**Interdisciplinary Studies in Human Rights 10**

Véronique Boillet Sophie Weerts Andreas R. Ziegler  *Editors*

# Sports and Human Rights

# Interdisciplinary Studies in Human Rights

#### Editor-in-Chief

Markus Krajewski, Faculty of Law, Friedrich-Alexander-University Erlangen-Nürnberg, Erlangen, Germany

#### Series Editors

Petra Bendel, Center for Area Studies, Friedrich-Alexander-University Erlangen-Nürnberg, Erlangen, Germany

Heiner Bielefeldt, Institute of Political Science, Friedrich-Alexander-University Erlangen-Nürnberg, Erlangen, Germany

Andreas Frewer, Institute for History and Ethics of Medicine, Friedrich-Alexander-University Erlangen-Nürnberg, Erlangen, Germany

Manfred L. Pirner, Religious Education, Friedrich-Alexander-University Erlangen-Nürnberg, Nürnberg, Germany

Human rights are one of the normative cornerstones of contemporary international law and global governance. Due to the complexities of actual or potential violations of human rights and in light of current crises, new and interdisciplinary research is urgently needed. The series Interdisciplinary Studies in Human Rights recognizes the growing importance and necessity of interdisciplinary research in human rights. The series consists of monographs and collected volumes addressing human rights research from different disciplinary and interdisciplinary perspectives, including but not limited to philosophy, law, political science, education, and medical ethics. Its goal is to explore new and contested questions such as the extraterritorial application of human rights and their relevance for non-state actors, as well as the philosophical and theoretical foundations of human rights. The series also addresses policy questions of current interest including the human rights of migrants and refugees, LGBTI rights, and bioethics, as well as business and human rights.

The series editors are Members of the Centre for Human Rights Erlangen-Nürnberg (CHREN), an interdisciplinary research center at Friedrich-Alexander-University Erlangen-Nürnberg. The Advisory Board brings together human rights scholars from a wide range of academic disciplines and regional backgrounds. The series welcomes suggestions for publications of academic research falling into the series subject matter.

Véronique Boillet • Sophie Weerts • Andreas R. Ziegler Editors

# Sports and Human Rights

Editors Véronique Boillet Law School University of Lausanne Lausanne, Switzerland

Andreas R. Ziegler Law School University of Lausanne Lausanne, Switzerland

Sophie Weerts Swiss Graduate School of Public Administration University of Lausanne Lausanne, Switzerland

ISSN 2509-2960 ISSN 2509-2979 (electronic) Interdisciplinary Studies in Human Rights ISBN 978-3-031-56451-2 ISBN 978-3-031-56452-9 (eBook) https://doi.org/10.1007/978-3-031-56452-9

This work was supported by University of Lausanne.

© The Editor(s) (if applicable) and The Author(s) 2024. This is an open access publication.

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# Contents

# Editors and Contributors

# About the Editors

Véronique Boillet is a professor of public law School of the University of Lausanne. She was previously a lawyer at the Lausanne's Bar (2011–2013) and has just been elected to the Board of the Swiss Institution for Human Rights (2023–2027). As a scholar, she has in-depth knowledge of the European and Swiss constitutional system, which she has been teaching since 2010 and which she has analyzed in several contributions published in leading European and Swiss law journals. Her current research focuses on the link between human rights and the environment, and on the principle of non-discrimination.

Sophie Weerts is an associate professor of public law at the Swiss Graduate School of Public Administration, University of Lausanne. She holds a PhD in law from the University of Louvain and has a background in law and ethics. Sophie was previously a visiting professor at the University of Geneva and the University of St-Louis-Brussels and a lecturer at the University of Neuchâtel and the University of Louvain (Uclouvain). She practiced law for several years at the Brussels bar and worked as an expert for the federal government. Her research lies at the crossroads of legal theory, constitutional law, and European law. She is currently focusing on issues relating to digital transformation and its impact on public law. In this context, she is particularly interested in the business and human rights field for regulating the digital sector.

Andreas R. Ziegler is currently a Professor of International Law at the University of Lausanne and Director of its LLM Program in International Business Law. He holds a conjoint professorship at the Law School of the University of New South Wales (Sydney, Australia) as well as visiting appointments at the Universities of St. Gallen and of the Saarland (Saarbrücken) as well as ETH Zurich and the Geneva Academy. Previously, he was a civil servant working for several Swiss Ministries (Foreign Affairs, Trade) and international organizations (EFTA, EU). He has widely published on Swiss, international, and European law (including "Swiss LGBT Law", 2nd edn. 2017) and regularly advises Governments, International Organizations, NGOs, and private clients and has represented them before various domestic and international courts and arbitral tribunals. He is on the permanent roster of panelists of the WTO and a Member of the European Commission of Sexual Orientation Law (ECSOL). He is the President of the Swiss Chapter of the International Law Association (ILA) and on the Board of the Swiss and the German Societies of International Law and the European Law Faculties Association—ELFA). He founded and manages the blog "sogiesc.law.blog" on international and comparative SOGIESC law.

#### List of Contributors

Kim Barker Lincoln Law School, University of Lincoln, Lincoln, UK

Véronique Boillet Law School, University of Lausanne, Lausanne, Switzerland

Pieter Cannoot Department of Interdisciplinary Study of Law, Private Law and Business Law, Faculty of Law and Criminology, Ghent University, Ghent, Belgium

Ariël Decoster Human Rights Centre, Ghent University, Ghent, Belgium FWO Flanders Research Foundation, Brussels, Belgium

Joseph Benjamin B. De Leon Las Pinas, Philippines

Antonio Di Marco University of Strasbourg, Strasbourg, France

Antoine Duval T.M.C. Asser Instituut, The Hague, The Netherlands

H. Burak Gemalmaz Faculty of Law, Istanbul University, Türkiye

Lena Holzer University of Cambridge, Faculty of Law, Cambridge, UK

Mark James Manchester Law School, Manchester Metropolitan University, Manchester, UK

Olga Jurasz Law School, The Open University, Milton Keynes, UK

Guy Osborn Westminster Law School, University of Westminster, London, UK

Seema Patel Nottingham Law School, Nottingham Trent University, Nottingham, UK

Claire Poppelwell-Scevak Human Rights Centre, Ghent University, Ghent, Belgium

Daniel Rietiker European Court of Human Rights, Strasbourg, France Lausanne University, Lausanne, Switzerland Suffolk University Law School, Boston, MA, USA

Sarah Schoentjes FWO Flanders Research Foundation, Brussels, Belgium

Cathérine Van de Graaf Academy for European Human Rights Protection, Faculty of Law, University of Cologne, Köln, Germany

Marjolaine Viret Institute of Sport Sciences, Faculty of Social and Political Sciences, University of Lausanne, Lausanne, Switzerland

Sophie Weerts Swiss Graduate School of Public Administration, University of Lausanne, Lausanne, Switzerland

William Thomas Worster The Hague University of Applied Sciences, The Hague, The Netherlands

Andreas R. Ziegler Law School, University of Lausanne, Lausanne, Switzerland

# Introduction

Véronique Boillet, Sophie Weerts, and Andreas R. Ziegler

#### Contents

At the 1906 Olympic Games in Athens, the athlete Peter O'Connor protested the erasure of Ireland from the Olympics by climbing the flagpole during his medal ceremony, and replacing the Union Jack with the Irish flag. At the 1932 Olympic Games in Los Angeles, in the midst of the Great Depression, demonstrators denounced the economic injustice of the high cost of the Games. In 1968, at the Mexico City Olympics, Tommie Smith and John Carlos raised their fists in a Black Power salute when receiving their medals. More recently, the construction of infrastructure for the 2012 London Olympics and the 2016 Rio Olympics led to the displacement of marginalized communities, with the promise of access to new infrastructure, which has yet to materialize.1 Whether concerning particular athletes, people involved in the organization of sporting events, or other causes, these various protests at the Olympics throughout history prove that attacks on human dignity, individual freedom, and equality between individuals also echo in sport. From this perspective, the sporting environment is not disconnected from major contemporary social issues: it constitutes a public space in which injustices can be denounced, but

V. Boillet (✉) · A. R. Ziegler

Law School, University of Lausanne, Lausanne, Switzerland e-mail<EMAIL_ADDRESS><EMAIL_ADDRESS>
S. Weerts Swiss Graduate School of Public Administration, University of Lausanne, Lausanne, Switzerland e-mail<EMAIL_ADDRESS>
1 Boykoff (2017), p. 162.

also the theater in which prejudices are perpetuated against various parties, such as athletes or workers.

International human rights law (IHRL) commonly addresses attacks on individual dignity and social justice issues by guaranteeing rights to individuals and offering them protection mechanisms. Consequently, it becomes pertinent to inquire whether IHRL can solve the problems encountered in sporting practices and the sporting environment. This is the question that animates this volume, which seeks to explore the potential protection(s) that IHRL can offer to combat such abuse. Indeed, while its application is not self-evident due to the nature and status of stakeholders involved in human rights abuses, several changes in the field of IHRL show that Sports Governing Bodies (SGBs) can no longer afford not to comply with human rights standards. Recent cases, such as the European Court of Human Rights' (ECtHR) decision in Caster Semenya, reveals the application of human rights principles to international sports organizations, and the positive obligation of states to respect, protect, and promote human rights.2

Based on a series of themes and case studies, this book aims to illustrate the impact of sports policies and practices on individuals and their identities, and to analyze the potential solutions offered by IHRL for these infringements. It thus bridges the gap between IHRL and sports studies, and will be useful to scholars in both fields, especially those unfamiliar with each other's work. Conversely, by investigating the context of sport and its governance, this collection offers a series of valuable insights, enabling the development of an interpretation of 'law in context' for legal scholars in the field of human rights. As the governance and regulation of sport are seen as illustrations of other forms of normativity, this book also contributes to the conversation about the transnational dimension of law and legal orders.3 In this respect, it illustrates that normative autonomy in the field of sport, associated with the idea of lex sportiva, tends to be relative regarding IHRL.4

In addition to the concrete examples that can be drawn from several chapters in this volume, three elements make it possible to call into question this idea of the autonomy of sport. The first is the evolution of IHRL itself; it should be noted that the international organizations responsible for human rights have broadened the range of their instruments in order to realize their commitment to respect, protect, and fulfil. Implementing this last obligation has led to the introduction of a series of actions structured within a public policy framework. From this perspective, the adopted texts constitute what jurists call 'soft law'. Including human rights in a public policy perspective makes it possible to go beyond the state as the sole interlocutor to include other stakeholders, such as civil society and business. The second element stems from the work on corporate social responsibility that began in

2 ECtHR, Semenya v. Switzerland, req n°10934/21, 11 July 2023. 3 See e.g. Peer Zumbansen, Transnational Law, CLPE Research Paper 09/2008; Cotterell (2012), pp. 500–524; Halliday and Schaffer (2015). 4 Duval (2021), pp. 493–512; Di Marco (2022), pp. 244–268.

the 1990s,5 which calls for companies to adopt an ethos that reconciles economic development with respect for social values. In this context, human rights are a particularly evocative discourse for organizations seeking to strengthen their legitimacy. Finally, the polycentric approach of IHRL is also illustrative of the object of regulatory studies, highlighting the shift from legislation to regulation, and from system of government to system of governance.6 These three elements provide a fascinating framework for understanding the evolution of the issue of human rights in the sporting environment, which serves to elucidate the gradual rapprochement between IHRL and private sporting organizations. Considering this context, this book should be useful to SGBs who are under significant pressure to address human rights standards in their governance, and to provide athletes with advice regarding the legal mechanisms that can protect them before judicial authorities.

