Current issues of the implementation of the right to protect state symbols in sports activities

Nechaeva Yuliya Sergeevna ORCID: 0000-0003-2227-9682 Postgraduate student, The Diplomatic Academy of the Ministry of Foreign Affairs of Russia 53 Ostozhenka str., Moscow, 119021, Russia/2c1 nechyulia@mail.ru Other publications by this author

Nechaev Sergey Sergeevich Master student, Peoples’ Friendship University of Russia 117198, Russia, Moscow, Miklukho-Maklaya str., 6 snech10@inbox.ru

One of the pragmatic aspects of organizing the latest understanding of the phenomenon of intellectual property in the practical activities of sports and other departments and international corporations (the International Olympic Committee (hereinafter — the IOC), the International Football Federation (hereinafter — FIFA), the Union of European Football Associations (hereinafter — UEFA), etc.) is to understand the right of such management systems to limit and suppression of the sovereignty of States by prohibiting the performance of the national anthem, the manifestation of the flag and other state symbols during international sports and other events (competitions, championships, festivals, etc.).

In accordance with Article 70 of the Constitution of the Russian Federation (I), the state flag, coat of arms and anthem of the Russian Federation are recognized as official state symbols, their description and the procedure for official use are established by Federal Constitutional Laws No. 1-FKZ dated 12/25/2000 "On the State Flag of the Russian Federation" (II) (hereinafter — FKZ "On the State Flag of the Russian Federation", dated 12/25/2000 No. 2-FKZ "On the State Emblem of the Russian Federation" (III) (hereinafter — FKZ "On the State Emblem of the Russian Federation") and dated 12/25/2000 No. 3-FKZ "On the National Anthem of the Russian Federation" (IV) (hereinafter — FKZ "On the National Anthem of the Russian Federation", respectively.

Article 6 of the Federal Law on the National Anthem of the Russian Federation establishes that the national anthem of the Russian Federation is performed during official ceremonies during sports competitions on the territory of the Russian Federation and abroad — in accordance with the rules of these competitions. 

In accordance with Article 17.10 of the Code of Administrative Offences of the Russian Federation (V) violation of the procedure for the official use of the State Flag of the Russian Federation, the State Emblem of the Russian Federation or the National Anthem of the Russian Federation entails the imposition of an administrative fine on citizens in the amount of two thousand to three thousand rubles; on officials - from five thousand to seven thousand rubles; for legal entities - from one hundred thousand to one hundred and fifty thousand rubles.

At the same time, article 329 of the Criminal Code of the Russian Federation (VI) establishes that abuse of the State Emblem of the Russian Federation or the State Flag of the Russian Federation is punishable by restriction of liberty for up to one year, or forced labor for the same period, or arrest for a period of three to six months, or imprisonment for up to one year old.

Accordingly, criminal liability for abuse of the National Anthem of the Russian Federation, including the prohibition of performance during international events, is currently not provided.

The authors propose to revise this provision and supplement article 329 of the Criminal Code of the Russian Federation with a provision on the National Anthem of the Russian Federation on an equal basis with the State Emblem and flag of the Russian Federation, since distortion of the National Anthem of the Russian Federation (music, text) and its public performance in a form that humiliates or encroaches on the authority of the state may well be criminalized an act.

The latest act of disrespect (11/22/2023) in relation to the national anthem of the Argentine Republic, which occurred at a football sports event in Brazil and resulted in riots with consequences in the form of causing serious harm to the health of a large number of people present at the match, justifies the position of the authors on the need to develop regulatory tools to protect state symbols, including, by international legal means.

The lack of scientific and professional understanding that state symbols cannot be the subject of encroachment by narrowly focused, although internationally recognized organizations and departments, has led to the existing unacceptable procedure for banning the performance of the anthem of a sovereign state where it is provided for by statutory documents, charters or legal customs of international protocols of the receiving parties, etc.

So, in 2020, the Court of Arbitration for Sport (hereinafter — CAS), in a dispute between the Russian Anti—Doping Agency (hereinafter — RUSADA) and the World Anti-Doping Agency (hereinafter - WADA) on violation of anti-doping rules, issued a decision (XIII) banning performances of Russian athletes under the Russian flag for two years (until 2022).

