Is this the New Norm? The Case of Imane Khelif – From Sports Litigation Alert
(Editor’s Note: What follows is an exclusive piece from tonight’s Sports Litigation Alert.)
By Gil Fried, Professor/Associate Dean, Lewis Bear Jr. College pf Business, University of West Florida
The 2024 Paris Olympics were epic for many reasons. There were phenomenal athletes who did some great things. Similar to all Olympics, there were controversies. Those controversies included no air conditioning, cardboard bed allegedly uncomfortable enough to possibly discourage sex, a break dancer who unfortunately gave the sport a real black eye, several medal controversies, athletes participating with Covid, athletes getting sick from swimming in a polluted river, and a gender dispute involving women’s boxing. Thus, it was a normal Olympics. The boxing controversy is possibly the lasting legacy, and it might continue on with a criminal complaint being pushed in France.
The boxer at the center of the controversy, Imane Khelif, plans to continue fighting after the Paris Olympics and she has several high-profile people in her sights. A lawyer representing the Algerian boxer indicated that X owner Elon Musk and author J.K. Rowling, two of her most prominent critics during the Olympics, would be named in a criminal complaint filed to French authorities over alleged “acts of aggravated cyber harassment.” Such an effort can unfortunately lead to unintended consequences if it goes forward. Anyone who challenges a fellow competitor, accuses them of cheating, or even post unfaltering footage on social media could possibly face criminal complaints.
Gil Fried, Professor/Associate Dean, Lewis Bear Jr. College pf Business, University of West Florida
The complaint was reportedly posted on the anti-online hatred center of the Paris public prosecutor’s office. Musk and Rowling might just be the start of Khelif’s targets. The reason is the prosecutors have freedom to investigate anyone for harassing her. With the broad meaning of harassment, anyone, including former President Donald Trump, could be named. In fact, anyone who posted any hateful messages could be named. That would tend to imply that anyone who claims an athlete sucks could possibly be named.
Rowling tweeted a number of times about Khelif once she entered the public consciousness. There was a total of 36 posts, reposts and reply posts over 10 days concerning the boxer and the circumstances around her. In one post, Rowling accused Khelif of being a man “enjoying the distress of a woman he’s just punched in the head, and whose life’s ambition he’s just shattered.”
Musk was not as direct, but responded to a post reading “Men don’t belong in women’s sports” with the comment “absolutely.” Would that mean that anyone who liked any posts concerned about a boxer who had failed certain tests in the past as being harassing? If so, why would anyone every want to host a sporting event in France. Furthermore, if someone in the US or UK posted something at home on a site that is not domiciled in France, and that they never intended for anyone in France to view their posts, how can they have purposefully availed themselves of the law of France and subject themselves to personal jurisdiction.
Khelif has identified as female from birth, raised as a girl and competed as a woman for six years before the Paris Olympics. The debate around Khelif centered around whether she possesses XY chromosomes, which can occur in people who have identified as women their entire lives. The matter exploded into the sport spotlight by the International Boxing Association (IBA). The IBA first conducted gender tests on Khelif and Chinese Taipei boxer Lin Yu-ting in 2022. The IBA didn’t suspend them from competition until 2023. The IBA never officially identified those tests nor provided any proof of the results, but claimed the tests showed the fighters to have XY chromosomes.
The International Olympic Committee (IOC) has been in a battle with the IBA and stripped the organization of its prior control over Olympic boxing. The IOC allowed the two fighters to compete in the Olympics.
The questions around Khelif are whether the presence of an XY chromosome should disqualify her from female competition as having an unfair advantage. The social media battle was much more intense. However, everyone in the public eye is often skewered in the public square.
The prosecutor’s office said it had received the complaint and its Office for the Fight against Crimes against Humanity and Hate Crime had opened an investigation on charges of “cyber harassment based on gender, public insults based on gender, public incitement to discrimination and public insults on the basis of origin.”
Such a law has been used in the past and France has been working to combat cyberbullying along with trying to reduce the dominance of U.S. tech companies in the country. Other French cases of aggravated online harassment have resulted in prosecutions that have resulted in prison sentences and/or fines.
Almost 30 people were sentenced earlier this year after a judge found them guilty of the online harassment of a French influencer in one of the country’s largest cyberbullying cases to date. Lawyers representing the woman said in a news release that the severity of the sentences — up to 18 months in prison — was “unprecedented in a case of cyberbullying.” But that case was against French citizens who commented in France about someone who is French. It is unknown what would happen and the possible legal ramifications if the case entailed a foreigner, in France with comments made from people in other countries.