This book intentionally is centered on athletes.7 The editors intended to highlight this relatively overlooked category of human rights beneficiaries: individuals who practice a sporting activity in a professional or semi-professional environment. Two prominent human rights topics are at the core of this collection: discrimination based on gender or nationality, and freedom of expression. This focus is a result of the proposals selected after the call of papers launched in December 2021. These topics are aligned with crucial social issues facing our increasingly digital society, which further proves that sport is an illustrative area of more general problems. From a legal point of view, several chapters deal with United Nations (UN) human rights law, but also devote considerable space to the case law of the ECtHR. This Eurocentric perspective is due to the current state of sport global governance, in which the ECtHR is involved through the establishment of the Court of Arbitration for Sport (CAS) in Lausanne, and its connection to Swiss law, which is in turn connected to the European Convention on Human Rights (ECHR). This book does not purport to provide a complete picture of all human rights issues in sport and all potential legal solutions. Other topics could have been more extensively addressed, such as freedom of religion or the right to privacy,8 which has given rise to several cases in the fight against doping.9 The situation of other beneficiaries, such as workers or people displaced in the construction of sports facilities, is also worthy of further analysis. The ECtHR decision in the Caster Semenya case deeply impacted the editorial process. Although the long-term effects of this decision will need to be addressed, several chapters explore different elements of the case. Finally, the importance of

5 Carroll (2009), pp. 19–46. 6 See e.g. Black (2001), p. 126. 7 This book echoes the call for considering the status of athletes as human rights beneficiaries. See Schwab (2018), pp. 214–232. 8 Both topics figure in the chapters Cannoot et al. "Hormonal Eligibility Criteria in Women's

Professional Sports Under the ECHR: The Case of Caster Semenya v. Switzerland", and Holzer L "Gendered Athletes in Sports: CEDAW's Role in Tackling Heterosexist and Racialized Uniforms in Sports". 9 ECtHR, Fédération nationale des Syndicats Sportifs (FNASS) and others v. France, 18 January

2018, req. n°s 48151/11 and 77769/13.

European human rights law in the field of sport is not without question, given the universalist vision promoted by global SGBs and the overshadowing of other legal systems that offer additional perspectives on solutions to protect vulnerable people. The limitations of the present volume are an invitation for other legal experts to explore these different areas and contribute to the dialogue that a universal human rights vision requires.

Before delving into the various chapters, some clarifications must be made regarding the context and approach of this book. First, the specific regulatory context of sports organizations will be discussed, which helps to understand the weaknesses of measures to protect, promote, and implement human rights in the field of sport. Second, the subject of sport will be placed in the context of IHRL. The growing economic power of global SGBs increases the vulnerability of athletes in sporting contexts, and thus strengthens the call for a complete application of human rights law to the field of sport. Finally, the editors will address questions concerning the legitimacy of the rise of European human rights law in sports governance.

#### 1 The 'Autonomy' of Sports Governing Bodies

Historically, SGBs have been given significant autonomy when organizing sporting competitions as well as regarding their internal structure and regulations. One explanation for this is the idea that (international) sports should not be subject to the political influence of specific states, and that athletes should be free to organize their activities according to the specific needs of their chosen sport. Liberals would also add that the absence of state interference serves the idea of self-government in an area where the possibility of attracting sponsors and the general public is an important metric of success. While in some states, the interference with domestic sports associations may be more pronounced, there is hardly any international law related to SGBs and sports. A notable exception is the area of doping where a traditional international treaty10 exists and an international body has been established, the World Anti-Doping Agency, although only in 1999 and with a hybrid character that falls short of a traditional international organization;11 it is funded equally by the Olympic Movement and Member Governments.

10 International Convention against Doping in Sport of 19 October 2005. It was negotiated under the auspices of UNESCO and has 191 State Parties (as of October 2023).

11 The World Anti-Doping Agency is a foundation created through a collective initiative led by the International Olympic Committee (IOC) on 10 November 1999. WADA receives half of its budgetary requirements from the IOC, with the other half coming from various national governments. Its governing bodies are also composed in equal parts by representatives from the sporting movement (including athletes) and governments of the world. Government representation within WADA is allocated according to the five Olympic Regions. The membership allocation to WADA's Foundation Board (Board) was agreed by governments at the International Intergovernmental

Introduction 5

Further, not only are international treaties and organizations absent from the field of sports, but also dispute settlement is largely left to the organizations themselves. The CAS was only created in 1984, and remains under the auspices of the International Olympic Committee (IOC) with little interference by the state or international courts and tribunals.12 As the CAS is fundamental for safeguarding the (human) rights of athletes, it is a system that should be subject to close analysis, and many chapters of this volume directly address its structure and approach. Recent case law from the Swiss Federal Tribunal (which is the only national institution for challenging arbitral awards by the CAS), and national courts relating to disputes settled by the CAS have shown that the autonomy of this system could be further challenged in the near future. What is particularly interesting from an IHRL perspective is the fact that governments are bound by specific international obligations while the sports world is allowed to largely organize itself; this is relevant for the role of the ECtHR with regard to Switzerland where the CAS is located.13

## 2 Sport, Sports Governing Bodies and Athletes in International Human Rights

The second element that will now be addressed is the relationship between sport and IHRL; indeed, the topic of sport is not new regarding the agenda of public international organizations. Early perspectives on the topic treated sport as a means for personal development, and this has developed more recently in favor of recognizing the human rights of people who are impacted by sporting organizations and events. Several conventions and political declarations show that sport was first viewed as a vehicle for personal development at the universal level. In 1959, the UN adopted the Declaration on the Rights of the Child, which recognized sport as a fundamental right.14 In 1978, in its International Charter of Physical Education, UNESCO

Consultative Group on Anti-Doping in Sport Meeting held in Cape Town, South Africa, in May 2001.

12 The CAS Statute entered into force on 30 June 1984. See also the "Agreement concerning the constitution of the International Council of Arbitration for Sport of 22 June 1994", known as the "Paris Agreement". This was signed by the highest authorities representing the sports world, viz. the presidents of the IOC, the Association of Summer Olympic International Federations (ASOIF), the Association of International Winter Sports Federations (AIWF) and the Association of National Olympic Committees (ANOC).

13 See below and Shinohara Tsubasa, Paving the Way for the Protection of Human Rights in Sports - The Case of Intersex and Transgender Female Athletes (2024).

14 UN General Assembly, Resolution 1386 (XIV), 20 November 1959, https://digitallibrary.un.org/ record/195831.

declared that sport and physical education are fundamental rights for all.15 The recognition of sport as a factor in constructing identity and personal development is also reiterated in international conventions on the fight against racism, children's rights, and the rights of persons with disabilities.16 From the 2000s onwards, the international approach to sport took on an institutional dimension. Within the UN, sport became a tool to help achieve the Millennium Development Goals (2000–2015) and the Sustainable Development Goals (2015–2030).17 In 2001, the UN Secretary-General appointed a Special Adviser on Sport for Development and Peace; a task force of several UN agencies (including UNESCO, ILO, WHO, UNICEF, and UNDP) was also instituted. The UN General Assembly declared that 2005 was the 'International Year of Sport and Physical Education'.

In this regard, sport is not only a tool for helping people develop their autonomy and exercise their liberty, but it becomes an instrument of public policy. It is viewed as a means of achieving objectives in the fight against poverty and the promotion of peace, while also contributing to personal development. This instrumental and social understanding of sport led to it becoming an integral part of public policy that could be deployed at the international or national level. At the regional level, the Council of Europe was an active player for connecting sport and human rights. With its resolution on 'Principles for a Policy of Sport for All' in 1975, the European organization first promoted sport as a vehicle for improving individuals' rights to health, education, culture, and participation in the life of their community, and encouraged governments to develop policies in the field of sport. This resolution was updated in 1992, 2001, and 2021 as the 'European Sports Charter'. 18 Further, the Council of Europe adopted numerous recommendations in which the issue of sport is connected to other issues in the area of human rights protection. Some relevant resolutions here include the prevention of racism, xenophobia and racial intolerance in sport (Rec(2001)6), or in improving physical education and sport for children and young people in all European counties (Rec(2003)6). In its recommendation, the Committee of Ministers of the Council of Europe also expressed its sensitivity to governance issues, adopting two recommendations on the principles of good governance in sport (Rec(2005)8 and CM/Rec(2018)12), and also on the principle of autonomy of sport in Europe (CM/Rec(2011)3).

The rise of economic globalization and the arrival of transnational economic players changed the classic perspective on IHRL, and offered a new path for protecting human rights. Since the 1990s, a new kind of actor emerged in the relationship between international organizations, states, and individuals: the

15 Unesco General Conference, The Unesco Charter was revised in 2015 (Unesco General conference, International Charter of Physical Education, Physical Activity and Sport, SHS/2015/PI/H/14 REV).

16 Hums et al. (2009), pp. 36–48. 17 Beutler (2008), p. 360. 18 Recommendation CM/Rec (2021) 5 of the Committee of Ministers to Member States on the Revised European Sports Charter (https://rm.coe.int/recommendation-cm-rec-2021-5-on-therevision-of-the-european-sport-cha/1680a43914).

transnational private organization. These transnational players operate in a territorial, and therefore legal, environment distinct from the one in which they are based, and in this context can cause harm to people where public authorities are not in a position to protect them. In 2007, the Special Representative of the Secretary-General on Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie, recommended that transnational organizations adopt a human rights risksbased approach in their management.19 The recommendation proposed to connect "elements of the state-centered international law not only to national law and legal institutions, but also to the forces of the market which drives many of the non-state business governance initiatives". 20

In this context, the business and human rights perspective presents a crossfertilized approach between the concepts and principles of human rights applicable in relations between states and individuals and those from organizational management; combining a 'goal-based approach', with the deployment of strategies and action plans, with a 'compliance approach', with implementation measures such as impact assessments. Indeed this kind of approach was adopted in 2011 by the UN Human Rights Council as the 'Guiding Principles on Business and Human Rights' (UNGP).21 The UNGP offers a comprehensive catalogue of measures for states and business organizations to mitigate the negative effects of business on human rights. It echoes in the sporting field, particularly concerning the organization of megasporting events, which highlight the dark side of international sport competitions and their governance.22 Involving a multitude of actors from international sports organizations to local contractors, such events blur the chain of responsibilities; some of these events have involved the expulsion of vulnerable populations and the exploitation of workers (i.e. London 2012 Summer Olympics, Rio 2016 Summer Olympics, FIFA World Cup Qatar 2022). Private sports organizations no longer remain off the radar of human rights defenders. The specific institutional architecture of sports organizations (often a decentralized and pyramidal structure) continues to generate controversy regarding legal status and obligations in terms of human rights.23

The comprehensive approach of the UNGP offers a solid way of encouraging sports organizations to commit to human rights.24 Some of these organizations have followed this path: in 2016, the Fédération internationale de football association (FIFA) made such a commitment.25 The International Olympic Committee (IOC)

19 Aaranson and Higham (2011), pp. 333–364, spec. 337–345. 20 Buhmann (2015), pp. 3099–3434, esp. 401. 21 United Nations, Human rights Council, Resolution n°17/4 Human rights and transnational corporations and other business enterprises, 6 July 2011 (https://documents-dds-ny.un.org/doc/

RESOLUTION/GEN/G11/144/71/PDF/G1114471.pdf?OpenElement). 22 Amis (2017), pp. 135–141. 23 Di Marco (2022), spec. p. 248. 24 Schwab (2017), pp. 4–67. 25 The organization adapted its statutes, hired a human rights manager, developed a human rights policy, and established an independent advisory board. Few years later, the organization took

followed suit in 2017.26 A coalition of multi-stakeholders of international agencies, governments, sports bodies, and civil society, the Centre for Sport and Human Rights, was launched in 2018 to encourage all sports organizations to find solutions to the questions of applying human rights to the sporting field.27

However, the commitments made by international sports organizations to respect the UNGP cannot stand alone. While the UNGP was conceived as a tool to fight against the negative external effects of economic activity on populations, it was not specifically envisaged in terms of relations between sport organizations and individual athletes. It offers a useful perspective for thinking about this relationship, especially when considering the autonomy of sport organizations, but also contains weaknesses inherent in their ontology. This leads us to two separate conclusions: first, the need for athletes to have a territorial connection criterion enabling them to benefit from the classic legal principles and institutions of IHRL; and second, the importance of positive obligations in IHRL for guaranteeing the respect of human rights by private actors.28

#### 3 The Swiss Connection of Sports Governing Bodies

The third element that will be explored in this introduction is the connection between the world of sports and public judicial authorities. The argument of the autonomy of the normative system of sports organizations is difficult to resist in the field of human rights. Indeed, as human rights monitoring bodies consider that states have a positive obligation to act to guarantee respect for human rights, it becomes imperative to delineate the criteria for imposing such obligations on sports organizations.

