Key CAS Ad Hoc Division cases handed down at the Olympic GamesChristian Keidel, Alexander Engelhard
With the 2016 Summer Olympic Games in Rio in August 2016, sport arbitration is going to face again immense pressure to effectively resolve legal disputes in a narrow time window. For the eleventh time, the Court of Arbitration for Sport Ad Hoc Division (CAS AHD) will hold on-site hearings in disputes related to the Olympic Games and will deliver decisions within 24 hours from the submission of the claim, or within a timeframe compatible with the competition schedule. The CAS AHD as a so-called “CAS-Firefighter”1 has become indispensable to the Olympic Games and has received worldwide recognition for the awards that it renders with the utmost speed.2
This article examines several recent and significant CAS AHD decisions from prior Olympic Games to give context and insight into some of the substantive issues that may arise for the body over the coming weeks. It follows on from the authors’ related article The legal framework of the CAS Ad Hoc Division at the Rio Olympic Game, which explains the legal framework and operation of the CAS AHD at Rio 2016 (and which we suggest is read first).
Questions of CAS AHD Jurisdiction
The first decisive issue in a CAS AHD proceeding is whether the CAS AHD actually has jurisdiction over the dispute. As previously mentioned, the jurisdiction of the CAS AHD to hear disputes between athletes and the IOC, the relevant NOCs and the international federations in connection with the Olympic Games, derives from the Entry/Eligibility Conditions Form that the participating athletes are required to sign.
A problem arises as such forms are usually not signed by athletes who are not nominated by their NOC to participate in the Games, which is the exact reason why they would submit an application before the CAS AHD. At the 2012 Summer Olympic Games in London, the CAS AHD was faced with this exact problem in the case of the show jumper Denis Lynch. Following a decision passed by the Irish NOC and Horse Sport Ireland (HSI), Mr Lynch was not nominated to be part of the Irish Olympic team.3 Mr Lynch challenged the decision before the CAS AHD. HSI objected to the jurisdiction of the CAS AHD as Mr Lynch had neither signed the Eligibility Conditions Form of the IOC nor had he submitted to the statutes of the Irish NOC or those of HSI granting jurisdiction to the CAS for challenges against Olympic nomination decisions.
The CAS AHD ruled that it did not have jurisdiction to hear the dispute. The panel rejected Mr Lynch’s argument that when in doubt, the CAS always has jurisdiction to rule on sport-related disputes. This jurisdictional problem can be avoided by NOCs entering into agreements with athletes granting jurisdiction to the CAS as part of the appointment procedure.4
As mentioned, the CAS AHD only has jurisdiction when the dispute arises during the Olympic Games or during the ten days preceding the Opening Ceremony (Article 1 CAS Ad Hoc Rules). The CAS AHD verifies the fulfilment of this jurisdictional prerequisite even when none of the Parties to the arbitration invoke the lack thereof. The timing of when a dispute arises is to be determined through an objective interpretation of the parties’ actions, according to CAS AHD jurisprudence. In the matter WADA v Zachery Lund,5 the latter had tested positive for Finasteride.
U.S. Anti-Doping Agency (USADA) issued on 22 January 2006 the decision not to sanction him. This decision was notified to WADA on 23 January 2006. The Olympic Games in Turin were opened on 10 February 2006, hence the jurisdiction of the CAS AHD began on 1 February 2006. On 2 February 2006, WADA challenged the decision before the CAS AHD. The CAS AHD found the application to be admissible, although WADA had received the USADA decision on 23 January 2006 and one could have assumed that the dispute arose when the challenged decision was notified. The CAS AHD interpreted this differently and noted that the dispute arose when WADA’s application was submitted and that it was thus competent to hear the matter.6
Since then the CAS AHD has applied a stricter standard in determining when a specific dispute arises, last in a case at the 2014 Winter Olympic Games in Sochi involving Ms Maria Birkner, an Argentinean alpine skier.7 On 20 January 2014, Ms Birkner was informed by the Argentinean Ski Federation (“FASA”) that she had not been selected to compete in the Olympic Games. On the same date, the athlete’s coach was informed that the reasons for her non-selection were performance-related. Ms Birkner applied to the CAS AHD, requesting that she be selected by the Argentinian Olympic Committee (COA), alleging that the decision not to nominate her was made based on purely political reasons.
