Bend it Like Beckham [in a Burka]: Qatar v. Migrant Workers’ Rights – A Game of Deflection

Author: Mary Elizabeth Lahiff

Originally Published at Peace and Conflict Monitor on: 07/05/2016

 

Pregame Analysis

In 2010, Qatar, a tiny, oil-rich State in the GCC won the bid to host the 2022 FIFA World Cup. Not only did Qatar win the right to host the games, it received the burden of public scrutiny for its State practices and human rights abuses. Along with hosting the games comes the onus of constructing stadiums, hotels, conference centers, and new restaurants to house and entertain the influx of visitors. This responsibility alone highlights the most protested practices in the GCC: Kafala and the rights of migrant workers.

As the local populations of GCC States are small and disinclined to hard labor, there is an enormous market for migrant workers in the fields of home maintenance and construction. Migrants flock from countries in Southeast Asia and Africa following promises of lucrative jobs and hopes of sending money back home to support their families. Many are met with realities of slavery, forced labor, and horrid living conditions. FIFA’s new presence in Qatar creates a platform for possible reform, but blame is easily passed between Qatar, FIFA, and the States from which migrants were recruited.

This paper will highlight migrant working conditions in Qatar, Qatar’s relationship and responsibilities to International Labour Law as well as the ILO. It will also focus on the liability of FIFA to uphold human rights and labor laws during the construction, maintenance, and presentation of the games as well as possible routes of jurisdiction available to victims of unlawful labor practices.

Play-by-Play

Qatar, like the other GCC States, governs its migrant workers through the sponsorship laws of Kafala. Kafala, meaning sponsorship in Arabic, provides a way for governments to limit the rights of migrant workers, prohibiting their travel and their opportunity to find alternate employment. Originally, Kafala, as stated by Azfar Khan, senior regional migration specialist at the ILO’s Regional Office for the Arab States, is “supposed to be a good system that makes it incumbent upon nationals to look after non-nationals”, however, the way Kafala is used today allows for conditions where “an employer can control the worker’s working time, wages, and all aspects of their life. That can lead to situations of forced labour.”[1] In its inception, of course, the number of migrant workers was much less. Today, migrant and expat workers largely outnumber local employees in the Gulf States, prompting the change from protective to controlling functions.

Contrary to the Kafala system, Sharia law actually lays out a much different set of rules for the treatment of migrant workers. It can be found in the Quran that Allah says, “I will be against three persons on the Day of Resurrection: 1) One who makes a covenant in My Name, but proves treacherous, 2) One who sells a free person (a slave) and eats the price, and 3) One who employs a laborer and gets the full work done by him but does not pay him his wages.”[2] The common practices of the Kafala system, which I will describe later, are clearly against Sharia law and should therefore be against domestic law. “According to Islamic law, work is given a higher value if it’s done in partnership between employer and employee rather than in a relationship of superiority and subordination…[it] could hardly be more explicit and clear about the importance of meeting all promises made in the employment contract and always treating employees with decency and dignity.”[3]

To prepare for the World Cup in 2022, Qatar is expecting, and has already received, an influx of migrant workers. They will need more than one million workers to build 12 air conditioned stadiums, new hotels, rail and subway networks, and a $20 billion dollar upgrade for roads and highways.[4] Much of the recruitment is done in the migrants’ native State, with such a high need for employees, employment agencies act as intermediaries and enforce the signing of a sponsorship contract, which, by Qatari law, must be written in Arabic. As Arabic is normally not the native language nor spoken by the employees, they must rely on the good faith of the agent.[5] Unsurprisingly, workers ‘often find the conditions of their employment are substantially different from what they were contracted for at home.”[6] Additionally, in Qatar’s Kafala system, “employees’ every behavior is owned by his employer, who in turn has the sole power to grant or withhold an exit visa, so that a migrant worker may elect to return to his home country.”[7] Employers withhold wages, confiscate passports and identification, and house migrant employees in disease-rampant shared bunks. Not only are migrants restricted from looking for alternate employment, they are unable to leave the premises of their labor camps or work sites as “without identification, the workers would have similar status as illegal aliens within Qatar, being arrestable, deportable, and unentitled to any legal protection.”[8]

