Disputes arising out of or relating to the 2014 Olympic Winter Games in Sochi Part 1

Published 31 July 2014 By: Jeffrey Benz, Jennifer K. Yuen, Navid Nazer

Figure Skates

This two-part article analyses pre-Game selection process disputes and disputes arising out of or relating to at the 2014 Olympic Winter Games in Sochi. In part one the authors provide an outline of the dispute resolution process in sport and analyse some of the pre-Games selection process disputes from Sochi. In part two the authors discuss the cases that arose form the Sochi Games and explain the mechanisms for dealing with disputes that arose from the Sochi Games.

Several disputes arose leading up to or arising at the 2014 Winter Olympic Games in Sochi, Russia. These disputes were resolved by either the domestic federation dispute resolution processes of first instance, the Court of Arbitration for Sport Ad Hoc Division on the site of the Games, the International Olympic Committee and its Disciplinary Commission process, or they remain open issues to be resolved by the Court of Arbitration for Sport sitting in its regular designation1.
 
Disputes relating to participation in the Olympic Winter Games arise from a mere handful of possible scenarios. There are selection disputes that involve athletes essentially alleging that they have been improperly passed over for selection for their country’s Olympic Team or that the relevant international sports federation failed to properly apply its rules when making its quota drawn from around the world and disciplinary-related disputes, usually arising in the context of doping, where athletes are asserted to have violated some standard of prescribed conduct.

Part one will identify the relevant bodies involved in Olympic disputes and highlight various pre-Games selection procedure cases from the 2014 Olympic Winter Games in Sochi. 

Part two will focus on how disputes that occur at the games are resolved and the mechanisms involved, and will highlight the cases that arose at the 2014 Olympic Winter Games in Sochi and their eventual outcomes.

 

PART ONE – BASIC STRUCTURE OF PRE-OLYMPIC AND OLYMPIC DISPUTE RESOLUTION AND PRE-GAMES SEELCTION PROCEDURE CASES RELATING TO THE 2014 SOCHI OLYMPIC WINTER GAMES

THE CAS AD HOC DIVISION

The Ad Hoc Division (“AHD”) of the Court of Arbitration for Sport (“CAS")2 is a standing tribunal that is organized and equipped to resolve disputes quickly that arise before and during competitions. 
The AHD was first implemented at the 1996 Olympic Games in Atlanta and at the 1998 Olympic Winter Games in Nagano and have been a fixture at all Olympic Games since.3 Their role as an on-site dispute resolution body is expanding with CAS fielding an ad hoc panel for the Asian Games, Commonwealth Games, and other major international multi-sport games. 
 
The International Council of Arbitration for Sport (“ICAS”) is the governing body of CAS and it handles the process for selecting the ICAS members4, and the CAS arbitrators generally5, and specifically for selecting the President, other officers, and arbitrators of the AHD for each iteration of the Olympic Games.
 
Irrespective of the host country, the AHD, as does the rest of CAS, operates under the jurisdiction of Swiss law to promote predictability and consistent precedent. The AHD is on call to resolve disputes around the clock during the Games and typically issues a decision within twenty-four hours of its filing. Each panel consists of three arbitrators who are selected by the President and Co-President of the Games-specific AHD and resolve issues that arise at the site of the Olympic Games, generally ranging from athlete eligibility/selections to disciplinary matters to doping.
 

THE IOC DISCIPLINARY COMMISSION

The Olympic Charter provides that the International Olympic Committee (“IOC”) Executive Board6 or the IOC Disciplinary Commission7 may address any violation of the Olympic Charter or the World Anti-Doping Code.8 Further, the IOC Executive Board may delegate its power to the IOC Disciplinary Commission.
 
In the case of violations committed by athletes or members of the official delegations at the Olympic Games, the IOC Disciplinary Commission can temporarily or permanently deem the competitors ineligible, exclude or disqualify them, and withdraw their accreditation in the Games.9 Competitors that are excluded or disqualified must return any medals or diplomas received relative to the violation. The individual competitor or team also risks losing any previous ranking obtained in another event at the Olympic Games from which they were excluded.10
 
At the Olympic Winter Games in Sochi, pursuant to the text of Article 6.1.4 of The International Olympic Committee Anti-Doping Rules applicable to the XXII Olympic Winter Games in Sochi, in 2014, the IOC Executive Board expressly delegated all of its powers except for the ability to:
 
