The legal framework of the CAS Ad Hoc Division at the Rio 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 analyses the legal framework and operation of the CAS AHD and also provides an overview on the newly implemented CAS Anti-Doping Division which will be in charge of all doping-related matters arising during this year’s Olympic Games. In a related article that we suggest is read next Key CAS Ad Hoc Division cases handed down at the Olympic Games the authors move on to examine several recent and significant CAS AHD decisions from prior Olympic Games to provide context and insight into some of the substantive issues that may arise over the coming weeks.
The Legal Framework of the CAS AHD
The Structure of the CAS AHD
The composition of the CAS AHD for the Games in Rio is determined by the International Council of Arbitration for Sport (ICAS) in accordance with Article 3 of the CAS Arbitration Rules for the Olympic Games (Ad Hoc Rules).3 In selecting the arbitrators for the AHD, the ICAS is bound by the Official CAS Arbitrator List,4 in accordance with Article 3 Ad Hoc Rules.
In the past, the CAS AHD was comprised of eight to nine arbitrators, representing all continents according to their origin. The composition of the CAS AHD for the 2016 Summer Olympic Games in Rio was disclosed in December 2015, with twelve arbitrators on the list.5
CAS AHD Jurisdiction
With respect to the jurisdiction of the CAS AHD, Article 1 of the Ad Hoc Rules refers to Rule 61 of the Olympic Charter, which confers upon CAS exclusive jurisdiction to hear:
“any dispute arising on the occasion of, or in connection with, the Olympic Games.”
The special jurisdiction of the CAS AHD as a CAS “division” begins ten days before the Olympic Games Opening Ceremony, and ends with the Closing Ceremony.
The CAS AHD’s competence to hear disputes between the International Olympic Committee (IOC) and National Olympic Committees (NOCs) or International Federations derives from Rule 61 of the Olympic Charter. The participating athletes submit themselves to CAS jurisdiction, by signing the Entry/Eligibility Conditions Form of the IOC issued for the 2016 Summer Olympic Games in Rio. This form contains an arbitration agreement, which establishes the jurisdiction of CAS over disputes in connection with the Olympic Games.
Furthermore, in accordance with Article 1 of the Ad Hoc Rules, the CAS AHD only has jurisdiction when all internal legal remedies have been exhausted. The question of CAS AHD jurisdiction is examined more closely as part of the jurisprudence analysis under Section 2.1.
Seat of the CAS AHD and Applicable Law
Article 7 of the Ad Hoc Rules provides that the seat of the CAS Ad Hoc Division is located in Lausanne, Switzerland. However, according to Article 5 of the Ad Hoc Rules, the CAS is required to establish a Court Office of the CAS AHD on the site of the Olympic Games, the same place where it shall render its awards.
Article 7 of the Ad Hoc Rules guarantees a stable legal framework for CAS AHD proceedings throughout the world, independently of the place of the Olympic Games.6
The seat of arbitration, Switzerland, should ensure that the provisions of Chapter 12 of the Swiss Private International Law Act are applied to all international arbitration proceedings taking place at the Olympic Games. The purpose of this rule proved itself relevant, for example, at the 2006 Winter Olympic Games in Turin, where under Italian Law the CAS AHD as a court of arbitration would not have been competent to rule on provisional measures.7
Rules of procedure
Requests before the CAS AHD are to be submitted in English or French (Article 6 Ad Hoc Rules). An application shall include, apart from the relevant facts, an attached copy of the challenged decision (Article 10 Ad Hoc Rules). As soon as an application is submitted before the CAS AHD, the CAS AHD President, and not the parties, appoints three arbitrators.
The AHD President can also appoint a sole arbitrator, should the circumstances permit.8 The appointed panel can decide at its own discretion, whether or not an oral hearing is necessary for rendering an award (Article 15[c] Ad Hoc Rules).9 The communication between the CAS AHD and the parties may be carried out by e-mail or even by telephone (per Article 9 Ad Hoc Rules). As with regular CAS proceedings, the arbitral panel is not bound by the findings of the deciding bodies which issued the challenged decision.10
The CAS AHD has full discretion to review the relevant facts. With respect to this “de novo” competence, the CAS regularly dismisses objections raised against irregular procedural conduct in the first instance, as it renders a “new” decision11 and thus upon review of the CAS, all previous procedural errors are cured.
CAS AHD awards shall be rendered within 24 hours from the lodging of the application (Article 18 Ad Hoc Rules). The proceeding is free of cost in accordance with Article 22 of the Ad Hoc Rules.
For cases in which a decision within 24 hours would come too late, Article 14 of the Ad Hoc Rules provides for provisional measures to be taken by the CAS AHD pending its final decision.