As a reminder, in the area of sports disputes, the CAS,29 which is based in Lausanne, Switzerland, has primary jurisdiction, but appeal is possible to the FST. Concretely, it means that once the CAS has issued its decision, this is subject to Swiss jurisdiction, which makes it possible to create a link with the jurisdiction of the ECtHR.30 Article 190 of the Swiss Federal Act on Private International Law notes

another position regarding its institutional commitment in favor of human rights. Nevertheless, some authors highlighted the positive trend. See Alfrey et al. (2022), pp. 311–318.

26 Grell (2018), pp. 160–169; Ishida and Wada (2017), pp. 145–148. 27 https://www.sporthumanrights.org/about-us/governance/. 28 Heerdt and Ronda (2023), pp. 19–64, spec. p. 35. 29 The question whether this Court is an appropriate body and well equipped to play a role in the protection of human rights is an important question that is dealt in chapter Duval A, Viret M "The Court of Arbitration for Sport under Human Rights Scrutiny: The role of the Swiss Federal Tribunal and the European Court of Human Rights". 30 See ECtHR, Semenya v. Switzerland, § 90: "The Court notes that Switzerland played no part in

the adoption of the DSD Regulations, which were issued by the IAAF, an association governed by Monegasque private law. It will therefore focus its examination of the complaints raised by the

that an arbitration decision, whether made by a sports organization or not, may be challenged before the FST, but only in cases determined by the legal provision. This involves, on the one hand, a breach of procedural rules and, on the other, a violation of Swiss public policy. Nevertheless, it must be noted that the FST has developed an extremely restrictive and sometimes rather cryptic interpretation of the notion of public policy. For illustration, in a particular tribunal ruling, it is noted that "a decision is incompatible with public policy if it disregards the essential and widely recognized values which, according to the prevailing conceptions in Switzerland, should form the basis of any legal order". 31 The ruling further states that "an award is contrary to substantive public policy when it violates fundamental principles of substantive law to such an extent that it can no longer be reconciled with the relevant legal order and system of values". 32 It continues: "it is not sufficient that a reason chosen by an arbitral tribunal offends public policy; it is the result to which the award leads that must be incompatible with public policy". 33 Finally, and in a particularly scathing manner, it is stated that "the incompatibility of the award with public policy, as referred to in Art. 190 Para. 2 let. e LPIL, is a more restrictive concept than that of arbitrariness". 34 The annulment of an international arbitral award on this ground of appeal is very rare.35

Regarding this right of appeal, the exceedingly narrow understanding of the public policy concept gives rise to concerns regarding the efficacy of the right of appeal to a judicial authority for issues beyond those related to the conduct of arbitration proceedings. The FST has explicitly signaled its intention not to create an avenue of redress beyond the procedural matters previously mentioned, even for individuals resorting to arbitration, including athletes. It should be noted that such an interpretation is not unexpected, given the chronic caseload burdening the FST.

Nevertheless, the ECtHR has already been tasked with adjudicating on the highly restrictive interpretation of public policy of the Swiss tribunal. In its three-judge ruling Bakker v. Switzerland in 2019, the European Court emphasized its limited authority in scrutinizing the application of domestic law by national judicial authorities. In this ruling, the Court acknowledged this stringent understanding of public policy while specifying its willingness to intervene if it detected arbitrary or manifestly unreasonable applications of domestic law. Although this interpretation had already raised concerns in Ali Riza v. Turkey, where the Court ruled that entrusting arbitration proceedings solely to private entities necessitates ensuring compliance with all aspects of Article 6 of the ECHR, it was deemed contrary to Article

applicant on the question of whether the review carried out by CAS and the Federal Court met the requirements of the Convention".

31 FST 144 III 120, para. 5.1; FST 132 III 389, para. 2.2.3.

32 FST 144 III 120, para. 5.1.

33 FST 144 III 120, para. 5.1.

34 FST 144 III 120 para. 5.1; judgments 4A\_318/2018 of 4 March 2019 para. 4.3.1; 4A\_600/2016 of 29 June 2017 para. 1.1.4.

35 FST 132 III 389, para. 2.1.

13 ECHR in Semenya v. Switzerland. In the Semenya case, the Court also determined that "the Federal Court, primarily due to its severely limited review powers, had inadequately addressed the well-substantiated and credible claims, including allegations of discrimination, put forth by the applicant". 36 Consequently, the ECtHR concluded that,

"in its capacity as a custodian of European public policy [...] the domestic remedies accessible to the applicant, when viewed comprehensively and in light of the specific circumstances of the case, could not be considered effective within the scope of Article 13 of the Convention." 37

In essence, the Court acknowledged that the litigant was afforded incomplete protection, primarily because the FST adopts an overly narrow interpretation of the concept of public policy, construing it solely in procedural terms and as an exceptional grievance, thus obscuring its potential applicability.

Finally, it should be noted that despite restrictive interpretation of Article 190 of the Swiss Federal Act on Private International Law (which will have to change in light of the Caster Semenya v. Switzerland case law), this article does represent an important bridge between private law actors and responsibility for the protection of human rights. Moreover, it is precisely thanks to this type of legal mechanism that arbitration sentences can be brought into the realm of positive law and can then enter the system of conventional protection of human rights, since the ECHR allows appeals against national decisions rendered in the last instance.38 In accordance with the notion of positive obligation developed in IHRL, states are responsible within their jurisdiction when there are human rights violations by private actors. In this regard, the ECtHR ruled that Switzerland was indeed responsible for human rights violations by the CAS, which makes it clear that the CAS is indirectly obliged to take human rights into account; this opens the possibility of addressing complaints to the ECtHR against Switzerland.

#### 4 Overview of Chapters

The book consists of 11 chapters. Ten chapters were presented and discussed at a workshop held at the University of Lausanne on 30 June 2022. Regarding the key role of the CAS, based in Lausanne, the editors invited Marjolaine Viret and Antoine Duval to contribute with a chapter on CAS case law. The call for papers welcomed proposals for contributions adopting doctrinal or socio-legal approaches. The contributions thus reflect the diversity of legal research. Several chapters adopt a descriptive point of view and reveal the underlying ideological logic of power. Others take a normative approach, characteristic of legal dogmatics, and propose

36 ECtHR, Semenya v. Switzerland, § 201. 37 ECtHR, Semenya v. Switzerland, § 239. 38 See ECtHR, Semenya v. Switzerland, § 103–113.

new normative developments. Some focus on the national context, while others examine the scope of international standards and the role of supervisory institutions. The result is a rich mix of contributions that illustrate the complexity of human rights in sports.

The first chapters are dedicated to discrimination and intersectionality, from national and international perspectives. Through several approaches, they investigate the potential and limits of IHRL to protect women athletes. In Chapter ''But you're ok...' British South Asians and Regulatory Barriers to Participation in Sport', Seema Patel focuses on the regulatory barriers to participation from the perspective of British South Asian athletes in football and cricket. Based on an autoethnography, the socio-legal scholar emphasizes the double ambiguity of the law and sport, which act as barriers but are also effective tools for protecting marginalized groups. In Chapter 'Gendered Athletes in Sports: CEDAW's Role in Tackling Heterosexist and Racialized Uniforms in Sports', Lena Holzer dives into the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to assess the human rights implications of gendered and racialized clothing regulations. In Chapter '#MeToo, Sport, and Women: Foul, Own Goal, or Touchdown? Online Abuse of Women in Sport as a Contemporary Issue', Olga Jurasz and Kim Barker question the role of sport concerning online abuse against women and the limited impact of human rights protections. In Chapter 'Hormonal Eligibility Criteria in Women's Professional Sports Under the ECHR: The Case of Caster Semenya v. Switzerland', Pieter Cannoot, Cathérine Van de Graaf, Ariël Decoster, Claire Poppelwell-Scevak and Sarah Schoentjes use the Caster Semenya case for analyzing the hormonal eligibility criteria set by World Athletics in the light of the Articles 14, 3, and 8 ECHR.

The next chapters deal with the issue of nationality and its role in inclusion or exclusion for participation in elite sports. In Chapter 'Filipinos First? Exploring Xenophobia and Its Legal Remedies in Philippine Amateur Basketball', Joseph Benjamin De Leon analyzes the discriminatory practices against African studentathletes in Filipino national university competitions despite a series of human rights norms in Philippine law through a newspaper analysis. In Chapter 'Respecting the Right to Nationality in International Sport', William Thomas Worster addresses the issue of the right to nationality in international sports, highlighting the contradiction between Olympic regulations and IHRL surrounding nationality.

Chapters 'Athlete Activism at the Olympics: Challenging the Legality of Rule 50 as a Restriction on Freedom of Expression' to 'Freedom of Expression of Athletes and Players: The Current and Potential Role of the European Court of Human Rights as a Watchdog in Sport' are dedicated to the second key issue in this book: the question of freedom of expression for athletes. In this context, Mark James and Guy Osborn focus on Rule 50 of the International Olympic Committee, analyzing the provision and its evolution with the 2022 Tokyo Olympic Games in light of freedom of expression, and argue for a complete overhaul of Rule 50 to be compliant with human rights law standards. Chapters 'The Incompatibility of Banning Political Speech in Sports with the Right to Freedom of Expression Under the European Convention on Human Rights' and 'Freedom of Expression of Athletes and Players: The Current and Potential Role of the European Court of Human Rights as a Watchdog in Sport' address athletes' freedom of expression in the ECtHR context. H. Burak Gemalmaz focuses on the context of the Turkish football cases, examining the Turkish authorities' response to the ECtHR's demands. Daniel Rietiker investigates the ECtHR's watchdog role in protecting athletes' freedom of expression.

Marjolaine Viret and Antoine Duval analyze how the ECHR has been employed by both the Swiss Federal Tribunal and the European Court of Human Rights to review CAS rulings.

In the final chapter, Antonio Di Marco proposes to go beyond current international human rights norms and athletes' perspectives to expand the human rights catalogue by including the right to sport for all. Adopting a conceptual and argumentative approach, the author considers that such a right will guarantee inclusive and non-discriminatory access to sporting activities and enhance the unity of fragmented claims rooted in other human rights, such as the right to participate in cultural life, the right to education, and the right to health.

The editors wish to address their warmest thanks to all of the authors who contributed to this collective book. Special thanks are also due to Doriana Ferreira, who was responsible for the administrative and logistical aspects of the project, and to Mathieu Fasel for his involvement in organizing the workshop. They would also like to thank the Faculty of Law, Criminal Justice and Public Administration at the University of Lausanne for its financial support, which made it possible to organize this international workshop and to publish this book in open access.

#### References

Cotterell R (2012) What is transnational law? Law Soc Inq 37(2):500–524

Halliday TC, Schaffer G (eds) (2015) Transnational legal orders. Cambridge University Press

Véronique Boillet is a professor of public law at the Law School of the University of Lausanne. She was previously a lawyer at the Lausanne's Bar (2011–2013) and has just been elected to the Board of the Swiss Institution for Human Rights (2023–2027). As a scholar, she has in-depth knowledge of the European and Swiss constitutional system, which she has been teaching since 2010 and which she has analyzed in several contributions published in leading European and Swiss law journals. Her current research focuses on the link between human rights and the environment, and on the principle of non-discrimination.

Sophie Weerts is an associate professor of public law at the Swiss Graduate School of Public Administration, University of Lausanne. She holds a PhD in law from the University of Louvain and has a background in law and ethics. Sophie was previously a visiting professor at the University of Geneva and the University of St-Louis-Brussels and a lecturer at the University of Neuchâtel and the University of Louvain (Uclouvain). She practiced law for several years at the Brussels bar and worked as an expert for the federal government. Her research lies at the crossroads of legal theory, constitutional law, and European law. She is currently focusing on issues relating to digital transformation and its impact on public law. In this context, she is particularly interested in the business and human rights field for regulating the digital sector.

