Hate Speech on and off the Field

During the EURO 2024 in Germany (14 June to 14 July), the UEFA has taken a series of sanctions against national football federations for inadequate statements of their fans and two players, based on the principle of neutrality of the sports movement. The principle prohibits any kind of political, religious or racial demonstration or propaganda in any sport site, venue or other area (Rule 50 of the Charter of the International Olympic Committee).

In the present contribution, the author argues that these sanctions can be considered justified in the light of the standards prescribed by the European Convention on Human Rights (“ECHR”). However, in order to have an effective preventive effect, they should be paralleled by criminal investigations under domestic law. Two different scenarios can be distinguished: racist and nationalist statements made by players and those made by fans. The latter raises two different issues, namely the duty to refrain from endorsing such speech (1.) as well as the positive obligation to protect players against such speech (2.).

Statements made by players

In a decision following the game between Croatia and Albania at the EURO 2024, the Albanian player Mirlind Daku has been suspended by UEFA’s Control, Ethics and Disciplinary Body (CEDB) for two UEFA representative team competition matches. Daku took a megaphone after Albania’s 2:2 draw with Croatia on 19th June 2024 in Hamburg and joined in chanting nationalist slogans against Serbia and North Macedonia. Similarly, the Turkish player Merih Demiral was suspended for two matches for having celebrated his second goal against Austria with a “Wolf Salute”, a gesture commonly associated with the far-right political movement “Grey Wolves”. Contrary to Daku, who spontaneously apologized for his acts, Demiral said he had planned the gesture, which is banned among others in France and Austria, and posted a photo of the celebration on his X account.

In particular Daku’s behaviour has obvious parallels with the case of a former Croatian international football player, Josip Šimunić, who was sanctioned for using an official greeting of the Ustash movement, the totalitarian fascist regime of the Independent State of Croatia. The event at issue took place after the official end of the match against the national team of Iceland in November 2013, when the accused took the microphone, walked out onto the middle of the field and engaged with the fans.

In a first set of proceedings, Šimunić brought his disciplinary sanctions pronounced by FIFA (suspension for ten international games, a stadium ban for those games and a fine) in vain before the Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal, which declared his appeal inadmissible in February 2015.

In a second set of proceedings, he was convicted by the Croatian authorities of a minor criminal offence for addressing messages to spectators at a football match, the content of which expressed or incited hatred on the basis of race, nationality, and faith. After having exhausted local remedies, he brought his criminal convictions before the European Court of Human Rights (the “Court”) (Šimunić v Croatia), claiming that his right to freedom of expression (Article 10 ECHR) had been violated. The Court declared the applicant’s complaint inadmissible, finding that the Croatian authorities had struck a fair balance between his right to free speech, on the one hand, and society’s interest in promoting tolerance and mutual respect at sports events as well as combating discrimination in sport on the other hand. The Court noted in particular that the applicant, as a famous footballer and a role-model for fans and players, should have been aware of the possible negative impact of provocative chanting on spectators’ behavior.

The sanctions pronounced by the UEFA against Daku and Demiral (suspension of 2 matches) seem justified but are rather mild compared with the suspension of 10 matches given by FIFA to Šimunić. As was the case for Šimunić, whose suspension affected his participation in the 2014 FIFA World Cup in Brazil, Demiral’s suspension had serious consequences for him and his team insofar as he missed the quarter final of the EURO against the Netherlands.

Statements made by fans

1. Duty to refrain from endorsing racist and nationalist speech under Articles 10 and 11 ECHR

During the EURO 2024, UEFA imposed a series of disciplinary sanctions for provocative speech of fans too. One of the fines (10 000 EUR) was imposed after fans displayed an Albanian map with its borders extending into neighboring countries’ territories. Likewise, Serbia was charged for displaying a nationalist banner during its game against England on 16 June 2024, featuring the territory of Kosovo above a slogan that said: “No Surrender”, which UEFA has described as “a provocative message not fit for a sports event.”

Two cases decided by Court can be mentioned here that indicate that such sanctions are likely to be compatible with the ECHR. First, the case of Smajić v. Bosnia and Herzegovina concerns the conviction of the applicant, a Bosnian citizen, for following a number of online posts describing military actions which could be undertaken against Serb villages in the Brčko district in the event of another war. The Court declared the applicant’s complaint under Article 10 ECHR inadmissible as being manifestly ill-founded. It found that the domestic courts had given sufficient justification for his conviction, namely that he had used highly insulting expressions towards Serbs, thus touching upon the very sensitive matter of ethnic relations in post-conflict Bosnian society.