The CAS AHD can stay the effects of a challenged decision or order any other provisional measure, without hearing the opposing party beforehand. The prerequisites for such provisional decision are that the application shall have a prima facie likelihood of success, that the interests of the applicant shall outweigh those of the opposing party and that the relief is necessary to protect the applicant from irreparable harm.
Applicable Material Law
As per Article 17 of the Ad Hoc Rules, the CAS AHD panel shall rule on the dispute pursuant to the Olympic Charter, the applicable regulations, general principles of law and the rules of law, the application of which it deems appropriate.
The CAS Anti-Doping Division
As of 2016, the CAS will also be in charge as first instance for all doping-related matters arising during the Olympic Games through the newly implemented CAS Anti-Doping Division (“CAS ADD”).12
The CAS ADD has been established for the resolution of alleged anti-doping rule violations referred to it in accordance with the IOC Anti-Doping Rules. The CAS ADD comprises a President, a Deputy President, and arbitrators appearing on a special list.13
Cases will be decided either by a sole arbitrator or a panel of three arbitrators. The CAS ADD organizes the procedure as it considers appropriate while taking into account the specific needs and circumstances of the case as well as the interests of the parties.
Except where it considers another form of procedure more appropriate, the Panel shall hold a hearing.14 It may also impose provisional suspensions pending the conclusion of the procedure. Final decisions rendered by the CAS ADD may be appealed before the CAS AHD, or if the CAS AHD is no longer in operation, before the CAS in Lausanne after the end of the Olympic Games.15
Certainly, the 2016 Summer Olympic Games in Rio will again provide interesting proceedings before the CAS AHD. Today it can already be predicted that the implementation of the CAS Anti-Doping Division and especially the recent decision16 of the IOC Executive Board concerning the participation of Russian athletes in the Olympic Games will considerably increase the workload of the CAS AHD.
In only seven days of activity and still prior to the start of the Games, the CAS AHD has registered 11 cases (and counting), the same number as for the total period of the 2012 Olympic Games, most of which concern the participation of Russian athletes in the Games.17 Now more than ever the CAS AHD must prove that it can keep pace with the needs of those who turn to it for fast and effective dispute resolution.
To provide some context and insight into some of the substantive issues that may arise over the coming weeks, please see the authors’ related article Key CAS Ad Hoc Division cases handed down at the Olympic Games, which examines several recent and significant CAS AHD decisions from past Olympic Games.
- 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 Arbitration Rules for the Olympic Games,https://www.tas-cas.org/en/arbitration/ad-hoc-division.html(last accessed 4 Aug 2016)
- The Official CAS Arbitrator List,https://www.tas-cas.org/en/arbitration/list-of-arbitrators-general-list.html(last accessed 4 Aug 2016)
- ‘Preparations for the CAS ad hoc division at the Rio 2016 Games are underway’ tas-cas.org, 7 Dec 2015, last viewed 4 Aug 2016,https://www.tas-cas.org/en/general-information/news-detail/article/preparations-for-the-cas-ad-hoc-division-at-the-rio-2016-games-are-underway.html
- Rigozzi, Journal of International Arbitration 2006, p. 454.
- Antonio Rigozzi, Preliminary Relief in CAS Arbitration in The Court of Arbitration for Sport 1984-2004, p. 216.
- A sole arbitrator was appointed for the first time in CAS OG 06/003 Azzimani v/Comité National Olympique Marocain.
- In CAS OG 06/003 Azzimani v/Comité National Olympique Marocain a decision was rendered without an oral hearing for the first time.
- Article 16 CAS AROG.
- CAS 2007/A/1394 Landis v. USADA, Rn 21.
- The Procedural Rules of the CAS Anti-Doping Division are available online at https://www.tas-cas.org/en/arbitration/anti-doping-division.html. (last accessed 4 Aug 2016)
- The list of arbitrators serving on the CAS Anti-Doping Division is available online at https://www.tas-cas.org/fileadmin/user_upload/Media_Release_CAS_Rio_ENG.pdf(last accessed 4 Aug 2016)
- Article 15 Procedural Rules of the CAS Anti-Doping Division.
- Article 21 Procedural Rules of the CAS Anti-Doping Division.
- Decision by the IOC Executive Board of 24 July 2016, available online at https://www.olympic.org/news/decision-of-the-ioc-executive-board-concerning-the-participation-of-russian-athletes-in-the-olympic-games-rio-2016(last accessed 4 Aug 2016)
- For more information please see: https://www.tas-cas.org/fileadmin/user_upload/Media_Release__English__010816.pdf (last accessed 4 Aug 2016)
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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) | 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 | US Anti-Doping Agency (USADA) | Winter Games
- Key CAS Ad Hoc Division cases handed down at the Olympic Games
- Essential reading to understand the legal issues at the Olympic Games
- Key legal issues ahead of the Rio Olympic and Paralympic Games
- The dichotomy and future of sports arbitration - Appointment of arbitrators
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.