Dutch trade union brings legal action against FIFA

World soccer’s governing body Fédération Internationale de Football Association (FIFA) is at the centre of another legal action—this time over its alleged failure to ensure that the rights of migrant construction workers are respected while they build stadiums and other infrastructure projects ahead of the 2022 World Cup in Qatar.

The Netherlands Trade Union Confederation (FNV), the country’s largest trade union with over 1 million members, has brought the case against FIFA on behalf of Nadim Shariful Alam, a Bangladeshi former migrant worker in Qatar. The case argues that soccer’s governing body failed to impose any conditions on the oil-rich Gulf state at the time of awarding it the 2022 tournament to protect workers’ rights once construction began.

The FNV also says that FIFA has done little—if anything meaningful—to improve the conditions of migrant construction workers subsequently, even when presented with damning evidence of their treatment.

Launching its legal case in Switzerland—which is where FIFA is headquartered—the FNV wants the Swiss court to rule that FIFA should have done more to protect workers’ rights and to push for the abolition of kafala, the country’s work-sponsorship system, which prevents workers from unionizing, raising grievances, or leaving the country.

The FNV wants FIFA to make sure that these rights will be in effect as quickly as possible and for the court to accept that FIFA violated the rights of Nadim Alam and should pay CHF 5,390.54 (U.S. $5,461.91) in damages, as well as pay a further CHF 5,000 (U.S. $5,066.20) for the hardship he has suffered.

The legal complaint says that “FIFA has violated applicable legal standards under Swiss law protecting migrant workers from forced labour and other forms of exploitation.”

Both FNV and Alam are represented by lawyers Liesbeth Zegveld, from Amsterdam-based human rights law firm Prakken d’Oliveira, and David Husmann, from Zurich-based lawyers Schadenanwaelte AG.

In recent years, the world’s largest trades unions have taken an increasingly harder stand regarding how organisations in the developed world source and use labour from developing countries. Case in point: the garment industry and how its supply chain puts workers at risk in unsafe premises in the wake of the Rana Plaza collapse in Bangladesh.

“Everybody knows what the situation is in Qatar but FNV is the only organisation willing to take action about it and to try to hold FIFA to account.”

Liesbeth Zegveld, Lawyer, Prakken d’Oliveira

The FNV believes that FIFA is at fault for not insisting on stronger labour protection during the bidding process even before 2010. FIFA defines the terms for participation in the bidding procedure and is able to create legally binding obligations of the host state vis-a`-vis FIFA, as well as with the national football association of the host country, says the complaint. Such an agreement, which also contains a “list of requirements,” is a compulsory requirement for continued participation in the bidding procedure. The FNV points out that FIFA has the power to unilaterally decide what is included in the list of requirements and whether bidding states’ meet those requirements. If the requirements are not met, FIFA can decide to bar a state from admission into the bidding procedure, as has happened with previous bids by Indonesia and Libya.

The FNV complaint points out that FIFA has the power to demand legal reforms, setting aside domestic law, from potential host states in order to bring them into accordance with FIFA’s requirements—both during the bidding process and in the run-up to the tournament taking place. Furthermore, FIFA has used such powers in the past: for example, during the World Cup tournament in South Africa, FIFA had set up special courts to deal with hooliganism that occurred in the stadiums. Such legal reforms or changes can also pertain to visas and work permits, says Zegveld.

The FNV says that FIFA’s omission to demand any labour reforms from Qatar is “unlawful” since it has the power to impose binding requirements on the country set to host the World Cup. “FIFA is fully in charge of the World Cup, including its bidding procedure and its preparation. The host state can only organise the tournament if it meets the requirements set by FIFA,” says FNV. “The World Cup is a package, ‘take-it-or-leave-it’ deal. There is little to no room for states to negotiate about the demands made by FIFA and in order to meet these demands they can be forced to set aside national laws. FIFA thus decides on what terms the World Cup is organised,” it adds.

“It is upon FIFA to use its power to make sure that fundamental human rights are protected by the host state during the preparation of the tournament,” says FNV.

DETAILS OF FNV SUIT

Below is a summary of FNV v Nadim Shariful Alam.
Nadim Alam paid a recruitment agency in Dhaka, Bangladesh around €3,976.50 to start work as an unskilled construction laborer in Qatar in August 2014. He took out a loan and mortgaged his land in order to pay the fee.
Alam’s employer (kafeel), HBK, confiscated his passport upon arrival. It was only returned to him when the company fired him in January 2016. Under the Kafala system, Alam was unable to change employers while he was in Qatar, forcing him to return to Bangladesh. However, his premature dismissal meant that HBK reimbursed less than 10 percent of the total recruitment fee, leaving him with not enough money to pay back the loan or pay his mortgage. Consequently, he is still dealing with the financial aftermath of his employment in Qatar today. FNV wants the Swiss court to order FIFA to pay damages in the amount of CHF 5,390.54 as well as a satisfaction for the hardship suffered in the amount of CHF 5,000.
Source: FNV

FNV sent FIFA a notice of liability on 10 October, outlining its concerns and allowing the organisation three weeks to respond. In a letter dated 20 October and signed by FIFA’s director of integrity and institutional legal, Oliver Jaberg, and Jorg Vollmuller, FIFA’s director of operational legal, the agency said that it “rejects any and all allegations made in the [10 October] letter [from Zegveld and Husmann] and reserves all of its rights.” The lawyers also asked for the powers of attorney for FNV and Alam.