Yellow Card

The Labor Ministry in Qatar employs 150 work inspectors who oversee working conditions for over 1.2 million migrant workers.[9] Aside from only taking complaints in English or Arabic – rarely spoken by migrant workers – there is often backlash from employers for those who make complaints or speak out about unfit treatment. They often risk losing salaries, food, or housing. Moreover, in the case of those workers who attempt to flee, anyone who attempts to aid an absconded migrant worker may face fines or prison sentences.[10] The labor preparations for the World Cup include practices of coercion, withholding of salaries, confiscating of identification papers, and penalties for noncompliance, all which fall under the scope of forced labor under the ILO’s Convention on Forced Labour[11],[12] which was ratified by Qatar in 1998.

Regardless of ratifications of certain conventions, and according to the Declaration of the Fundamental Principles of Rights and Freedoms at Work, all member States are committed by the very fact of their ILO membership to respect, promote, and realize in good faith the principles, inter alia, of freedom of association and collective bargaining, and the elimination of discrimination in respect of employment and occupation.[13] Therefore, the labor practices in Qatar, in preparation for the World Cup, present clear violations of Qatar’s ILO obligations. Additionally, the UDHR states, “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all forms”[14]; “Everyone has the right to effective remedy of the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or by law”[15]; “freedom of movement between the borders of each State”[16]; “the right to leave a country and return to his own”[17]; “right to work, freedom to choose employment, and to just working conditions.”[18]

There are three culprits regarding the unjust working conditions in preparation for the World Cup: 1. Qatar, the host State; 2. Switzerland, the Nationality State of FIFA, and 3. the States where the workers are recruited, all of whom (if we’re using States with most recruits: Nepal, India, and Pakistan, and African countries as examples) have been members of the UN since before Qatar’s awarded bid. If all three can be found in violation of their obligations to the UDHR, why is there no accountability?

Defensive Line-Up

“Qatar has deferred to economic liberty between employer and employee instead of implementing systemic change on key [labor] issues”[19] meaning that Qatar has taken a lassaiz-fair stance on enforcing any standards on employer’s practices, granting complete autonomy of employment practices on the construction companies themselves. In the case of the World Cup, FIFA could potentially put pressure on Qatar to enforce international labor rights, especially in the wake of FIFA’s bribery and transparency issues.[20] Public outcry regarding Qatar’s labor practices could very well push FIFA to do so, as the corporation has already had to defend its selection of Qatar[21], FIFA has emphasized that it “strives to uphold respect for human rights and international norms of behavior.”[22] FIFA has previously encouraged changes to local legislation prior to both the Brazil and South Africa games in 2014 and 2010 respectively. In Brazil, a 2007 Law for the Moralization of Sport which prohibited the sale of alcohol was revoked in the name of FIFA[23], and in the South African games, much more hopeful for the Qatar scenario, a Fair Games – Fair Play campaign brought about higher wages for the construction sector and ‘huge progress was also made in health and safety at the workplace’.[24] FIFA typically hasn’t used its influence to enforce labor laws, however doing so “squarely falls within its stated goals and falls in line with its past support for ILO Conventions and local trade unions.”[25]

Qatar’s Supreme Committee is responsible for the development of World Cup projects and has established a worker’s charter which “includes, inter alia, health and safety, employment, equality, dignity, working and living conditions and wages”.[26] The UN Special Rapporteur on the human rights of migrants, François Crépeau, acknowledged the commitment by the Committee to developing employment standards in line with international human rights and labor standards. At the time of writing, it was noted that as the construction had not yet started it was impossible to assess how these standards would be upheld in practice, however, Qatar was urged to “ensure that workers’ rights are fully respected in relation to the preparations for the World Cup. The standards of the Committee should fully comply with international human and labor rights standards. The Government should also ensure that, if successful, this experience is extended to all other construction projects, which should fully respect the human rights of migrants well before 2022. If this is the case, the World Cup could be used as an opportunity to improve the human rights of migrants in Qatar.” This was surely a hopeful note of encouragement made by the Special Rapporteur, however, enforcement is left upon the shoulders of the local government.

