Key legal issues ahead of the Rio Olympic and Paralympic Games
At every major sporting event there are a wider range of legal issues to consider that touch upon all aspects of the event from corporate and commercial through to regulatory and disciplinary matters. Parties to these issues include the organisers, rights-holders, governing bodies, teams and athletes. The Olympic and Paralympic Games are no different. But with so many areas for lawyers to work in I thought it would be useful to gage from some leading sports lawyers to hear what they consider will be some of the most important issues for this year’s Games. Here is what they had to say.
Vijay Parbat, Head of Legal, UK Sport
Before both the Olympic and Paralympic games, as is always the case, selection decisions will be the big issue for national governing bodies and the National Olympic and National Paralympic Associations. Before, during and after the games anti-doping will always be an issue. However, specific to the Paralympic Games are classification decisions (see the current Classification Code) before and during the games but decisions under the Classification Code are made by the relevant and routes of appeal are via the International Federation's (“IF”) decision making processes (note the where the International Paralympic Committee (“IPC”) does act as the IF for a sports it has jurisdiction over the appeal). But interestingly the IPC Board of Appeal of Classification has jurisdiction over all classification appeals for all sports during the Paralympic Games.
However, as a general there does not appear to be an ad-hoc tribunal of CAS at the Paralympic Games. There may be a very good reason why this is so, but what must not be lost is that Paralympians are elite athletes with the same performance focus and ambitions as their Olympic counterparts and face the same if not more complex sporting and legal issues which need to be dealt without unnecessary delay. The views of Vijay Parbat are his own personal views and he does not speak on behalf of his employer.
Jeffrey Benz, Sports Lawyer & Arbitrator for the Court of Arbitration for Sport
The major issues pre-Olympic Games and in Games that most involve lawyers and arbitrators related to athlete selections to Olympic teams, qualifications of country to certain spots as allocated by international federations, adherence to commercial restrictions, and doping issues.
In the lead up to the Olympic Games in Rio, there will be, and has been, the usual mix of selections cases from across the world, some of which will be heard by national dispute resolution panels and some of which have been heard before CAS. In addition some will arise perhaps after the CAS ad hoc division is seated in Rio and addressed there, particularly for countries without a robust dispute resolution process for these disputes or involving international federation quota- or qualifying-related issues. The US Olympic Committee (“USCO”) has managed in the recent Games iterations to dramatically reduce or eliminate its selection arbitrations; primarily this is because of the USOC’s careful considered approval and drafting of selection procedures for all sports and because of the activity of the Athlete Ombudsman, a position unique to the USOC in sports that might be worth being examined by others. Places like the UK, because of systemic issues in how sport is funded and overseen and how selection procedures are delegated and drafted, have continued to see controversial selection processes and decision challenged in arbitration. These trends are likely to continue.
And let us not forget the ongoing saga over Russian doping issues. There have been CAS appeals resulting from the IAAF decision to ban the Russian athletics federation and the effect of that on athletes, with a CAS decision due on that issue on July 21.
And there was the announcement that Park Tae Hwan has appealed to CAS the decision of the Korean Sport Olympic Committee (“KSOC”) to bar him from competing in the 2016 Olympic Games, even though his 18-month suspension for a positive doping test in 2014 has expired. The appeal involved a KSOC rule that forbids athletes from competing for any national team for 3 years after a doping suspension. It was difficult to see how this case can succeed after the CAS decisions in the cases involving the Osaka Rule and a similar British Olympic Association rule, and the KSOC later dropped the case after receiving a ruling against them on provisional measures.
At the Olympic Games, there are a couple of new features that will engender a lot of discussion.