Zegveld says that “everybody knows what the situation is in Qatar but FNV is the only organisation willing to take action about it and to try to hold FIFA to account.”

According to Zegveld, the move to take direct legal action against FIFA for labour abuses committed by contractors working on behalf of the host football association is unprecedented, but well within the realm of legal possibility. However, she adds that pursuing the case in Switzerland—a country regarded as being pro-business and pro-FIFA—is tough. “We have to bring the case initially in Switzerland, because the defendant is based there. If we could bring the case in the Netherlands we would stand more chance of success. That is why we are looking at pursuing FIFA in other jurisdictions as well.”

Zegveld is dismissive of FIFA’s attempts so far to improve human rights, including the organisation’s recruitment of the UN’s special rapporteur on human rights and eminent Harvard Professor John Ruggie.

“The work that Ruggie did with regards to workers in Qatar was to help improve their welfare—it was mainly concerned with health and safety and their accommodation and facilities,” says Zegveld. “Our concerns are about the contractual aspects of the labourers—the fact that they have no freedom to unionise, or even to leave the country without the contractor’s approval. It is tantamount to modern slavery and no one is taking any action to stop it. The competition should never have been awarded to Qatar based on these work-related abuses alone.”

However, Zegveld expects the legal process to be slow. “We hope to file the case during November and get a ruling either within a year or 18 months.”

FIFA was approached for comment but declined to do so, although a spokesperson did confirm receipt of the letter from FNV’s lawyers.

The number of male migrant workers in Qatar has more than doubled to 1,700,000 since 2010 when Qatar was told it would host the 2022 soccer tournament. Qatar’s construction sector stands out by far as the main employer of these workers, most of whom come from developing countries such as Bangladesh, India, Nepal, Sri Lanka, and the Philippines.

At the heart of the FNV’s concerns is the system of temporary migrant work that is used in Qatar, known as kafala. Foreigners who want to reside and work in Qatar need to be sponsored by a local citizen or employer, known as a kafeel, who monitors their stay and approves their exit. After signing with a kafeel, the migrant worker is only allowed to work for that person and is therefore bound to a single employer. Under the system, a foreigner has no legal right to stay in the country if the kafeel withdraws sponsorship—nor is that worker allowed to exit the country without his sponsor’s approval.

Human rights groups such as Amnesty International and trades unions say that the system is essentially slave or bonded labour and that migrant workers are at the mercy of the goodwill of their kafeels to be able to work and leave, which causes workers to keep quiet about concerns over wage payment delays, health and safety, accommodation, and other issues.

In response to international criticism on the kafala system, in October 2015 the Emir of Qatar approved Law No. 21 of 2015 “On the Entry, Exit and Residency of Foreign Nationals,” which—when it comes into effect in December 2016—will replace the 2009 Sponsorship Law. The new law will —it is hoped—make it easier for migrant workers to both leave the country and change their jobs in Qatar, as the legislation enables migrant workers to appeal a kafeel’s decision to refuse them a permit to leave the country and increases the state’s oversight of the process.

The new law also refers to “recruiters” instead of “sponsors,” but Zegveld says that the change in wording signifies the same concept: namely the kafeel.

Other organisations also believe that these reforms will not have any real impact on the nature of the kafala system. The UN’s International Labour Organisation (ILO) Committee of Experts on the Application of Conventions concluded that the changes are too insignificant, as it is still the employer (kafeel) who is responsible for completing the procedures relating to the residence permit and for returning the passport or travel document to the expatriate worker (except upon the written request of the worker).

In March, an ILO delegation gave Qatar 12 months to end migrant worker slavery or face a possible United Nations investigation—putting the oil-rich country on a path to becoming only the fifth-ever country to face a formal inquiry by the UN agency into allegations of forced labour. (The previous four are Burma, Haiti, Liberia, and Portugal.) Any such investigation could ultimately pave the way for international sanctions.

Also, in March, Amnesty International published a damning report called “The ugly side of the beautiful game” which criticised abusive recruitment practices and human rights abuses of migrant workers.

Responding to Amnesty’s concerns when the report was published, FIFA said: “We are fully aware that the greatest risks of human rights violations tend to occur at the lowest end levels of the supply chain beneath multiple layers of sub-sub-contractors. This decentralization and fragmentation is a challenge faced by the global construction industry, and we believe it can only be tackled through a multi-stakeholder approach from various angles.”