Andreas R. Ziegler is currently a Professor of International Law at the University of Lausanne and Director of its LLM Program in International Business Law. He holds a conjoint professorship at the Law School of the University of New South Wales (Sydney, Australia) as well as visiting appointments at the Universities of St. Gallen and of the Saarland (Saarbrücken) as well as ETH Zurich and the Geneva Academy. Previously he was a civil servant working for several Swiss Ministries (Foreign Affairs, Trade) and international organizations (EFTA, EU). He has widely published on Swiss, international and European law (including "Swiss LGBT Law", 2nd edn. 2017) and regularly advises Governments, International Organizations, NGOs and private clients and has represented them before various domestic and international courts and arbitral tribunals. He is on the permanent roster of panelists of the WTO and a Member of the European Commission of Sexual Orientation Law (ECSOL). He is the President of the Swiss Chapter of the International Law Association (ILA) and on the Board of the Swiss and the German Societies of International Law and the European Law Faculties Association—ELFA). He founded and manages the blog "sogiesc.law. blog" on international and comparative SOGIESC law.

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# 'But you're ok...' British South Asians and Regulatory Barriers to Participation in Sport

#### Seema Patel

#### Contents

Abstract This chapter employs ethnographical research to examine the regulatory barriers to participation in the particular context of British South Asian athletes in sport. Recent racial tensions in English cricket have not only raised important regulatory questions about addressing discrimination and inequality in sport and beyond, but also emphasizes the limited coverage of British South Asian voices in sport. Adopting an ethnographic approach, this chapter centralizes the author's lived experiences as a British South Asian female, to evaluate their intersectional identity. Alongside this, with two decades of academic research into discrimination in sport, the chapter provides a British South Asian academic view on the role of the law and sport regulation as both a barrier and an effective tool for the protection of marginalized groups in sport. Although it may be difficult to shift entrenched societal thinking about race, the chapter argues for a holistic collaboration between law and regulation, government, sport and society to apply pressure, alter behavior, and create conditions for effective anti-racism reforms. Change can also be achieved

S. Patel (✉)

© The Author(s) 2024

The author is a member of the Cricket Disciplinary Commission (CDC).

The author would like to thank the editorial team and the attendees of the Sport and Human Rights workshop hosted by the University of Lausanne for their guidance on this chapter.

Nottingham Law School, Nottingham Trent University, Nottingham, England, UK e-mail<EMAIL_ADDRESS>
V. Boillet et al. (eds.), Sports and Human Rights, Interdisciplinary Studies in Human Rights 10, https://doi.org/10.1007/978-3-031-56452-9\_2

through improved engagement with ethnographic research in law to better understand intersectional identity and the true impact of law and regulation upon marginalized individuals and groups.

# 1 Introduction1

Racial tensions in English cricket have recently been at the center of global attention following allegations of systemic racism in the sport.2 The collision of three key developments has increased the focus on English cricket. Firstly, following the murder of George Floyd in 2020, there has been a global transformation of antiracism movements and unified condemnation of racial discrimination. Sport has been significantly impacted by this uprising and athlete activism has intensified,3 with increased pressure on sports governing bodies to eradicate racism through effective regulation and sanctioning. Secondly, tensions between inclusion and exclusion in sport are at their highest, particularly in the areas of marginalized athletes' rights, player welfare and well-being.4 The capacity of sports bodies to adequately protect athletes and recognize human rights is under scrutiny. Thirdly, sports with long and complicated histories, such as cricket, are being challenged by the trend towards confronting rights and embracing diversity. English cricket has a close relationship with racism and discrimination, and is a site of exclusivity where the friction between race, gender and class has long served to distinguish between English white males and 'others'. 5 Cricket is heavily associated with its colonial origins and seeks to preserve the imagery and values of traditional 'Englishness', even where the modern game has shifted and evolved.

The global developments in anti-racism, shortfalls in the protection of athletes' rights, and the antiquated practices within English cricket, reached a crisis point in September 2020. Former professional South Asian cricketer Azeem Rafiq claimed that he experienced racial abuse during his time at the Yorkshire County Cricket Club (YCCC), one of the most historic and successful English county cricket teams. The allegations received international public attention and led to a series of responses, including counter allegations, a formal investigation by YCCC, legal proceedings, a parliamentary inquiry, the commencement of disciplinary

1 This paper was finalised before the publication of the Independent Commission for Equity in Cricket (ICEC) Report in June 2023.

2 Burnton S (2023) Azeem Rafiq and Yorkshire: timeline of a county cricket crisis. The Guardian, 31 March 2023, https://www.theguardian.com/sport/2023/mar/31/azeem-rafiq-and-yorkshire-time line-of-a-county-cricket-crisis (last accessed 4 Jan 2023). 3 See James M, Osborn G chapter in this book 'Athlete Activism at the Olympics: Challenging the

legality of Rule 50 as a restriction on freedom of expression'. 4 Patel (2021). 5 Fletcher (2011).

proceedings by the England and Wales and Cricket Board (ECB), and finally a comprehensive scrutiny of inclusion and exclusion across cricket.6

Alongside conflicts between race, class, culture, and identity, this matter exposed key concerns about the relatively low representation of British South Asian athletes (those with Indian, Pakistani, Sri Lankan and Bangladeshi heritage, consistent with the literature)7 in sport; a minority group that shares a symbolic yet difficult past with Englishness, the British Empire, national identity, and English cricket. The voices of British South Asian athletes represent a largely unheard perspective where the intersection between race, class, gender, culture, identity, and stereotyping manifests itself. Significant academic progress has been made using oral testimonies of British South Asians to illuminate their exclusion and underrepresentation in football and cricket,8 but it must be noted that these largely focus on male athletes, with far less research into intersectional distinctions and the lived experiences of minority groups.9 In response to this lacuna in the literature, this chapter combines law and ethnographic research to incorporate the author's personal stories in sport and social circles as a British South Asian female.10 The author's intersectional perspective on gender and race offer a unique blend of both academic knowledge and personal experience.11 Ethnographic research is employed here to emphasize the selfreflexive position of the researcher.12 While there is of course limitations and challenges inherent in a research method grounded in personal experience,13 it offers useful insights into this particular topic. To gain fresh insight, it is necessary to utilize the author's voice and consider less conventional ways of conducting legal research.

The title of the chapter reflects my experience growing up in predominantly 'white' communities where British Indians were a minority. Whilst my school days were largely pleasant, on certain occasions my inclusion into social circles and groups was legitimated on the condition that 'I hate Paki's, but you're ok Seema'. The term 'Paki' originates from the word Pakistani, and is commonly used in a derogatory and racist context to refer to individuals of Asian origin, regardless of background. This chapter will use this complex social context of conditional inclusion and 'honorary white' status,14 to review the relationship

6 Burnton S (2023) Azeem Rafiq and Yorkshire: timeline of a county cricket crisis. The Guardian, 31 March 2023, https://www.theguardian.com/sport/2023/mar/31/azeem-rafiq-and-yorkshire-time line-of-a-county-cricket-crisis (last accessed 4 Jan 2023). 7 Brown et al. (2021). 8 Kilvington (2019); Bains and Johal (1998); Burdsey (2021); Lawless and Magrath (2021);

Fletcher (2011, 2012). 9 Ratna and Samie (2018); Ratna (2013). 10 See Ratna and Samie (2018). 11 Ratna (2013). 12 Simmons and Feldman (2018); Pearson (2012), Chapter 1. 13 Simmons and Feldman (2018); Burdsey (2021), p. 19. 14 Garland and Chakraborti in Chakraborti and Garland (2004), p. 122.

between law/regulatory institutions and the individual/group, and the impact of legal/regulatory frameworks on my treatment.15

This chapter examines the role of law and sport regulation to assess whether it operates as an effective tool or ineffective regulatory barrier for combating race discrimination in sport. From this legal view, it will map out the legal framework that purports to guarantee equality, non-discrimination, and human rights. The framework will then be critiqued to assess its role in overcoming race discrimination in sport and offering a solution to the forms of discriminatory practices that I have personally experienced. Ethnographic research will be used to interrogate the rigid academic legal research and to better understand the true influence of law and regulation upon intersectional identity.

#### 2 Race and Cricket

Differential treatment on the basis of race is systemic within society. A multitude of natural and environmentally-driven physical and non-physical similarities and differences distinguish our appearance and character, such as skin color, geographical location and environment, religion and culture, belief systems and practices, language and behavior. However, explanations for our differences are often entangled and begin to lack a real basis when described using over-generalized, misguided or even false assumptions about entire populations.16 Biological and cultural notions of our differences become stretched and blurred to construct linear racial categories, which result in disparate treatments in the shape of racism or racial abuse.17 Overt racial abuse isolates and excludes a specific group or community, with dangerous and harmful undertones. This may take place on an everyday level, through use of language or behavior between people, or institutionally, through structures and ideologies.18 Racial thinking, which relates to the foundation upon which a racist act takes place, then "creates, organizes and sustains unequal power relationships between human groups along racial lines". 19

Whilst overt racism may no longer be accepted in many societies, contemporary forms of race discrimination are surfacing in a range of alternative formats, and operating in a covert, less detectable manner.20 For instance, racial microaggressions may be expressed subtly and unconsciously through day-to-day brief gestures, attitudes, glances or jokes.21 'Banter' refers to an exchange of jovial comments

15 Griffiths (2017); Bens and Vetters (2018). 16 Patel (2015). 17 Patel (2015). 18 Hylton (2010), p. 350. 19 Collins (2022), p. 96. 20 Burdsey (2021), pp. 11, 58; Patel (2015). 21 Burdsey (2011), p. 268.

that may incorporate racist language and can be both offensive and inclusive.22 Such behavior is excused on the basis that no harm is intended because it is a joke, but it can also act as a significant barrier to inclusion and acceptance. As the nature of racism mutates, there are indistinct shades of racism and inclusion/exclusion that function across a spectrum rather than as a binary.23

In 2020, the murder of George Floyd in Minneapolis, USA, ignited a wave of global activism and led to an explosion in conversations about modern experiences of overt and covert racial discrimination. Opposition to police brutality and racism united communities to participate in anti-racism demonstrations and form alliances around the Black Lives Matter movement. Most areas of society have been inspired by this public attack on racism, discrimination, and inequality, with a subtle shift towards celebrating and valuing difference.24 The protests prompted a wider re-evaluation of the colonial history of various institutions and structures and how they may fuel racial disparity.25

Sport is no exception; it is a construct held together by its own structures that are soaked in traditional and long-standing values, with clear divisions between who can and cannot access the territory. Each sport carries with it its own exclusive cultural space and emotional expression, which has evolved to become its recognized heritage and charter of who is permitted to enter the dominant culture. It also reproduces ideologies and practices concerning race and difference, and is a site where racial biases are both expressed and challenged. Marginalized groups are forced to assimilate, often at the cost of their heritage. Consequently, racism and exclusion is a common and complex feature of sport,26 which has created overt and covert barriers to participation for athletes, coaches, supporters and management staff, particularly where these traditional customs have not progressed, or where there is a denial of the existence of racism in sport.

English cricket is distinct from other English sports. It is deeply attached to its colonial past, and still treated as a quintessential English activity that preserves the imagery of the English countryside, as well as gentlemanly, white upper- and middle-class values.27 Its notion of 'Englishness' is uniquely portrayed in literature, art and film, but has generated very specific conflicts when considering race, class, gender and discrimination. Historically played by wealthy aristocrats and in 'public schools' (i.e. fee-charging private schools), cricket spread throughout the British Empire and came to be shared by non-white participants, bringing together nations and classes. It is a popular sport in many countries, notably the West Indies and the Indian subcontinent. Throughout its journey, cricket showcased English authority,

22 Lawless and Magrath (2021), p. 1496. 23 Burdsey (2011), p. 268. 24 Bekker et al. (2023). 25 Selwyn (2019). 26 Burdsey (2011). 27 Greenfield and Osborn (1996).

identity, values and morals, which only strengthened as the sport expanded.28 Although cricket unified the Empire, the essence of Englishness and sameness remained firmly intact, with disregard for other cultures and a possessive dominance over who plays the game and how it is played. There has always been a clear demarcation between the English and the outsiders with strict class, race and professional/amateur segregation.29 Race and class prejudice is entrenched within the traditional foundation of the sport, and this has created friction for ethnic minority communities in post-colonial Britain who seek access and inclusion.