The CAS AHD found that it had no jurisdiction to hear the matter, as the Opening Ceremony of the Sochi Games took place on 7 February 2014, and in this case, the dispute had arisen on the date on which Ms Birkner received the reasons for her non-selection, namely on 20 January 2014. The panel also emphasised that no further information was needed in order for the dispute to be considered as having occurred.
Regarding the prerequisite that all internal remedies must be exhausted prior to an appeal to the CAS AHD, a Sole Arbitrator during the 2012 Summer Olympic Games in London dismissed a claim brought by the Russian Olympic Committee (ROC) against the International Sailing Federation (ISAF) due to lack of jurisdiction, because the ROC had failed to seek redress with an “ISAF jury office” prior to filing its appeal in accordance with the applicable rules.8
Nomination for the Olympic Games
Many athletes and teams consider filing a claim with the CAS AHD as a last chance to secure participation in the respective Olympic Games. Hence, a multitude of claims lodged before the CAS AHD concern the athletes’ selection for the Games. At the 2000 Summer Olympic Games in Sydney, seven out of fourteen CAS AHD cases concerned selection-related questions.9 At the 2010 Winter Olympic Games in Vancouver, all four cases ruled upon by the CAS AHD regarded athletes’ selection for the Games.
An important aspect about the decisions of the CAS AHD on selection-related issues is the difference between purely objective nomination criteria, and criteria that give the deciding federation discretion in the selection process. In a decision rendered at the 2006 Winter Olympic Games in Turin, the CAS AHD found that selection decisions are discretionary decisions when the selection criteria laid out are not of an exclusively objective nature.10 If a federation can exercise discretion upon selection, according to the CAS AHD such decision cannot be challenged when it was passed in a “reasonable, fair and non-discriminatory” manner. The CAS AHD confirmed that it is required to respect the federations’ discretionary powers and that only in cases where the respective powers are abused such decisions can be overturned.
An interesting decision relating to athlete selection concerned the Italian snowboarder Ms Isabella Dal Balcon.11 In this case, the CAS AHD heard an appeal lodged by Ms Dal Balcon against a decision of the Italian Olympic Committee (“CONI”), not to select Ms Dal Balcon for the Parallel G Slalom Snowboard Team participating in the 2006 Winter Games. The athlete had indisputably qualified for the Games according to the nomination criteria issued by the Italian federation in October 2005.
However, in January 2006 the head coach of the Italian team found the criteria to be unfair towards athletes who had been injured during the qualification phase and thus amended the criteria, for which he was competent in accordance with the regulations. The amendment was communicated orally to the athletes. At the time of notification, Ms Dal Balcon was not present. The consequence of the amendment was that Ms Dal Balcon lost her place in the team. She therefore requested the CAS AHD to overturn the decision against her selection and to order the Respondent to nominate her for the Women’s Parallel G Slalom competition at the Olympic Games.
The panel upheld the appeal, as it regarded the late amendment in the nomination criteria as being carried out arbitrarily. On the basis of the narrow timeframe until the beginning of the snowboard competitions, the panel did not refer the matter back to the Respondent, but instead ordered that Ms Dal Balcon be declared selected to the Italian snowboard team for the Parallel G Slalom.
In a proceeding before the CAS AHD during the 2014 Summer Olympic Games in Sochi, the Austrian freestyle skier Ms Daniela Bauer challenged the decision of the Austrian Ski Federation (ASF) not to nominate her to compete in the Games in the female halfpipe freestyle discipline.12
In advance of the Olympic Games, Ms Bauer had received an e-mail from an employee of the ASF informing her that, should Austria receive a quota place for the halfpipe freestyle skiing discipline, she would be awarded that place. The slot was indeed allocated to the ASF, but the Austrian federation decided not to recommend Ms Bauer to the Austrian Olympic Committee (AOC) for nomination, reasoning that she lacked the necessary technical skills to compete for Austria in her discipline at the Olympic Games and that she did not have the same potential as other younger athletes. Ms Bauer applied to the CAS AHD, seeking to be admitted to the Games.
She argued that the ASF acted in an unreasonable and unfair manner, which led to the AOC’s decision not to select her. The panel dismissed the athlete’s application, finding that neither the ASF nor the AOC had discriminated against her. As the ASF had based its decision not to recommend Ms Bauer on her sporting performance, it had not acted arbitrarily, unfairly or unreasonably, the CAS AHD held.
