Morgan Sports Law is an international law firm which specialises in sports-related disputes. Our Equestrian Services team represents riders, trainers, horse owners, officials, equestrian business owners and national federations in disputes before the FEI Tribunal, the Court of Arbitration for Sport and the English civil courts. We have particular experience in human and equine anti-doping cases, disciplinary proceedings, and horse sale and purchase disputes. Our unparalleled understanding of the equestrian industry and expert knowledge of the regulatory landscape allows us to offer specialist advice tailored to our clients’ needs. For more information, please contact Emma Waters (emma.waters@morgansl.com) and Ellen Kerr (ellen.kerr@morgansl.com).

The FEI has published its proposed rule changes for 2024. The full list can be found here. Below, Emma Waters and Ellen Kerr from Morgan Sports Law take a closer look into three proposals that could impact everyone in the FEI world, if implemented: 

1. New social media policies for athletes and officials.
2. Reduced responsibility for the FEI in safeguarding matters.
3. Enhanced powers to demand evidence in ethics and integrity investigations.

As noted in World of Showjumping’s recent article, the FEI is proposing to add two new social media policies to its General Regulations – one for athletes and one for officials. 

The social media policies will include rules to the effect that:

• Athletes and officials will be prohibited from making derogatory or offensive comments about the FEI or any individuals associated with equestrian sport (such as other athletes or officials, chefs d’equipe, coaches, teams and organisers). 
• Athletes must fact check information before they share it, in order to discourage the spread of fake news. 
• Officials must not promote products or brands that may compromise their impartiality or raise questions about their integrity. 

Violations of the social media policies may result in disciplinary action including fines (for athletes), warnings or suspensions (for both athletes and officials) and demotion / removal from position (for officials). The FEI Tribunal will be responsible for handing down sanctions, unless the offence is “minor”, in which case the FEI legal department will handle the case. 

Not everyone will be happy about the introduction of the policies – potentially seeing it as a limit on their freedom of expression and speech

The addition of the social media policies will hopefully provide extra protection for members of the FEI community who are vulnerable to online abuse, such as officials, athletes and coaches. The FEI rules already have some protection in place, but the proposal indicates that these may not be robust enough. For example, the FEI already has Social Media Guidelines but they are only ‘guidelines’ (rather than rules) and they only apply to officials, FEI staff and board members (rather than to athletes). Equally, the FEI’s existing Safeguarding Policy against Harassment and Abuse prohibits “psychological abuse”, which could include online abuse, and applies to athletes, officials and others within the FEI world. However, it is notoriously hard to define and prove “psychological abuse”, so few cases of this nature have been heard by the FEI. 

Imposing a social media policy for athletes is in fact quite unusual for an international federation – normally social media guidelines are published at the national federation level (for example, British Dressage has a Social Media Policy for all members and the USEF has a Social Media Policy for its officials). Similarly, in other sports, it is usually the national federations that police social media – in football, the English Football Association has penalised several professional players for abusive comments / posts on social media. 

There will be a lot of debate about what exactly counts as “derogatory”

Not everyone will be happy about the introduction of the policies – potentially seeing it as a limit on their freedom of expression and speech, and perhaps a way for the FEI to silence critiques of the federation and event organisers.

Athletes may be especially concerned about what they post online, for fear that their content or comments will be considered a breach of the policy. There will be a lot of debate about what exactly counts as “derogatory”. We cannot know for sure how the policy will be implemented but the FEI does not have time to police what every single athlete is posting on social media, and it certainly does not have time to open disciplinary proceedings into hundreds of athletes at once. Therefore, the FEI is likely to focus on the most extreme online behaviour – such as content that is highly damaging to the image of the sport (which could be worsened by the nature of the content but also how high profile the person posting the content is), or particularly nasty content or comments targeted at specific individuals in the sport. Therefore, instead of turning to social media to criticise aspects of an event, or the FEI, the FEI is perhaps encouraging people to provide constructive feedback directly and privately to those involved. 

All in all, there are likely to be lots of questions about what is expected under the social media policies

Another point of concern for athletes will be how thoroughly they must check their sources before posting content, to avoid the FEI penalising them for ‘fake news’. The FEI has so far provided no guidance about what is expected from athletes in terms of fact checking but, as noted above, it is unlikely to have time to penalise each and every person who posts something untrue. The FEI will most likely focus on the worst examples – and is probably trying to prevent false and harmful rumours and news being spread quickly, for example allegations about athletes or problems at events. 

All in all, there are likely to be lots of questions about what is expected under the social media policies. If the policies are introduced, it would be sensible for the FEI to publish guidance on what kind of content would be problematic, and what is expected in terms of fact checking, so that athletes have a clear understanding of the boundaries. 

The FEI’s Safeguarding Policy against Harassment and Abuse allows the FEI to penalise athletes, officials, trainers, coaches, vets and other individuals within FEI sport if they have abused or harassed someone – in or out of the sport. The FEI is proposing to change the policy so that it will have no obligation to act if the abusive conduct does not pose a risk of harm in the context of equestrian sport. Some may see this as logical – believing that the FEI should only get involved in strictly equestrian matters – but others may see it as an opportunity for the FEI to avoid responsibility. 