As society has become more diverse, the notion of English identity has come under threat, and has taken on an entirely different meaning in a modern Britain. The sport has transformed globally, with increased finance and authority afforded to other nations such as India, where cricket is even more popular than it is in England. With the overwhelming success of the Indian Premier League (IPL), India has become a cricket superpower. The shift of control is further illustrated by the transfer of the International Cricket Council (ICC) headquarters from Lord's Cricket Ground in London to Dubai.30 There are encouraging adaptations to the varied formats of the game, with the introduction of the more accessible The Hundred.31 The seemingly diverse nature of cricket, with highly visible non-white players, has led some to believe that cricket is a well-integrated sport, with no discrimination. However, the literature widely details the prevalence of racism and barriers to participation for marginalized groups in cricket, and this chapter argues that there has been a silent tolerance of racism amongst the senior members of cricket governance which has contributed to a denial of its existence.32 There remains an underlying reluctance to modernize, and the legacy of the British Empire with an emphasis on 'Englishness' continues to haunt the game.

English cricket is currently embroiled in serious accusations of failing to address deep institutional inequities. Key conversations around the 'racial status quo' 33 of English cricket and its position in modern society began with a passionate contribution from retired West Indian cricketer and commentator Michael Holding, who shared his feelings on the mistreatment of non-white players. This attached cricket to the broader dialogue on racism taking place. Allegations of racist comments by highprofile cricketers received heightened public scrutiny,34 and the ECB formed an Independent Commission for Equity in Cricket (ICEC) in 2020 to identify actions to address race, class and gender-based discrimination in the sport.

Exclusionary practices in cricket were further exposed in September 2020, when former professional cricketer Azeem Rafiq spoke publicly about his experience of

28 Fletcher (2011). 29 Collins (2022); Simons (1996). 30 Fletcher (2011), p. 26. 31 Fletcher et al. (2021). 32 Burdsey (2011); Marqusee (1995); Nicholson in Ratna and Samie (2018), p. 130. 33 Fletcher (2011), p. 23. 34 Berkson (2021).

institutional racism during his career at YCCC.35 This brought international attention to discrimination in cricket. Rafiq was born in Pakistan and has lived in England since he was 10 years old. He was one of a handful of British South Asian players at YCCC and expressed that he was close to taking his life because of the constant racist abuse he received about his Pakistani heritage. He detailed how he was frequently referred to as a 'Paki.' The location of this episode at YCCC is profound because of its status in English cricket history. As one of the most successful English cricket teams, cricket embodies Yorkshire identity. However, it is considered to be an 'insular' region that is troubled with historical racial difference and divide, particularly with South Asian communities.36 Resistance to diversity is evidenced by previous racist incidents reported at the regional grounds,37 and the institution of the YCCC birthright policy, in which only players born within the county were eligible to represent YCCC. Whilst such exclusionary rules were abandoned by other teams, YCCC insisted on the eligibility rule until 1992, which may have acted as a barrier to participation for ethnic minority players. Although the visibility of ethnic minority players at YCCC has improved, with the implementation of some inclusion strategies such as the Black and Ethnic Minority Cricket Forum in 1993,38 and structural overhauls, the adequacy of these efforts to address systemic and subtle racism was under investigation at the time of writing.

In response to Rafiq's statement several events took place. First, in August 2021 YCCC completed a formal investigation and upheld some of the allegations but concluded that there was insufficient evidence to confirm that the club was 'institutionally racist', with no disciplinary action taken. Rafiq settled an employment tribunal case with YCCC in November 2021. In the same month, a Parliamentary Select Committee was convened to hear testimony from Rafiq about his racial abuse, with a follow-up in December 2022. In its findings, the Digital, Culture, Media and Sport (DCMS) Select Committee found evidence of 'deep-seated' racism in cricket and urged the Government to restrict public funding until there was demonstrable improvement in the game.39 In June 2022, the ECB commenced disciplinary proceedings against seven players and the YCCC for alleged breaches of ECB Directive 3.3, which concerns conduct that may be prejudicial to the interests of cricket, or that brings the game into disrepute. The case was referred to the Cricket Disciplinary Commission (CDC) and a public hearing took place in March 2023.  29. 39 UK Parliament, Racism in Cricket, 14 January 2022, https://publications.parliament.uk/pa/

cm5802/cmselect/cmcumeds/1001/report.html (last accessed 10 March 2023).

of allegations of racist and/or discriminatory behavior. The CDC judgment on the liability of each party is outlined elsewhere.40

The CDC Panel addressed the specific ECB charges brought before it. Beyond that, the case more widely offers valuable insights into the operation and function of internal sport disciplinary processes and its ability to effectively deal with discrimination matters. Sport is at a critical moment of reckoning in relation to the defense of marginalized rights, with more focus on the responsibility of sports governing bodies to eradicate racism through meaningful regulation and sanctioning, and with closer connection between political, social, legal and regulatory considerations.41

#### 3 British South Asians

Alongside conflicts between race, class, culture, and identity, the episode raises prominent concerns about the exclusion of British South Asian athletes, a minority group who share a symbolic yet intricate history with Englishness, the British Empire, national identity, and English cricket.42 The migration of the South Asian population in the UK mostly took place in the 1940s and they were both present and absent from British industry and culture.43 Integration into the country was difficult for South Asians, who were perceived as a threat to Englishness and were often treated with hostility.44 Although they made a positive impact and influence in some areas of British society, they have been subject to discrimination and exclusion in other aspects of a predominantly white culture, including sport. Quantitative research suggests that British South Asian participation and representation in English sports are generally lower than other groups, particularly for South Asian women.45

During the migration period, sport played an important role within South Asian communities. Cricket facilitated integration, cohesion and cultural mixing, signifying a common ground between migrants and established communities.46 Cricket was a familiar and comforting setting for South Asian migrants which assisted with their settlement in a foreign land, and this enthusiasm for the sport has transferred to second- and third-generation British South Asians. A number of studies have

40 England and Wales Cricket Board (ECB), ECB responds to Yorkshire Cricket Discipline Commission decisions, 31 March 2023, https://www.ecb.co.uk/news/3125588/ecb-responds-toyorkshire-cricket-discipline-commission-decision (last accessed 10 April 2023). 41 Patel (2021); Patel in Witcomb and Peel (2022). 42 Burdsey (2011), p. 364. 43 Burdsey (2011), p. 364. 44 Burdsey (2013). 45 Gov.UK, Physical Activity, 14 July 2022, https://www.ethnicity-facts-figures.service.gov.uk/

health/diet-and-exercise/physical-activity/latest (last accessed 10 March 2023); Berkson (2021). 46 Fletcher (2011).

identified a steady growth in British South Asian participation in English cricket, with an increased proportion playing cricket compared to the 7% population.47 A small number of British South Asian cricket players, such as Monty Panesar, have successfully represented England, altering the identity of English cricket. Investigations have in fact revealed an over-representation of British South Asians at the youth level and in informal cricket settings, but a reverse effect at the formal and professional level.48 One study found socioeconomic and racial biases in cricket, mostly favoring privately educated and white cricketers over British South Asian cricketers at both the youth and professional level.49 There is also far less diversity and representation in the coaching, management, and governance realms of cricket.50 Similarly, although the modern England football team may exemplify a new multicultural Britain, only a few British South Asians have competed in professional football. This is at odds with the popularity and importance of football within the British South Asian community and their success at a recreational and amateur level.51 It is asserted that their marginalization is indicative of exclusion rather than under-representation, with consistent evidence of racism within the structure, culture and institution of football and with common critiques of the (in) action taken to overcome this.52

Despite the presence of some British South Asian cricketers in English cricket, their overall invisibility is somewhat of a conundrum. In formulating a qualitative justification for potential barriers to sport, several lifestyle and personal preferences are attributed to the low participation rates, as well as wider structural constraints relating to income and wealth, working patterns, access to facilities, lack of role models, exclusion from attending sport events, language, culture, religion and racism.53 English cricket organizations and scouts have been criticized for failing to seek out non-white talent, with racial barriers uncovered in the talent systems and at the grassroot level.54 Research confirms that although cricket on its face displays a diverse pool of home and overseas players, those statistics are inconsistent with the experience of exclusion, unfair treatment and discrimination amongst ethnic minorities in sport.55

Contentious assumptions and myths about British South Asians also rationalize their overt and covert exclusion such as their physical unsuitability to sport, parent

47 Fletcher et al. (2021), p. 1475; See Kilvington (2019). 48 Brown et al. (2021); Burdsey (2011). 49 Brown et al. (2021). 50 Fletcher et al. (2021), p. 1476; Rankin-Wright and Norman in Ratna and Samie (2018), p. 204. 51 Kilvington (2019). 52 Burdsey (2021), p. 11; Fletcher (2011); Kilvington (2019); Bains and Patel (1996); Bains and

Johal (1998); Hylton et al. (2015a, b). 53 Fletcher and Swain (2016); Patel (2015); Hylton et al. (2015a, b); Brown et al. (2021). 54 Fletcher (2011), p. 29; Fletcher et al. (2021), p. 1487; Burdsey (2011); Hylton et al. (2015a, b);

Berkson (2021); Kilvington (2019). 55 Burdsey (2011).

influence on education, diet and nutrition. The implication that particular races are naturally better suited to certain sports contributes towards pockets of over- and under-representation in sport. Asian cricketers have been characterized as aggressive, cheats, unintelligent and irrational, which is considered incompatible with the style and substance of the English game.56 Research implies that varied playing styles are characterized and valued according to ethnicity.57 These theories about differences between race, gender and culture have fueled further divides between English superiority and the 'other', and makes it more difficult to address the true inequalities at work.58

The colonial exclusion has had a lasting impact upon cricket and the perceived white exclusivity of the game. Consequently, all Asian teams and leagues have been established in cricket and football, separate to the mainstream structure. These have strengthened the British South Asian identity and provided a valuable space for players to reimagine cricket by participating in new and unorthodox styles away from the formal settings.59 Breakaway leagues and teams have also been used as a means of asserting British South Asian identity, challenging the racial status quo and actively distinguishing themselves from the traditional Englishness of cricket. Although this is a positive opportunity for ethnic minority communities, it has fragmented cricket to some extent, and is not necessarily the solution to defeating racism in mainstream sport.60

There are several conscious and unconscious practices that, when combined, may act as exclusionary barriers for British South Asians in sport.61 However, additional research is required to ensure that quantitative statistics, which can be misleading and limited in terms of intersectional data, are supported by qualitative data that examines the drivers behind over- and under-representation in cricket.62 For instance, the voices of British South Asian athletes, particularly females, are rarely examined.63 The Rafiq testimony emphasizes an absence of British South Asians speaking out about their experiences in sport and influencing anti-racism agendas. Minority groups have expressed that they avoid communicating about the racist treatment they face because they have little faith that their complaint will be dealt with, and they understand the risk of being labelled a troublemaker if they speak out.64 With relatively little known about the experiences of British South Asians in sport the current cricket case and the academic literature highlights a pressing need

56 Fletcher (2011), p. 19; Fletcher (2012), p. 236. 57 Fletcher (2011), p. 28. 58 Nicholson in Ratna and Samie (2018), p. 131; Ratna (2013). 59 Fletcher (2011), p. 25. 60 Fletcher (2011), p. 27; Malcolm (2002). 61 Fletcher et al. (2021), p. 1477. 62 Brown et al. (2021); Randwaha and Burdsey in Carter et al. (2018). 63 Burdsey (2021), p. 59. 64 Burdsey (2011).

for the development of an open environment where minority voices can be heard and used to inform future studies.

#### 4 Lived Experience

This section seeks to remedy this gap in the field by using my lived experiences as a prism through which to explore British South Asian identity. Research into female experiences within sport has been largely neglected, with female cricketers rarely referred to in historical accounts of English cricket.65 Although some valuable research exists in the field,66 the participation and voices of British Indian women in sport is an overlooked area that is situated within a blurred economic, political and ideological framework of race and gender intersectionality. Whilst my experiences are by no means a representation of every British Indian female, it is critical that we interrogate intersectional lived experiences and reflect upon personal accounts in order to construct a better understanding of the relationship between gender and race within sport and regulation, and to foster alternative ways of researching law. Ethnographic research in this way is also valuable to intimately examine marginalized groups who have been generalized as the 'other' through linear and homogenous categories.67

I was born in Luton, which is situated in the Southeast of England. My parents were both born in India and moved to Luton in the 1970s following their arranged marriage. My older sister and I were raised as Hindu but were brought up in a very open environment. There is a perception that South Asian parents are concerned about culture safety, in other words, putting their children into British cultural positions that may threaten their Eastern values. I did not experience any such pressures, quite the opposite in fact; my parents placed me and my sister in situations where we were encouraged to integrate into the more dominant communities. For instance, we attended youth scout groups such as the Brownies and Guides, theatre school, and even went to Church every Sunday. Rather than for religious purposes this was a means of creating a sense of belonging to a community, which we achieved for the most part. As a result, I had a very happy, diverse and multicultural upbringing.

