Dr Sean Molloy
On 7 October 2021, it was confirmed that an investment group led by the Public Investment Fund (PIF), and also comprising PCP Capital Partners and RB Sports & Media, had completed the acquisition of Newcastle United Ltd and Newcastle United Football Club Ltd from St. James Holdings Ltd. While a deal was some time in the making,[i] it has been particularly controversial owing to the involvement of the PIF, which is the sovereign wealth fund of Saudi Arabia. From a human rights perspective, the deal is unquestionably a significant setback as a result of the PIF’s involvement, one that appears to subordinate rights and allows Saudi Arabia the opportunity to sportswash its dire human rights record. Nevertheless, the deal is now done, with little prospect existing for pushing back against it. To that end, this post seeks to locate some potential silver linings for promoting human rights that might emerge from the takeover.
Shining a spotlight on the Saudi Regime’s Approach to Human Rights
The takeover is, in the first instance, a useful opportunity to draw attention to human rights violations in Saudi Arabia. Perhaps the most widely reported example of Saudi Arabia’s disregard for human rights in recent times is the murder of Jamal Khashoggi, a Saudi dissident, journalist, columnist for The Washington Post, former editor of Al-Watan and former general manager and editor-in-chief of the Al-Arab News Channel. He was assassinated by agents of the Saudi Government at the Saudi consulate in Istanbul, Turkey on 2 October 2018.[i] Beyond this immediate headline, there is a litany of other human rights violations in Saudi Arabia that are daily occurrences. These include, as examples, violations of women’s rights, the right to education, religious freedoms, freedom of expression, freedom of assembly, rights to a fair trial, torture, detention without trial, and discrimination against the LGBTQ community.[ii]
Nevertheless, countries like Saudi Arabia are often far removed from most people’s everyday lives and concerns of people in the UK. This distance, in some cases, permits knowledge gaps, particularly in relation to the ways in which rights are denied. In other cases, it allows for a type of cognitive dissonance, one that enables us to distance ourselves from the plight of others in far off places. Yet, with the takeover widely publicised, opportunities emerge for shining a spotlight firmly on the Saudi approach (or lack of an approach) to human rights. To this end, various organisations have, as part of their opposition to the deal, brought these matters to the fore (see, for example, here).
More generally and opportunistically, the discourse around the takeover might also prompt a wider discussion on what we mean by human rights more generally and why, particularly when dealing with repressive states, they are so important. Salient questions also arise in relation to how we prioritise human rights, their interrelationship with sport, and the potential subordination of rights to economic concerns and opportunities. Any engagement or reacquaintance with human rights is particularly important in light of the efforts of the current Conservative Government to undermine their importance and place in society. In this sense, the takeover could serve as a catalyst both for raising awareness of rights violations in Saudi Arabia and triggering more general discussions on the meaning and place of rights.
Opportunities for bottom-up advocacy and challenging hypocrisy
Much has been written over the last number of weeks regarding the ways in which Newcastle United fans received news of the takeover. Often painted in a negative light, there is frequently an implied suggestion that the takeover should be opposed, even campaigned against by the fans. However, such views are somewhat misdirected. In the first instance, to place responsibility on the fans to mount such opposition is to try and shut the stable door after the horse has bolted. The challenges associated with trying to remove Mike Ashley―the now former club owner and businessman―illustrate the lack of influence that football fans have over elite-level negotiations and deals.
Secondly, it is important to properly acknowledge what was being celebrated. In contrast to the likes of Manchester, Liverpool and London, Newcastle is one of the few cities in England with only one football club. Moreover, there are even fewer that can boast a stadium with a proximity as close to the city as that of St James’ Park. This physical intimacy is, in many ways, reflective of the cultural and societal relationship between the club and the people of Newcastle; it is engrained into its very fabric and is, for many, a way of life. The takeover was not, contrary to what many have reported, celebrated in spite of the approach to human rights by its new owners. The euphoria was instead one borne from the ouster of the former owner and the prospects of a new dawn for the club. In line with the initial comments, for many, whether as a result of insufficient information or cognitive dissonance), the human rights record of Saudi Arabia was not a consideration.
Newcastle fans have a unique opportunity to lend their voice and support to those that fall on the wrong sides of the Saudi regime.
Dr Sean Molloy, Newcastle Law School
Thirdly, while a specific event such as the takeover shines a direct light on relationships with Saudi Arabia, the benefactor of that relationship―in this instance, the Newcastle United fans―become an easy scapegoat. Yet, the UK Government does business regularly with Saudi Arabia in such markets as oil and weapons. Indeed, a 2018 report by Kings College London identified that trade exports in goods and services to Saudi Arabia totalled £6.2 billion in 2016, and imports from Saudi Arabia to the UK were worth £2 billion.
There are, it follows, a number of opportunities here as well. Firstly, the relationship between club, city and the people of Newcastle presents opportunities for the fans to advocate for human rights improvements in Saudi Arabia. Such a claim is far from beyond the pale when one reflects upon the rich pedigree of rights advocacy in the city, which have spanned campaigns against slave trade, pitmen protests in the 1800s to the miners protests in the 1980s and, more recently, protests around climate change and Black Lives Matter. Secondly, if one of the consequences of the takeover is to raise the public consciousness around human rights violations in Saudi Arabia, this could and should serve as the catalyst for pressure on the UK to reduce or desist from its ongoing dealings with the country.
