Plans underway for pro bono legal services for the 2020 Tokyo Olympic and Paralympics GamesKei Ikuta
Many international sports-related disputes (including disputes relating to doping issues and contractual disputes between athletes and their clubs) have been settled by arbitration or mediation procedures before the Court of Arbitration for Sport (CAS). In order to promptly resolve sports-related disputes that arise during Olympic Games, the CAS temporarily establishes an ad hoc division (Ad Hoc Division) and an Anti-Doping division (Anti-Doping Division) in the host city.
In this connection, since the 2012 London Olympic and Paralympic Games, lawyers have carried out pro bono activities in host countries by providing free legal services to athletes and others who are involved in the Games. These legal services include representing athletes and others in arbitration proceedings administered by the Ad Hoc Division and the Anti-Doping Division, and legal consultation services for general legal issues.
This article provides a brief overview of:
The CAS’s activities relating to the Olympic Games;
The pro bono activities carried out by lawyers in London 2012 and Rio de Janeiro 2016; and
The preparations being made for the pro bono legal services to be provided in Japan for the upcoming 2020 Tokyo Olympic and Paralympic Games.
CAS’s activities during the Olympic Games
There are two types of ordinary arbitration proceedings administered by the CAS:
The Ordinary Arbitration Procedure deals with disputes resulting from contractual relations or torts; and,
The Appeal Arbitration Procedure handles appeal cases with regard to decisions taken by internal bodies of sports organisations (including their decisions on cases of doping violations).
In addition to these two ordinary arbitration proceedings, the CAS temporarily establishes an Ad Hoc Division and an Anti-Doping Division in the host city when Olympic Games are held. The purpose of these Divisions is to promptly resolve sports-related disputes arising in connection with the Games.
Ad Hoc Division
The CAS has established Ad Hoc Divisions in host cities for the Olympic Games since the 1996 Atlanta Olympic Games, with a general principle of rendering a decision within 24 hours of the lodging of an application1.
The jurisdiction of the Ad Hoc Division covers "any dispute arising on the occasion of, or in connection with, the Olympic Games," insofar as it arises during the Olympic Games or during the 10-day period preceding the Opening Ceremony of the Olympic Games2. During this period, the International Council of Arbitration for Sport (ICAS), which is responsible for the administration and financing of the CAS, establishes an Ad Hoc Division and selects, from the CAS’s general list of arbitrators, several arbitrators who will be involved in the Ad Hoc Division3. The members of the Ad Hoc Division will be present in the host city during the active period of the Ad Hoc Division. Statistics show that the Ad Hoc Division has dealt with between 5 and 28 arbitration cases in each Olympic Games4.
In addition to the Olympic Games, an Ad Hoc Division has been established in the host countries of various international competitions, such as the Commonwealth Games (since 1998), the UEFA European Championships (since 2000), the FIFA World Cup (since 2006) and the Asian Games (since 2014)5.
The CAS has also established Anti-Doping Divisions in host cities since the 2016 Rio de Janeiro Olympic Games. An Anti-Doping Division is established in addition to the Ad Hoc Division to render rulings on violations of the IOC Anti-Doping Rules.
If an alleged violation of the IOC Anti-Doping Rules arises in connection with the Olympic Games, the Anti-Doping Division decides whether there has actually been a violation of the IOC Anti-Doping Rules and whether there should be any sanctions, if applicable6. If a party is not satisfied with the decision of the Anti-Doping Division, the party may appeal to the Ad Hoc Division or through the CAS’s ordinary arbitration procedure (the Appeal Arbitration Procedure) if the Ad Hoc Division is no longer in operation7. As with the Ad Hoc Division, the ICAS selects arbitrators who constitute the Anti-Doping Division from the CAS’s general list of arbitrators8. According to the CAS’s statistics, the Anti-Doping Division handled 13 cases at the 2016 Rio de Janeiro Olympic Games9.