Offensive Playbook

Qatar has been a member of the International Labour Organization since 1972 and has ratified six conventions. Two of these six conventions deal directly with the abolishment of forced labor and one with labor inspections.[27] The 1998 Forced Labour Convention and the 2007 Abolition of Forced Labour Conventions both forbid States from permitting forced or compulsory labor for the benefit of private individuals, corporations, or associations and the latter requires States to immediately abolish forced labor within its borders.[28] Additionally, the Labour Inspection Convention requires States to ensure a proportionate number of inspectors based on the nature and size of the workplaces. All member States are required by the ILO Constitution to enact legislation required for compliance within one year from ratification, or, in exceptional circumstances, no later than 18 months after ratification.[29] Compared with the aforementioned standards of Qatar’s migrant workforce, the GCC State is far from national legislation upholding these obligations.

Qatar’s national legislation includes such provisions as allowing employers to accompany worker’s contracts, documents or written instruments with translations into other languages, however, in case of any difference the Arabic text shall prevail.[30] This is problematic in that it extends flexibility to recruiters to alter the language of contracts without giving the translated version any weight. On the plus side, national legislation forbids recruiters from receiving recruitment fees or expenses or any other costs from the employee.[31]

Working hours are limited to eighty four hours per week at the rate of eight hours per day with the exception of the month of Ramadan when the maximum working hours shall be thirty six hours per month at the rate of six hours per day,[32] and requires overtime pay, that shall not exceed ten hours unless the work is necessary for the prevention of gross loss or dangerous accident or for the repair or alleviation of the consequences of the said loss or accident, that shall be paid to the worker for the additional working hours the rate of not less than the basic wage plus not less than 25% thereof.[33] It also requires the employer to take measures to securing the hygiene and good ventilation in the places of work and shall provide it with the suitable lighting and potable water, hygiene and drainage, in accordance with the regulations and decisions to be issued by the competent authorities in this respect.[34] Moreover, Article 138 allows inspectors to enter premises and ensure these laws are being upheld. However, the number of inspectors is nowhere near enough to effectively oversee labor practices, and in professions such as construction it is very difficult to ascertain true working conditions. Therefore, most law-violating employers are never uncovered nor held accountable for unsuitable practices.

Deflection

There are clear labor violations at play in Qatar, but still the question of accountability looms. In Article 68(2) of FIFA’s Statute, it states that “[R]ecourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations. Recourse to ordinary courts of law for all types of provisional measures is also prohibited.”[35] Ordinary Court of law is not defined, but can be “meant to identify any non-arbitration forum not specifically mentioned in FIFA statutes.”[36] This means that FIFA’s own judicial body would have to hear any cases of migrant worker’s rights violations, however, in respect to FIFA’s other statutes, it may be concluded that “internal decisions and arbitration only cover questions closely related to soccer.”[37] Therefore, there’s a large loophole in FIFA’s jurisprudence if FIFA is the lone option for claims yet only hears cases specific to the game of soccer.

If the fact that the laborers are not included as part of the ‘game of soccer’ thus outside the scope of jurisdiction of FIFA, would they then have the ability to seek justice in outside courts? The organization is registered in Switzerland and the possibility of exhausting these courts is explored by Michael B. Engel who writes,

“The Federal Supreme Court [of Switzerland]…is specifically bound by international law with respect to the law of nations and human rights, by virtue of the ECHR and the International Covenant on Civil and Political Rights. Due to the supremacy of the ECHR, if the slave laborers were to be able to articulate a claim in the Swiss Court system, this would represent the best possible scenario to obtain a judgement against FIFA and a remedy. This strategy, if successful, would be more likely to be binding upon FIFA in future World Cups, due to FIFA’s headquarters within Switzerland.”[38]

If these cases were deemed inadmissible to local or international courts in Europe, the workers’ would then have to resort to Qatari courts which would be undesirable based on reports that Qatari courts are biased and unreliable[39] and on past evidence of non-compliance and apathy towards ILO law. In a March 2016 report of an ILO complaint against Qatar, it is stated that, after Kafala reforms had been promised, “no reforms have been enacted and no timetable has been put forward. Given the number of long-overdue promises, including legislation to protect domestic workers, the undersigned delegates remain skeptical.”[40] This report leaves little to suggest approaching Qatari courts would serve any benefit to migrant workers.

