Playing by the Rules. Five Rings, One ‘Court’.
9th August, 2024
Paris 2024 has been an amazing spectacle so far. It's a shame it is nearly over. Awe inspiring backdrops to elite sport for which most competitors have trained for four long years, in the all consuming pursuit of realising Olympic dreams. It is hard to beat.
Unfortunately, for a (hopefully small) handful of athletes, they can find themselves entangled in disciplinary strife or controversy. For them and their opponents, this can be an unbelievably stressful time. The only (thin) silver lining in these scenarios, is that in the modern world of sports dispute resolution, disputes can start one day and be resolved by the following morning, where circumstances require.
This rapid response system helps maintain the integrity of the Olympics. Rough and rapid ‘justice’ at the Olympics is better than no ‘justice’ at all.
It is not only the athletes in Paris who have to move at great speed. This article is a brief explainer of how sporting legal issues get resolved during the Olympics, along with a few of the more famous and infamous examples.
What is CAS?
The Court of Arbitration for Sport (CAS) is known by avid fans, participants and people working within the sector. All of whom probably hear and read about CAS a lot – but what is it exactly?
CAS was established in 1988 with the specific goal of offering a sports dispute resolution service, via arbitration. It has physical “courts” located in New York City, Sydney, and its Lausanne headquarters.
CAS does not automatically have jurisdiction to resolve any sporting dispute. For it to have jurisdiction, all the parties to the dispute need to have agreed in writing that their dispute(s) are to be decided by CAS. Parties can do this in advance (e.g. by signing up to governing body or competition Rules which grant jurisdiction to CAS) or ad hoc, when an issue arises.
In most instances, deciding a dispute via CAS will follow a timetable set by an arbitrator, after one party has commenced the proceedings. After any exchange of statements of case and documents, the parties attend a hearing and argue their case. The normal process can last for weeks or months.
Clearly, at an Olympic Games, this procedure is simply not quick enough. Hence the need for an ultra fast version of CAS arbitration.
CAS Ad Hoc Division
Established in 1996, the CAS Ad Hoc Division provides a swift mechanism for resolving disputes during the Olympic Games and the ten days preceding the Opening Ceremony. Its ability to handle urgent issues, including drug-related disputes, within 24 hours of an application being lodged, is crucial.
A panel of 10 arbitrators was appointed to the CAS Ad Hoc Division for Tokyo 2020. Cases are generally heard by 3 arbitrators. The pool of available arbitrators means someone should always be available to hear a case.
Legal Framework
Rule 61.2 of the Olympic Charter (to which all Olympic participants and national team federations are bound) stipulates 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 (CAS).
The CAS Ad Hoc Division operates under Article 1 of the CAS Ad Hoc Division Rules, which aligns with Rule 61 of the Olympic Charter.
Jurisdiction and Scope
Non-Drug Cases
The CAS jurisdiction extends to a wide range of disputes, including:
- Eligibility issues
- Selection disputes
- Disciplinary matters
- Protests against competition results
Potential Drug use Cases
There is a second office, the CAS Anti-Doping Division, which adjudicates anti-doping-related cases. This was introduced during the Rio 2016 Olympic Games. The International Testing Agency will refer possible doping cases to the CAS Anti-Doping Division. This is done in accordance with the International Olympic Committee anti-doping rules.
The broad scope ensures that virtually any dispute arising during the Olympic period can be addressed promptly enough so that everyone involved should know where they stand before the next race/event affected by the dispute is due to commence.
How is this all achieved in practice?
Expedited Procedures
- 24-Hour Turnaround: The CAS Ad Hoc Division is committed to rendering decisions within 24 hours of an application being filed. In cases of extreme urgency, this timeline can be even shorter.
- On-Site Presence: Arbitrators and staff are physically present at the Olympic venue, allowing for immediate action when a dispute arises.
- Simplified Filing Process: The application process is streamlined to allow for quick submission of disputes, often with relaxed formalities compared to standard CAS procedures.
- Flexible Hearings: Hearings can be conducted in person, via video conference, or even by phone to accommodate the urgency of the situation
Impact on Olympic Participation
From a legal perspective, the existence of the CAS Ad Hoc Division provides a safety net for athletes and national Olympic committees. It ensures that last-minute disputes, which could potentially derail years of preparation, have a forum for resolution that respects due process while acknowledging the time constraints of the Olympic schedule.
Despite its relative effectiveness, it is not without its critics. Some argue that the speed of proceedings may compromise the depth of legal analysis. Others contend that the division’s decisions may not always align with established CAS jurisprudence due to the unique pressures of the Olympic environment.
For some this can lead to “rough and ready” justice but it is the least worst option when faced with a new dispute which needs to be resolved within 24-48 hours or fewer.
The pressure to resolve disputes quickly presents challenges:
- Limited Time for Evidence Gathering: Parties may struggle to collect and present all relevant evidence in the shortened timeframe.