A chance for integrating human rights concerns into English Football
Questions are also raised regarding the Premier League’s human rights obligations, which is, for all intents and purposes a private entity. As Prasad and Mishrahave have noted, as a business, the Premier League ought to operate according to the United Nations Guiding Principle’s on Human Rights (UNGP). Amongst other things, this framework, developed by the recently deceased Professor John Ruggie (thus often called the Ruggie Principles), places responsibilities on businesses to ensure that they are respecting human rights. In cases of investment into sporting leagues which are run as businesses, the UNGP asks sporting leagues to conduct human rights due diligence of all their business activities and business relationships. This must include human rights due diligence of investors and owners of clubs. Therefore, the Premier League, as a business, must conduct human rights due diligence of its business relations. As Prasad and Mishrave have aptly noted:
If the due diligence exercise reveals adverse harm towards human rights through sportswashing, then remediation of the harm becomes necessary, because merely conducting human rights due diligence does not absolve liability.
While governing bodies such as Fédération Internationale de Football Association (FIFA), primarily as a result of their own controversies, have sought to integrate the UNGP (Duval and Heerdt, 2020), the Premier League and English football more generally have been less progressive. Thus, from the takeover and the elucidation of the gaps in the League’s approach to human rights, opportunities emerge for placing global human rights and corporate social responsibility standards such as the UNGP front and centre in the future.
Beyond this global policy framework―which is non-binding under international law―others have drawn attention to the fact that neither the Premier League nor the Football Association have a comprehensive human rights policy. Human rights policies or codes of conduct, while again often non-binding, nevertheless lay down a system of rules and requirements that ought to guide the commercial activities of the organisation.
Moreover, the Owners and Directors’ test that is applied by the Premier League to football clubs also lacks any mention of human rights. As explained by Ashley Cukier, this test is applicable to owners of clubs (whether in direct or indirect control of the club), directors and officers of clubs and any associated persons who are themselves directors of a company incorporated under the Companies Act 2006. In omitting a provision on human rights or adopting a robust human rights code, owners with questionable human rights records are not prevented from taking ownership of a Premier League Club. For this reason, David Chivers QC last year co-wrote a new human rights-compliant Owners’ and Directors’ test on Amnesty’s behalf. The takeover offers the opportunity to reconsider how leagues in general and the Premier League specifically safeguard against transfers of ownership to those with dubious human rights records. The revised test as proposed by Chivers QC is a useful starting point in this regard.
A final consideration relates to the other clubs in the Premier League, which have expressed concern that the League’s brand could be damaged by PIF’s investment. While as noted the Premier League is a limited company, it is wholly owned by its 20 Member Clubs who make up the League at any one time. Despite welcome developments in the fight against racism in football, if both clubs and the League are to take human rights seriously, there are conversations to be had regarding the scope and powers of other clubs to take a strong human rights stance. Otherwise, human rights exist merely to project an ethical image, one which lacks any operational effect in practice.
Recognising and pushing back against sportswashing
Beyond immediate matters relating to the takeover itself, the shift in ownership helps to illuminate a wider problem―that of sportswashing and its relationship to human rights. Sportswashing is the practice of an individual, group, corporation, or nation-state using a major or prestigious international sport to improve its reputation, through hosting a sporting event, the purchase or sponsorship of sporting teams, or by participation in the sport itself. The concept is in no way new. For instance, the 1934 World Cup was held during the rule of Mussolini in Italy. In 1964, the European Nations’ Cup took place during the military rule of Francisco Franco. Beyond football, Nazi Germany hosted the 1936 Summer Olympics. More recently, sportswashing can be identified in the 2008 Summer Olympics held in China, the 2014 Winter Olympics held in Russia and the hosting of the 2022 FIFA World Cup in Qatar. The Saudi kingdom, for its part, has engaged in plenty of sporting activities over recent years, including staging Anthony Joshua boxing bouts and a Formula 1 Grand Prix.
Notwithstanding dubious human rights records, repressive countries, through the medium of sport, are thus afforded the opportunity to present to the world a picture that is often wholly detached from the human rights environment in that country. In doing so, the intention is to create a diversion from human rights violations. The obvious risk is that as a result of this guise, breaches of human rights are able to continue, particularly as scrutiny lessens. Nevertheless, major events such as the Newcastle takeover provide the opportunity to bring to the attention of the wider public the growth of this tactic. With increased knowledge and awareness, greater levels of accountability and push back might follow.
Conclusion
For better or worse, the takeover of Newcastle United FC is now a done deal. It is unquestionable that from a human rights perspective, the deal has stuck a significant blow to the idea that rights are and should be prioritised above most (if not all) other considerations. Nevertheless, it makes little sense in lamenting over that which has come to pass. Attention should instead shift towards searching for silver linings to improve human rights not only in Saudi Arabia but also more generally. In this sense, the takeover does help to identify a number of existing shortfalls, not least in terms of the UK Government’s dealings with Saudi Arabia, English footballs approach to human rights and the ways in which human rights ought to be integrating into the Premier League.
Beyond this, Newcastle fans have a unique opportunity to lend their voice and support to those that fall on the wrong sides of the Saudi regime. At a more general level, the takeover ought to provide a catalyst for increasing discussions around what we mean by human rights and a point of reference from which to interrogate and understand other examples of sportswashing that appear to be occurring with greater frequency.
[i] For a useful chronology of events see here.
[ii] See Human Rights Watch Report here and Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions here.
[iii] See Human Rights Watch Country Report.