Disputes arising out of or relating to the 2014 Olympic Winter Games in Sochi Part 2Jeffrey Benz, Jennifer K. Yuen, Navid Nazer
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 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.
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.
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 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.
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.
IOC DISCIPLINARY COMMISSION DOPING CASES
All totaled, eight athletes tested positive for a prohibited substance during the Sochi Games.10 For each case, the IOC convened a Disciplinary Commission to consider evidence related to the doping positive and to address issues related thereto concerning participation in the Olympic Winter Games. Three of the athletes tested positive for methylhexaneamine (dimethlypentylamine): Evi Sachenbacher-Stehle (Germany-Biathlon), William Frullani11 (Italy-Bobsleigh), and Vitalijs Pavlovs (Latvia-Ice Hockey). In each case, the athlete did not challenge the positive test result, but stated that they were unaware of how the prohibited substance entered their bodies. However, they each acknowledged they were ingesting nutritional supplements and were aware of the risk that such supplements may be contaminated with a prohibited substance even if it was not listed on the product label, although in the case of Frullani, Antonio Spataro, Chief Medical Officer of the Italian National Olympic Committee (“CONI”), claimed12 the athlete may not have been fully aware of the risks associated with taking nutritional supplements.
Likewise, Daniel Zalewski (Poland-Bobsledding) also failed his doping test due to the existence of a prohibited substance in a nutritional supplement, N-ethyl-1-phenylbutan-2-amine. Via a written statement to the IOC Disciplinary Commission, Zalewski stated that he had disclosed that he was taking Creatine and Amino Protein on his Doping Control Form, but had failed to disclose that he was also taking “Craze”13 which is manufactured by “Driven Sports.” He further stated that he had checked all the supplements against the WADA website to ensure the supplements did not contain a prohibited substance. However, the IOC Disciplinary Commission noted that a quick internet search with the words “Craze”, “Driven Sports,” and “doping” would have revealed that “Craze” contained a prohibited substance.
In the case of Marina Lisogor (Ukraine-Cross Country Skiing), the IOC Disciplinary Commission unanimously concluded that she had acted with negligence. According to Lisogor’s statement at the hearing, she was prescribed Preductal (trimetazidine) in January 2013 to treat fatigue that was believed to be the result of her hypothyroid condition, and she had six remaining pills after taking the medication for two weeks. She took these pills with her to Sochi and ingested them when she started to feel unwell following a training session on February 16th and 17th. She further failed to list the medication on the doping control form and did not check WADA’s list of prohibited substances after January 2014, when trimetazidine was added to the list.
Swedish ice hockey player, and NHL Washington Capitals star center, Nicklas Backstrom was excluded from competing in the Men’s Ice Hockey Final after testing positive for the presence in his sample of pseudoephedrine14 in excess of the allowable amount. The Swedish team went on to play the match without Backstrom and was awarded the silver medal. However, on 13 March 2014, the IOC Disciplinary Commission ruled that Backstrom should not be disqualified from the Sochi Games and therefore, was entitled to receive his silver medal because he was cooperative and disclosed on the doping control form that he had taken Zyrtec-D which contained the offending substance. Further, there was nothing to indicate that Backstrom intended to improve his performance by taking a prohibited substance and he only ingested Zyrtec-D15 on the advice of Dr. Bjorn Waldeback, the Chief Medical Officer of the Swedish Olympic Committee. Regardless, it was noted that the original decision to exclude Backstrom was proper because he tested positive for pseudoephedrine and admitted to taking Zyrtec-D. The IOC’s public statements on this case are few, but they appear to leave in place the finding of an adverse analytical finding, though the punishment was reduced. There may well be questions about the circumstances under which the threshold was measured (unlike in years past, pseudoephredrine is now measured against a threshold minimum amount before a positive may be declared) and the testing and sample collection occurred.16 It remains to be seen whether this case will be challenged.