The reason for the appeal to the court was RUSADA's disagreement with the WADA decision of 2019. (XIV) on the suspension of Russia from participating in major international competitions for four years in connection with Russia's violation of anti-doping rules. Subsequently, WADA appealed to CAS for a judicial review of this issue.

The Court's decision established a ban on the participation of Russian athletes under the Russian flag in the Olympic and Paralympic Games, in world Championships held with the participation of WADA, as well as a ban on the use of sports uniforms with the flag, coat of arms and other national symbols of Russia, and the performance of the anthem of Russia. 

Thus, WADA, which is essentially an auxiliary expert community, forms the position of international organizations on the attack on state and legal sovereignty.

02/28/2022 a statement was published on the website of the International Football Federation (XV) that all Russian football teams will be suspended from participating in FIFA and UEFA competitions until further notice in connection with a special military operation in Ukraine. This restriction is still in effect today.

The International Olympic Committee also announced on 02/28/2022 (XVI) that in order to protect the integrity of global sports competitions and the safety of all participants, the IOC Executive Committee recommends that international sports federations and organizers of sports events not invite or allow the participation of Russian and Belarusian athletes and officials in international competitions. Citizens of the Russian Federation or the Republic of Belarus, whether individually or as part of a team, should be accepted only as neutral athletes or neutral teams. It is not allowed to place national symbols, colors, flags or anthems.

In December 2022, the Declaration of the 11th Olympic Summit (XII) also fixed political sanctions against Russia.

These actions directly contradict the Olympic Charter (X), adopted by the International Olympic Committee in 2021.

One of the fundamental principles of Olympism, set out in the Olympic Charter, is the exercise of rights and freedoms in the absence of any form of discrimination, including of a political nature.

In this regard, it should be noted the need to reform the provision of Article 6 of the Federal Law "On the National Anthem of the Russian Federation" regarding the performance of the National Anthem of the Russian Federation during official ceremonies during sports competitions outside the Russian Federation in accordance with the rules of these competitions, since this provision directly allows the organizers of sports competitions to impose a ban on the demonstration of state symbols, thereby humiliating the authority of the State participating in the competition and the athletes representing that State.

Additionally, at least at the national legal level, a measure of responsibility should be provided for prohibiting the demonstration of the national anthem, coat of arms, flag and other symbols at international events.

The long-term struggle of the authors of the article for the recognition of sports law as a part of international law, the formation of a special status of a professional athlete as a subject of international law with a complete prohibition of discrimination based on national and state grounds is currently extremely topical.

Illegal politicized actions of international sports corporations cause not only moral harm to the population of states, humiliating the dignity of peoples and their understanding of national and state self-determination, but also directly violate fundamental human rights to respect for their nationality and attribution of this right in artistic and other symbols (coat of arms, color installations, etc.).

It is international law that forms the understanding of the attribution of the state at international events as the sovereign right of the people to their national identification, which no one has the right to encroach on. Such encroachments would inevitably lead to an international conflict, including the armed protection of State symbols.

Practiced by international sports corporations represented by the IOC, FIFA, UEFA, etc. encroachment on the state symbols of the Russian Federation in the form of a ban on the performance of the national anthem, the manifestation of the national flag and other symbols during international sporting events of various levels is an unacceptable act that violates the philosophy of international coexistence of states.

According to the authors, the State should be able to protect the violated right to display state symbols.

Currently, the state symbols of the Russian Federation are not classified as any kind of property.

In accordance with Article 214 of the Civil Code of the Russian Federation (VII), state property in the Russian Federation is property owned by the right of ownership of the Russian Federation (federal property) and property owned by the right of ownership of the subjects of the Russian Federation (property of the subject of the Russian Federation). At the same time, the legal status of state symbols does not fall under the concept of state ownership (property law), which entails the absence of a mechanism for protecting state symbols in the international legal field.

On this basis, the authors propose to formulate a new understanding of state property with amendments to article 214 of the Civil Code of the Russian Federation and an indication that state symbols are objects of intellectual property of the state and are subject to protection in international courts.

The creation of an International Court of Intellectual Property Rights would meet such a public demand for international justice and equality of rights of peoples and States.

Due to changes in the international political segment, state symbols should be recognized as the intellectual property of the state, with all forms of judicial protection inherent in this institution.