The IOC has amended its Rule 40 to allow certain advertising using Olympic athletes during the period of the Olympic Games. But the International Olympic Committee (“IOC”) has pushed approval rights for this to the National Olympic Committees (“NOCs”) concerned (the NOC of the relevant athlete and the NOC where a particular promotion might occur). Of course, the official Olympic sponsors are granted special rights and permissions in this area. The only jurisdiction over anyone where an athlete violates this rule is to affect the Olympic participation of an athlete involved with a non-approved Olympic advertising during the relevant period of time. Of course, no CAS case has ever dealt with this and it cannot be remembered where the ultimate penalty was ever played out; but in the past pressure has been applied to the athlete, their agent, and the non-sponsor company running the offending advertising. It appears at this point that this could become a real issue at these Games given the omnipresent threat of ambush marketing, the new rules, and the pushing off of authority to the NOCs to address. Some NOCs have set deadlines for approval submissions many months before the Games’ start. So, there are issues around possible inconsistent NOC approaches on the same issue or marketing/advertisement, how disputes over this would be resolved and by whom or which dispute resolution body, and how this will be dealt with practically and consistently in the Games environment. Many NOCs will likely make this a code of conduct issue for their own teams, which could result in various dispute resolution procedures being invoked to resolve the ultimate question of whether the ultimate sanction would be imposed.
There is a new CAS first instance panel to address doping cases arising on the occasion of the Games. It remains unclear what kinds of cases those will be since the incentives against athlete raising doping cases in the Games environment are quite strong; it takes time to prepare a doping case defense, it takes time for the B sample to be noticed for athlete observation and analyzed, it takes time and complexity in addressing any scientific issues, and how will athletes obtain expert counsel in time to address doping issues in a meaningful, merits-based manner in the Game’s environment. Most athletes in the face of this are probably more interested in a correct decision than a speedy one, so as in the past these cases could likely simply be pushed to the international federations to address as they normally would. And how will appeals from decisions of this body work? Will there be an appeal to an IF process, followed by a right to appeal to a full CAS process, or something else? The role of this first instance CAS ad hoc doping panel will undoubtedly continue to be refined and defined, but it is probably the most interesting development in Olympic dispute resolution since the advent of the Ad Hoc Division itself at the Atlanta Olympic Games.
While there is a lot of turmoil around the preparations and execution of the Games in Rio, and around external factors such as high crime rates and possible zika infection, the core legal issues leading into and likely to occur at the Games remain as similar to the past always; there will be disputes about the ability of athletes to qualify for, to continue to participate in, or to retain their accomplishments at the Games.
Alex Kelham, Head of Sports Business Group, Lewis Silkin LLP
Ambush Marketing & Social Media - Rule 40
Ambush marketing always grabs a few headlines around the Olympics with the IOC and relevant organising committee often suffering criticism for being overly protective. In 2012 one of the strongest forms of criticism came from the athletes themselves in relation to Rule 40 of the Olympic Charter. Athletes are the 'face' of major events and are often used by sponsors and non-sponsors to create marketing campaigns which associate, directly or indirectly, with the event. Rule 40, prevents participants in the Games from allowing their name, image or sporting performance to be used in advertising during the Games 'blackout' period (July 27 – August 24 2016 for Rio) without the permission of the IOC. (For more detail see https://www.lawinsport.com/features/item/navigating-olympic-advertising-rule-40-a-global-perspective). While permission for the adverts of official sponsors of the Games are normally granted, others adverts, including those of personal sponsors of Olympians, have historically had to be withdrawn during the blackout period.
In 2012 several athlete ran a #wedemandchange twitter campaign. This apparently worked. For Rio2016, the IOC has delegated greater authority to the National Olympic Committees, entitling them to implement Rule 40 for their athletes, in their territory, as they see fit. Several have relaxed the rules, particularly allowing certain long-running, non-Olympic themed campaigns to continue during the blackout. Having read some media on the subject* you would think that the door was now wide open - however that is not the case and a number of countries intend to continue to enforce Rule 40 to the letter. Social media also offers a new enforcement challenge - will athletes be deemed to have 'approved' their sponsors' social activities, particularly if these are more conversational good luck and congratulatory messages etc? Bearing in mind that it is the athlete who is bound by Rule 40, not their sponsors, it will certainly be very interesting to see how transgressions are enforced in this new era and how athletes may react to this.
