Rights” (“UNGPs”).[1]  The UNGPs are a globally accepted framework that outlines how States and businesses should prevent, address, and remedy human right abuses in connection to business activities.[2]  While the UNGPs were endorsed by the UN Human Rights Council (“UNHRC”) in 2011, they are non-binding international law, as they are simply “guiding principles.”[3]  Since the UNGPs are non-binding international law, FIFA has been shielded from charges relating to human right violations during the World Cup.

On June 26, 2014, the UNHRC announced its plans to establish a binding document addressing human right violations in connection to transnational corporations by adopting Resolution 26/9.[4]  Resolution 26/9 plans to institute an open-ended intergovernmental working group [“OEIGWG”] to regulate activities of transnational corporations and other business enterprises with respect to human rights.[5]  Since the adoption of Resolution 26/9, the UNHRC has held nine OEIGWG sessions to form a legally binding instrument.[6]  The ninth session was held on October 27, 2023.[7] During the ninth session OEIGWG published an updated draft legally binding instrument.[8]

In Article 1.4 of this document, OEIGWG defines “business activities” as “any economic or other activity… undertaken by a natural or legal person” including “any business relationship undertaken by a natural or legal person.”[9]  While FIFA was formed under Swiss law as a nonprofit organization, FIFA falls under OEIGWG’s definition of business activities.[10]  From 2019-2022, FIFA generated over $7.57 billion in revenue, and the Men’s World Cup contributes to 83% of FFIA’s revenue.[11]

In Article 1.5, OEIGWG defines “business activities of a transnational character” as any business activity when:

“(a) It is undertaken in more than one jurisdiction or State; or (b) It is undertaken in one State but a significant part of its preparation, planning, direction, control, design, processing, manufacturing, storage or distribution, takes place through any business relationship in another State or jurisdiction; or (c) It is undertaken in one State but has significant effect in another State or jurisdiction.”[12]

FIFA falls under OEIGWG’s definition of “business activities of a transnational character” since the World Cup requires extensive planning and preparation from both FIFA and the host country.[13]

Article 8 of the OEIGWG discusses the legal liability and requires states to ensure their domestic law include adequate reparations to the victims of human right abuses in the context of business activities.[14]  Thus, FIFA’s liability under the OEIGWG may rely on Switzerland adopting this treaty and providing a system of adequate reparations for transnational business activities.[15]  While the OEIGWG has not listed the countries active in the ninth session, Switzerland was present during the eighth session, which indicates that they will most likely ratify the final treaty.[16]

If Switzerland failed to ratify this document, Article 9 vests courts with adjudicative jurisdiction, which would allow courts to have jurisdiction over claims against non-domiciled business activities if “no other effective forum guaranteeing a fair judicial process is available.”[17]  Thus, if OEIGWG is ratified, FIFA can be held liable for human right violations relating to World Cup Bids from either Switzerland or a court with adjudicative jurisdiction, such as the United States.[18]

 

[1] FIFA’s Human Rights Policy May 2017 edition, FIFA https://digitalhub.fifa.com/m/1a876c66a3f0498d/original/kr05dqyhwr1uhqy2lh6r-pdf.pdf.

[2] An authoritative global framework on business and human rights turns 10, United Nations Human Rights Council (June 17, 2021) https://www.ohchr.org/en/stories/2021/06/authoritative-global-framework-business-and-human-rights-turns-10.

[3] A. United Nations Guiding Principles on Business and Human Rights, Privacy International (June 7, 2022) https://privacyinternational.org/key-resources/4895/united-nations-guiding-principles-business-and-human-rights.

[4] Ninth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, United Nations Human Rights Council https://www.ohchr.org/en/hr-bodies/hrc/wg-trans-corp/session9 [herein after Ninth session of the OEIWG].

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Updated draft legally binding instrument (clean version) to regulate, in international human rights law, the activities of transnational corporations and other business enterprises, United Nations Human Rights Council https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/igwg-transcorp/session9/igwg-9th-updated-draft-lbi-clean.pdf [hereinafter OEIGWG].

[10] Griffin A. Clark, COMMENT: UNHRC Resolution 26/9: Is a New International “Red Card” Enough to Keep FIFA and Others Accountable?, 22 Chi. J. Int’l L. 621 (2022).

[11] 2019-2022 Revenue Reaches Record High, FIFA https://publications.fifa.com/en/annual-report-2022/finances/2019-2022-cycle-in-review/2019-2022-revenue/; Gabriele Marcotti, Why only three continents will likely host a FIFA World Cup, ESPN (Nov. 1, 2023) https://www.espn.com/soccer/story/_/id/38792428/why-fifa-backed-corner-world-cup-hosts.

[12] Updated draft legally binding instrument (clean version) to regulate, in international human rights law, the activities of transnational corporations and other business enterprises, United Nations Human Rights Council https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/igwg-transcorp/session9/igwg-9th-updated-draft-lbi-clean.pdf

[13] Clark, supra note 10.

[14] Ninth session of the OEIWG, supra note 4.

[15] Id; Clark, supra note 10.

[16] Id.; Compilation of general statements from States and non-State stakeholders made during the eighth session, United Nations Human Rights Council https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/wgtranscorp/session8/igwg-8th-compilation-general-statements.pdf.

[17] Ninth session of the OEIWG, supra note 4.

[18] Id.