- Potential for Errors: The speed of decision-making could potentially lead to oversights or errors.
- Stress on Athletes: The urgent nature of proceedings can add significant stress to athletes already under Olympic pressure.
- Balancing Interests: Arbitrators must balance the interests of individual athletes, their competitors, the national teams, and the integrity of the competition as a whole.
Example Cases
These are some examples of the many cases the CAS Ad Hoc Division resolved at the delayed ‘Tokyo 2020’ Olympic Games and the 2022 Winter Olympics in Beijing.
Eligibility Issues – Tennis
Oksana Kalashnikova and Ekaterine Gorgodze – female Georgian tennis players and members of the Georgia Tennis Federation (GTF).
Their names did not appear on the Olympic Entry List for the womens’ doubles event. They blamed the GTF, the Georgian National Olympic Committee (GNOC) and the International Tennis Federation (ITF). The core issue was that the GNOC had assured Ms Kalashnikova and Ekaterine Gorgodze that their names had been entered but it transpired this was false. A dispute broke out as to their eligibility by reference to their ITF rankings.
The CAS Ad Hoc Division ruled against the tennis players though, essentially due to a lack of evidence and a failure on their part to ensure such an important matter had been dealt with in writing. A harsh result, perhaps but illustrative of how bureaucratic and procedural sports eligibility processes can be.
In Competition Disputes – Athletics
During the heats of the mixed 4 x 400m track relay:
- The USA Team exchanged their baton outside of the designated compulsory exchange zone; and
- The Dominican Republic team switched lanes late in the race.
Both teams were disqualified. They appealed, initially successfully, to the World Athletics Jury (the International Governing Body being the first instance forum for an athletics based dispute). The two teams were reinstated and went through to the final, where they won silver and bronze medals.
Other relay teams effected by the reinstatement by the World Athletics Jury included Belgium and the Netherlands. Their National Olympic Committees applied to CAS after the final had finished. Their applications were rejected partly on technical grounds as to jurisdiction to decide on “on field decisions” after the event and on the basis that because the final had already been run, the relief Belgium and Netherlands NOCs sought, could not in fact be granted.
Drugs Issues
On 12 February 2022 (midway through the Winter Games), applications to the CAS Ad Hoc Division, concerning Russian figure skater Kamila Valieva, were filed by the International Olympic Committee (IOC), the World Anti-Doping Agency (WADA) and the International Skating Union (ISU). These concerned drug test results following tests in December 2021 but astonishingly the results of which were not notified until during the Winter Games in February 2022.
The IOC, WADA and the ISU all challenged the decision issued by the RUSADA Disciplinary Anti-Doping Committee (ADC). The RUSADA ADC had decided that the provisional suspension imposed on Kamila Valieva should be lifted, despite the detection of the banned substance trimetazidine in her sample. Thus, allowing her to continue her participation in the Olympic Winter Games Beijing 2022 as her drugs case had not yet reached a final conclusion.
Limited specifically to the facts of that case, the CAS Ad Hoc Division determined that:
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- Kamila Valieva was a “Protected Person” under the relevant WADA Codes (WADC);
- RUSADA Anti-Doping Rules and the WADC were silent with respect to whether provisional suspensions should be imposed on Protected Persons;
- Significant weight should be placed on principles of fairness, proportionality, irreparable harm (from being denied entry to the Olympics), and the relative balance of interests as between the multi national applicants and the individual athlete, who did not test positive during the Olympic Games in Beijing itself; and
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- the incredibly late notification of the test results denied the athlete the usual time to defend her position and avail herself of legal due process in the drug test case.
Accordingly, the provisional suspension was to remain lifted and Kamila Valieva was allowed to participate in the Olympics. Unsurprisingly this decision was controversial to many and attracted a lot of media attention. Valieva went on to win gold but when her case was subsequently reviewed fully by CAS, she received a four year ban and was stripped of her medal.
This case neatly illustrates the knife edge decisions the Ad Hoc Division sometimes faces and how, in the eyes of some, it can get things “wrong”.
Conclusion
Whilst it has many limitations (mainly imposed by its inability to freeze time) the CAS Ad Hoc Division is an indispensable component of Olympic governance. It strikes a delicate balance between the need for swift justice and the imperative of fair proceedings for athletes who have trained their whole life for a chance at Olympic success. These factors will always weigh heavily on the Panel’s mind, as perhaps best illustrated by the Kamila Valieva case mentioned above.
CAS processes are usually expertly coordinated and the Arbitrators do their job with great diligence and care. They do so at very anti social hours and often under huge pressure from the parties and their representatives to digest voluminous and complex information and reach the “right” decision.
The Ad Hoc Division does great work but, like the athletes, it will inevitably have the occasional bad day too.
For more information about the world of Law and Sport contact Phil Edmondson, one of our Expert Sports Lawyers.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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