In the 1980s and 1990s, the culture in our area was predominantly white. In fact, I believe that we were the only Indian family on our street at the time. When I began school, I recall being a minority amongst my mostly white friends, but it never presented itself as an issue on the surface. I always felt very included. It was only when I got to secondary school that I became more aware of the impact of my color

65 Nicholson in Ratna and Samie (2018), p. 126. 66 Scraton et al. (2005); Ratna and Samie (2018), pp. 23, 119; Randhawa in Burdsey (2011); Mirza (2003), p. 121. 67 Rana in Ratna and Samie (2018), p. 149; Randwaha and Burdsey in Carter et al. (2018), p. 160.

and difference on others. On various occasions, close friends in my social circles would say, 'I hate Paki's, but you're OK Seema'. This challenged whether I ever really was 'included' in the dominant culture.  Essentially, it goes against everything that my parents tried to do for me. The statement reflects a type of conditional 'honorary white' 68 inclusion into a group, which operated in an exclusionary way. These references led me to hide my differences in order to assimilate and fit in with my friends.

Growing up in an Indian family, set amongst a predominantly Western community, sometimes proved a challenge for me as I felt I had a double identity. For instance, during my confused teenage years, I recall being embarrassed to have to wear Asian dress when attending a wedding or religious Hindu functions. I was never ashamed of who I was, but instead was concerned with how I may have been judged as the 'other' by my friends. The prevailing culture had a destructive impact on my own identity as I felt the need to 'trade off' my differences and background, in order to be included into British social structures such as sport. This led me consciously and unconsciously to distance myself from my family roots and drift between two cultures. British South Asian individuals are considered to be in conflict with their parents' ideals and their own religious practices and beliefs, which are said to affect participation in activities such as sport.69 My parents were largely supportive of my pursuits, but I do recall some conflicts with my father about my strong allegiance to the England football team during international tournaments. Because of the color of my skin I did feel that I needed to shout louder to demonstrate my support for England.

British South Asian identity and national identity was previously scrutinized under the infamous 'Norman Tebbit Test' which questioned the support of British South Asian fans amidst concerns that cricket no longer belonged to the English or rather, England no longer belonged to the English in the 1990s. In 2001, former England captain Nasser Hussain questioned the national loyalty of British South Asian supporters.70 British writer Robert Henderson's argument that England cricket players who were born abroad were less likely to want England to win, further perpetuated biological assumptions.71 Henderson was widely challenged and the criticism prompted some anti-racism action in cricket.72 Such statements fail to realize that supporting the national team of your ancestral homeland, is a means of

68 Iftekhar R, The rebel tours: When black cricketers were awarded 'Honorary White' status, The Business Standard, 21 April 2020, https://www.tbsnews.net/sports/rebel-tours-when-blackcricketers-were-awarded-honorary-white-status-71989 (last accessed 1 April 2023). 69 Valiotis (2009), p. 1792. 70 Chaudhary V, A Question of Support, The Guardian 29 May 2001, https://www.theguardian.

com/uk/2001/may/29/race.world (last accessed 1 April 2023). 71 Henderson (1995). 72 Greenfield and Osborn (1997).

reclaiming your heritage that, as a child, I dismissed in many ways in an attempt to be accepted. As a cricket fan my support for England and India is always split. I was aware that my identity is surrounded by stereotypical assumptions and pockets of cultural ignorance that make me question my inclusion when playing on a pitch or watching sport in a pub. I have always considered whether I have to pigeonhole my identity or compromise one culture over the other in order to assimilate with the dominant group.

Throughout the process of trying to fit in, I have encountered many instances of overt racial abuse growing up as a British Indian female in England, with the 'go back to your own country' and 'where are you really from' rhetoric firmly embedded within my memory. In my friendship groups at school, I also became accustomed to the covert banter relating to my Indian heritage, with little confidence to confront those who offended me. I am guilty of downplaying the jokes and ignoring them at times.73 I did feel very alone trying to figure all of this out and although there were occasions where people would try to defend me, I realize now that it was not enough, and many were silent. My most heart-breaking moments as a child were witnessing my parents being racially abused and feeling completely helpless and confused. Those flashbacks hurt more than pebbles being thrown at my head at an English seaside, and I hope that my son will never have to endure such pain.

Some of these moments were aggressive, some ignorant, some from strangers, some from close friends. For better or worse, these critical moments have shaped my personality, my confidence and in my later years my parenting. My mistreatment on the basis of my race has prompted me to consider how I am truly perceived and to what extent the conditionally inclusive expression of 'but you're ok' has again determined my integration and acceptance. One of my early obsessions was sport, particularly football and cricket. I have played both ever since I was a child, but only ever with male friends on the school fields, in the park, or indoors. I was always the only female when I played and was considered 'quite good for a girl'. In parallel, I was often labelled as 'quite pretty for an Indian', which demonstrates the intersectional and conditional nature of my treatment.

At college I played for a football team and was one of three British Indian females. Our coach was a British Muslim male and we competed in a male college league. Interestingly, the teams were broadly diverse, with a range of ethnic backgrounds represented. We were only ever confronted with issues of gender but also gained a sense of respect when we played and were able to hold our own against boys. I was never very conscious of my color but I do recall being subject to racial slurs during those matches, targeted for being Indian.

My passion for cricket stems from my father; some of my fondest childhood memories include watching traditional four to five-day test cricket matches with him on television during the summer holidays. Fatherly influence on young females playing cricket is documented in other research.74 Around the start of the 2009

73 Burdsey (2011). 74 Malcolm and Velija (2008).

cricket season, I joined a village women's cricket team. They were a relatively new side, looking to develop and establish themselves. My time there was illuminating. Aside from improving my ability through dedicated coaching and practice, I also encountered personal experiences that are significant to my academic research and that highlighted the struggle for acceptance as a female competing in cricket. Two incidents are notable. During a training session, I was bowling to a much younger girl than me, who was batting in the nets. She picked out my delivery very well and made a clean stroke that would have travelled to the boundary for four runs if we had been on a pitch. Instead, the ball got stuck at the top of the net and we struggled to retrieve it because it was so high above us. A senior figure, possibly a coach of the boys' team but nevertheless a clearly established member of the village club, approached us and told the young girl who was batting, 'How did you get the ball up there? That's not how you play cricket; it should be played on the ground'. He then walked away without attempting to assist us. The young girl seemed very upset and embarrassed by this comment. I tried to reassure her that she had played a very good shot.

On another occasion the women's team were training in the nets as we did every Sunday morning. A young boy asked his father if he could bowl in our net. The father immediately advised his son, 'Of course you can bowl in their lane, anyone can play if they want to', without asking for our permission. Our female coach then informed him that we were actually having a training session and his son could not join us. The father questioned this and appeared confused.

These incidents highlight some of the tensions that exist in female sports participation. While women's sport has dramatically advanced to achieve an important status of equality between men and women, mistreatment continues to be driven by traditional cultural and gender-based inequalities that can alienate girls and women rather than encourage them. My experiences are clearly a reflection of our team's position as 'outsiders' in this male space. We trained every Sunday morning on the village ground but would have to find an alternative place if there was a men's fixture. The alternative grounds were usually far way, in the middle of nowhere, with no formal access for us. In order to obtain entry, we had to climb over locked gates. On one occasion our training was interrupted by three men and a dog who forced us to move to a small area of the field because they wished to play a leisurely game of croquet on the pitch. Incidentally, they entered the space with a key to unlock the gate.

I was the only British Indian female on the team but I have found myself in that marginal position in many employment and leisure situations. I could say that throughout my life I have been met with both racism and sexism. This intersectional overlap has restricted access to sport for some South Asian women, with the traditional stereotype of being 'academic but not sporting' usually attached. They have been regarded as passive, experiencing difficulties in physical education because they are considered small and frail. Such attitudes have potentially limited their sport pursuits and their presence in the sport space.75

My account is my journey and my truth but certainly not a representation of all British South Asian women, who are a diverse, dynamic and heterogenous group.76 That said, it does contribute to the limited field and offer some insight into my experiences of the many shades of inclusion and exclusion. I have spoken about a series of isolated events in my sporting experiences that are reflective of wider barriers to my integration in society generally. I have revealed how I negotiated my inclusion into those spaces and switched between an insider or outsider. I did have the opportunity to compete in sport and feel a sense of belonging, albeit under the conditional guise of 'but you're ok'. Sport has provided me with an identity, physical and mental wellbeing, motivation, focus and happiness. My personal experiences serve to knock down traditional sporting and societal attitudes towards British Indian women in sport. Upon reflection, my zest for theatre and performance provided me with the assurance and resilience to rise above race discrimination and develop a strong character, even though I may have been broken down by it all inside. I never labelled my experiences, but I knew that they were unjust. I could never quite understand why my white friends did not receive the same marginalization and I felt unprotected from any law or regulation. My experiences have inspired me to become an academic in this research field, as a way of taking control and making sense of my mistreatment. On a formal level, I am using my research as a platform to speak out and challenge discriminatory practices, and to advance reform.

#### 5 Sport Inclusion Strategies

Having outlined my story, this section examines how sport regulatory strategies deal with such treatment and whether the measures in place go far enough to recognize lived encounters and protect minority groups. Sports bodies, clubs, teams, related organizations and stakeholders have affirmed their commitment to anti-racism in the form of disciplinary regulations, strategies, campaigns and events which have evolved over time and renewed periodically when race matters are thrust into the spotlight. Diversity and equality provisions are a core feature of sport documents, and a strong anti-racism culture is displayed, with support for equality amongst participants, spectators, coaches and managers within the operational structures. A consistent theme across the evaluation of these initiatives is that although advances have been made particularly in relation to overt forms of discrimination and abuse, there has been little effective change for ethnic minorities such as British South Asian athletes,77 with far less understood about the inherent reasons for low

75 Ismond (2003), p. 133. 76 Fleming (1994). 77 Randwaha and Burdsey in Carter et al. (2018).

participation and representation by policy makers.78 The policies have certainly defined the race problems, but in order to be effective, they arguably need to extend further and engage with the contemporary forms of racism and inequities facing marginalized groups.79

In the context of disciplinary powers, racist spectator behavior at games falls within anti-social and disorderly conduct (such as chanting and abuse). Particularly in football, this has been tied to wider political and safety issues and governed by legislative provisions concerning public order, sport events and football specific offences.80 Supporting these criminal offences, strict grounds controls have been enforced by football authorities to manage spectator conduct at matches. Racist behavior is tackled by some of those provisions. With the rise of discriminatory social media posts aimed at players, legal reforms for tackling online abuse are also being explored. While these measures relate to spectator behavior, and are not without their shortfalls, there is at least some evidence of a firm anti-racism approach. For matters concerning players and clubs, as evidenced by the recent ECB racism disciplinary proceedings, some sports bodies rely on their own independent commissions to invoke private internal disciplinary codes relating to misconduct and discrimination, leading to charges and, where proved, the imposition of sanctions. For example, in 2012, English footballer John Terry was found guilty of breaching Football Association (FA) rules on misconduct following allegations of racially abusing another player during a game. Terry was suspended from playing for four matches and fined.81 When the ECB racism hearing is finalized, the sufficiency of the internal sport process to combat racism in this way will be closely examined.