In order to protect the right of the State to State symbols in the international court of justice, it is necessary to recognize that the State acting as a legal entity is the rightholder of the State symbols belonging to it.

Currently, the legislation of the Russian Federation does not define such concepts as intellectual property of the state or the right holder State. Article 1229 of the Civil Code of the Russian Federation (VIII) establishes that only individuals or legal entities have the exclusive right to intellectual property. It follows from this that the State does not provide for the right ownership of the results of intellectual activity or means of individualization. 

The issue of revising this provision deserves attention, since State legislation needs to be adapted to changing social and political realities, developing and improving mechanisms for protecting the rights and freedoms of not only individuals and legal entities of the state, but also the state itself.

The State should have the right to judicial protection in case of violation of its rights, including the use of State symbols at international sports and other events.

The absence in the legislation of a direct indication of the subject matter of intellectual property rights limits the regulatory regulation of this area of legal relations. 

The authors believe that it is necessary to formulate an imperative legal norm outlining the range of subjects of intellectual property law, including the state as the subject of the legal relations under consideration. 

According to the general theory of law, the dogmatism of legal judgments should correspond to the historical and political moment and ensure the most favorable and fair order of the legal system in both the local and global sense.

At the moment, the interests of the state, which need, among other things, to protect the moral and fundamental humanitarian values of society, require a revision of some general theoretical provisions.

The regulatory regulation of the process of protecting state symbols should be one of the main criteria of the new ideological paradigm, which is currently the subject of discussion in the legislative authorities, including with a proposal to include the issue of state ideology in the Constitution of the Russian Federation.

The Constitution of the Russian Federation should include provisions on state symbols (flag, coat of arms, anthem) with their description, indicating the legal status and methods of state protection.

The methods and forms of protection of state symbols, which are currently limited exclusively to criminal and administrative regulation, should reach the level of international public law.

Since the Russian Federation is a member of the international legal community, it could initiate a new understanding of the regime for the protection of State symbols at the global level.

The idea of creating an International Court of Intellectual Property Rights to consider such issues was expressed by the author of this article earlier ^[1].

The prohibition on the demonstration of an object of self-identification (state symbols should be considered as such) should be the subject of legal regulation of intellectual property rights at the national and international levels.

Despite any political differences, the flag of the Russian Federation has not been removed and cannot be removed from the general panel of the Member States of the United Nations. The expansion of the powers of sports or "cultural" organizations in this regard is unacceptable from a universal point of view.

Separately, I would like to touch on the moral and psychological aspect of the pressure of international sports organizations and corporations on professional athletes in terms of exercising their right to work (IX) and material compensation for work performed that brings financial income not only to the subject of law himself, but also to these international organizations, states in the form of taxes, as well as other individuals and legal entities persons involved in the field of sports activities.

The essentially imperative requirement (XI) to change one's place of work, sports and administrative citizenship, political or party affiliation, the requirement to express a certain political position in exchange for exercising one's right to work, etc., are an unacceptable format for the activities of such international organizations. 

In order to avoid politicization of such a sphere of work as professional sports, it would be necessary to reconsider the concept of the Olympic sports Movement of Pierre de Coubertin (X) and return to the original Olympic understanding of sport as a competition of athletes, not states. Such a return to an authentic understanding of sport would prevent the use of professional activity for political purposes, the formation of a camp of rogue countries, the application of the principle of collective responsibility for violations of labor discipline involving states, the suppression of moral and other moral principles of peoples and nationalities, infringement of the sovereignty of the participating countries of the world sports movement as an activity contributing to scientific and technological progress in the development of humanity, the development of human physical and mental abilities.

Man, as the highest psycho-biological result of civilizational creation, has no boundaries of development and improvement. Ultimately, all the achievements of one person become the property of mankind, regardless of citizenship, flags, coats of arms and anthems that existed during its formation. However, this does not mean that global generally accepted norms of mutual respect and reverence for national symbols of countries and peoples should depend on the political preferences of certain corporations and communities.

According to the current logic of refusing to display the flag and anthem of the Russian Federation during sporting events, flags of other countries involved in armed conflicts should be banned. Selectivity violates the principle of justice and equality, which are the basic principles of any international organization.

In support of the argumentation of the main provisions of the concept of separation of the spheres of legal regulation of mass sports as physical culture of the body and general human culture and professional sports as a type of work activity, put forward by the authors earlier ^[2], it is necessary to note the continuity of both spheres of human development. 

