Disputes arising out of or relating to the 2014 Olympic Winter Games in Sochi Part 2

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

Skis on Snow

In Part one of this two part series, the authors identified 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 2: THE COURT OF ARBITRATION FOR SPORT AD HOC DIVISION IN SOCHI

The independent process for disputes arising between athletes and their national federation will typically occur in the months leading up to the Olympic Games, but for issues arising within a few days of the opening ceremony and after, there are different roads to resolution depending on the type of dispute. 

The Ad Hoc Division (“AHD”) of the Court of Arbitration for Sport (“CAS”), first convened for the 1996 Olympic Games in Atlanta, was created to provide a final resolution within 24 hours for any dispute arising during the Olympic Games and is free of charge for anyone participating in the Olympic Games. In addition to the Olympic Games, ad hoc divisions have been created for the Commonwealth Games, the UEFA European Championship, and for the 1996 FIFA World Cup, among others. The AHD for the 2014 Olympic Winter Games in Sochi was seated on 28 January 2014 and remained in place until the closing ceremonies on 23 February 2014. (see part one for further information on the remit of the CAS AHD)

All told, four appeals were filed with the CAS AHD panel during the Sochi Games. Three dealt with entry of an athlete in the Games and one challenged an event result.

 
The first case regarding the entry of an athlete was filed on 2 February 2014 by Austrian skier Daniela Bauer against the Austrian Ski Federation (ASF) and the AOC. Bauer claimed that the actions of the ASF and AOC created the expectation that an Austrian athlete who qualified under the FIS Rules would be selected for participation in the Sochi Games via acceptance by the AOC of all quota positions allocated to it. Contrary to this expectation, the ASF declined to use the quota place it was allocated for the female halfpipe freestyle snowboarding event. Apparently, the AOC had determined that Ms. Bauer lacked technical skills to compete for Austria in this discipline at the Games and lacked the same “upward performance potential” that certain younger athletes had demonstrated. According to Ms. Bauer, this decision was arbitrary, unreasonable, and unfair, and in violation of the AOC Rules and also violated the principle of equal treatment set forth in the Olympic Charter.2 Mr. Bauer also argued that the AOC and the ASF had acted in a manner that gave rise to her legitimate expectation that she would be recommended and selected to participate in the Games, and that she had competed to attempt to qualify on that basis. 

Issuing their decision on 4 February 2014, the arbitrators held that the decision by the ASF and AOC was based on “a legitimate sports performance justification” and was not in violation of the Olympic Charter. The Panel noted that under Rule 44.4 of the Olympic Charter a National Olympic Committee may only select athletes who have been recommended by a national federation and that the other athletes who had been nominated for other quota places had been nominated by the ASF unlike Ms. Bauer who was not. Therefore there was no requirement for the ASF to recommend to the AOC athletes who met the minimum qualification criteria of the International Ski Federation, and that even if a member of the ASF staff had suggested to Ms. Bauer that she would be recommended that person did not have actual authority to bind the ASF. The panel went onto state that even in a case where the national federation had no published criteria it still has a duty to not act arbitrarily, unreasonably or unfairly. In this instance the ASF was found not to have act in such a manner as it based its decision on assessment of the athlete’s performance, especially given her lack of technical ability and relative lack of potential of performance improvement vis a vis other younger athletes the ASF sought to send to the Games. Nonetheless, the Panel strongly recommended that the ASF “establish, identify, and publish clear criteria to enable athletes to determine in a timely manner the Olympic Games qualification standards they are required to meet to be recommended for selection by the AOC.

Putting aside the legal issues, this case raises interesting philosophical and business questions about the impact NOC or local country NGB selection decisions should have on the CAS system, especially given that such decisions are resolved by other more local bodies domestically in other countries, as set forth in Part 1 of this article and that the sources of funds for CAS come from international bodies; permitting what are purely domestic cases to draw down CAS resources could burden the system administratively and financially in a manner that was unintended. 