Johannes Duerr (Austria, Cross-Country Skiing) tested positive for recombinant erythropoietin (EPO)17 and was provisionally suspended from competition on 23 February 2014. On 4 March 2014, Duerr indicated via a letter sent by his legal counsel that he would not attend the hearing or submit a defense writing, thereby waiving his right to be heard before the IOC Disciplinary Commission. During the hearing, it was noted that in addition to his positive test results, Duerr had also admitted to the press that he had taken EPO prior to the Sochi Games which confirmed for the IOC Disciplinary Commission that the presence of EPO was “associated with planned, sophisticated, systematic and organized doping practices”.18
On 22 February 2014, Ralfs Freibergs (Latvia-Ice Hockey) tested positive for dehydrochloromethly-testosterone metabolite 18-no-17b-hydroxymethyl-17-a-methl-4-chloro-5b-andrsost-13-en-3a-ol (the “Prohibited Substance”). Upon request by Freibergs, the second sample was tested which confirmed the first analytical finding. The IOC Disciplinary Commission held a hearing on the matter on 4 April 2014. Freibergs’ legal counsel appeared on his behalf and challenged the validity of the test results arguing: 1) a previous sample taken by the Latvian Olympic Committee from Freibergs was tested at a WADA accredited laboratory in Helsinki on 3 February 2014 and showed no trace of a prohibited substance; 2) the anti-doping laboratory where the samples from the Sochi Olympic Winter Games were tested had not been properly accredited and that the documents received from this laboratory contained inconsistencies and annotations without initials in violation of international standards; and 3) Freibergs had not received the written form to request a second confirmatory test nor did he provide such written confirmation (though he did admit he gave oral instructions that the confirmatory test be conducted).
The IOC Disciplinary Commission upheld the positive result from the sample tested taken during the Sochi Winter Games stating that the previous test results from the lab in Helsinki were irrelevant.19 Further, they found that the laboratory in Helsinki was not a WADA accredited laboratory and did not have the material necessary to test for the specific prohibited substance found in Freibergs’ sample. With regard to the accreditation of the laboratory where Freibergs’ sample was tested the IOC Disciplinary Commission further stated that the laboratory where Freibergs’ sample was tested in Sochi had been issued an accreditation certificate and WADA confirmed that the lab was WADA accredited and was in compliance with Articles 4.5.1 and 4.5.2 of the International Standards for Laboratories. With respect to the alleged violation of international standards, the IOC Disciplinary Commission stated the “inconsistencies” were minor elements which had no relation or effecting on the testing of the sample. Lastly, the IOC Disciplinary Commission stated that Freiberg had been properly notified of his right to request a confirmatory test in accordance with Article 6.3.3 of the Anti-Doping Rules and that there is no requirement with regard to the form of an athlete’s request for a confirmatory test. Thus, Freibergs’ positive test result was upheld and he was disqualified from the Sochi Olympic Winter Games.
Although Backstrom eventually received his silver medal, all of the seven athletes who failed their doping tests were immediately disqualified from the Sochi Games and any remaining events in which they were scheduled to compete or in which they already competed. Evi Sachenbacher-Stehle was disqualified from the Women’s 12.5km Mass Start Biathlon event as well as the 2x6km Women + 2x7.5km Men Mixed Relay Biathlon event.20 The IOC further ordered that she return the diplomas she was awarded for her fourth place finishes in the two events. Her teammates in each of these events were also ordered to return their awards. William Frullani was also disqualified from the Sochi Games, but had not yet competed.21 Vitalijs Pavlovs, a member of the Latvian Men’s Hockey team, was disqualified from the Men’s Playoffs Quarterfinals versus Canada.22 Daniel Zalewski was disqualified from the four-man bobsleigh event where he placed twenty-seventh as were his three teammates with whom he competed with in that event. Johannes Duerr was disqualified from the Men’s 15km + 15km Skiatholon event where he placed eighth.23 Marina Lisogor, a cross-country skier was disqualified from the Ladies’ Team Spring Classic Semifinal B event.24 As a result of Lisogor’s membership on the team and disqualification, the Ladies’ Team Sprint Classic team was also disqualified from participating.25 Ralfs Freibergs was disqualified from the Men’s Ice Hockey Quarter Final Match and his 8th placement was withdrawn.26 Finally, Backstrom was excluded from participating in the Men’s Final in Ice Hockey.27
Article 11.2.1 of the IOC Anti-Doping Rules28 permit an athlete subject to the jurisdiction of the IOC Disciplinary Commission to appeal the decision to CAS. Pursuant to Article 11.5 of the IOC Anti-Doping Rules, any appeal to CAS must be filed within twenty-one (21) days from the date the decision being appealed against was received.29 Thus, the time in which any of the athletes in question could have appealed the IOC decision to CAS has now expired but since the filing of an appeal does not need to be made public it may well be that we will not know who has appealed, if anyone, any of the decisions of the IOC Disciplinary Commission until after a final, reasoned CAS award issues.