Unprecedented psycho-emotional pressure on professional athletes as representatives of their profession, carried out for political reasons, inevitably negatively affects the general cultural component of the life of Russian society, generates intellectual rejection of the principles of existing international rules and concepts, and in some cases, aggressive calls to withdraw from all international organizations and embark on the path of isolation.

This, according to the authors, is absolutely unacceptable. It is necessary to form new rules for the functioning of professional sports based on respect for the intellectual property of the state participating in the world sports movement, a return to the original principles of Olympic athleticism, respect for the philosophy of sport as an ideology of human development — the highest psychological and biological value of the current civilization.

The problems of the formation of scientific conceptual apparatus in the field of intellectual property are reflected in many studies abroad. This is a promising scientific direction in the argumentation of the creation of the World Court of Intellectual Property Rights and relevant legislation.

(I) The Constitution of the Russian Federation (adopted by popular vote on 12.12.1993 with amendments approved during the all-Russian vote on 07/01/2020) // SPS Consultant Plus.

(II) Federal Constitutional Law No. 1-FKZ dated 12/25/2000 (as amended on 06/13/2023) "On the State Flag of the Russian Federation" // SPS Consultant Plus.

(III) Federal Constitutional Law No. 2-FKZ dated 12/25/2000 (as amended on 12/30/2021) "On the State Emblem of the Russian Federation" // SPS Consultant Plus.

(IV) Federal Constitutional Law No. 3-FKZ dated 12/25/2000 (as amended on 06/13/2023) "On the National Anthem of the Russian Federation" // SPS Consultant Plus.

(V) The Code of Administrative Offences of the Russian Federation dated 12/30/2001 No. 195-FZ (as amended on 08/04/2023) (with amendments and additions, intro. effective from 12.10.2023) // SPS "Consultant plus".

(VI) The Criminal Code of the Russian Federation of 06/13/1996 N 63-FZ (as amended on 08/04/2023) (with amendments and additions, introduction. effective from 12.10.2023) // SPS "Consultant plus".

(VII) The Civil Code of the Russian Federation (Part One) dated 11/30/1994 No. 51-FZ (as amended on 07/24/2023) (with amendments and additions, introduction. effective from 01.10.2023) // SPS "Consultant plus".

(VIII) The Civil Code of the Russian Federation (Part four) dated 12/18/2006 No. 230-FZ (as amended on 06/13/2023) (with amendments and additions, intro. effective from 06/29/2023) // SPS "Consultant plus".

(IX) The Charter of the International Labour Organization and the texts of individual acts, 2012 // URL: https://www.ilo.org/wcmsp5/groups/public/@ed_norm/@relconf/documents/genericdocument/wcms_405835.pdf.

(X) Olympic Charter, 2021 // URL:  https://stillmedab.olympic.org/media/Document%20Library/OlympicOrg/General/EN-Olympic-Charter.pdf.

(XI) FIFA Regulations on the Status and Transfer of Players, 2023 // URL: https://digitalhub.fifa.com/m/d31f8046f6c6311/original/Regulations-on-the-Status-and-Transfer-of-Players-May-2023-edition.pdf.

(XII) Declaration of the 11th Olympic Summit dated 09.12.2022 // URL:  https://olympics.com/ioc/news/declaration-of-the-11th-olympic-summit.

(XIII) Decision of the Court of Arbitration for Sport CAS 2020/O/6689 WADA v. RUSADA // URL: https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_6689.pdf .

(XIV) WADA decision against RUSADA dated 09.12.2019 // URL:  https://www.wada-ama.org/sites/default/files/2022-01/20191209_CRC%20RECOMMENDATION_FINAL.PDF.

(XV) Statement of the International Football Federation on the suspension of Russian athletes from all football competitions held by FIFA and UEFA // URL: https://www.fifa.com/tournaments/mens/worldcup/qatar2022/media-releases/fifa-uefa-suspend-russian-clubs-and-national-teams-from-all-competitions.

(XVI) Statement of the International Olympic Committee on the suspension of Russian athletes from international competitions // URL: https://olympics.com/ioc/news/ioc-eb-recommends-no-participation-of-russian-and-belarusian-athletes-and-officials.