Another contested issue in CAS AHD jurisprudence involves decisions made in competitions, for instance, by referees. In this regard, the prerequisite that all internal remedies must be exhausted according to Article 1 para. 2 Ad Hoc Rules also applies to challenges against in-competition decisions.13
The Canadian Olympic Committee (COC) filed a challenge against the International Skating Union (ISU), requesting that the third-place participant in a Short Track Race be disqualified. The COC alleged that the race judges erroneously regarded the behaviour of the athlete as permissible, although the subsequent bronze medallist had breached an ISU racing rule.14 Pursuant to ISU Rules, protests against in-competition decisions shall be lodged in writing before the race judges. At the same time, another ISU Rule stated that protests concerning breaches of racing rules were not admissible. Shortly after the race in question, the Canadian team leader informed a race judge that the Canadian team would lodge a protest regarding the behaviour of the bronze medallist.
The race judge replied that such protest would have no chance of success, as it concerned an alleged breach of a racing rule. A written protest of the Canadian team was thus not submitted, instead the Canadian NOC filed a challenge before the CAS AHD and requested the bronze medallist’s disqualification.
The CAS AHD determined that the Canadian team should have submitted a written protest in accordance with the ISU regulations despite the race judge’s statement. It was the responsibility of the participating teams to be acquainted with the regulatory framework and the Canadian team could not justify the omission to lodge a written protest by invoking the statement of the race judge. Consequently, the CAS AHD found that the claim was to be dismissed, as the internal remedies had not been properly exhausted by the applicant.
Another competition-related decision was rendered by the CAS AHD at the 2014 Winter Olympic Games in Sochi.15 This decision regarded the final of the Men’s Ski Cross competition. The applicants – the Canadian Alpine Skiing Federation (“CASF”), the COC and the Olympic Committee of Slovenia (SOC) requested the disqualification of all three French medal winners alleging that the ski suits used by the French team were not in conformity with the International Freestyle Skiing Competition Rules. All three applicants had filed written protests with the race judges approximately six hours after the end of the race. The CAS AHD rejected the applications, as in accordance with the International Freestyle Skiing Competition Rules, such protests should have been submitted in writing within fifteen minutes of the end of the competition. The panel pointed out that the delay of six hours until the filing of the protests was not justified, especially as the race footage was reviewed by the applicants’ coaching staff shortly after the race was completed. As it had found that the protests were not lodged within the prescribed deadline, the panel did not touch upon the merits of the claim.
In general, the CAS jurisprudence demonstrates that challenging “field of play decisions” made by race judges is extremely difficult. CAS overturns such decisions only if made arbitrarily or in bad faith. This was confirmed yet again by the CAS AHD at the 2012 Summer Olympic Games in London.16
This case concerned the extremely close finish in the Women’s Triathlon competition, where, pursuant to the race judges, the Swiss Nicola Spirig and the Swede Lisa Norden crossed the finish line simultaneously, but the Swiss athlete was declared as the winner after the finish line photo was analysed.
The Swedish Triathlon Federation and the Swedish NOC requested before the CAS AHD that the decision be overturned and a simultaneous finish of the two athletes be decided. The claimants indicated that this matter did not concern a “field of play decision”, but that the race judges had simply not applied correctly the rules of the International Triathlon Union (“ITU”). According to the claimants, the race judges had ignored the ITU rule, according to which the torso of an athlete is the decisive body part for crossing the finish line and had instead taken the abdomen of the athletes into account, to the benefit of the Swiss athlete. The applicants further stated that the torso of the gold medallist was concealed by that of the Swedish athlete and for this reason the race judges should have decided on a simultaneous finish (a “dead heat”).
The CAS AHD did not engage the discussion concerning the finish line, but found that the race judges, after having analysed the finish line photos, had determined that the torso of the Swiss athlete had crossed the finish line before that of the Swedish athlete. This would constitute a “field of play decision” and there were no indications that the race judges had made it arbitrarily or in bad faith. Thus, the application was dismissed.
We hope that this case summary provides useful context for some of the contentious issues that we may see arise over the coming weeks at Rio 2016. Again, to read about the how the CAS AHD will operate at Rio 2016 please see the authors’ related article The legal framework of the CAS Ad Hoc Division at the Rio Olympic Game.
- Netzle, SpuRt 2008, 231.
- Gerry Tucker & Antonio Rigozzi, Sports Arbitration for the 2008 Beijing Olympic Games, 69 ARB. 2003 184-199; Michael J. Beloff, The CAS Ad Hoc Division at the Sydney Olympic Games, 2 INT'L SPORTS REV. 2001 105; Richard McLaren, CAS Ad Hoc Division: An Olympic Experience!, SchiedsVZ 2004 187; Domenico Di Pietro, The Ad Hoc Division of the Court of Arbitration for Sport at the Athens 2004 Olympic Games: An Overview, Andreas Zagklis, The CAS Ad hoc division at the XX Olympic Winter Games in Turin.