Paul Greene, Sports Lawyer, Global Sports Advocates
CAS Ad Hoc Anti-Doping Tribunal
The functioning of the inaugural CAS Ad Hoc Anti-Doping Tribunal will be an important legal issue. This will be the first Olympics where the IOC has not internally handled doping cases that arise at the Games. In the past, the IOC was criticized for the way it handled doping cases at the Olympics. Hearings were often held and provisional suspensions were often handed down without athletes having the opportunity to challenge lab findings and secure legal representation during the Games. The CAS AD Hoc Anti-Doping Tribunal and its new rules are designed to provide greater safeguards for athletes and ensure that the process is handled by an outside entity in CAS.
Angus Bujalski, Head of Legal, Rugby Football Union (RFU)
Doping - Brazil Lab
Perhaps the biggest issues are likely to be around the fallout of the Russian doping scandals. There will need to be a way for innocent athletes to prove their innocence which will become more complex if the bans extend beyond athletics. With reports of unfinished facilities and infrastructure, other likely legal issues could concern how both the Brazilian government and the IOC step in to ensure delivery of aspects of the games.
Genevieve Gordon, CEO, Tactic Counsel
Paralympic Athlete Safety
London 2012 worked hard and succeeded in supporting the Paralympic movement in the same way the Olympics was supported. Will Rio be able to continue the good work of LOCOG, the IPC and the British Paralympic Committee?
The duty of care owed to athletes will remain to be considered especially when athletes are, for want of a better word, sent to places that may not necessarily be as accessible to all and as forward thinking as the previous hosts due to logistical, planning processes and relevant knowledge of employees, volunteers and athletes.
Security is likely to be tight, the village and venues an island. Will there be sufficient supported transport to enable Paralympic athletes to get to their relevant venues?
We could consider isolation, illness and translation as well. But in short will all athletes be supported well enough to bring home their 121 required medals set by UK Sport and interestingly is 73 more than the Olympic athletes requirement?
My overriding questions are will all of the perceived problems prove a problem for all athletes or more so for athletes classified with a disability? Are the relevant sports governing bodies and associated organisations well placed to offer the right support?
Andrew Nixon, Head of Sport, Sheridans
Rule 40 - Passing off, together with trademarks and privacy rights
As is always the case, when an Olympic Games rolls around, there is a range of legal and a commercial issues to be alive to. One such issue is brand alignment, sponsorship, and endorsement, particularly in light of Rule 40 of the Olympic Charter, which applies during what is known as the ‘Games Period’ (27 July 2016 – 24 August 2016), and the new guidelines issued by some (but not all) NOCs. Another such issue is ambush marketing: there are many examples of bespoke, sophisticated ambush campaigns over the years, across numerous major events, and it is inevitable that there will be similar, targeted campaigns during Rio 2016.
However, for this short piece, I wanted to ‘hone in’ on athlete image control as it was an issue that came across our desks during London 2012. Back in August 2012, many businesses and brands wanted to exploit the opportunities and ‘feel good factor’ created during that extraordinary 17 days, and marketing departments were often pressed into creating relevant and inspiring campaigns. Indeed, we saw a number of examples of brands ‘lifting’ images of athletes and using them for online and digital marketing materials post London 2012, and in so doing inadvertently opening themselves up to potential claims for passing off (on the basis of the Eddie Irvine v Talksport case, in which Irvine was awarded £25,000 in damages for false endorsement and affiliation) (Irvine v Talksport Ltd Reference  EWCA Civ 423;  2 All ER 881;  EMLR 538 Court Court of Appeal).