If FIFA is able to deflect responsibility and Qatar is unlikely to reform, what is the role that recruiting and exporting States have in curtailing these violations and ensuring workers’ rights for their own citizens? Bilateral agreements or Memorandum of Understandings between sending States and Qatar could be an option and any breach would mean a possible hearing by the ICJ, but it’s unlikely to happen if the agreements may discourage contractors from hiring workers that are entitled to higher working standards. The exporting State or associated organizations have the ability to bring a case to the ILO Governing Body as Qatar has failed to uphold its ILO obligations, however, as we have seen from the report mentioned above, reports by the Governing Body have little enforcement aside from publically naming and shaming. There is little difference between these reports and newspaper articles.

Post-Game Recap

It has been estimated that by the time the World Cup is played in 2022, 4,000 migrant workers will have died working in preparation for the games.[41] So far, there has been little progress made in reforming Kafala and there have been no viable avenues for jurisprudence uncovered. Recommendations are made that Qatar make good on its promise to reform the Kafala system, introduce laws to allow for collective bargaining for migrant workers and implement effective grievance procedures, work with foreign recruitment agencies to clean up recruitment efforts, and enforce a minimum wage for migrant workers.[42] In my opinion, it may be the best option to pressure foreign States to oversee and prosecute wrongful recruitment. ILO Member States have an obligation to ensure the prohibition of coercion[43] and any illicit recruitment taking place within its territory would be an obligation for that State to enforce.

Qatar needs to improve their enforceability mechanisms so that they can fully implement their existing laws. “Certain aspects of the Labor Law governing living conditions and providing worker protections are positive…Qatar lacks the infrastructure and staff to enforce them.”[44] Moreover, Qatar should use the World Cup to improve its image by generating positive steps towards migrant worker reforms. In turn, FIFA should “urge Qatar to adopt its World Cup infrastructure improvements…and help integrate [migrant workers] into Qatari society instead of segregating them in remote worker camps.”[45] This would fall in line with the Special Rapporteur’s recommendations, the ILO Governing Body’s recommendations, Islamic Law, and perhaps, regain some respect for FIFA.

Bibliography

Akzahrani, Majed. 2014. “System of Kafala and the Rights of Migrant Workers in GCC Countries.” European Journal of Law Reform 397.

Crocombe, Nigel. 2014. “Building a New Future: the 2022 FIFA World Cup as a Catalyst for Labour Reform in Qatar.” Suffolk Transnational Law Review 33-66.

Dickinson, Elizabeth. 2013. “Some Domestic Workers Work up to 100 Hours per Week.” The National, January 12.

Engel, Michael B. 2014. “CN Tower over Qatar: an Analysis of the use of Slave Labor in Preparation for the 2022 FIFA Men’s World Cup and how the Eurpopean Court of Human Rights can Stop It.” Hofstra Labor and Employment Law Journal 183.

Erfani, Azadeh. 2015. “Kicking Away Respinsibility: FIFA’s Role in Migrant Workers’ Abuses in Qatar’s 2022 World Cup.” Jeffery S. Moorad Sports Law Journal 623-660.

Fédération Internationale de Football Association. 2015. “FIFA Statutes April 2015 Edition.” April. Accessed April 15, 2016. http://www.fifa.com/mm/Document/AFFederation/Generic/02/58/14/48/2015FIFAStatutesEN_Neutral.pdf.

Governing Body, International Labour Organization . 17. “Complaint concerning non-observance by Qatar of the Forced Labour Convention (1930) and the Labour Inspection Convention (1947).” ilo.org. March 2016. Accessed April 29, 2016. http://www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_459148.pdf.

Gravel, Cleopatra Doumbia-Henry and Eric. 2006. “Free Trade Agreements and Labour Rights: Recent Developments.” International Labour Review 188.

