Case law of the CAS Ad Hoc Division at the 2014 Sochi Olympic Winter Games: what did we learn?

Published 10 June 2014 | Authored by: Ross Wenzel
The purpose of the CAS Ad Hoc Division is to promptly resolve disputes arising during, or in the ten days before, the Olympic Games. These disputes often concern matters of selection/eligibility and complaints arising out of the sporting competitions at the Games. Typically, a Panel of pro-bono lawyers is available to assist athletes and sporting bodies who appear before the CAS Ad Hoc Division.
 
Section B below sets out some key lessons from the four cases that were heard by the CAS Ad Hoc Division at the Sochi Games . The main arguments and findings from each of the four cases are considered at Section C.  

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

Ms. Bauer is an Austrian halfpipe freestyle skier. 
 
In advance of the Sochi Olympic Winter Games, Ms. Bauer received an email from the person responsible for the freestyle skiing department of the ASF informing her that, if Austria received a quota place for the halfpipe freestyle skiing discipline, she would benefit from that place. Indeed, she was sent a travel schedule and a pre-Olympic training schedule.
 
Ultimately, the ASF was allocated, but decided not to take up, a quota place for the female halfpipe freestyle discipline. The ASF had formed the view that Ms. Bauer (i) lacked the necessary technical skills to compete for Austria in her discipline at the Sochi Games and (ii) did not have the same “upward performance potentialas certain younger athletes. 
 
Ms. Bauer applied to the CAS Ad Hoc division, seeking to be admitted to the Austrian halfpipe freestyle team for the Sochi Games. She argued in particular that the ASF and AOC had (i) acted in a manner, which gave rise to a legitimate expectation that she would be recommended and selected for participation in the Sochi Games (and that they should be estopped from changing their course of action) and (ii) otherwise acted in an unreasonable and unfair fashion. 
 
The Panel dismissed the athlete’s application, making the following findings in particular: 
  • 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.

(ii) CAS OG 14/02 Clyde Getty v/ International Ski Federation (FIS)4  

Mr. Getty is an Argentinian freestyle skier in the Aerials Discipline. 
 
The Argentinian Olympic Committee (COA) had been placed on various editions of an International Ski Federation (FIS) reserve or “next eligible” list for a quota place for free-style for the Sochi Winter Games. 
 
FIS then informed the Argentinian Ski Federation (FASA) that a quota place had been re-allocated to them for the Aerials discipline. FASA informed Mr Getty and the COA wrote to FIS in order to accept the place.
Shortly afterwards, however, FIS informed the COA that it did not have an athlete who met the FIS individual qualification criteria; these criteria required participants inter alia to have a certain number of FIS points. Mr. Getty did not meet this qualification criterion. 
Mr. Getty applied to the CAS Ad Hoc Division, seeking an order, which entitled him to participate in the Aerials competition at the Sochi Olympic Winter Games. He argued in particular that (i) it was not necessary for athletes benefitting from re-allocated quota places to meet the individual qualification criteria, (ii) even if the individual qualification criteria did apply, FIS had induced legitimate expectations that Mr. Getty would be allowed to compete in the Sochi Winter Olympic Games and should be estopped from denying him a quota place and (iii) that it would be contrary to the Olympic spirit not to allow Mr. Getty to compete. 
The Panel dismissed Mr. Getty’s application, finding in particular that:
  • 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

Ms. Birkner is an Argentinian skier in the discipline of Alpine Skiing.
FASA informed Ms. Birkner on 20 January 2014 that she was not selected to compete in the Sochi Olympic Winter Games. Ms. Birkner applied to the CAS Ad Hoc division, requesting an order inter alia that the COA enter her for certain Alpine Skiing events at the Sochi Games. On the same date, Ms. Birkner’s coach was informed that one of the reasons for her non-selection was that FASA had taken into account not only the athletes’ current performance but also their potential for future development. 
The Applicant essentially alleged that the decision not to select her for the Sochi Games was not based on sporting criteria but resulted from bias on the part of the COA and FASA against her and her family (which had played an important role in Argentinean skiing for decades). 
The Ad Hoc Division only has jurisdiction to determine disputes which “arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games.
 
