Olympic disputes – challenging wrongful decisionsJustin Reid
With London 2012 well underway, the Games has so far passed without too much controversy – save for the much-maligned, woeful recent performance of eight women's badminton players disqualified after being accused of "not using one's best efforts to win"
This has not always been the case. The Games in Seoul in 1988 were marred by controversy – the image of a demonic-looking Ben Johnson winning gold in the final of the 100m will live long in the memory. In the same year, in the final of the light middleweight boxing the world witnessed what is widely regarded as the most scandalous decision of modern Olympic history when the South Korean boxer Park Si-Hun was awarded a 3-2 points decision over an electric Roy Jones Jr, despite landing only 32 punches to Jones' 86.
As sport in general has become subject to tighter regulation, so too have the Olympic Games and unfair decisions are now – mercifully – consigned to history, like Olympic medals in underwater swimming (1900); live pigeon shooting (1900); and the tug of war (1900 – 1920).
Participation in the Olympic Games is governed by the law of contract, with participants bound by a series of umbrella agreements. Each participant is bound by the Team Agreements of their National Olympic Committee (NOC), which in turn incorporate by reference the Olympic Charter (OC), the WADA Code and the rules of each Olympic International Sports Federations.
In respect of the resolution of disputes, the jurisdiction of the Court of Arbitration of Sport (CAS) is also established through these agreements. Article 40 of the OC states that: "To be eligible for participation in the Olympic Games, a competitor, coach, trainer or other team official must comply with the Olympic Charter"; Article 61(2) of the OC states that: "Any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport, in accordance with the Code of Sports-Related Arbitration"1.
Decisions subject to challenge
In practice, the outcome of an event can be challenged where the decision is arbitrary, or has been influenced by bias, malice or bad faith. However, understandably, the principle of finality is paramount – the prospect of a lengthy dispute could potentially cast a long shadow over an event and significantly undermine the jubilation of a medal ceremony. Accordingly, time limits are strictly observed, even when a decision has been made in error.
Following the Games in Athens, in the case of Yang v. Hamm2, a CAS Panel convened long after the event had to decide whether to reallocate the medals in the Men's Gymnastics All Round final. An erroneous decision by the judges as to the difficulty of the bronze medallist's parallel bars exercise had meant that he had been denied the gold medal. The judging panel admitted the error, which was also acknowledged by the International Gymnastics Federation (FIG), but the FIG refused to redistribute the medals because the South Korean team did not protest until much after the event.
Two months later, CAS rejected the South Korean appeal and abstained from intervening to correct the error and reallocate the medals, upholding instead the primacy of the 'field of play' doctrine (the immunity of decisions taken on the 'field of play').
The Panel summarised the logic underpinning the decision on the basis that: "To the extent that the matter is capable of analysis in conventional legal terms, it could rest on the premise that any contract that the player has made in entering into competition is that he or she should have the benefit of honest "field of play" decisions, not necessarily correct ones".
It is clear that courts and tribunals will be reluctant to interfere to correct decisions after the event, save in circumstances in which "an official's field of play decision is tainted by fraud or by arbitrariness or corruption"3.
Arbitration Rules for the Olympic Games
In order to facilitate the swift determination of disputes at the Games, a special 'ad hoc' procedure has been introduced by CAS: all referrals are determined by reference to the Arbitration Rules for the Olympic Games (https://www.tas-cas.org/adhoc-rules) (the Rules).
The ad hoc procedure applies to all disputes covered by Rule 61 of the OC, "insofar as they arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games" (Article 1). The seat of the arbitration is Lausanne, Switzerland (arbitrations are therefore governed by Chapter 12 of the Swiss Act on Private International Law), but provision is made for any of the actions of the ad hoc division to be carried out at the site of the Olympic Games "or in any other place [the Panel] deem appropriate" (Article 7).
For the period of the Games, the CAS offices in London are located at the Grosvenor House Hotel.
As is befitting of a regime which seeks to resolve disputes as quickly as possible, the procedure is intended to be carried out at breakneck speed: Article 18 of the Rules states that "The Panel shall give a decision within 24 hours of the lodging of the application. In exceptional cases, this time limit may be extended by the President of the ad hoc Division if circumstances so require."
Given the emphasis on the speedy determination of disputes, competitors and coaching teams will be absolutely vigilant to ensure that any challenges are made almost immediately, which in turn means that they will be resolved by sporting experts on the field of play, rather a CAS appointed tribunal after the event.
In the case of Yang in 2004, a major contention concerned when the challenge was first raised: the FIG rules state that score protests must be filed immediately; the Korean Olympic Committee argued that the protest was lodged at the time of the medal ceremony; the FIG stated that the protest was not lodged until much later in the day.
Direct contrast can be drawn with the result of the men's gymnastic team final at the current Games in which Team GB were originally awarded the silver medal. A successful scoring challenge by the Japanese team (concerning the difficulty of the Japanese gymnast's dismount) elevated them from fourth to silver, thereby relegating Team GB to bronze. The challenge was raised by the Japanese team immediately, in keeping with the FIG Technical Regulations4 and deliberations about the allocation of the medals took less than ten minutes.
Although bitterly disappointing to be denied a silver, the speed at which the dispute was determined was undoubtedly in the best interests of the participants, and the viewing public at large (even if the decision ultimately counted against us!).
1 Olympic Charter in force as from 8 July 2011 (https://www.olympic.org/Documents/olympic_charter_en.pdf)
2 CAS 2004/A/704, 37, award dated 21 October 2004
3 Lewis and Taylor, Sports Law and Practice (2nd ed para A7.85)
4 Regulation 8.4 of the FIG Technical Regulations 2012 states that: “Inquiries for the difficulty scores are allowed, provided that they are made verbally immediately after the publication of the score or at the very latest before the end of the exercise of the following gymnast or group, for the last gymnast or group of a rotation, this limit is one minute after the score is shown on the score board. The person designated to receive the verbal inquiry has to note the time of receiving it and this starts the procedure [...] Late verbal inquiries will be rejected”.
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About the Author
Justin is an Associate at Charles Russell LLP, and works within the Commercial Dispute Resolution team. Justin specialises in sports regulatory and disciplinary work and has recent experience of advising on a myriad of issues arising in connection with horseracing, greyhound racing, athletics, rifle shooting and rowing.