Past pro bono activities relating to Olympic and Paralympic Games
Since the 2012 London Olympic and Paralympic Games, lawyers in host countries have provided athletes and others who are involved in the Games with pro bono legal services, including general legal consultation services and representation services for the Ad Hoc Division, at the Olympic and Paralympic Games. The purpose of the pro bono legal services is to contribute to the smooth operation of the Olympic and Paralympic Games by providing free legal advice to athletes and others who are involved in legal problems in the host country. As mentioned above, the Ad Hoc Division is, in principle, required to give its decision within 24 hours of the lodging of an application and, as a consequence, each party has to take extremely prompt actions in the course of the arbitration proceedings. Therefore, it is considered particularly useful for athletes who are not accompanied by legal counsel during the Games to utilise the pro bono services in the host country so that necessary actions can be taken in a timely and appropriate manner10.
2012 London Olympic and Paralympic Games
During the 2012 London Olympic and Paralympic Games, a collection of leading barristers’ chambers, solicitors’ law firms and individual practitioners was organised to provide athletes and others who are involved in the Games with:
legal advice in the fields of sports law, criminal law, defamation and privacy law, immigration law, discrimination law and personal injury law, and,
representation services before the Ad Hoc Division and other IOC/IPC hearings (London 2012 Pro Bono Legal Advice and Representation Service).
From over 150 applications, (i) 17 barristers’ chambers and solicitors’ firms were selected to provide legal advice services and (ii) 18 individual advocates were appointed to be in charge of the representation services11.
The London 2012 Pro Bono Legal Advice and Representation Service was overseen by a management committee, which was composed of representatives from the Bar Council, the Law Society and the British Association of Sport and Law. Sport Resolutions, a national dispute resolution service for sport in the UK, served as the secretariat of the management committee and managed the operation of the services by, among others, coordinating schedules of law firms and individual lawyers to ensure that 24-hour responses were made during the Games.
It has also been reported that the London Organising Committee of the Olympic and Paralympic Games provided effective advice in the implementation of the services, and that the National Olympic Committee and the Paralympic Committee played important roles as information centres in the dissemination of the services.
The London 2012 Pro Bono Legal Advice and Representation Service received nine inquiries and six applications with respect to the Olympic Games12 and two inquiries and one application with respect to the Paralympic Games. According to Sport Resolutions, the assistance provided by the members of the service was extremely well received and the feedback received from applicants on the efficacy and value of the service was excellent13.
Following the 2012 London Olympic and Paralympic Games, as a legacy of the Games, Sport Resolutions has created a list of pro bono lawyers that includes many lawyers who were in charge of the London 2012 Pro-Bono Legal Advice and Representation Service. These pro bono lawyers have been available to assist individuals of limited financial means before domestic sporting tribunals, including Sport Resolutions panels14.
2016 Rio de Janeiro Olympic Games15
During the 2016 Rio de Janeiro Olympic Games, the Rio de Janeiro Bar Association organised a pro bono legal project and provided athletes with representation services for the Ad Hoc Division and the Anti-Doping Division free of charge (2016 Olympic Games Pro Bono Arbitration Counsel Program). Unlike the London 2012 Pro Bono Legal Advice and Representation Service, the 2016 Olympic Games Pro Bono Arbitration Counsel Program did not provide legal consultation services and therefore the services available were limited to those relating to the Olympic Games and were not active during the period of the Paralympic Games, for which the Ad Hoc Division and the Anti-Doping Department were not in operation.
With regard to the selection of lawyers in charge of the program, based on the criteria of:
having experience in international arbitration and/or sports law;
being fluent in at least three languages;
having more than five years’ experience in practice; and,
being under 40 years old, 30 leading law firms in Rio de Janeiro which have a practice in the field of international arbitration each recommended a candidate, and then 24 young lawyers were selected from among these candidates.
Two-thirds of the selected young lawyers were men and one-third were women, and one half of the total number were international arbitration experts and the other half specialised in sports law. All of them were fluent in Portuguese, English and another language, which included French, Spanish and Chinese.
CAS staff visited Rio de Janeiro and held two four-hour seminars for the selected lawyers, the curriculum content of which included the structure of the CAS and the applicable rules of the CAS’s ad hoc arbitration. In addition, the Rio de Janeiro Bar Association, together with experts familiar with sports law, held two whole-day seminars as well as weekly workshops in the last two months to study the jurisprudence of the CAS.
The 2016 Olympic Games Pro Bono Arbitration Counsel Program received three requests for representation in relation to the Olympic Games16.