Whilst English law provides somewhat piecemeal, and arguably incomplete, protection for image rights, the tort of passing off, together with trademarks and privacy rights will provide a cause of action for any athlete who has been successful at Rio 2016 against brands who create unlicensed campaigns without paying what would be considered to be a reasonable royalty fee. Indeed, that ‘reasonable royalty’ could be considerable if the athlete in question was, say, Jessica Ennis, whose name and brand has become one of the most recognised and valuable in British sport, and which is commercialised consideration for significant licence fees. So, whilst London 2012 was unique because of the fervor it created, and therefore the (perhaps understandable) desire to ride the wave, it is nevertheless important that brands recognise that they cannot simply affiliate themselves to successful Olympians without paying a reasonable royalty, and if they do they could find themselves on the receiving end of (potentially significant) false endorsement claims. It will be interesting from our perspective to see if the ‘in-tray’ is as full as it was 4 years ago.
Sean Corbett, Brand Protection Manager, Formula One Management Limited
Staying away from financial ruin, health scares and doping issues I prefer to look at Ambush Marketing and Rule 40 as hot topics of interest at Rio 2016. It could be argued that traditional Ambush Marketing was conspicuous by its absence at both the Rugby World Cup (RWC) 2015 and at the Euros 2016 and that the face of Ambush Marketing activity has changed such that the traditional ambush has moved away from the Stadia to the digital space that is occupied by the likes of Facebook, Twitter, Vine, Periscope, Instagram and Snapchat. When it comes to Ambush Marketing the ‘Ambush’ is always in the eye of the aggrieved party and often takes place without an obvious place within the wider legal framework so it must be judged on a case by case basis which inevitably lends itself to disparity in the perception of an alleged ambush dependent on the prevailing legal landscape, jurisdiction, timing, & of course context. I expect the Games in Rio to once again provide the perfect platform for brands outside of the official family of Olympic sponsors to test the boundaries on aligning their products with the quadrennial sporting achievements of some of the greatest athletes on the planet without infringing official IPRs.
This thematic space around ownership of sport could be blurred even further by the apparent relaxation of Rule 40 ahead of the Games in Rio. Rule 40 was and is intended to ensure maximum exposure for brands belonging to the Olympic Games’ official pool of sponsors by creating a blackout period so that athletes competing in the Games are not promoting unofficial sponsors. I for one am intrigued to see how this pans out during the so called blackout period and how much so-called ambush marketing activity we see whether it be ‘Real Time Marketing’ opportunities afforded by live sporting events such as the Oreo ‘dunk in the dark’ tweet exploited during the Super Bowl XLVII blackout or content driven thematic celebrations of sporting achievements mastered by companies such as Beats or Nike.
Policing social media is a whole new ball game for Sports Rights Owners (SROs) and the opportunities afforded to marketing departments to celebrate sporting events are blurring the definitions of so-called ‘Ambush Marketing’ and where better to test your skills than at the biggest stage of them all #UsainBoltsOnFire #IsWillGriggAtTheOlympics
Kevin Carpenter, Principal & Consultant, Captivate Legal and Sports Solutions
Betting Integrity & Competition Manipulation
At a recent IOC-INTERPOL competition manipulation and integrity training event I delivered at, it was revealed that €6-12 billion (c.£5-10 billion) is expected to be bet on the 2016 Olympic Games in Rio, which is a staggering increase on the £350 million bet during the 2012 Games. Couple this with the women’s doubles badminton scandal which took place at London 2012, which although not related to betting caused significant reputational damage and showed that participants were open to manipulating their sport on the biggest stage of all if the environment was right, then the IOC-INTERPOL have built upon the Joint Assessment Unit operated at London 2012 (read more here) and been proactive in putting in place systems and procedures to lessen the threat of the 2016 Games being tarnished in this way as much as possible.
First, specific rules have been passed by the IOC on the ‘Prevention of the Manipulation of Competitions’ to apply during Rio 2016. These rules are an amended version of the Olympic Movement Code on the Prevention of Manipulation of Competitions found in the latest 2016 version of the IOC Code of Ethics. The Rio 2016 version differs in that it provides for investigation to take place and a Disciplinary Commission established should potential breaches of the Code that arise during the Games. Secondly, the IOC-INTERPOL recently held a national integrity in sport workshop in Rio, as well as training for law enforcement officers and prosecutors, in support of the creation of a Joint Integrity Intelligence Unit (JIIA) established by the IOC in order to guarantee the integrity of sport in partnership with the Brazilian authorities.
