Case law of the CAS Ad Hoc Division at the 2014 Sochi Olympic Winter Games: what did we learn?Ross Wenzel
KEY LEARNINGS FROM THE CASE LAW OF THE SOCHI AD HOC DIVISION
- The case law confirmed the established principles, set out in the Olympic Charter, that (i) only National Olympic Committees may submit entries for athletes to participate in the Olympic Games and (ii) entries must be based on a recommendation from the relevant national federation.1
- Where a national federation does not publish criteria for its selection of athletes for the Olympic Games, it will have a large degree of discretion.
- Even where a national federation is not bound by published selection criteria, it must not act arbitrarily, unreasonably or unfairly.
- It is not per se unfair, unreasonable or arbitrary for national federations to take into account, in their selection of athletes for the Olympic Games, the potential of athletes for future development.
- In principle, sporting qualification criteria imposed by an international federation also apply to athletes who may benefit from quota places which are not taken up and subsequently re-allocated.2
- Arguments by non-selected athletes based on a frustration of their “legitimate expectations” are unlikely to succeed unless the representations made by the relevant bodies are clear, specific to the athlete concerned and made by persons with the authority to bind such bodies.
- Disputes may only be brought before the CAS Ad Hoc Division if they arise either during the Olympic Games or within the ten day period before the Opening Ceremony. A dispute does not “arise” when an applicant decides to file a claim; in general, a dispute arises on the date of the reasoned decision with which the applicant disagrees. In circumstances where a decision objectively requires further clarification, the dispute may perhaps arise once that clarification has been provided (see Alpine Canada Alpin below).
- With respect to protests arising out of a specific competition, athletes and teams should be aware that deadlines may be shortly after the end of the competition in question. A summary protest should be lodged within that deadline and, if necessary, supplemented and substantiated subsequently (see Alpine Canada Alpin below).
CAS LAW OF THE SOCHI AD HOC DIVISION
(i) CAS OG 14/01 Daniela Bauer v/ Austrian Olympic Committee (AOC) and Austrian Ski Federation (ASF) 3
- The Panel recalled that, pursuant to Rule 44.4 of the Olympic Charter (OC), a National Olympic Committee (such as the AOC) is only entitled to select athletes who have been recommended by a national federation (such as the ASF).
- Whereas the AOC had nominated other ski athletes for quota places, it could not be said to have discriminated against Ms Bauer. These other athletes were not in the same position as Ms Bauer as they had been recommended by the ASF. Indeed, the AOC would have violated the OC by selecting Ms. Bauer in the absence of an ASF recommendation.
- As far as the ASF was concerned, there was no requirement for it to recommend athletes who met the minimum qualification criteria of the International Ski Federation.
- Even if a member of the ASF staff had intimated that Ms. Bauer would be recommended if a quota place was allocated in her discipline, the relevant staff member did not have authority to bind the ASF.
- Whereas the Panel bemoaned the lack of published performance-related selection criteria of the ASF, it found that it gave the ASF a wide subjective discretion with respect to the recommendation of athletes.
- Even in a case were the national federation does not have any recommendation criteria, it still has a duty not to act unreasonably, unfairly or arbitrarily.
- As the ASF had made its decision not to recommend Ms. Bauer based on its assessment of her performance (in particular, her perceived lack of technical ability and relative lack of potential for performance improvement vis a vis certain younger athletes), it had not acted arbitrarily, unfairly or unreasonably in this instance.
- There was nothing in the freestyle skiing qualification system which supported the athlete’s argument that the individual qualification criteria did not apply to athletes benefitting from reallocated quota places.
- The Panel also noted that a waiver of the individual eligibility criteria would also be at odds with one of the primary purposes of the qualification system i.e. to guarantee a high level of competition.
- The FIS had not at any point represented that Mr. Getty was eligible to compete in the Sochi Games. By placing the COA on the reserve list for a quota place, the only reasonable inference for Mr. Getty was that he could be recommended/selected if COA was ultimately allocated a quota place for Aerials and he had in the meantime managed to amass the requisite amount of qualification points.
- In rejecting Mr. Getty’s arguments based on legitimate expectation, the Panel also took into account that none of the correspondence between FIS and FASA/COA had mentioned Mr Getty specifically and FIS had clarified that COA did not have any eligible athletes only several hours after communicating the possible allocation of an Aerials quota place.
- Mr. Getty’s arguments based on a breach of the Olympic spirit were given short shrift by the Panel. The fact that Mr. Getty was the only male freestyle athlete from South America, that he was popular amongst fans and fellow competitors and was an inspiration to many were held to be policy considerations. Whereas such considerations may potentially be relevant to FIS when devising the qualification rules, they could not be taken into account by the CAS.
(iii) CAS OG 14/03 Maria Birkner v/ Argentinian Olympic Committee (COA) & Argentinian Ski Federation (FASA)5
(iv) CAS OG 14/04 - 05 Alpine Canada Alpin (ACA), Canadian Olympic Committee (COC) & Olympic Committee of Slovenia (SOC) v/ International Ski Federation (FIS) & International Olympic Committee (IOC) 6
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- Tags: Austrian Olympic Committee (AOC) | Austrian Ski Federation | Canadian Olympic Committee (COC) | Comité National Olympique et Sportif Français (CNOSF) | Comite Olimpico Argentinio | Court of Arbitration for Sport (CAS) | Federacion Argentina de Ski y Andinisimo (FASA) | Governance | International Freestyle Skiing Competition Rules (IFSCR) | International Skiing Federation (FIS) | IOC | Olympic Charter | Olympic committee of Slovenia | Regulation | Sochi 2014 | Sochi Organising Committee for the 2014 Olympic and Paralympic Winter Games (OCOG) | Winter Olympic Games
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