Preparations for 2020 Tokyo Olympic and Paralympic Games
To preserve the legacy of the pro bono legal services (as described above), members of the Japan Sports Arbitration Agency (JSAA), which is a national sports-related dispute resolution centre in Japan17, conducted research regarding past pro bono legal services, and they played an important role to establish the management committee of pro bono legal services for the 2020 Games with the cooperation of various organisations, including bar associations and the Organising Committee of the Games. There are some points that should be mentioned, including the following, with regard to the preparation of the pro bono legal services in Japan.
In Japan, arbitration and mediation procedures administered by the JSAA have been used since 2003 to resolve domestic sports-related disputes. The JSAA has handled and resolved various sports-related disputes, including selection, disciplinary, doping, contract and eligibility disputes, through the arbitration and mediation procedures set forth in the JSAA’s rules18. Also, the number of cases that are brought before the JSAA has been increasing as upcoming big sporting events, such as the 2019 Rugby World Cup and the 2020 Tokyo Olympic and Paralympic Games, gain significant attention from the public19. However, despite the rise in the number of cases, the latest number of cases in the 2018 fiscal year was still around 20. There are still many sports lawyers and arbitrator candidates on the JSAA’s arbitrator list who have not experienced any sports arbitration proceedings in Japan.
In addition, only three cases in which a Japanese individual was a party in connection with the CAS ordinary arbitration procedures can be found on the database of CAS awards:
Ms. Suzu Chiba v. The Japan Amateur Swimming Federation20,
Mr. Kazuki Ganaha v. Japan Profession Football League21, and
Mr. Koji Murofushi & Japanese Olympic Committee v. International Olympic Committee22.
The low number of cases involving Japanese athletes brought before the CAS may have resulted in a lack of Japanese experts who are experienced with the CAS procedures and jurisprudence.
In light of the circumstances above, it is difficult to deny the fact that Japanese lawyers may not be ready at this stage for providing pro bono legal services for the Games, particularly with respect to representation services for the Ad Hoc Division and the Anti-Doping Division. It is important that pro bono lawyers be familiar with the applicable CAS rules of arbitration proceedings and jurisprudence of the CAS. Without a good understanding of these rules and jurisprudence, it is impossible to handle cases before the Ad Hoc Division and the Anti-Doping Division within a limited period of time.
In any case, as the lawyers in Rio de Janeiro did for the 2016 Games, Japanese lawyers will have to gain the required knowledge regarding the CAS rules and awards. On this point, the management committee of pro bono legal services for the 2020 Games is currently in the process of selecting talented pro bono lawyers23 and is planning to hold at least eight training sessions for the selected pro bono lawyers to make them familiar with the CAS rules and awards. The training sessions will include ones that are lectured by CAS personnel and other international sports lawyers specialising in the CAS proceedings.
The gaining of expertise in international sport arbitration through the preparation of pro bono services will lead to the improvement of the relevant arbitration practices in Japan. Of course, the main purpose of the pro bono services is to contribute to the smooth operation of the Games by providing free legal advice to athletes and others who are involved in legal problems in the host country. However, at the same time, we would like to utilise this great opportunity to educate ourselves to move the level of individual sports lawyers to the next stage.24
There are many preparations to make and issues to be resolved by Japanese lawyers to successfully support athletes and others who are competing or otherwise involved in the 2020 Games in Tokyo. Given the short amount of time left, it will be an immense challenge to complete every task in time. However, I am confident that Japanese lawyers will make the pro bono project successful and the project will contribute to the further development of sports law in Japan.
For details analysis and guidance on the CAS Ad Hoc & Anti-Doping Division see the following articles:
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About the Author
Kei Ikuta is a Japanese-qualified lawyer of IKUTA SOGO LEGAL OFFICE based in Tokyo. He is currently working as a case manager for the Japan Sports Arbitration Agency (JSAA), which handles various sports-related cases, including disputes relating to athlete selection, eligibility to participate in sports competitions, disciplinary issues and anti-doping matters that arise between, among others, athletes and sport governing bodies. His main practice area is dispute resolution involving domestic and international clients but he also provides other general legal advice regarding a variety of sports-related matters, such as contract negotiation involving football players/coaches and sponsorship deals. In 2015, he trained at Sport Resolutions, which is an independent dispute resolutions service in the UK for cases concerning sport law.