In terms of broader initiatives to overcome racism, one of the most visible campaigns is Kick It Out, an organization established to fight racism and all forms of discrimination in football through raising awareness and education. Kick It Out has expanded beyond football, and following the cricket allegations, an exploratory partnership between Kick It Out and the ECB was announced in 2022, to examine inclusion and exclusion within cricket. Kick It Out has also launched a partnership with global broadcaster Sky to elevate its scope and reach. Given its public status in the sport anti-racism dialogue, significant attention has been placed on the impact of its initiatives. Kick It Out has raised awareness of anti-racism, provided education and progressed conversations about racism,82 but its effectiveness has been debated. The key criticisms tend to be around the absence of practical reform and policy changes, slow developments, funding restrictions, limited independence, lack of real influence, and deficiencies in regulatory authority over sports bodies, spectators, athletes or other parties. Following high-profile racism incidents in football, professional players have opposed such organizations for their failure to actively support

78 Dashper et al. (2019). 79 Dashper et al. (2019). 80 Greenfield and Osborn (2001), Chapter 5; Pearson and Stott (2022). 81 Łukomski (2012). 82 Kilvington (2019).

victims of racial abuse.83 It is agreed that the nature of racism is rapidly changing, and this requires a refreshed regulatory approach.84 With the rise of athlete activism, such as taking the knee and campaigning for anti-racism without reliance on external bodies (see England footballer Raheem Sterling), the utility of these organizations is under review.

British South Asian inclusion in sport has been considered in various ways. The Premier League and Kick It Out created the South Asian Action Plan in 2022, which acknowledges the under-representation of players with South Asian heritage in English football and seeks to end this disparity. As part of its many inclusion strategies, in 2019 The FA launched the Asian Inclusion Strategy (Bringing Opportunities to Communities), which seeks to improve Asian participation in all areas of English football. When I was younger, I particularly remember being drawn to Nike's 2005 "Stand Up Speak Up" anti-racism campaign and the symbolic interlocking wristbands that accompanied it. But for me it felt more like a trend than a meaningful movement.

Cricket campaigns have identified inequality in the sport and challenged the view that racism does not exist, but there has been limited progress. In 1996, Hit Racism for Six was an independent organization set up to oppose racism in cricket and force the governing bodies to design an anti-racism policy to tackle inequity.85 The ECB responded with the establishment of a Racism Study Group which published a report, 'Going Forward Together: A Report on Racial Equality in Cricket'. Following wide consultation and a survey, the report reflected a majority belief that racism existed in English cricket at all levels, and many had experienced racism. The Racism Study Group encouraged clubs to be more inclusive in order to address these findings.

At a similar time, the 'Clean Bowl Racism' initiative was launched, which made several policy recommendations to increasing inclusivity and implemented funded development programs for marginalized groups and equality training for cricket staff.86 In doing so, this aligned cricket more consistently with anti-racism campaigns in other sports such as football and rugby but it was not necessarily comprehensive enough.87 In more recent years, the ECB has been associated with other initiatives to progress anti-racism such as those implemented by the International Cricket Council (ICC) and the Professional Cricketers' Association.88 In addition, in 2017, in partnership with NatWest, the 'Cricket Has No Boundaries' campaign was rolled out which aimed to celebrate diversity and foster inclusion in cricket, but

83 Gardner J (2020) Kick It Out admits Anton Ferdinand did not get proper support during racism case, The Independent, 1 December 2020, https://www.independent.co.uk/sport/football/news/ anton-ferdinand-kick-it-out-john-terry-b1764449.html (last accessed 1 April 2023). 84 Burdsey (2021), p. 32. 85 Greenfield and Osborn (1997). 86 Malcolm (2002). 87 Malcolm (2002). 88 Fletcher et al. (2021), p. 1474.

which arguably relayed contradictory messages given the existing racial barriers within English cricket.89

The ECB's current strategy for 2020–2024 ('Inspiring Generations') seeks to 'connect communities and improve lives by inspiring people to discover and share their passion for cricket'. 90 It sets six priorities to achieve this, which include improving accessibility for a wider cross section of people, such as South Asians, and transforming cricket for girls and women. Building upon this is the ECB Equity, Diversity and Inclusion Plan 2021 and the Engaging South Asian Communities Plan 2018. The South Asian Plan introduces 11 action points to increase engagement with South Asian communities across England and Wales.91 The areas cover recreational, elite and professional cricket, attendance, media, marketing and communication and administration and culture, each with short, medium, and long-term outputs. The ECB has also refreshed its commitment to these plans in light of the current race tensions. In March 2021, the Independent Commission for Equity in Cricket (ICEC) was announced by the ECB, to examine the equity within cricket and to hear about the experiences of those involved in cricket. The ICEC final report was published in June 2023 and identified serious discrimination and underrepresentation issues in cricket.92

Although this is positive progress in terms of addressing disparities and participation in English cricket, the literature concludes that little has changed. Such policies do not reach the inherent issues, they neglect the individual stories of exclusion and fail to implement long term goals and objectives.93 A number of persuasive alternative proposals for reform include shifting the focus from the prevailing quantitative statistics to the lived experiences of racism and exclusion for British Asians in cricket.94 Failure to acknowledge those voices could ignore what is really needed, as opposed to what dominant stakeholders think is needed to remove barriers.95 Change is also achieved by transforming the power relationships across all levels of sport and altering the dominant voices on issues of race within sport and academia.96 It is argued that the ownership of these strategies should shift

89 Powis and Velija (2021). 90 ECB, Inspiring Generations- our 2020-24 Strategy for Cricket, 2020, https://resources.ecb.co.uk/ ecb/document/2023/02/09/2f435e06-576b-4609-9609-0de3fb42da9d/Inspiring-Generations-

FINAL-2020.pdf (last accessed 10 April 2023). 91 ECB, Making Cricket a Game for Everyone: Engaging South Asian Communities. An ECB

Action Plan, 2018, https://www.ecb.co.uk/south-asian-action-plan (last accessed 10 April 2023). 92 This paper and its analysis was finalised before the publication of the Independent Commission for Equity in Cricket (ICEC) Report in June 2023. For coverage of the Report see, Morgan, T (June 27, 2023). English cricket branded 'racist, sexist and elitist' in damning report as ECB apologises. The Telegraph. https://www.telegraph.co.uk/cricket/2023/06/27/english-cricket-ecb-racist-sexist-

elitist-report-commission/. 93 Randhawa and Burdsey in Carter et al. (2018). 94 Fletcher et al. (2021); Burdsey (2021). 95 Rana in Ratna and Samie (2018), p. 163. 96 Randhawa and Burdsey in Carter et al. (2018).

from stakeholders to the heart of British South Asian communities, encouraging a bottom-up approach that prioritizes increasing opportunities at grassroots levels, identifying role models and improving access to coaching and management vocations.97 Stronger and sustainable links between clubs/teams and the Asian communities should be nurtured as part of the strategy process, in order to empower British South Asians and create pathways for inclusion in sport.98

In highlighting that most of these initiatives tend to concern increasing participation rather than exploring how to enhance skills for transitioning cricketers to the professional level, in 2020 the South Asian Cricket Association (SACA) was established to encourage more players of Asian origin into professional cricket in England and Wales by offering dedicated bursaries, education opportunities and coaching.99 Rather than focus on participation levels, which appear to be stable at the recreational level, the SACA aims to increase the number of British South Asian players at the professional level of cricket. This goes some way to directly address exclusion and under-representation.

Criticism of these strategies and campaigns is legitimate since British South Asians continue to be invisible in most structures of sport, but it is emphasized that this does not necessarily portray the reality of the broader situation. For instance, Kick It Out defends its stance within this debate by clarifying that antidiscrimination organizations tend to have limited resources, with no decisionmaking powers and lack capacity.100 The focus and blame placed on Kick It Out to some extent deflects attention from the role, responsibility, and authority of sports bodies, with vast resources, to eradicate racism, influence change, alter the dialogue and impose rules and sanctions. However, sports bodies have acted complacently on discrimination matters, failing to acknowledge that racism is at the core rather than the outskirts of sport.101 Further research is also required to examine how effectively the internal sport disciplinary processes deal with discrimination, and how seriously such matters are taken.

With that said, my experiences reinforce the idea that race and inequality are not an isolated sport issue, and instead forms part of a widespread social and political problem. While sports bodies are well placed to attack racism with their financial power and regulatory autonomy,102 this is only part of the solution. There needs to be a connection with legal frameworks and legislative reform in order to apply

97 Randhawa and Burdsey in Carter et al. (2018). 98 Kilvington (2019); Randhawa in Burdsey (2011). 99 Brown et al. (2021). 100 Magowan A (2012) Kick It Out caught in the crossfire as racism flares up again. BBC,

21 October 2012, https://www.bbc.co.uk/sport/football/20001544 (last accessed 10 April 2023). 101 FRA (The European Union Agency for Fundamental Rights), Racism, Ethnic Discrimination and Exclusion of Migrants and Minorities in Sport: A Comparative Overview of the Situation in the European Union, October 2010, https://fra.europa.eu/en/publication/2012/racism-ethnic-discrimi nation-and-exclusion-migrants-and-minorities-sport-situation (last accessed 10 April 2023). 102 Fletcher et al. (2021), p. 1488.

pressure, enforce rights and transform strategies into effective drivers for change.103 Indeed, legal intervention has the potential to ensure a commitment to anti-racism in sport.104 It is essential that the behavior of sports bodies in the fight against discrimination, the enforcement of law and human rights continues to be subject to analysis to ensure accountability.105

#### 6 Law as an Effective Tool or Barrier

Since the issues facing sports are part of a broader race problem, this section examines whether the law provides an effective solution to such mistreatment, or alternatively, whether it represents a further barrier. The interdiction of race discrimination and the promotion of equality is an unambiguous and fundamental pillar of international law. Principal universal values of human dignity and bodily integrity are preserved within a wide range of international sources that condemn race discrimination. These include the Universal Declaration of Human Rights 1948 (UDHR), the International Covenant on Civil and Political Rights 1976 (ICCPR), the International Covenant on Economic, Social and Cultural Rights 1976 (ICESCR) and The United Nations Charter 1945. The rights and freedoms contained in those provisions are awarded without distinction of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Several ancillary international instruments provide specific protection such as the International Convention on the Elimination of All Forms of Racial Discrimination 1969 (ICERD) which reaffirms that discrimination between human beings on the grounds of race, color or ethnic origin is inconsistent with the ideals of any human society. The Convention aims to encourage states to adopt all necessary measures for elimination of racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination. Although no specific reference to sport is made, Article 5(e) seeks to protect the enjoyment of economic, social and cultural rights, with specific reference to the rights to work and the right to equal participation in cultural activities.

The United Nations Educational, Scientific and Cultural Organization (UNESCO) conduct significant work in the fight against discrimination, using sport as a vehicle for change. The UNESCO Declaration on Race and Racial Prejudice (1978) states that 'all human beings belong to a single species and are descended from a common stock' (Article 1), with a 'right to be different' (Article 1). Article 2 condemns the assumption of superior or inferior racial groups, and

103 Long and Spracklen (2011), p. 247. 104 Long and Spracklen (2011), p. 247. 105 Burdsey (2021), pp. 25–26; Patel (2021).

asserts that this theory has no scientific foundation and is contrary to the moral and ethical principles of humanity. It defines racism as including 'racist ideologies, prejudiced attitudes, discriminatory behavior, structural arrangements and institutionalized practices resulting in racial inequality as well as the fallacious notion that discriminatory relations between groups are morally and scientifically justifiable' (Article 2), and racial prejudice which is 'historically linked with inequalities in power, reinforced by economic and social differences between individuals and groups' (Article 2). It highlights the role of states in prohibiting and sanctioning racial discrimination through the enactment of legislation and education, reminding us that law is one of the foundational means of ensuring equality in dignity and rights among individuals (Article 7). Despite the value of international human rights law in prohibiting race discrimination, there remain shortfalls in ensuring compliance with the obligations and also dealing with entrenched problems in modern society relating to racism, racial thinking, covert expressions and racial bias.106

At the regional level, the basic human rights documents of the Inter-American system (the American Declaration of the Rights and Duties of Man 1948 and the American Convention on Human Rights 1978), the African Charter on Human and Peoples' Rights 1981 and Council of Europe European Convention on Human Rights 1950 (ECHR) protect human rights and apply those rights and freedoms to all persons equally without distinction on the grounds of characteristics including race or color. In the European Union (EU), discrimination based on race and ethnic origin is prohibited in the Race Equality Directive 2000/43. The provision has a wide scope, applying to public and private sectors. It instructs Member States to implement legislation to combat race discrimination in various areas relating to employment, vocational experience, social protection, education and access to and supply of goods and services. It states that the EU rejects 'theories which attempt to determine the existence of separate human races'. The 2008 Framework Decision on Combating Racism and Xenophobia instructs that particular acts of racism and xenophobia constitute an offence which can be punishable by firm penalties.107

Although these provisions have strengthened the legal framework for the prohibition of race discrimination at this level, the EU accepts that race discrimination persists within its member states.108 For instance, in 2020 the European Union Agency for Fundamental Rights (FRA) identified an increase in racist and xenophobic attacks, particularly against the Asian community.109 Furthermore, there remain challenges to enforcing these provisions.110 In response to the global movement

106 Spain Bradley (2019). 107 de Groot (2022). 108 de Groot (2022). 109 FRA (European Union Agency for Fundamental Rights), Coronavirus Pandemic in the EU-Fundamental Rights Implications, April 2020, p. 33, https://fra.europa.eu/sites/default/files/fra\_ uploads/fra-2020-coronavirus-pandemic-eu-bulletin\_en.pdf#page=33 (last accessed 10 April 2023).

