Priyanshu Mishra, Suvanssh Mahajan and Saif Ali ^[1]

A panel consisting of Professor Saurabh Bhattacharjee, Professor Babu Mathew, Ms Jasoon Chelat, and Professor Ashna Singh – scrutinized the issues of sports law and labour rights pertaining to the FIFA world cup. Professor Bhattacharjee underlined the duties and obligations of the states sending migrant workers in protecting their interests. Further, he argued for regulating the working of the sports authorities. Thereafter, Ms Chelat explicated the concept and evolution of the kafala system in light of the labour law regime in Qatar. Lastly, Professor Ashna argued for a reconstruction of labour unionism during the era of globalisation and labour migration. 

Introduction

On the 20^th of December 2022 – the Law and Society Committee, National Law School of India University organized a panel discussion on ‘FIFA World Cup, Labour Rights, and Underlying Politics.’ A panel consisting of Professor Saurabh Bhattacharjee, Professor Babu Mathew,Ms Jasoon Chelat, and Professor Ashna Singh – scrutinized the issues of sports law and labour rights pertaining to the world cup. Professor Bhattacharjee underlined the duties and obligations of the states sending migrant workers in protecting their interests. Further, he argued for regulating the working of the sports authorities. Thereafter, Ms Chelat explicated the concept and evolution of the kafala system in light of the labour law regime in Qatar. Lastly, Professor Ashna argued for a reconstruction of labour unionism during the era of globalisation and labour migration.

The moderator Mr Jisu Paul began the discussion with a brief overview of his experience during the World Cup. He touched upon the emerging phenomena of Sports Washing. He highlighted that, in the 1934 World Cup, Mussolini used football as an instrument to bolster his reputation. Even today in Qatar, the glamorous course of the world cup overshadowed the plight of labourers and migrant workers. Before opening the discussion, he quoted Tagore, “Taj Mahal rises above the bank of the river like a solitary tear suspended on the cheek of time.” By the same token, the chaos, the cries, the cheers for Messi, and the Qatar World Cup will fade away, but the monument and street of torture constructed will stay forever.

Sports, politics and law

Professor Bhattacharjee began the discussion by recounting the Spanish movie Buenos Aires. The movie is about the 1978 Argentina FIFA World Cup, which shows the torment and torture faced by people in detention centres. These people continued to cheer for their team, knowing that the military regime was utilizing the World Cup to further its power. He remarked that football, even today, is one of the few things with such power. Coming back to 2022, or rather when Qatar originally got the opportunity to host the World Cup, there were protests against the same and plans to boycott the same. There were several serious accusations of bribery by the officials of FIFA. However, Qatar successfully manoeuvred the event for Sports washing. The tournament was too enamouring for anyone to consider the gross human rights violations in the country.

Professor Bhattacharjee noted that FIFA has a long history of being associated with the most abhorrent people.  In 1982, World Cup was hosted in Spain after it had become a democratic nation, but it was awarded the chance when General Franco was still in power. FIFA’s position has always been that politics must always be separated from sports. However, he inquired into the worthiness of such a position. The imperative issue for him was, “Can human rights be separated from sports after all?” The authoritative regimes violate labour laws blatantly, not only during sporting events but on a general basis.

He argued that two major reforms are needed to tackle it:

First, the duties of the states sending migrant labourers towards their workers. A significant number of workers from India went to Qatar, out of which several died. He believed that the Indian state has not done enough to protect their labours abroad. He raised a few pertinent questions for the Indian state. The Indian government should have been cognizant of its obligations and duties when a significant workforce has gone to work in Western Asian nations. Further, it should have taken the necessary steps to protect its citizens. He noted that the Indian media has been pretty hyperbolic about India on the road to becoming a superpower but does that hold, given that it has not even sufficiently protected the interests of its workers? It would have a detrimental impact on the global standing of the country.

Professor Bhattacharjee further underlined that, currently, there is no particular legislation on the rights of migrant labourers working outside India. However, there are a few legislations controlling and regulating the contractors working inside and outside the territory of the country such as the Employment Compensation Act, of 1923. While framing the laws, the Indian legislature can infer the duties and responsibilities of the government from the Constitution or the example prevalent globally. For instance, the United States has a concept of Alien Tort Crime that increases the jurisdiction of the US courts in cases concerning violation of International Public Laws. Similarly, based on Article 41 of the Indian Constitution on the right-to-work principle, one can argue that the state has to protect and preserve the right to work of the labourers inside and outside the territory of the country.  He remarked that the likelihood of these changes is dim but does not dissuade us from arguing for them.

Second, there are a series of other equally important questions that must be answered about how these sporting organizations can be held accountable. According to him, sports law has mostly dealt with this on the principle of autonomy, of ensuring sports organizations can make their own rules and regulations and function independently. But can that allow such organizations to use it as a shield for impunity, and can this defend the higher values of sporting? The International Olympic Committee, as well as FIFA’s actions, have been highly questionable concerning the same.  According to him, with Russia in 2018, Qatar in 2022, and now talks of Saudi Arabia being given the right to hold the World Cup in 2030, the question is highly relevant. While looking at these broader questions, he insisted that FIFA-like sporting bodies ought to be more accountable and transparent in their functioning concerning international laws and human rights violations.

While noting the failure of regulation of sports authority in India, he reflected on the failure of the ‘Supreme Court’s intervention in reforming BCCI.’ However, he remarked that just because Supreme Court intervention hasn’t worked in the case of BCCI, it doesn’t necessarily mean that regulation cannot be brought into the functioning of sports authorities. One needs to broaden its horizon and look beyond cricket, where the regulatory framework adopting the principle of natural justice is working successfully. He claimed that although these changes are slow to come forth, they are transformative in their field. He substantiated the case for regulation through the distribution of broadcasting rights of sporting events in Europe which were successfully regularised by the ‘European court upholding the principles of competition law.’