(i) the power to pronounce, with regard to IOC members, the honorary President, honorary members and honour members, a reprimand or suspension (Rule 59.1.1 of the Olympic Charter);
(ii) the power to pronounce, with regard to IFs, the withdrawal from the programme of the Sochi Olympic Winter Games of a discipline or event (Rule 59.1.2(a) of the Olympic Charter) as well as the withdrawal of provisional recognition of an IF or of an association of IFs (Rules 59.1.2(b) and 59.1.3(a) of the Olympic Charter);
(iii) the power, with regard to NOCs, to pronounce the suspension, or the withdrawal of provisional recognition of an NOC or of an association of NOCs or another recognized association or organisation (Rules 59.1.4(a) and (b), 59.1.5(a) and 59.1.8(a) of the Olympic Charter);
(iv) in the context of the Sochi Olympic Winter Games, with regard to individual competitors, teams, officials, managers, other members of any delegation as well as referees and members of the jury: the power to pronounce permanent ineligibility or exclusion from future Olympic Games (Rules 59.2.1 and 59.2.2 of the Olympic Charter).11
 
Thus, the IOC Disciplinary Committee had broad delegated power to hear and decide doping violations that occurred at the Sochi Games insofar as those violations required Olympic Games-specific penalties.
 
The International Olympic Committee Anti-Doping Rules Applicable to the XXII Olympic Winter Games in Sochi, in 201412(the “Anti-Doping Rules”), outlines the disciplinary procedures applicable to athletes who were charged with having committed an anti-doping violation. Such procedures had to be completed within twenty-four hours of the athlete being notified unless the time limit was otherwise extended by the IOC President.
 
Every athlete at the Sochi Olympic Winter Games could have been subject to a random doping test. In Sochi, the IOC conducted 2812 anti-doping tests and found a record 8 athletes to have committed anti-doping offenses.13 All the samples that tested positive for a prohibited substance were verified by the Chairman of the IOC Medical Commission with assistance from the IOC Medical Director to determine if there was, in fact, a violation or any other violation of the Anti-Doping Rules. The IOC President was then notified of the result and the athlete in question was provided with a detailed report regarding the findings. The athlete was also notified of their right to be heard, request a confirmatory test, and to use any relevant evidence at the hearing. If necessary, the IOC Disciplinary Commission could also seek the opinion of an expert or obtain further evidence before issuing its decision.  
 

JURISDICTION OF CAS

Rule 61(2) of the Olympic Charter selects arbitration as the primary form of dispute resolution for Olympic Games through the inclusion of a provision that states:
 
 
This provision grants CAS sole authority and jurisdiction over any and every dispute arising in relation to an Olympic Games. In addition, beginning with the 1996 Atlanta Olympic Games, the IOC began including a clause in the Athlete Entry Form providing that the Athlete agreed to the sole and final jurisdiction of CAS over disputes. Any athlete refusing to sign the form was denied the opportunity to participate in the Games.
 

HOW ARE DISPUTES ARISING PRIOR TO THE COMMENCEMENT OF CAS JURISDICTION HANDLED?

Some sports or governing bodies have extensive provisions governing various types of disputes that arise in connection with an Olympic Games but that precede the Games-themselves. We will not endeavor to address all of them, but we have selected a few key exemplars to illustrate the relevant points.
 
Section 9 of the United States Olympic Committee Bylaws
 
Section 9 of the USOC Bylaws addresses athletes' rights.14 The first provision guarantees that the USOC will use reasonable means to protect the right of an amateur athlete to participate if selected for the Olympics. The section also provides the course of action a player should take when one feels they have been denied their right to participate by the USOC. The proper procedure requires filing a written complaint with the CEO of the organization on a form provided by the corporation, with a copy sent to the corporation's legal division.
 
Section 9.7 of the USOC Bylaws is the arbitration provision that requires an athlete to escalate their dissatisfaction with the result of a filed complaint by appealing to the American Arbitration Association15 (AAA) for final and binding arbitration. In the instance of an impending competition, an expedited resolution may be sought through filing concurrently both with the CEO of the corporation and the AAA. Following a decision, the arbitrator is required to provide a reasoned award in writing that shall be made available to the public.
 
