Dispute resolution at the London 2012 Olympic Games, part 1Jack Anderson
First of all, and after a delay, it's good to be back to "blogging". The delay is attributable to three reasons (a) summer laziness; (b) the editing of a book on leading sports law cases, now sent off for publication by Asser/Springer at the end of the year; and (c) watching the Olympics or as I say to my Head of School – "engaging in primary research". BTW: very interesting article in the BBC's online magazine today on cheating at the Paralympics, which can be accessed here.
Over the next few weeks or so I am going to blog about the Court of Arbitration for Sport and the disputes it had to hear at the London 2012 games, and what general principles of sports law can be gleaned from these hearings that might usefully be applied by other sports tribunals. After that I hope to blog on a recent English Court of Appeal case called Cornish Glennroy Blair-Ford v CRS Adventures Ltd  EWHC 2360 (QB). The claimant, a teacher, was on a school trip to an outdoor adventure type facility when he broke his neck while taking part in a sporting event commonly known as "welly wanging". As he threw his welly back through his legs, he fell forward awkwardly and now suffers permanent tetraplegia. He is unable to move his body below the neck and requires ventilator support. He claimed – media reports putting the damages claim at £5million – that he was asked by the defendants' staff to throw the welly adopting a method which, given the circumstances in which it was to be performed, was unsafe and that the defendant owed him a duty to exercise reasonable skill and care in the conduct of their activities and failed in that duty by failing to carry out any adequate assessment of the risks. The High Court, hearing on liability only and referring to section 1 of the Compensation Act 2006 on desirable social activities, held that what had happened was a tragic but freak accident for which no blame attached. The claim was dismissed with judgment to be entered for the defendant. The "melancholy accident" nature of the case and the manner in which the trial judge discussed risk assessment in the context of socially desirable activities, such as outdoor pursuits, is of interest.
CAS Ad hoc at London 2012
10 days before the opening ceremony, the Court of Arbitration for Sport ("CAS") opened an "ad hoc" office in London in order to resolve any legal dispute arising during the Olympics Games ("CAS ad hoc). CAS ad hoc's at the Olyplics (and there has been one at every Games since 1996) is provided for under the terms of Rule 61 of the Olympic Charter and typically sits from a period 10 days or so prior to the opening ceremony and until the date of the closing ceremony. On the filing of a request by a disgruntled participant or other application the President of CAS ad hoc immediately sets up a panel of three arbitrators (drawn in London from an ad hoc panel of 12) and a hearing is convened under CAS ad hoc rules and during which all parties, witnesses and potentially affected third parties are given the opportunity to express their legal argument and to produce evidence. As a rule CAS ad hoc must render its decision within 24 hours.
I have already written about the ad hoc rules and how any sports body could adapt them as an excellent example of dispute resolution mechanism that is transparent, speedy and underpinned by the principles of natural justice and fair procedure. Parties at the hearing were – and this may also be useful to note – were generally represented pro bono by advocates drawn from a special arranged London 2012 Pro Bono Panel supported by the jurisdiction's Law Society, Bar Council and Sports Resolution UK.
10 CAS ad hoc hearings took place during the London Olympics.
CAS OG12/01 Alexander Peternell v SASCOC & SAEF
On 24 July, a South African horse rider Alexander Peternell (eventing) filed an application at CAS ad hoc to challenge a decision of the South African Sports Confederation and Olympic Committee ("SASCOC") not to select him for the 2012 Olympic Games. There was a bit of a history to this application.
South Africa was allocated a slot for one horse and one rider to participate in the London 2012 eventing competition. There were two possible contenders: Alexander Peternell and Paul Hart. The latter was selected by SASCOC on the recommendation of the South African Equestrian Federation ("SAEF") On 11 July 2012, Alexander Peternell filed an appeal at the (full) CAS against the decisions taken by SAEF on 25 June 2012 and by SASCOC on 2 July 2012 not to select him. The decisions were dealt with together on an expedited basis as a single appeal and referred to a CAS panel, deliberating in London over the extended weekend of 20 to 24 July. In its decision in CAS 2012/A/2845 Alexander Peternell v SASCOC & SAEF, the CAS Panel found that Alexander Peternell fulfilled the three different sets of selection criteria applicable and accordingly, that he should have been nominated by SAEF for selection. The CAS Panel has set aside the SAEF decision of 25 June 2012 and the SASCOC decision of 2 July 2012 and stated that Alexander Peternell should be eligible for selection by SASCOC to compete on behalf of the South African team in the eventing discipline in lieu of Paul Hart. Despite the CAS ruling, SASCOC (somewhat stubbornly and perversely) did not enter Peternell in the Olympic Games, though it did withdrawn Paul Hart from the South African team.
On the morning of 24 July, Alexander Peternell filed a new request for arbitration, this time before the CAS ad hoc division, in order to oblige SASCOC to enter him in the 2012 Olympic Games. The CAS ad hoc Panel (CAS OG12/01 Alexander Peternell v SASCOC & SAEF) upheld his request and ordered SASCOC to include him in the South Africa team for the 2012 Olympic Games.
Strictly comply with your own rules!!
There is very little that is a specific legal note from the award save the point made at paragraph 41 of the CAS ad hoc award, which is of general application in all such selection disputes (of which there were a number in the UK – Aaron Cook in judo and Keith Cook in fencing – and Ireland – athletics 4 x 400m women's relay. in the run-up to the Games):
"Before analyzing the chain of events of the present case, the Panel wishes to highlight that it is indeed the right of each National Olympic Committee to select athletes, team officials and other team members for the participation in the Olympic Games (cf. Olympic Charter, Chapter 4, Rule 27.7.2). As for any right, also this right shall be exercised in good faith and in accordance with the applicable rules and, in particular, with the principles of the Olympic Charter. In such cases, when the selection decisions are taken properly, there is generally no room for a legal review."
In this instance, the Panel held that the applicable rules had not been complied with i.e., the SAEF and SASCOC had not strictly complied with their own procedures to the detriment and unfairness of the application and thus, presumably, in violation of the principles of the Olympic Charter. What Peternell does not really address however is (as in many sports disputes) where the applicable rules permit a discretion on the part of the decision maker. What margin of appreciation may be extended to the decision-maker in that instance?
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About the Author
Jack Anderson is Professor and Director of Sports Law Studies at the University of Melbourne. The sports law program at Melbourne was one of the first to be established globally in the mid-1980 and continues to expand at the Melbourne Law School, which itself is ranked in the top 10 law schools globally.
Jack has published widely in the area including monographs such as The Legality of Boxing (Routledge 2007) and Modern Sports Law (Hart 2010) and edited collections such as Landmark Cases in Sports Law (Asser 2013) and EU Sports Law (Edward Elgar 2018 with R Parrish and B Garcia). He was Editor-in-Chief of the International Sports Law Journal based at the International Sports Law Centre at the Asser Institute from 2013 to 2016.
Appointed as an arbitrator to the Court of Arbitration for Sport in 2016, he became a member of the inaugural International Amateur Athletics Federation’s Disciplinary Tribunal and the International Hockey Federation’s Integrity Unit in 2017. In 2018, he was the sole CAS arbitrator at the Commonwealth Games on the Gold Coast, Australia. In 2019, he was appointed to the International Tennis Federation’s Ethics Commission. He is currently chair of the Advisory Group establishing a National Sports Tribunal for Australia