Dispute resolution at the London 2012 Olympic Games, part 2Jack Anderson
CAS OG 12/02 Ward v IOC, AIBA and ANOC: Contractual interpretation
The second decision rendered by CAS ad hoc at London 2012 involved the dismissal of a request by an Irish boxer, Joe Ward, who challenged his non-qualification for the 2012 Games. Ward was highly rated and seen as a genuine medal hope for the Irish team, which did extremely well at the 2012 Games.
The qualification process for the Olympic boxing tournament is notoriously difficult and competitive and has been for the past two decades or so since the breakup of the Soviet Union when the (re)emergence of a number of countries, traditionally strong in amateur boxing, increased the competition for places.
Ward had two key opportunities to qualify for a spot at the 2012 Games: at the 2011 World Boxing Championships; and at the 2012 European Boxing Olympic Qualification Tournament. It is reasonable to state that he underperformed at both tournaments. Ward could still have been picked as a "wild card" by either the International Amateur Boxing Association (AIBA) or by a Tripartite Commission, composed of representatives of the AIBA, the IOC and the Association of National Olympic Committees under a quota system which favoured nations with a small (average of 6 or less) number of competitors at previous Games or, failing that, an allocation system based on ranking.
A "wild card" was not offered to Ward but to another boxer from Montenegro. Getting to the heart of the matter, the wild card was allocated, as per the AIBA's qualification regulations, to the "next best ranked athlete at the 2011 AIBA Men's World Boxing Championships," not yet qualified for the Games. Ward and his representatives argued that the phrase "next best ranked athlete" should have been construed against the AIBA's overall world rankings in that year (on which Ward ranked highly) but the authorities said that the ranking was based solely on the boxer's performance i.e., results, at the 2011 World Championships (at which Ward performed poorly).
Before addressing the substantive issue, the CAS ad hoc Panel stated that it did not have the jurisdiction to hear the case and principally because the dispute had neither occurred during the Games or within the period of 10 days preceding the opening ceremony – CAS OG 06/02 Schuler v Swiss Olympic Committee and Swiss Ski applied. Moreover, CAS ad hoc stated that an appeal under the usual rules of CAS would also fail for lack of jurisdiction as the applicant's appeal was filed outside the time limit for (full) appeals set by the CAS Code i.e., within 21 days from the date of the receipt of the decision appealed against (R41 of the CAS Code).
CAS ad hoc could then have dismissed the matter but decided nevertheless to explain why they would, in any event, have dismissed the appeal on its merits. As an arbitrator, I must admit that if I find lack of jurisdiction I think it better not to proceed any further with the substantive issues (good luck and good night to you all; I am off for a pint) but CAS ad hoc Panels tend to push on regardless (see CAS OG 02/03; CAS OG 02/05; and CAS OG 08/01).
On the substantive issue, the CAS Panel held that the disputed regulations related only to the results achieved at the 2011 AIBA World Championships, and thus did not favour Ward's interpretation of the regulation. Of legal interest is that in construing the disputed regulation, the CAS ad hoc Panel adopted the contractual interpretation principles outlined in a CAS award involving the Irish Hockey Federation – CAS 2001/A/354-355 at para 7 et seq and citing CAS 96/149 C v FINA and CAS 2001/A/317 FA v FILA.
In short the position adopted by CAS ad hoc was that in interpreting a sports-related regulation or rule, a Panel should first look at the text of that rule; if the text is not clear, then the Panel should interpret the regulation in question in keeping with the perceived intention of the rule-maker and not in a way that frustrates it, and failing that, the regulation should be interpreted in an objective manner (see CAS OG 12/02 Ward v IOC, AIBA and ANOC at paras 6.3 and 6.4).
The Ward award thus provides a very useful guide to the principles of what might be called "sporting contractual interpretation".
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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