The FEI’s proposal also includes a provision that it “may” update the person who reported a safeguarding issue on the status of the report and any resulting consequences. The use of the word “may” means that the FEI will not be obliged to update the complainant. This could be seen as unfair, as the complainant will likely want reassurance about the progress of their report, particularly if they still have to come into contact with the individual concerned or if they believe the individual may abuse / harass others. However, it does of course give the FEI the option to update the reporter, and we expect that the FEI will exercise this option when appropriate.

The FEI is proposing that it should have the power to request “any information, record, article or thing … that the FEI reasonably believes may evidence or lead to the discovery of evidence of a non-doping violation.” The current FEI rules already allow it to penalise an individual who fails to cooperate with an investigation (normally in relation to safeguarding or corruption) but this new proposal would further strengthen the FEI’s power. 

Under the proposal, an individual may be asked to hand over physical items to the FEI, attend an interview and/or provide a statement about integrity and ethics matters (which could include horse welfare, safeguarding and corruption issues). The FEI is not specific about the items that could be requested, however other international federations with similar rules comment on demanding bank statements, emails, messages, computers, mobile phones and storage devices (and their passwords), in addition to searching people’s premises. 

This may appear invasive, particularly when considering criminal proceedings, whereby a police warrant / court order is usually obtained prior to actions of this nature. The FEI’s proposed rules explicitly require athletes to waive any rights they have under other laws to withhold the information requested. 

The FEI could face legal challenges if this proposed rule is enacted, under Article 8 of the European Convention on Human Rights 

In that regard, the FEI has likely considered the fact that the Court of Arbitration for Sport (the “CAS”) has previously held that sports federations like the FEI are permitted to establish rules that oblige their members to cooperate in investigations, and to sanction those who fail to do so (see CAS 2017/A/5003, at paragraph 265). The CAS’s justification for this is that, unlike the state, sports federations do not have any power to compel an individual to provide information, and so the only way they can do so is to introduce rules that encourage athletes to cooperate (by sanctioning those who do not comply). 

Further, the FEI is likely also aware that International Federations, such as World Aquatics, World Athletics and the International Weightlifting Federation, already have rules allowing them to demand evidence from their athletes. 

Nonetheless, the FEI could face legal challenges if this proposed rule is enacted, under Article 8 of the European Convention on Human Rights (the “ECHR”). Article 8 enshrines an individual’s right to private and family life, home and correspondence. Under subsection 2 of the Article, any interference with this right must be balanced by the public interest of such interference. This would mean, for instance, that the seizing of evidence or searching of premises would not be justified if the invasion of the individual’s interest in privacy outweighed the interest in conducting the investigation.

To ensure its rules are compatible with the ECHR, the FEI will need to make provision for athletes to object to demands for evidence, and to ensure that any such demands are compatible with, and justifiable under, the ECHR

CAS Panels have repeatedly found that arbitral tribunals are indirectly bound by the ECHR. In CAS 2011/A/2384 & 2386, the Panel held (paragraph 22) as follows:

The Panel is of the view that even though it is not directly bound by the provisions of the ECHR (cf. Art. 1 ECHR), it should nevertheless account for their content within the framework of procedural public policy.

Recent decisions by the European Court of Human Rights have further emphasised the importance of ECHR in the context of sports disciplinary proceedings. For example, in 526/18 Platini c. Suisse (paragraph 61) and 10934/21 Semenya c. Suisse (paragraph 164), the European Court of Human Rights decided that those subject to the federation’s rules must have adequate ways to appeal decisions that affect them and that tribunals must properly balance the interests at stake, in accordance with the ECHR.

If implemented, this new rule would be a significant expansion of the FEI’s powers in investigations and the FEI will need to be careful about how it enforces it

To ensure its rules are compatible with the ECHR, the FEI will need to make provision for athletes to object to demands for evidence, and to ensure that any such demands are compatible with, and justifiable under, the ECHR. As part of that assessment, the FEI will need to consider the severity of the alleged violation at the heart of the investigation and whether the request for evidence is proportionate and justifiable. The FEI will presumably be keen to avoid any claims that it has acted in a manner that is inconsistent with human rights (as defined by the ECHR).

Similarly, the FEI will need to carefully consider the sanctions it intends to impose on those who refuse to comply with the newly proposed rule. The proposed sanctions range from a suspension of 1 month to 1 year, and a fine up to CHF 10,000 (see Article 164.14 of the FEI General Regulations). In the Semenya case, the Court found that the consequences imposed by the applicable regulations were incompatible with Article 8 of the ECHR, on the basis of proportionality. As such, the FEI will need to ensure that any sanctions imposed for non-compliance are proportionate and justifiable. 

If implemented, this new rule would be a significant expansion of the FEI’s powers in investigations and the FEI will need to be careful about how it enforces it, to ensure that its demands for evidence are compatible with the human right to privacy.

These rule changes are just proposals at this stage. The FEI is accepting feedback on all proposed rule changes until 16 August 2023 (see here). Only National Federations and stakeholder organisations can submit feedback – so individuals will need to discuss their comments with their member organisation.

If you have any queries about what the proposed rule changes could mean for you, please contact Emma Waters (emma.waters@morgansl.com) and Ellen Kerr ([email protected]) of the Morgan Sports Law Equestrian Services team.