By Robert J. Romano, JD LLM, Sports Law Professor, St. Johns University
When U. S. Olympic athlete Gwen Berry stood on the podium to accept her third place medal at the U.S. Track and Field Olympic Trials, she stirred up an unintentional controversy when she turned from the American flag and placed her shirt, which read ‘Activist Athlete’, over her head. Her peaceable, solitary protest, somewhat reminiscent of the 1968 ‘Power Salute’, however, became highly criticized by various political pundits and ‘news’ organizations, while also drawing heavy backlash from such conservative lawmakers as Rep. Dan Crenshaw who want as far as to advocate that she be removed from the U.S. Olympic Team and not be allowed to represent the USA at the Tokyo Olympic Games.
But did Ms. Berry do anything wrong? Or, more precisely, did she break any rules which would call for her removal from the Olympic Team and ban her from competition? The answer is quite simply, no.
In the wake of the numerous protests and the national social justice movement that occurred after the death of George Floyd, the U.S. Olympic and Paralympic Committee (USOPC) announced that it would not sanction or punish athletes for social and racial justice demonstrations during the Olympic Team Trials. The USOPC defined such demonstrations as those which “promote the human dignity of individuals or groups that have historically been underrepresented, minoritized, or marginalized in their respective societal context.”[1]
The USOPC stated that wearing a hat with the phrase “Black Lives Matter” or “Trans Lives Matter,” vocally advocating for equal rights for minorities, holding up a fist, and kneeling during the national anthem, would all be allowable free speech demonstrations.[2]
At the same time, however, the USOPC stated that “impermissible” demonstration which include wearing clothing with hate speech; hand gestures affiliated with hate groups; violence; defacing a national flag; and “protests aimed explicitly against a specific organization, person or group of people” could result in player discipline. [3]
Interestingly, however, this new USOPC’s policy is squarely at odds with the International Olympic Committee’s (IOC) Rule 50, a longstanding rule which traditionally has barred any and all protest or political, religious, or racial displays during the Olympic Games. What exactly counts as a ‘protest’ has been broadly defined and includes signs or armbands; gestures of a political nature, like a hand gesture or kneeling; and refusal to follow any of the Olympic Ceremony protocols.”[4]
Fortunately for this year’s competitors, however, the IOC’s position regarding Rule 50 has ‘softened’ somewhat from previous Games. Specifically, Rule 50 has been modified so that athletes will be able to express their views on the field of play before competition “so long as it is not targeted against people, not disruptive and not otherwise prohibited by national Olympic committees or international federations.”[5] However, any expression during the course of competition, in the Olympic village and during ceremonies — including medal, opening and closing ceremonies — remain prohibited under a longstanding rule in the Olympic charter baring “political, religious or racial propaganda.”[6]
Whereas it looks as if this year’s Olympic athletes have been given more leeway to express views on political and social justice issues at and during the Games, has the IOC gone far enough? Athletes from around the world do not think so and have been pushing for greater leeway to express their views. One athlete has come out publicly to say that the recommendation by the IOC to keep Rule 50, even in its modified form, was “another sign of an outdated sport system that continues to suppress athletes’ fundamental rights”.[7] In addition, the World Players Association said that the Rule is tantamount to “censorship of athletes’ rights” and “brazenly ignores the courageous acts of athlete activists both today and in the history of the Olympic Movement”.[8]
Whatever your position may be on this issue, it is almost certain that this year’s Tokyo Olympic Games, after being postponed for over a year because of the coronavirus pandemic, will bring excitement and exhilaration, combined with a little controversy, for those competing, both on and off the field of play.
[1] https://www.teamusa.org
[2] Id.
[3] Id.
[4] IOC Rule 50.
[5] Id.
[6] Id.
[7] https://www.insidethegames.biz/articles/1109443/athletes-demonstrate-allowed-tokyo-2020
[8] https://www.insidethegames.biz/articles/1109443/athletes-demonstrate-allowed-tokyo-2020