For perhaps the first time since the enactment of Section 9 and its predecessors, there were no United States selection disputes arising before the Sochi Olympic Winter Games. According to one of the co-author’s recent discussion with the USOC’s Athlete Ombudsman, approximately a dozen disputes of a more formal nature arose prior to the Sochi Olympic Winter Games, and the Athlete Ombudsman’s office was able to resolve all of them informally before arbitration was initiated.16
Sport Resolutions (UK)
 
In the United Kingdom, Sport Resolutions is the British national equivalent of ICAS but does not have mandatory jurisdiction to hear appeals involving an NGB or an athlete. There are three situations in which Sports Resolutions has jurisdiction over a dispute:
  1. The rules of the sporting organization involved in the dispute allow for recourse to Sport Resolutions;
  2. the contract/agreement in dispute contains a clause referring disputes should they arise to Sports Resolutions; and,
  3. the parties to the dispute agree in writing to submit the dispute to Sport Resolutions for arbitration or mediation.
Unlike the USOC this year, the Sport Resolutions process was used, as detailed below, to resolve Sochi-related selection issues.
 
A key distinguishing systemic feature that may result in assisting in minimizing disputes is how national federation selection criteria are reviewed and by whom. In the United States structure, the USOC is paramount in all decisions affecting sports programming and performance relating to the Olympic Games and sits above all national governing bodies. This is not so in the UK and other countries, where national federations are beholden to various bodies other than their National Olympic Committees for funding, priorities, and review. In the opinion of these authors, the USOC’s centralization of the review of selection procedures, the promulgation of standards required for the content of those selection procedures, the involvement of the USOC’s unique Athlete Ombudsman to resolve issues, and the ability of the USOC to require changes form national federations as appropriate has had a direct and positive influence on minimizing selection-related disputes. While this model may not be appropriate for all circumstances or countries, the lack of US disputes before Sochi demonstrates that it may warrant a closer look.
 

Pre-Games Selection Procedure Cases

The first of these disputes arose prior to the Games and involved selection procedures of athletes by national sports organizations. Although these cases were heard by different tribunals, it is a general proposition that might properly be considered part of the lex sportiva, though not mandatory, that a selection decision should only be reviewed if the relevant governing sports body:
  1. was in violation of its own rules;
  2. the body failed to follow proper procedures;
  3. it acted without a proper factual basis or contrary to legitimate expectation; or,
  4. its decision was irrational to the extent that no reasonable governing body would have acted in that manner.
See generally Belcher v. British Canoe Union, UK Sport Resolutions, pp. 17-18, ¶¶ 49-50 (July 5, 2012) (opinion by William Norris, QC) (cited with approval and quoted in Merson v. USA Triathlon, American Arbitration Association Case No. 77 190 272 12, p. 10, ¶5.1 (October 12, 2012) (opinion by Jeffrey G. Benz):
 
49. The test I have applied is to find that a decision may be open to challenge if, but only if,
(i) It is not in accordance with Selection Policy as published; and/or
(ii) The policy has been misapplied or applied on no good evidence and/or in circumstances where the application of the policy was unfair (for example, because someone with selectoral authority had given a categorical assurance to an athlete that the policy would not be applied); and/or
(iii) The decision maker has shown bias or the appearance of bias or the selection process has otherwise been demonstrably unfair;
(iv) Where the conclusion is one that no reasonable decision maker could have reached. 
50. That last conclusion is one that any Judge or Arbitrator has to approach with the utmost care. As indicated above, it is of fundamental importance that an appeal body should not substitute their own judgment on the merits for those of the selectors – i.e who the panel would have selected, or who is the better athlete or has the better performance figures and so forth. So long as selectors apply policy properly, and do so honestly, fairly and reasonably, and take account of relevant facts (they being best judged to decide what is relevant and what is not), then their decisions must be accorded the utmost respect.
 
The Merson decision, quoted above, goes on to set forth the basic US test in summary:
 
5.5 Based on the above principles, a discretionary decision of a NGB may be challenged and set aside under Section 9 of the USOC Bylaws on the following grounds:
    1. If the published criteria do not have a rational basis;
    2. If the decision is not taken by the duly constituted decision maker or decision making body in accordance with the published selection policy or procedure announced in writing in advance or if the policy or procedure has been misapplied;
    3. If the duly constituted decision maker or decision making body has been shown to have been biased or showed bias, or the decision process has been demonstrably unfair as applied;
    4. If the decision has been shown to have been taken in retaliation for an action or actions of the party on the receiving end of the decision to their detriment; or
    5. If the decision is one that no reasonable decision maker could have made or was arbitrary and capricious (not simply that reasonable minds could differ on the outcome) or was based on fraud, corruption, malice, bad faith, or illegality.
So long as a NGB decision is the product of applying their policy and process as published, fairly and in good faith and without the presence of the disqualifying factors (e.g., fraud, corruption, malice, bad faith, illegality, arbitrariness, or capriciousness), for a proper purpose (no bias or retaliation), then that decision will be accorded utmost respect and an arbitrator could not be in a position to evaluate whether one candidate for a position or spot would be better selected than another on their merits; that is a decision left to the relevant decision makers with expertise in the sport or subject matter who have been duly designated.
 