All stakeholders hope that these comprehensive actions, as well other tools including the operation of the IOC’s Integrity Betting Intelligence System (IBIS), will (in the IOC’s words), “protect clean athletes and the integrity of the Olympic Games Rio 2016”.
Lawyer - Chose To Remain Anonymous
Will Russian Athletes Participate in the Olympic Games in Rio
The circumstances relating to the participation of Russian athletes in the Olympic Games are in flux, unprecedented and incredibly complex from a legal standpoint. As of today, the entire Russian Athletics Federation has been suspended and only those athletes who can establish to the IAAF that they are clean and have not been involved in doping may be declared eligible to compete by an IAAF review panel.
The Russian Olympic Committee and 68 Russian track and field athletes have filed an appeal to the Court of Arbitration for Sport seeking a ruling that any IAAF Rule that prohibits a Russian athlete who is not currently suspended for an anti-doping violation from participating in the Games is invalid and unenforceable. A decision is expected within the week.
At the same time, on June 21, 2016, the IOC released the Declaration of the Olympic Summit (the "IOC Declaration"). Among other things, the Declaration provides as follows:
4. Because of the WADA non-compliance declaration of Kenya and Russia and the related substantial allegations, the Olympic Summit considers the "presumption of innocence" of athletes from these countries being put seriously into question. As a result, every IF should take a decision on the eligibility of such athletes on an individual basis to ensure a level playing field in their sport. In this decision-making process, the absence of a positive national anti-doping test should not be considered sufficient by the IFs. This means that the respective IF should take into account other reliable adequate testing systems in addition to national anti-doping testing. This decision about the "level playing field" in each of their very different Olympic sports, and eligibility, including of their member National Federations, should be taken by each IF taking into account all the specific circumstances in the relevant National Federations, any available evidence, the World Anti-Doping Code and the specific rules of their sport. [emphasis added]
The IOC decision pre-emptively bans all Russian and Kenyan athletes from the Games while leaving open the possibility for individual athletes to establish that they should be eligible. In order to put this system into effect, the IOC has mandated that each IF make a decision about the eligibility of any Russian or Kenyan athletes to compete in the Games on an individual basis. It is not at all clear as of today what IF have done in response to this direction.
Finally, on July 18, 2016 the findings of the independent investigation headed by Professor Richard McLaren into Russia's doping activities during the Sochi Games (the "McLaren Report") is expected to be made public. It remains open for the IOC to issue a sanction against Russian Federations or the Russian Olympic Committee based on the findings made in the Report.
How this will all unfold and which, if any, Russian athletes will be participating at the Games is hard to say. However, considering the evidence that has come out over the past year, and the evidence that some are expecting in the McLaren Report, allowing the Russian flag to rise a single time during the Games may seriously undermine the integrity of both the Olympic Movement and the World Anti-Doping Movement.
Does Caster Semenya Have an Unfair Advantage: The Hyperandogenism Regulation
Many members of the media and some athletes have been raising concerns about Caster Semenya. Last year the Court of Arbitration for Sport issued a landmark judgement in the Dutee Chand case in which it suspended the International Association of Athletic Federations (“IAAF”) Hyperandrogenism Regulation. This is a Regulation that screened women based on their naturally occurring testosterone levels and, if those levels were above a certain threshold, required such women to undergo medical intervention to lower their testosterone before they were eligible to compete. Put simply, women with Hyperandrogenism were required to medically alter their bodies from the way they were born to participate in sport. This type of eligibility condition is unprecedented in sport.
The CAS held that the Regulation was discriminatory and that it could not be justified as necessary and proportionate to protect fair play. In other words, the CAS ruled that there was insufficient evidence that the performance advantage caused by hyperandrogenism was so substantial that it warranted excluding women with elevated testosterone from competing unless they take medication or undergo treatment to change their bodies. The CAS suspended the Regulation and provided the IAAF with two years from the date of its decision to present further evidence in an effort to establish the necessity of such a Regulation. To date, the IAAF has not brought the case back the CAS.