Human Rights Council. 2014. “Report of the Special Rapporteur on the human rights of migrants, François Crépeau.” A/HRC/26/35/Add.1. United Nations General Assembly, April 23.

ILO. 1919. “Constitution of the Internationa Labour Organization.” International Labour Organization, April 1.

—. 2012. “Questions and Answers on Forced Labour.” International Labour Organization. June 1. Accessed April 22, 20126. http://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_181922/lang–en/index.htm.

International Trade Union Confederation. 2011. “Hidden Faces of the Gulf Miracle.” Union View 5.

—. 2014. “The Case Against Qatar – ITUC Special Report.” ituc-csi.org.Accessed April 29, 2016. http://www.ituc-csi.org/IMG/pdf/the_case_against_qatar_en_web170314.pdf.

Longhofer, Sarah. 2014. “Contracting Away Sovereignty: The Case of Brazil, FIFA, and the Agreement for the Right to Host the 2014 World Cup.” Judicial Review: Between Promise and Chagrin: Student Note 151.

National Legislative Bodies. 2004. “Law No 14 of the year 2004 The Labour Law.” International Labour Organization . May 19. Accessed April 26, 2016. http://www.ilo.org/wcmsp5/groups/public/—ed_protect/—protrav/—ilo_aids/documents/legaldocument/wcms_125871.pdf.

Swiss Info. 2010. “Workers’ Rights “Progress” Thanks to World Cup.” Swissinfo.ch. June 21. Accessed April 27, 2016. http://www.swissinfo.ch/eng/workers–rights–progress–thanks-to-world-cup/9138882.

UNGA. 1948. “Universal Declaration of Human Rights.” UN General Assembly, December 10.

Footnote:

[1] Dickinson, Elizabeth. 2013. “Some Domestic Workers Work up to 100 Hours per Week.” The National, January 12.

[2] Akzahrani, Majed. 2014. “System of Kafala and the Rights of Migrant Workers in GCC Countries.” European Journal of Law Reform 397.

[3] Ibidem.

[4] Fédération Internationale de Football Association. 2015. “FIFA Statutes April 2015 Edition.” April. Accessed April 15, 2016. http://www.fifa.com/mm/Document/AFFederation/Generic/02/58/14/48/2015FIFAStatutesEN_Neutral.pdf.

[5] Crocombe, Nigel. 2014. “Building a New Future: the 2022 FIFA World Cup as a Catalyst for Labour Reform in Qatar.” Suffolk Transnational Law Review, 42

[6] Idem, p. 43

[7] Engel, Michael B. 2014. “CN Tower over Qatar: an Analysis of the use of Slave Labor in Preparation for the 2022 FIFA Men’s World Cup and how the Eurpopean Court of Human Rights can Stop It.” Hofstra Labor and Employment Law Journal 183

[8] Ibidem.

[9] Crocombe, Nigel. 2014. “Building a New Future: the 2022 FIFA World Cup as a Catalyst for Labour Reform in Qatar.” Suffolk Transnational Law Review, 45

[10] Idem, p. 46

[11] Various indicators can be used to ascertain when a situation amounts to forced labour, such as restrictions on workers’ freedom of movement, withholding of wages or identity documents, physical or sexual violence, threats and intimidation or fraudulent debt from which workers cannot escape.

[12]1919. “Constitution of the Internationa Labour Organization.” International Labour Organization, April 1.

[13] Gravel, Cleopatra Doumbia-Henry and Eric. 2006. “Free Trade Agreements and Labour Rights: Recent Developments.” International Labour Review 188

[14]1948. “Universal Declaration of Human Rights.” UN General Assembly, December 10, Article 4

[15] Article 8

[16]Article 13(1)

[17]Article 13(2)

[18]Article 23(1)

[19] Erfani, Azadeh. 2015. “Kicking Away Respinsibility: FIFA’s Role in Migrant Workers’ Abuses in Qatar’s 2022 World Cup.” Jeffery S. Moorad Sports Law Journal, 650

[20] FIFA has accumulated many accusations and charges related to bribery and corruption: http://www.bbc.com/news/world-europe-32897066