While selection cases are procedurally positioned as athlete against national federation, they generally pit one athlete against another; the fight is usually over a single qualifying spot on an international team, so from a jurisdictional perspective it is important to ensure that all affected athletes are parties to the arbitration. See, e.g., Bylaws of the United States Olympic Committee, Section 9.8 (Revised April 8, 2014) (https://www.teamusa.org/Footer/Legal/Governance-Documents).
 
 
Figure skater Chantelle Kerry filed an appeal with the CAS against Ice Skating Australia18 (“ISA”) seeking a declaration that deemed Brooklee Han, another figure skater, as not eligible to be nominated by the ISA to the Australian Olympic Committee (AOC) to compete in the Sochi Games because Han had competed in the Hershey Open 2013 Figure Skating Competition. One of the requirements under the 2014 Australian Olympic Winter Team Selection Criteria is that each athlete must meet the eligibility criteria set forth by their respective IF. In this case, the controlling requirements can be found in the International Skating Union Constitution and General Regulations 2012 (ISU Regulations). As part of the eligibility requirements, ISU Rule 102 (1)(b)(i)-(iii) states that an eligible athlete is one who chooses to participate only in international competitions that are:
  1. sanctioned by the ISU;
  2. conducted by ISU recognized officials; and,
  3. conducted under ISU Regulations.

Thus, an athlete who participates in an event that does not meet the aforementioned criteria and the ISU has the authority to rule on the “alleged breach”, which could result in the loss of eligibility.19 

Here, Ms Kerry claimed Ms Han was not authorized to compete in the Hershey Figure Skating Open20 and was thus, automatically ineligible. In 2011 and 2012 Han received correspondence from the President of ISA giving her permission to skate in any competition or exhibition that is sanctioned by US Figure Skating,21 but Ms Han received no such letter of authorization in 2013. However, on 28 November 2013, in response to a request from Han’s father regarding the issue of eligibility, Ms Han’s father received an email stating that the ISA Board of Management has determined that Ms. Brooklee Han continues to be an eligible skater.22

The arbitrator held that Ms Han was authorized to compete in the Hershey Open as the 2011 letter was unrestricted and there was no evidence indicating that the authorization had expired or been revoked. Also, Ms Han’s ineligibility was not automatically triggered as the ISU Regulations permit the ISA to rule on any alleged breach of eligibility rules, suggesting the expectation of a notification and hearing process. In this case, the ISA duly considered Ms Han’s eligibility and ultimately ruled she was eligible under the ISU Regulations. As a result, Kerry’s request was denied.
 
 
On 21 January 2014, Toby Olubi filed a Notice of Appeal23 with Sport Resolutions (UK) seeking review of the 20 January 2014 decision by British Bobsleigh to not select him for Team Great Britain at the 2014 Winter Olympic Games. Specifically, Mr Olubi alleged that British Bobsleigh did not follow the selection procedures because the objective measures of his performance demonstrated he moved the sled faster than those who were selected, and because of the weight given to the subjective concerns expressed by British Bobsleigh’s Performance Director, Gary Anderson.
 
Clause 3 entitled, Athlete Selection Criteria, The Basis of Selection”, 3.1 states in part, “The selection process is an exercise of judgment and is guided by, but not determined by, results in competitions and statistical data.” Accordingly, selection was determined by objective criteria that included, among other things, high performance experience, and performance testing. The selection procedures also included subjective criteria such as compatibility (e.g. weight limits), attitude, team chemistry/cohesion, and communication.
 
Here, the arbitrator held that British Bobsleigh did not fail to follow the selection procedures and that it had the discretion to determine how much weight to give to each factor in the consideration process. Mr Anderson’s concerns—that Mr Olubi had only raced six times competitively and had only been in the sport for five months—were legitimate and relevant to athlete performance. Thus, Mr Olibu’s request was denied.
 