Since the CAS ruling Ms Semenya has experienced great success on the track. She is slated to win the gold medal in the 800 meters in Rio. Some commentator and athletes are linking her success back to the Hyperandrogenism Regulation. During the Olympic Games in Rio this is sure to be a hot topic for the media as Ms Semenya takes to the largest world stage.
Here are a few points that people should consider before jumping on the proverbial bandwagon and deciding that Ms Semenya has an unfair advantage over her female competitors and that the CAS got it wrong.
The CAS Arbitrators Are Highly Skilled and Carefully Analyzed the Situation: The three CAS arbitrators in the Dutee Chand case are seasoned legal scholars with extensive experience adjudicating sport-related disputes. The CAS arbitrators released a detailed 162-page decision that recognized not only the large volume of evidence presented by both sides but also the "complex legal, scientific, factual and ethical issues" at play. People may disagree with the CAS decision, but to disparage the arbitrators or the decision demonstrates a lack of sensitivity to the complexity of the issues at play.
It is Pure Speculation to Link Caster Semenya’s Recent Success to the Suspension of the Regulation: The recent flurry of commentary linking Caster Semenya’s exceptional performances this year to the suspension of the Hyperandrogenism Regulation has missed a few very important points. First, Ms Semenya's mediated settlement with the IAAF was confidential and therefore commentators do not and cannot know whether her testosterone levels are any higher now than they were one year ago. The CAS carefully weighed an extensive body of scientific evidence but was unable to conclude that the impact of naturally elevated testosterone on women's performance, if at all, was so much more substantial than the benefits caused by other factors, such as nutrition, access to specialist training facilities and coaching, and other genetic and biological variations. Who's to say that the reason Caster is faster this year than last is because she is more focused, training harder and smarter, eating better, or resting more? Doing all these things is normal in an Olympic year and can have huge impacts on performance.
Caster Semenya’s Times are Not Unprecedented and Are Not in the Male Range: Ms Semenya’s best time has her ranked as the thirteenth fastest woman in the 800 meters of all-time. She is not first. Furthermore, the CAS held that to justify the Regulation, the performance advantage from elevated natural testosterone levels must be shown to result in women approaching male times. There is no evidence of this happening. Even Caster Semenya's World Championship gold-medal performance in 2009 (the fastest time she has ever run) falls well short of elite men's times. Semenya's time of 1:55.45 in the 800 metres falls nowhere near the top 100 ranked men's performances in that same year – which is equivalent to a time of 1:46.88, and falls well short of the 2016 Olympic qualifying standard for men of 1:46.00. Consider further that the men's world record is 1:40.91, which is over 12 % faster than Semenya's fastest time mark. By comparison, the men's world record marathon time of 2:02:57 is only about 10 % faster than Paula Radcliffe's personal best of 2:15:25, but no one accuses her of benefitting from some unfair advantage as compared to other women.
This Hyperandrogenism issue is complex. Caster Semenya, who has devoted her life to competing at the Olympic Games, should not have to deal with this intense public scrutiny on the eve of the Games. Caster Semenya's performances should be celebrated like those of other extraordinary women athletes, namely resulting from an immense amount of hard work and dedication by an exceptionally talented woman.
- 2015 Rugby World Cup Ambush Marketing Anti-Corruption Anti-Doping Athlete Welfare Brazil Commercial Law Court of Arbitration for Sport (CAS) Governance Hyperandrogenism IAAF Hyperandrogenism Regulations Integrity Betting Intelligence System (IBIS) Intellectual Property International Association of Athletics Federations (IAAF) INTERPOL IOC Korean Sport and Olympic Committee (KOC) Match-Fixing NOC (National Olympic Committee) Olympic Olympic Charter Olympic Movement Code on the Prevention of the Manipulation of Competitions Paralympic Regulation Rule 40 Russia Social Media Sports Rights United States Olympic Committee (USOC) World Anti-Doping Agency (WADA)