It’s been six years since Ryan Lochte, a 12-time Olympic medalist, gave rise to what became dubbed Lochtegate. Representing Team USA at Rio in 2016, Lochte and a few teammates claimed they were robbed at gunpoint. As their tall tale became exposed, they were subject to search warrants and barred from leaving the country. Lochte was charged with falsely reporting a crime. After apologizing, the four returned home. It was an embarrassment to Team USA, which had otherwise dominated the competition, capturing the most gold, silver and bronze medals.
What would happen if a Lochtegate-styled incident occurred at Beijing 2022? There’s a good chance the accused would be in a lot more trouble. In fact, just making a statement deemed controversial by the Chinese government could lead to legal woes.
In some ways Beijing 2022 is designed to minimize legal troubles. Athletes will be housed at Beijing Olympic Village and, due to COVID-19 safeguards, restricted from leaving. But if the athletes left the confines and were accused of an illegal act, politics, rather than law, would be the determining factor.
Sportico spoke with attorney Donald Clarke, a professor of law at The George Washington University Law School and widely acknowledged expert in Chinese law. Clarke, a member of the Council on Foreign Relations, serves as an expert witness on cases involving Chinese matters. The following is a lightly edited transcript of the conversation.
Sportico: What legal risks would U.S. athletes face if they ventured outside the Olympic Village?
Donald Clarke: They are apparently not allowed to leave the Village, which will reduce considerably the chance they’ll get into trouble. But if they do venture out and encounter a problem, it’s going to be a political decision about what to do about it. It is not going to be something that the local police or court system will be allowed to decide for themselves.
Assuming there is a genuine offense committed by the athlete, it would depend on the nature of the offense, the nationality of the athlete and the particular characteristics of the athlete. Those will be political considerations.
Sportico: Generally speaking, how would you compare the rights of the accused in China versus those in the U.S.?
Clarke: In China, criminal suspects don’t have a lot of rights in practice. Generally, the authorities will come to a conclusion quite early on about the way they want the case to go, and that tends to be the way the case goes.
The case would not go to trial unless it had already been decided there would be a conviction. The conviction rate in China is over 99%. The chance of an acquittal is close to nil. That doesn’t mean nobody is making a judgment about guilt. It means that the judgment is not being made at the trial stage. It is often being made at a stage before the defendant has access to a lawyer. Once the stage gets to the trial, guilt is already determined.
Sportico: Beijing 2022 officials have warned of repercussions if athletes violate Olympic Charter Rule 50, which states that “no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites.” What could happen to athletes who speak out on issues related to Uyghur Muslims, Hong Kong, Taiwan or other topics Chinese officials regard as sensitive?
Clarke: Theoretically almost anything can happen. The territory of the Games is not international territory, it is Chinese territory. And it is very clear under Chinese law that there is not freedom of speech, so it is very possible to commit a criminal offense by saying things.
So, it is entirely possible that an athlete could say something that would be a punishable crime if a Chinese citizen said the same thing in China. It boils down to a political judgment made by authorities.
For reasons related to concerns about bad publicity, they are unlikely to criminally prosecute an athlete for making a statement they don’t like—but I wouldn’t want to be on the losing side of that bet. They have made their intentions clear by [reminding athletes that they can’t say anything they want].
Are they bluffing? Maybe to a certain extent, because they would look really bad if they punished an athlete for speaking out or saying something unwelcome, and that would also just call attention to the unwelcome thing the athlete said, via the Streisand effect.
On the other hand, I don’t think they would be concerned about pushback from the IOC because the IOC has already amply demonstrated its utter spinelessness.
You don’t want to be on losing side of the bluff. That risk has an intimidating effect.
Sportico: What role might the U.S. embassy play if a U.S. athlete is accused by the Chinese government of committing a criminal or illegal act?
Clarke: China has a treaty obligation to notify the embassy within four days if a U.S. citizen is detained, and they would probably do that. And then they are obliged under the U.S.-China Consular Convention to allow monthly consular visits. U.S. athletes don’t get any immunity from prosecution by virtue of being U.S. citizens. The embassy can help them find a lawyer. It might not, however, be able to help them communicate externally. Certain things can’t be discussed during visits. When the two Michaels [Canadian citizens Michael Spavor and Michael Kovrig] were detained, they were not allowed to talk about their case during visits.
On the other hand, the embassy official can, during visits, see if the visitor has a black eye and try to find out if the visitor was tortured in some ways that don’t leave a physical mark—the prisoner could blurt that out quickly to an embassy official before they are shut up. So that does provide a certain check on their treatment.