Labour Rights in Qatar – The Spectre of the Kafala System

Ms Jasoon Chelat explicated the kafala system. Originally, it was an Islamic concept, a system of adoption where the individual was responsible for the actions of the minor until he turns major, akin to the legal concept of surety. She noted that it was not directly linked to the labourer but rather a patrilineage and social solidarity concept.  Its connection to the labourer comes from the influence of colonial rules in the middle east, particularly starting with Bahrain and then extending to Qatar in the 1920s. The British introduced such a system to control the influx of migrant labourers from south Asian countries concerning the need for certain industries. To control those labourers and for bureaucratic efficiency, they introduced the kafala system by converting it to an administrative concept and extending it to control the labourers. Therefore, according to her, kafala today is not an Islamic concept as such, but a colonial concept introduced through their cultural influence and it is only linguistically similar to the original system of adoption.

Under the kafala system, the kafala is a contract where the kafil or the guarantor is not supposed to receive any remuneration for the same (riba). Under Islamic law, you can still push for the balance of power within the contract. Ms Chelat underscored that Qatar moved away from calling it the kafala but straightforwardly called it in terms of contracts and sponsorships in its laws. Such laws not only apply to unskilled but also skilled people who were intended to be the recipients of such laws. In this regard,  International Labor Organisation(‘ILO’) has worked with Qatar to reform such laws, such as removing the requirement for an exit visa and permission to leave the country, introducing non-discriminatory wage legislation, etc. However, she argued that the nomenclature has become more secular, and things have changed on paper, but at the same time, it hasn’t resulted in any satisfactory changes in how things function today and even if they have, they have come about at a snail’s pace. There have been multiple deaths and accidents which are close to around 6500 workers in Qatar ever since work started during the World Cup. She claimed that the freedom to work and associate is almost non-existent in Qatar, therefore there has been no translation from paper to actual functioning. Similarly, the Kafala System was banned in Bahrain in 2017, but the nomenclature has been changed and nothing else.

Securing Labour Rights: Towards a Transnational Framework

In light of the vast migration of workers witnessed for the World Cup, Professor Ashna emphasised the recalibration of the international labour rights movements. In the neo-liberal era, especially in the post-2008 crisis, with the emergence of a new phase of multinational corporations, the nation-state economic models have started to break. It has also led, inter alia, to a vast migration of workers. Further, the workers are employed in various precarious capacities for which the kafala system is an example. In this wake of globalisation and labour migration, trade unions face new challenges. She highlighted the limitations of trade unions in the reasonable accommodation of workers. She claimed that earlier, the trade union movement was closely associated with the concept of the nation-state. Their principles of unionisation were on certain indicators like ethnicity and language. Therefore, the unions failed to reasonably accommodate the migrant workers. It has an adverse effect, especially in sectors where migrant workers are over-represented. According to her, this failure to unionize leads to practices of sub-contracting and ad-hoc-employment.

Therefore, at this juncture, union revitalization is required in both the global north and south. The focus of the discourse ought to be guided towards the workers, and not merely muddled in the dichotomy of First World and Third World countries. Professor Ashna suggested that Community unionism, which is adopted in a few countries may turn out to be a great way of recalibration. It is a movement which engages with labourers beyond the traditional workplace in a wider sense of social justice. It bolsters trade unionism and labour rights through political movements. She conclusively remarked that especially for migrant and atypical workers, community unionism may create links with other community groups and create local leadership in various unorganized industries.

Professor Bhattacharjee further delved in more detail into the issue of the relevancy of trade unions during globalisation. The claim that the trade union in the 20th century is weak is disputable. Although in the recent past, there has been a shift in the modes of production, that doesn’t lead us to conclude that the trade unions have completely stopped functioning. International trade unions exist and there is a coalition among the trade union within the countries and outside the countries as well. Concerning the challenges this century faces, unionism has become more relevant than ever before, given the emergence of new business models such as the gig economy.

In this regard, Professor Mathew’s intervention traced international trade unionism. He remarked that in the post-collapse of the Soviet Union, the trade union faced some setbacks since the process of unionisation started in the era of Karl Marx and other communist thinkers who had greater influence in the unionisation of labourers during the industrial revolution and post-industrial revolution. In India too, the establishment of trade unions influenced these communist thinkers.  In contemporary times, some trade unions are functioning at the international level that is collaborating and cooperating with the trade union at the national level. For example, the trade union in the garment industry interacts with the international trade union over the minimum wage. Several instances also exist of trade unions from two countries interacting in manufacturing industries, like automobiles. However, according to him, there is a prevalence of polarisation in the ILO against third-world countries since the ILO declaration is binding on every country irrespective of whether they are signatories or not. Therefore, it is time for third-world countries to unionise over forced labour, minimum wage, bargaining power and occupational safety.  

[1] Priyanshu Mishra and Suvanssh Mahajan acted as rapporteurs for the panel discussion. Saif Ali provided research and editing assistance for this report. They are second-year B.A. LL. B. (Hons.) students at the National Law School of India University, Bangalore. 

The Law and Society Committee is a student committee at National Law School Institute University, Bangalore. Its broad mandate spans the socio-legal analysis of contemporary national and international events, with an aim to foster awareness and appreciation of law and policy in a more real and tangible sense.