110 de Groot (2022).

against racial abuse, in 2021 the European Commission held an anti-racism summit and introduced a number of new actions to advance protection against race discrimination. This includes an EU anti-racism action plan which proposes a significant review of the EU legal framework, and the enactment of legislative and non-legislative measures where necessary to address race discrimination more effectively.111

The European Parliament Resolution of 8 March 2022 on the role of culture, education, media and sport in the fight against racism112 highlights the important role that sports-governing bodies can play in eradicating racism and promoting equality and inclusion, particularly at a grassroots level to diversify representation. The Resolution highlights that although sport can foster unity between communities in social, cultural and educational life, there have been persistent cases of racism at sporting events, which must be addressed. It commands sports bodies to implement measures to address the underrepresentation of women and ethnic minorities in sport and places responsibility on Member States to ensure that sport is accessible to all, regardless of ethnicity or race. It insists on a zero-tolerance approach to racism, hate speech, violence and other racist behavior in sport and urges the Commission, the Member States and sports federations to develop measures to prevent such incidents, and to adopt effective penalties and measures to support victims, in addition to the space for athletes to speak out. Finally, the Resolution requires the Commission to implement guidance for sport to combat racism at all levels. It has been proposed that the European anti-racism provisions could be used to address racism in sport through binding commitments and as a basis for international agreements that are supported by international sports authorities, such as FIFA and the IOC.113

In the UK, race and identity are intricately tied up in its colonial history. Significant events such as Brexit, the Grenfell Tower fire in 2017, and the Windrush scandal in 2018 have all fueled a divisive atmosphere around immigration, citizenship and nationality, contributing to an exclusionary and fractured environment that is at odds with principles of inclusion and belonging.114 In turn, this has impacted racial unrest in society and sport. The UK Government commissioned a series of reports on specific policy areas relating to race and ethnicity, which have included recommendations for improving outcomes for marginalized groups (Crick Report 1998, Parekh Report 2000, Ajegbo Report 2007). The most recent publication, The Report of the Commission on Race and Ethnic Disparities 2021, was criticized for, among other things, failing to identify the source of the adversities faced by minority

111 European Commission, A Union of equality: EU anti-racism action plan 2020-2025, 18 September 2020, https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combattingdiscrimination/racism-and-xenophobia/eu-anti-racism-action-plan-2020-2025\_en (last accessed 10 December 2022).

112 European Parliament resolution of 8 March 2022 on the role of culture, education, media and sport in the fight against racism (2021/2057(INI) https://www.europarl.europa.eu/doceo/document/

TA-9-2022-0057\_EN.html. 113 Long and Spracklen (2011), p. 247. 114 Selwyn (2019).

groups in the UK.115 Some positive action is demonstrated by the intervention of the Department for Digital Culture Media and Sport (DCMS), which has conducted independent committee inquiries into critical sport issues such as the allegations in cricket, racism in football, underrepresentation of ethnic minorities in sport, and concussions and player welfare. Recommendations to withdraw public funding from sport may encourage sports bodies to improve their standards and practices. With that said, the purpose, scope and impact of DCMS' inquires is unclear.

In terms of legislation, the UK has historically been advanced in the recognition of equality and non-discrimination, particularly in the areas of sex (Sex Discrimination Act 1975) disability (Disability Discrimination Act 1995) and race (Race Relations Act 1975). The Equality Act 2010 (EA) consolidates and repeals previous legislation in specific areas and shields protected characteristics, which includes race. It also outlines various types of discrimination that can be applied to race, such as racial harassment, direct and indirect discrimination, perceptive discrimination and associative discrimination. The EA also draws attention to combined discrimination and the intersectional relationship between the protected characteristics, such as gender and ethnicity, as illustrated by my experiences. The UK Human Rights Act 1998 (HRA) gives effect to the rights set out in the ECHR. Article 14 ECHR prohibits discrimination in the enjoyment of human rights based on characteristics including race (not a free-standing right, see Protocol No. 12 ECHR). As outlined above, spectator behavior and conduct at sporting events has required legal intervention and is governed by legislation that seeks to eradicate racist behavior and impose criminal sanctions.116

The international human rights framework credits the value of participation in sport as a means of enhancing and promoting human rights and overcoming race discrimination. It has played an important role in the construction of key sport documents, with explicit references made to human rights commitments, obligations and remedy mechanisms.117 For instance, central sources of sport regulation proclaim that 'the practice of sport is a human right' which preserves human dignity and should be free from discrimination based on race and other characteristics.118 International governing bodies explicitly condemn race discrimination and appear to support and respect the legal sanctions of such behavior, with disciplinary codes in place to reinforce this position. However, these rights are not absolute, and the complex regulation of sport inhibits the firm enforceability of human rights obligations and the translation of these obligations into sport policies beyond theoretical commitments.119 The restricted application of the law to sport can create an

115 Kaur R, Hague GM (2021) Race Commission Report: the rights and wrongs, The Conversation, 1 April 2021, https://theconversation.com/race-commission-report-the-rights-and-wrongs-158316 (last accessed 10 December 2022).

116 Pearson and Stott (2022); Greenfield and Osborn (2001). 117 Patel in Rook and Heerdt (2023). 118 IOC Olympic Charter Principle 2; 4; 6. 119 Patel (2021).

ineffective barrier to participation for minority groups. The intersection between marginalized groups in sport, human rights, sport regulation and law are under close evaluation. There is a renewed focus on the relationship between sport and human rights with an increased body of research navigating how to bind sport to the international human rights framework outlined above.120 Accompanying this, the role of the judicial systems here is also being critiqued.

Overall, there is no ambiguity in the explicit prohibition of overt race discrimination within the rich international human rights framework, but modern covert microaggressions of racism remain systemic and embedded within many aspects of society, including sport. This questions the impact and effectiveness of these hard and soft law provisions. If engaged with, they can be promising tools for developing a harmonious approach and influencing shifts in racial thinking and covert practices. There is evidence of action at all levels of the legal framework to recognize the current regulatory shortfalls in eradicating racism and racial abuse from society, with efforts being made to refresh these provisions and align them with contemporary shades of racism, such as improved regulation of racism on social media platforms.121 The law can have a transformative educational influence in sport to fight against race discrimination by exerting pressure on sports bodies.122 Equally, sports bodies possess the power and authority to initiate effective change. An enhanced relationship between sport and the law could act as a driver for effective reform.

#### 7 Conclusion

This chapter has experimented with the use of lived experience to examine the barriers to participation faced by British South Asians in sport. Using storytelling as part of my analysis, I have provided anecdotal evidence of being overtly and covertly included and excluded within various sport and social settings throughout my life. My experience of being a British South Asian in sport and in England are illustrative of a much wider narrative around race, Britain and South Asian identity. I hope that this will contribute to the current limited coverage of the British South Asian female perspective and offer some insight into the relationship between our intersectional identity and sport. As a British Indian female, I feel that my encounters challenge the traditional British Asian female stereotype and prompt a reformulation of what this identity represents today. Yet the notion of 'but you're ok' continues to haunt me and leads me to evaluate the legitimacy of my inclusion in sport and society.

120 Rook and Heerdt (2023); Rietiker (2022); Patel (2021). 121 FRA (The European Union Agency for Fundamental Rights), Racism, Ethnic Discrimination and Exclusion of Migrants and Minorities in Sport: A Comparative Overview of the Situation in the European Union, October 2010, p. 45, https://fra.europa.eu/en/publication/2012/racism-ethnicdiscrimination-and-exclusion-migrants-and-minorities-sport-situation (last accessed 10 April 2023); Hylton et al. (2015a, b). 122 Simmons and Feldman (2018), p. 128.

The participation of British South Asians in sport is currently being scrutinized in English cricket, and the complex tensions between the British Asian community and Englishness, racism, class and culture are being negotiated as cricket governing bodies seek a solution to exclusion and underrepresentation. In the aftermath of the CDC cricket hearing, the actions and practices of the cricket authorities are under close scrutiny. Sport anti-racism initiatives have been useful to identify the existence of racism and draw attention to the inequalities for British South Asians in sport. However, a common theme is that those efforts do not go far enough to overcome certain barriers. In order to construct effective tools, sports bodies must tackle the more contemporary expressions of racism and mistreatment at all levels of sport. In addition to promoting equality, the plans should celebrate and value difference by using the voices of minority athletes to directly inform any anti-racism agenda, and by redefining the traditional notions of cricket and Englishness.123 Sport has a substantial platform to promote change and influence others by leading these positive shifts.124 Indeed, diversity and inclusion provide key human rights and business benefits for sport, and this should be prioritized.125

However, sport alone cannot achieve this reform since racism is widely present across many aspects of society; and the law certainly does not provide an absolute solution.126 Instead, a holistic approach is required, and at this key moment of diversity and inclusion, the symbiosis between law and regulation, sport, society, government and international organizations, play a crucial part in strengthening antiracism strategies. The established international legal framework outlined above is being refreshed and there is evidence of a firmer commitment to addressing the more nuanced expressions of race and gender in society. If engaged with, the law can be an effective tool for applying pressure on sports bodies to achieve appropriate antiracism legal standards and ensuring compliance with those relevant international, regional and domestic provisions.

This chapter suggests that independent organizations such as equality bodies, who monitor compliance of member states with legal provisions, are best placed to progress anti-racism and anti-discrimination despite their restricted legal authority and influence.127 In previous work, I proposed the establishment of an International Anti-Discrimination in Sport Unit (IADSU), an enforcement body for the fight against discrimination in sport.128 The enactment of an International Anti-Discrimination in Sport Charter could reinforce the IADSU to bind sport to human rights, and institute a relevant legal framework for the eradication of racism.129

123 Bekker et al. (2023). 124 Fletcher (2011). 125 Fletcher et al. (2021), p. 1477. 126 Greenfield and Osborn (2001), p. 165. 127 de Groot (2022); Patel (2015). 128 Patel (2015); Patel (2021); Patel in Rook and Heerdt (2023). 129 Patel (2021).

Finally, as researchers in this field, we can improve our work by integrating ethnographic narratives into legal research to provide an accurate understanding of the true impact of law, regulation and intersectionality upon marginalized groups, such as British South Asians in sport. Including the voice of the British South Asian athletes will result in better academic legal research and foster meaningful inquiry.130 In turn, this will assist in the fight against racism and cultivate positive actions for further inclusion.

#### References

130 Patel in Rook and Heerdt (2023).

Seema Patel is Associate Professor in Sports Law at Nottingham Law School, Nottingham Trent University. With international leading expertise on discrimination in sport, Dr Patel has published and offered global media commentary on the legal and regulatory implications of the participation of gender diverse athletes in sport. Dr Patel has been involved in supporting legal teams on these issues, contributing to sport eligibility policies, and informing Government reviews on inclusion and exclusion in sport. In recognition of her wider expertise on discrimination in the context of race and sport, Dr Patel was appointed as a panel member for the Cricket Disciplinary Commission (CDC).

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# Gendered Athletes in Sports: CEDAW's Role in Tackling Heterosexist and Racialized Uniforms in Sports

#### Lena Holzer

#### Contents