- CAS OG 12/03 Denis Lynch v Horse Sport Ireland & Oympic Council of Ireland.
- CAS OG 06/02 Andrea Schuler v Swiss Olympic & Swiss Ski, https://www.centrostudisport.it/PDF/TAS_CAS_ARCHIVIO/196.pdf
- CAS OG 06/01 WADA v Zachary Lund, USADA and others, https://www.usada.org/wp-content/uploads/CAS-Decision_Zach-Lund_Feb-20061.pdf
- Ibid.; also CAS OG 06/02 Andrea Schuler v Swiss Olympic & Swiss Ski.
- CAS OG 14/003 Maria Birkner v Argentinean Olympic Committee & Argentinean Ski Federation, https://www.tas-cas.org/fileadmin/user_upload/DOC.pdf
- CAS OG 12/11 Russian Olympic Committee v International Sailing Federation. https://arbitrationlaw.com/files/free_pdfs/cas_2012.og_.12.11_roc_v_isf.pdf
- Martens/Oschütz, SpuRt 2001 4 (5)
- Martens/Oschütz, SpuRt 2006 144 (145); CAS OG 06/02 Andrea Schuler v Swiss Olympic & Swiss Ski, https://www.centrostudisport.it/PDF/TAS_CAS_ARCHIVIO/196.pdf
- CAS OG 06/008 Dal Balcon v CONI & Federazione Italiana Sport Invernali. https://www.centrostudisport.it/PDF/TAS_CAS_ARCHIVIO/199.pdf
- CAS OG 14/01 Daniela Bauer v Austrian Olympic Committee & Austrian Ski Federation. https://www.tas-cas.org/fileadmin/user_upload/Award2014-0120_FINAL_.pdf
- See also CAS OG 12/11 Russian Olympic Committee v International Sailing Federation, https://arbitrationlaw.com/files/free_pdfs/cas_2012.og_.12.11_roc_v_isf.pdf
- CAS OG 06/006 Canadian Olympic Committee v International Skating Union, https://www.centrostudisport.it/PDF/TAS_CAS_ARCHIVIO/198.pdf (last accessed 4 Aug 2016)
- CAS OG 14/04 Alpine Canada Alpin, Canadian Olympic Committee & Olympic Committee of Slovenia v. International Ski Federation & International Olympic Committee.
- CAS OG 12/10 Swedish Triathlon Federation & Swedish National Olympic Committee v International Triathlon Union.
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- Tags: Anti-Doping | Arbitration | Argentinian Olympic Committee | Austrian Olympic Committee | Austrian Ski Federation (ASF) | Brazil | Canadian Alpine Skiing Federation (CASF) | Canadian Olympic Committee (COC) | CAS Arbitration Rules for the Olympic Games | Court of Arbitration for Sport (CAS) | Court of Arbitration for Sport Ad Hoc Division (CAS AHD) | Court of Arbitration for Sport Anti-Doping Division | Czech Olympic Committee (COC) | Dispute Resolution | Horse Sport Ireland (HSI) | International Olympic Committee (IOC) | International Sailing Federation (ISAF) | International Triathlon Union (ITU) | Italian National Olympic Committee (CONI) | NOC (National Olympic Committee) | Olympic | Olympic Charter | Olympic Committee of Slovenia (SOC) | Olympic Games Rio de Janeiro 2016 | Paralympic | Procedural Rules of the CAS Anti-Doping Division | Russian Olympic Committee | Selection Disputes | Swedish National Olympic Committee | US Anti-Doping Agency (USADA) | Winter Games
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About the Author
Christian Keidel is a salary partner at Martens Lawyers in Munich, Germany. He joined Martens Lawyers as part of the initial spin-off team from Beiten Burkhardt, an international commercial law practice. Christian holds a legal degree from the University of Munich and has also studied at the University of Seville.
Alexander Engelhard is a senior associate at ARNECKE SIBETH in Frankfurt, Germany. He advises German and international clients in the sports, media and entertainment industry. His particular focus is on dispute resolution, especially in sports-related cases. He also advises clients on the drafting of rules and contracts, including agreements dealing with copyright and media law. As a former Vice-President of the FIFA Master Alumni Association (FMA) Alexander has access to a global network in sport.