 
On 1 December 2013, Paul Stanley filed an appeal of the decision of NISA to not select him as the third member for the Great Britain Speed Skating Short Track Non-Relay Team for the Sochi Games on the grounds that NISA failed to follow the Selection Criteria for the British Short Track Speed Skating National Performance Pathway 2013/14 Season (“Selection Criteria”).26 The Selection Criteria stated in relevant part, “If we qualify three (3) places the second selection will go to the second highest individual ranked skater from World Cups 1, 2, 3 & 4, in the 2013/14 season in a single distance. This will be taken from the ISU World Cup ranking List 2013/14. The third individual place will be selected by the Performance Director and approved by the WCMG [World Class Management Group]. The Performance Director will take into account performance indicators from the 2013/14 season and other past performances.27
 
In this situation, the Performance Director, Stuart Horsepool stated that he selected the third place on the team through the same process that the other two places were selected. Namely, he chose the third highest ranked skater from a single distance from World Cup Rankings 1, 2, 3, and 4, based upon his belief that a subjective approach to select the third individual would be incorrect since an objective analysis was used to select the other two individuals. Based upon this standard, Mr Horsepool selected Richard Shoebridge as the third member for the team. However, the arbitrators disagreed with Mr Horsepool and held he had not followed the Selection Criteria and as a result set aside his decision. The decision ordered him to select the third individual taking into account “performance indicators from the 2013/14 season and other past performances so far as that information is reasonably available to him and could reasonably have any bearing on his decision.28
 
Following this order, Mr Stanley filed another appeal because Mr Horsepool had, again, not chosen him for the team. However, this time, the arbitrator dismissed Stanley’s appeal. In his supporting document, Mr Horsepool stated his evaluation was based on the skater’s performance at international competition as that was the best evaluation of a skater’s performances as opposed to training times, domestic competition, or time trials. Although there were inconsistencies in the reasoning submitted by Mr Horsepool, following questioning, the arbitrator ruled that Mr Horsepool had followed the proper procedures and thus, Mr Stanley’s second appeal was dismissed.
 
United States Olympic Committee (USOC)
 
Although the USOC did not face any selection procedure cases in this Olympic cycle, the selection of the Ladies’ Figure Skating team for the Sochi Games was controversial.29 Under the U.S. Figure Skating Athlete Selection Procedures: 2014 Winter Olympic Games30, the US Figure Skating International Committee Management Subcommittee (ICMS) was to give the 2014 U.S. Figure Skating Championships top priority as a “Tryout Event” for use in the selection process.31 However, the ICMS also had the discretion to consider the results from competitions during the 2012/13 season.32
 
At the 2014 U.S. Championships the placements in the Ladies’ Event was as follows: Gracie Gold, first place, Polina Edmunds, second place, and Mirai Nagasu, third place. In years past, the ICMS has typically nominated the top three finishers in each event for the Sochi Games. However, this year, the ICMS selected Gracie Gold, Polina Edmunds, and Ashley Wagner for the Olympic Games. Ms Wagner finished fourth behind Ms Nagasu. US Figure Skating president, Patricia St. Peter defending Wagner’s selection stating that she had the top credentials of any athlete” based on her performance during the past year.33 While this may have been true, there had only been two previous occasions in which U.S. Figure Skating did not nominate the top three finishers in each event for the Olympic Games. Both cases involved skaters who were unable to compete due to injury. The first was in 1994 when Nancy Kerrigan withdrew from the U.S. Nationals due to a well-publicized physical attack, and the second was in 2006 when Michelle Kwan was unable to compete due to injury. Consequently, many felt that Wagner had been incorrectly selected instead of Ms Nagasu. Ultimately, Ms Nagasu declined to file a challenge but had she done so it could have presented an interesting case.
 
With the Olympic Games fast approaching, an athlete usually does not have the time to lodge a traditional dispute, so the expedited forms of arbitration made available to athletes to challenge selection disputes within their home jurisdiction are invaluable to getting finality to selections and ensuring that the correct selection is made in accordance with the relevant selection procedure. The existence of this form of dispute resolution is a check on selection procedure abuses and ensures that governing bodies are careful and principled in their decision making, while also providing an athlete with his or her day in court so that they can come to terms with a significant development in their athletic career.
 
Part two will introduce and discuss the mechanisms in place for disputes that occur at or during the Olympic Games and identify the disputes that arose at the 2014 Olympic Winter Games in Sochi.