[21] Qatar has been seen as a strange pick to host the games citing extreme summer heat and bribery for bid: http://www.theatlantic.com/entertainment/archive/2014/11/fifa-files-criminal-complaint-over-world-cup-bid/382908/

[22] Crocombe, Nigel. 2014. “Building a New Future: the 2022 FIFA World Cup as a Catalyst for Labour Reform in Qatar.” Suffolk Transnational Law Review, 38

[23] Longhofer, Sarah. 2014. “Contracting Away Sovereignty: The Case of Brazil, FIFA, and the Agreement for the Right to Host the 2014 World Cup.” Judicial Review: Between Promise and Chagrin: Student Note 151

[24] Swiss Info. 2010. “Workers’ Rights “Progress” Thanks to World Cup.” Swissinfo.ch. June 21. Accessed April 27, 2016. http://www.swissinfo.ch/eng/workers–rights–progress–thanks-to-world-cup/9138882.

[25] Erfani, Azadeh. 2015. “Kicking Away Respinsibility: FIFA’s Role in Migrant Workers’ Abuses in Qatar’s 2022 World Cup.” Jeffery S. Moorad Sports Law Journal, 657

[26] Human Rights Council. 2014. “Report of the Special Rapporteur on the human rights of migrants, François Crépeau.” A/HRC/26/35/Add.1. United Nations General Assembly, April 23. Para 17

[27] Crocombe, Nigel. 2014. “Building a New Future: the 2022 FIFA World Cup as a Catalyst for Labour Reform in Qatar.” Suffolk Transnational Law Review, 49

[28] p. 50

[29]1919. “Constitution of the Internationa Labour Organization.” International Labour Organization, April 1. Article 19(5)(b)

[30] National Legislative Bodies. 2004. “Law No 14 of the year 2004 The Labour Law.” International Labour Organization . May 19. Accessed April 26, 2016. Article 9

[31] Idem. Article 33

[32] National Legislative Bodies. 2004. “Law No 14 of the year 2004 The Labour Law.” International Labour Organization . May 19. Accessed April 26, 2016. Article 73

[33] National Legislative Bodies. 2004. “Law No 14 of the year 2004 The Labour Law.” International Labour Organization . May 19. Accessed April 26, 2016. Article 74

[34] Idem. Article 103

[35] Fédération Internationale de Football Association. 2015. “FIFA Statutes April 2015 Edition.” April. Accessed April 15, 2016. http://www.fifa.com/mm/Document/AFFederation/Generic/02/58/14/48/2015FIFAStatutesEN_Neutral.pdf.

[36] Engel, Michael B. 2014. “CN Tower over Qatar: an Analysis of the use of Slave Labor in Preparation for the 2022 FIFA Men’s World Cup and how the Eurpopean Court of Human Rights can Stop It.” Hofstra Labor and Employment Law Journal 188

[37] Ibidem.

[38] 189

[39] Amnesty International report giving detailed information about cases of physical and sexual abuse against migrant workers that have gone unprosecuted. Can be found at: https://www.amnesty.org/en/latest/news/2014/04/foreign-domestic-workers-qatar-shocking-cases-deception-forced-labour-violence/

[40] Governing Body, International Labour Organization . 17. “Complaint concerning non-observance by Qatar of the Forced Labour Convention (1930) and the Labour Inspection Convention (1947).” ilo.org. March 2016. Accessed April 29, 2016. http://www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_459148.pdf.

[41] International Trade Union Confederation. 2011. “Hidden Faces of the Gulf Miracle.” Union View 5.

[42] Idem.6

[43] As noted in the Forced Labour Convention of 1930 and the Abolition of Forced Labour Convention of 1957.

[44] Crocombe, Nigel. 2014. “Building a New Future: the 2022 FIFA World Cup as a Catalyst for Labour Reform in Qatar.” Suffolk Transnational Law Review, 61

[45] p. 65

Bio: Mary Elizabeth Lahiff is a Master’s candidate in International Law and Settlement of Disputes at the United Nations mandated University for Peace. She has spent over a decade working globally in public and private sectors including seven years for organizations and corporations in the Middle East. She knows nothing about soccer.