 

 
Clyde Getty, an Argentinian freestyle aerials skier, asserted that he was eligible to participate in the Sochi Olympic Winter Games as he was next in line to receive a quota allocation after other national federations declined two remaining available quota spots. The International Ski Federation (FIS) had informed the Argentinian Ski Federation (FASA) that a quota place had been allocated to them for the aerials discipline and FASA informed Mr Getty of this fact. The Argentine Olympic Committee (COA) wrote to FIS in order to accept the place. In response, FIS informed the COA that it did not have an athlete who met the FIS minimum individual qualification criteria, which required, among other things, participants to have a certain number of FIS points. Mr Getty did not have the required points. Mr Getty argued that regardless of whether he earned the sufficient FIS points, he was eligible to compete; he essentially argued that it was not required that athletes from re-allocated quota positions to meet the individual qualifying criteria otherwise applicable, that even if the individual qualifying criteria applied FIS had created legitimate expectations in him that he would be permitted to compete, and that it would be contrary to the spirit of Olympism to exclude him from competing.

The arbitrators, however, disagreed with Mr Getty and held that to be eligible for the Sochi Games under the FIS Selection Criteria, two conditions must be satisfied: (1) an athlete must accumulate 80 FIS points, and (2) the athlete’s National Olympic Committee must have been allocated a quota place. Here, Mr Getty only obtained 65 FIS points which made him ineligible for the remaining quota spots. The Panel noted that no one at FIS had represented to Mr Getty anything about his qualifications for the Games. The Panel dismissed his arguments about his exclusion being contrary to the Olympic spirit because he was the only male freestyle skiing athlete from South America, the was popular with fans, and was an inspiration, as being policy considerations that the FIS could consider in devising their selection criteria or allocating spots, but were not of the type binding in a legal proceeding reviewing the application of the rules as the CAS was charged with doing. Thus, Mr Getty’s claim was dismissed in the arbitrators’ ruling on 5 February 2014. 

 

 
The AHD found a lack of jurisdiction to hear the appeal filed by Argentinean skier, Maria Belen Simari Birkner against the Argentinian Ski Federation (“FASA”) and the Argentinian NOC (“COA”). Ms Berkner requested that CAS order the COA to enter her to compete in the Alpine Skiing events of Slalom, Super G, and Giant Slalom. The athlete’s coach had been informed on the same day she filed her appeal that she was not selected because FASA had considered not only her current performance but also her potential for future development. Ms Birkner claimed that the real reason she was not selected was that she was discriminated against on the basis of her family affiliation because she was a member of a “legendary family . . . that has dominated Argentinian Alpine Skiing for over 30 years,” which is seen as “unfavorable” in Alpine Skiing in Argentina. 

The Panel held that it did not have jurisdiction to hear Ms Birkner’s appeal because the AHD only had jurisdiction over disputes that arose during the Olympic Games or during the period of the 10 days preceding the Opening Ceremony. Here, Ms.Birkner was notified of her non-selection on January 20, 2014, and although she claims she did not learn of the decision until January 22, 2014, this was well before the cutoff of January 28, 2014, which was ten days before the Opening Ceremonies, when the jurisdiction of the AHD took effect. Despite the absence of jurisdiction, the Panel considered the merits of Ms. Birkner’s case and found the case would have failed as the Panel did not find any evidence of discrimination or bias. The Panel noted that there was no evidence of bias based on Ms. Birkner’s family affiliation because 1) two of Ms Birkner’s siblings and a cousin were members of the Argentinean ski team in Sochi, 2) her brother was selected as flag bearer for the Opening Ceremony, and 3) her parents were present in Sochi as Argentinean ski team coaches. The Panel noted that there were no published selection criteria thereby giving FASA subjective discretion and that making a decision based on an athlete’s potential for future performance was not arbitrary, unfair, or unreasonable. The Panel issued its decision on 13 February 2014.