The record is not clear on how well athletes were assisted in the IOC Disciplinary Commission proceedings by their affiliated personnel, nor is it clear, given the very tight timeframes for these proceedings arising at the Olympic Games, whether athletes charged with doping offenses could, as a practical matter, have access to effective legal and other professional advice before appearing before the IOC Disciplinary Commission, though the applicable IOC rules allow for athletes to be represented by individuals of their choosing in the proceedings.
The athletes’ respective IFs will be required to address the underlying athlete doping positives with respect to suspension from future competitions and other anti-doping effects. In the case of Sachenbacher-Stehle, this has already been done as the International Biathlon Union announced that on 14 July 2014 its internal arbitration panel had determined that she should be sanctioned with a period of ineligibility for 2 years commencing as of the date of sample collection on 17 February 2014.30 She has 21 days from 14 July 2014 to appeal to CAS.
SOCHI DOPING DEVELOPMENTS--A NEW SUBSTANCE AND METHOD?
- The athletes in the cases discussed above were almost unanimously unsuccessful in their challenges to the decisions of the sports governing bodies. In both the Selection Procedure Cases and the disputes resolved by the CAS AHD, the hearing body strictly interpreted the rules set forth by the international and/or national federations and would not overturn the challenged decision unless it was clear that the applicable rules had not been followed. Athletes cannot simply allege detrimental conduct or improper motive directed at them; they must be able to prove it. In addition, the Selection Procedure Cases arising outside of the US or before the CAS AHD demonstrate that federations may rely on less than objective or clear performance considerations as a factor in selections provided they otherwise follow the standards for review of such decisions. Only time will tell whether this loose standard of review of selection cases will prove sound in the future.
- Time continues to be an important determinant of success in these cases. The CAS AHD cases demonstrate that time can affect jurisdiction in fundamental ways. You must file your selection or results-based case within the requisite time period or you may lose the ability to have your case heard because the CAS or other hearing tribunal may not be seized with jurisdiction as a result.
- Compared to prior Olympic Games, a relatively high number of athletes tested positive for a prohibited substances—compare the eight cases from Sochi with the lone case arising in Vancouver just four years earlier. Whether this can be read as boding well for the anti-doping system in that the anti-doping organizations are catching more than they were not able to catch before, or as boding poorly for the anti-doping organizations insofar as there are more athletes engaging in prohibited conduct, remains to be seen.
- Backstrom was the only doping offense charged athlete who was not ultimately excluded from the Sochi Games even though he and the other four athletes explicitly stated that they had no intention to improve their performance by use of a prohibited substance. The difference between Backstrom and the other athletes who tested positive appears to be the degree of mitigation and care exercised by the athlete. Backstrom only took Zyrtec-D after speaking with the Chief Medical Doctor of the Swedish Olympic Committee (who basically took the fall for Mr. Backstrom’s violation), whereas, for example, Lisogor neglected to familiarize herself with the 2014 Prohibited Substance List and the remaining three athletes took nutritional supplements, knowing there was a risk of contamination or mislabeling. The degree of care exercised by the athlete continues to be an important and fundamental determining factor in the IOC’s, and any other hearing body’s, final decision on cases where inadvertent use is claimed especially in light of the provisions in the World Anti-Doping Code allowing for penalty reduction where the appropriate standard of athlete conduct can be shown to have been met.
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- Tags: Alpine Canada Alpin | American Arbitration Association North American Court of Arbitration for Sport (AAA) | Canadian Olympic Committee | Comite Olimpico Argention (COA) | Court of Arbitration for Sport (CAS) | Court of Arbitration for Sport Ad Hoc Division | Dispute Resolution | Federacion Argentina de Ski y Andinisimo (FASA) | International Council of Arbitration for Sport (ICAS) | International Olympic Committee Anti-Doping Rules Applicable to the XXII Olympic Winter Games in Sochi in 2014 | International Skiing Federation (FIS) | IOC | IOC Executive Board | National Ice Skating Association of Great Britain and Northern Ireland (NISA) | Olympic Charter | Olympic Committee of Slovenia | Russia | Sochi 2014 | Sport Resolutions (UK) | United States Olympic Committee (USOC) | United States Olympic Committee Bylaws | Winter Games
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- IOC sanctions Latvian Ice Hockey Player Ralfs Freibergs for failing anti-doping test at Sochi 2014
- Disputes arising out of or relating to the 2014 Olympic Winter Games in Sochi Part 1
About the Author
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.