The Opening Ceremony of the Sochi Games took place on 7 February 2014. The Panel found that the date on which the dispute arose could not sensibly be the date on which the Request for Arbitration was filed. 
The Panel essentially held that a dispute of this nature arose on the date on which Ms. Birkner received the reasons for her non-selection. The Panel did consider that, in principle, where a decision required further explanation in order for the disagreement to be ascertained, it was feasible that the dispute could “arise” later than the date of the decision (i.e. once the necessary explanations had been given). On the facts of Ms. Birkner’s case, no further explanation of the decision was necessary for the “dispute” to crystallise. 
The Panel explicitly disagreed with the reasoning in the Schuler case (CAS OG O6/002) where the Panel apparently found that the dispute had not arisen until Ms. Schuler had considered the matter, decided to appeal and filed her claim. In particular, the Panel in the Birkner case made a distinction between the date on which the claim arose and the date on which the underlying dispute arose. 
The Panel found that, as the letter explaining the athlete’s non-selection was both sent and received well outside of the 10-day period before the Opening Ceremony, it lacked jurisdiction. 
Notwithstanding its finding of lack of jurisdiction, the Panel did consider the merits of the matter in summary fashion. In essence, it concluded that there was no bias against Ms. Birkner and her family. In particular, it noted that two of Ms. Birkner’s siblings and a cousin formed part of the Argentinean skiing team at the Sochi Games. Furthermore, her brother had been selected as flag-bearer at the Opening Ceremony and her parents were present in Sochi as coaches of the Argentinean ski team. 
With respect to a number of the specific allegations of bias, the Panel stressed that Ms. Birkner had not adduced sufficient evidence to substantiate her allegations. 
As with the Bauer case (see above), the Panel confirmed that (i) as there were no published selection criteria, the FASA had a significant degree of subjective discretion and (ii) the decision to take into account athletes’ potential for “evolution and projection in the future” was not per se arbitrary, unfair or unreasonable. 

(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

French athletes won the gold, silver and bronze medals in the Men’s Ski Cross Competition at the Sochi Games. 
The “Big Final” of the Men’s Ski Cross competition took place at circa 14:40 on 20 February 2014.
 
The Applicants – Alpine Canada Alpin (ACA), Canadian Olympic Committee (COC) and Olympic Committee of Slovenia (SOC) - sought disqualification of the three French medal winners on the basis of a violation of the rules relating to ski suits set out in the International Freestyle Skiing Competition Rules (“IFSCR”). More particularly, the Applicants alleged that the French athletes (together with their coaches), in contravention of the applicable rules, had tampered with their ski suits to form an aero-dynamic crease or “fairing” in lower leg area of the suit. 
The IFSCR do not allow any methods “used to tighten the suit material closer to the body or prevent the natural fall of the clothing.
The coach of the Canadian team had noticed the apparent irregularity in the French athletes’suits at the beginning of the Big Final. 
The final ended at circa 15:00. On reviewing the footage of the race at around 16:00, the Canadian coaching staff ascertained that the aero-dynamic crease had remained throughout the entire race. Whereas the Canadian team discussed the issue with representatives of FIS at around 16:20, the ACA and COC did not file a written complaint until 22:33 that evening. The SOC had filed a written complaint at 21:47. 
The IFSCR stipulate that protests against actions by other competitors or officials during the competition must be made “within 15 minutes of completion of the last competition run of that phase of competition”. Protests must be directed to the FIS Jury, lodged in writing (including grounds) and accompanied by the payment of 50 CHF (or the equivalent in another currency). 
The Applicants argued that, notwithstanding the fact that their protests were filed well outside the 15-minute window provided for by the IFSCR, their protest should still be allowed. In particular, the Applicants argued that it would be unreasonable to enforce the 15 minute deadline in this case as it would have been impossible to gather the necessary evidence (which had required an examination of the race footage) within that timeframe. 
The Panel rejected the Applicants’argument, noting in particular that the IFSCR only required the reasons for the protest (and not all the relevant evidence) to be provided to the Jury within the 15 minute deadline. Within this context, the Panel noted that the ACA and COC were certainly aware of the reason for the protest by no later than 16:20 (after they had reviewed the footage and raised the matter informally with FIS representatives) and that the further delay of more than six hours was not justified in the circumstances. 
If the Canadians and or SOC had filed a protest very shortly after considering the race footage, the CAS Panel might perhaps have been more inclined to make an exception to the 15 minute protest window; however, in the circumstances they held that allowing the protest so long after the conclusion of the final would “contravene the natural expectation of athletes, sports governing bodies, spectators, and the public that competition results are final unless promptly and properly protested within a reasonable amount of time after the competition ends.
As the Panel found that the protest was not made in a timely fashion, it was not necessary for it to consider the substance of the matter i.e. whether the suits of the French athletes had in fact violated the terms of the IFSCR.

CONCLUDING COMMENTS 

None of the applications considered above were successful. Indeed, two of them were ultimately dismissed for procedural reasons. As at previous Olympic Games, the CAS will not interfere lightly with the decisions of sporting bodies responsible for selecting/entering athletes or with the competition-related decisions taken by officials on the ground. 
Applications are only likely to be successful if there is a clear breach of a rule or a manifestly unfair or abusive situation. Even then, applicants should ensure that they have exhausted all internal channels of recourse before applying to CAS and that their applications, when brought, are properly substantiated with evidence. 

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About the Author

Ross Wenzel

Ross Wenzel

Ross is a Partner in the sports law group of Carrard & Associates (Lausanne, Switzerland). His practice is dedicated to sports law, in particular international arbitration and commercial contracts. Ross regularly represents clients before the Court of Arbitration for Sport and advises a number of sports organisations with respect to their commercial programmes.
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