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

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Published: Tuesday, 10 June 2014. Written by Ross Wenzel No Comments
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.

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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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