The case of Association Nouvelle Des Boulogne Boys v. France, which was declared inadmissible by the Court on 7th March 2011, concerned the dissolution of a Paris Saint Germain (PSG) fan club after several violent clashes between members of the association and the police or rival teams’ supporters. In addition, in March 2008, at the French League Cup final against Lens, members of the applicant association unfurled a banner labelling their northern rivals “unemployed inbred paedophiles”. The incident became famous in France under the heading of “banner of shame”(banderole de la honte). The Court held that the dissolution had constituted an interference with the applicant’s right to freedom of association (Article 11 ECHR). It also observed that the offences of which the applicant association was accused were particularly serious and prejudicial to public order. Lastly, the Court could not ignore the fact that the wording on the banner unfurled at the Stade de France stadium had been particularly insulting towards a certain section of the population. The complaint was accordingly rejected as being manifestly ill-founded.

Considering the findings of the Court in those two cases, the sanctions imposed by the UEFA against national federations during the EURO 2024 seem justified, aiming to fight against inappropriate statements mady by fans. It is, however, doubtful whether moderate financial sanctions against the federations alone have a deterrent effect on the future behaviour of their fans. The federations should reinforce their commitment to fair and peaceful football by imposing stadium bans and, where appropriate, criminal sanctions.

2. Positive obligation to protect individual players against racist and discriminatory speech (Articles 8 and 14 ECHR)

The final game of the 2021 EURO held at the Wembley Stadium (London) confirmed a very disturbing phenomenon: once Marcus Rashford, Jadon Sancho and Bukayo Saka had missed their penalties against Italy, they became victims of massive racist comments. Allegations of such attacks against individual players have, to our knowledge, not been made so far during the ongoing EURO. Nevertheless, these events prompt the necessity for a discourse on the extent to which the States are fulfilling their obligation to safeguard players from racially motivated verbal assaults.

The Court has stated that the right to respect for private life (Article 8 ECHR) and the right not to be discriminated against (Article 14 ECHR) may be at stake when the social identity of certain groups of people is under attack. Its jurisprudence indicates an evolving duty stemming from these provisions to ban certain forms of speech attacking minorities. One of the leading judgments in this field is Aksu v. Turkey, in which two publications, a book and a dictionary including tendentious statements and pejorative expressions, were considered by the Court. In this case, the Grand Chamber of the Court held that discrimination on account of a person’s ethnic origin is a form of racial discrimination. Consequently, as a “particularly invidious kind of discrimination” it requires special attention and a vigorous reaction from the authorities. Very importantly, the private nature of the publications did not prevent the Court from examining the allegations of human rights violations.

These findings are of course extremely relevant for the present discussion, where verbal attacks and insults are made by fans, private persons, against other private persons, namely the targeted football players. A very positive application of these principles can be seen in a recent development in Spain. Real Madrid player Vinicius Junior was the victim of racist chants, inter alia, during a game in Valencia on 21 May 2023. Three individuals were found guilty by sentence of a trial court of a “crime against moral integrity” with “aggravating circumstance of discrimination based on racist motives” and were imprisoned for eight months and banned from attending football matches for two years. These are the first criminal convictions for racially abusing a football player in Spain and, more generally, a ground-breaking development against racial discrimination in sport.

A positive chilling effect

Overall, it can be concluded that the sanctions pronounced by UEFA due to players’ statements during the EURO 2024, not only have a legal basis in the principle of neutrality of the sport movement but are also in accordance with the relevant specific UEFA regulations. Considered in the light of the Šimunić case and the huge immediate impact that their behaviour had, in particular on millions of young spectators who admire famous football players and see them as their role models, the sanctions do not appear disproportionate.

Regarding nationalist and racist speech of fans, the relevant case law of the Court indicates that the protection granted under Articles 10 and 11 ECHR is very limited and that States should refrain from endorsing such speech. Moreover, States are under a positive obligation, deriving from Articles 8 and 14 ECHR, to protect players against racist and discriminatory speech. The recent example of Vinicius Junior can be considered a very positive development in the right direction. The present author hopes that these criminal convictions have a positive chilling-effect and will help to fight racism and discrimination in sports.