 
On 20 February 2014, the Olympic Committee of Slovenia (“SOC”) and the Canadian Olympic Ski Cross Team (“COC”) filed a protest with the International Ski Federation (“FIS”) that requested the immediate disqualification of French skiers, and newly-minted Olympic medalists, Jean Frederic Chapuis, Arnaud Bovolenta and Jonathan Midol. The SOC and COC claimed that Mr Chapuis, Mr Bovolenta and Mr Midol violated FIS Freestyle Rules by allegedly tampering with their ski suits by pulling the lower pant leg to create a “fairing”, a sharp crease along the back which was then hardened with snow or other liquid.6 The SOC and COC originally filed a protest with the FIS which was ultimately dismissed because it had not been filed within fifteen minutes of the race, as required under the FIS rules7, and thus it could not take any action because the results had already become valid and final. The SOC, along with the COC, then filed a protest with the AHD. 

The SOC and COC conceded that the filing did not meet the fifteen-minute deadline, but argued that the failure should be excused because it was not possible, as a practical matter, to establish that Mr Bovolenta and Mr Midol had used the prohibited method during the race. However, the Canadian coach noticed the French coaches pulling and adjusting the lower pant legs of the French skiers. The event ended at approximately 3:00 pm. By 4:00 pm, the Canadian coach had reviewed photo and video evidence of the race, and was concerned that a FIS rule violation had occurred. The Canadian Team Leader subsequently notified the FIS equipment controller of the situation at 4:20 pm. Thus, by 4:20 pm, the SOC, ACA and COC were aware of the rule violation, but the SOC did not file a protest until 9:47 pm and the ACA and COC did not file a protest until 10:33 pm respectively. Given this timeline of events, the arbitrators held that the FIS rule requiring protests to be filed within fifteen-minutes of completion of the last competition run of the event was clear and that the ACA and COC had provided no evidence of why their delay should be excused and therefore the claim was dismissed. 

The challenging parties argued unsuccessfully that it would be unreasonable to enforce the fifteen-minute deadline because it would have been impossible to gather the evidence required for such a challenge during that time. The panel noted that the federations were aware of the basis for the protest as early as 4:20 pm and even raised it then informally with FIS representatives and the delay of several hours in filing the appeal was not justified. Because the tribunal had determined that the filing time requirements were not met, the issues of the skiers’ underlying rule violations were not addressed. The arbitrators issued their decision on 23 February 2014.

While these arbitrators found that the time limits had not been satisfied on these facts, with several hours separating the required and actual times of filing, there is language in the decision opening the door to challenges later that do not necessarily meet a strict reading of a filing time limit where there are sufficient and reasonable bases for being unable to meet those deadlines and where the challenger otherwise presents a formal protest as soon as they reasonably are aware of the basis for a challenge. It remains to be seen whether a future CAS panel will review an appropriate case on this basis. 

 

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Jeffrey Benz

Jeffrey Benz

Jeff is a Door Tenant at 4 New Square Chambers, London and accomplished arbitrator and mediator. As a former General Counsel of the United States Olympic Committee, and former athlete, Jeff's sports credentials are without compare. Jeff has acted as a neutral or counsel in a wide variety of sports, including, among others, ice hockey, gymnastics, speedskating, figure skating, football and soccer, rugby, track and field, team handball, equestrian, table tennis, triathlon, wrestling, tennis, taekwondo, volleyball, boxing, cycling, sailing, and complex disputes and transactions involving sponsorships, film financings and production, technology, licensing, and live events.

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Jennifer K. Yuen

Jennifer K. Yuen

Jennifer K. Yuen is a sports and entertainment lawyer based in Los Angeles, admitted to practice in California. In her practice, Ms. Yuen has appeared before the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland, as well as before the International Chamber of Commerce (ICC).
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Navid Nazer

Navid Nazer

Navid Nazer is a third-year student at Pepperdine University School of Law pursuing a JD and a Certificate in Dispute Resolution from the Straus Institute for Dispute Resolution with an expected graduation date of May 2015.
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