London calling: the ad hoc division of the Court of Arbitration for Sport at the 2012 Olympic and Paralympic Games by Dr Jack Anderson

London calling: the ad hoc division of the Court of Arbitration for Sport at the 2012 Olympic and Paralympic Games

 

by Dr Jack Anderson[1]

 

Introduction

 

Medal ceremonies at the Olympics have witnessed their fair share of drama and none more so than in 1968 when, at the presentation of medals for the men”s 200 metres final two African Americans, Tommie Smith and John Carlos, made a gesture of solidarity with the civil rights movement in the USA. Both athletes raised one black-gloved fist in salute (symbolising black unity); both went barefooted (symbolising black poverty); and both bowed their heads as the anthem played in a gesture that lingers as one of the most iconic in recent Olympic history.

 

At the last summer Olympics, in Beijing in 2008, the presentation of medals for the 84 kg division of greco-roman wrestling also attracted controversy but of a rather more selfish and petulant nature. During the ceremony, Sweden’s Ara Abrahamian took his bronze medal from around his neck, stepped from the podium and dropped it in the middle of the mat before storming off. Earlier, the Swedish wrestler had to be restrained by team-mates when a row erupted with judges over the decision in his semi-final bout with Andrea Minguzzi of Italy, who went on to the take gold. Abrahamian, who won silver at the Athens 2004 games, shouted at the referee, confronted judges, and angrily threw off the restraining arm of a team official. Stripped of his medal and suspended for “unsportsmanlike behaviour” at odds with the “true values of a true Olympian”, Abrahamian eventually lodged a series of appeals. The initial appeal was heard by CAS’s ad hoc division sitting in Beijing.

 

It is that division of CAS that this paper deals with generally and, more specifically, how this ad hoc tribunal deals with the misdirected passion and pride of the athlete scorned.

 

CAS ad hoc: its origins

 

The origins of CAS ad hoc can be traced to 1996 when the International Council for Arbitration for Sport (“ICAS”) charged it with the objective of settling finally and within a 24-hour time-limit any disputes arising during the summer Olympics in Atlanta. To ensure easy access to CAS ad hoc for all those taking part at the Olympics (athletes, officials, coaches, federations etc.), a special ad hoc procedure or code was created for the occasion, which has more or less stayed in place ever since. Since 1996, CAS ad hoc divisions, based on amended versions of the original procedure, have been created for each edition of the Olympics (summer and winter) and adapted ad hoc divisions have also been a presence at every Commonwealth Games since 1998, at every UEFA European Championships since 2000 and every FIFA World Cup since 2006.­

 

This article makes four overlapping points on this ad hoc service, which, as stated, is now a “must-have” feature of most major global sporting events.[2] The first is one that appears straightforward but, nonetheless, should not be forgotten in any legal discussion of CAS or its awards and its precedent-setting, lex sportiva role – the ad hoc division epitomises all that is good with alternative dispute resolution (“ADR”) processes and all that is comfortable with the application of ADR to sporting disputes. Accordingly, it is argued that CAS ad hoc has provided wide and speedy access to justice in a manner that is, exactly as CAS’s website proclaims it to be – “simple, flexible and free of charge”.[3]

 

The second part of this paper notes that CAS ad hoc panels carry out their remit in a very concentrated period of time and in a much pressurised atmosphere. The pressure is internal in nature – given what is at stake (reputational and economic) for the typical athlete-applicant; but it is also external, given the significant media presence and scrutiny that accompanies every Olympics.

 

The third point critically assesses the claim made by CAS on its website that the creation of the “ad hoc structure is unquestionably a key point in the history of the CAS” because the various ad hoc divisions have “played a large part in making the Court of Arbitration for Sport known among athletes, sports organisations and the media all over the world”. This analysis will be carried out by way of a review of various CAS awards on what might be deemed refereeing-related or “field of play” complaints.

 

The fourth and final part builds on the analysis of the stated awards and asks: given what we have learned about how CAS ad hoc has operated previously, what can we expect from the ad hoc tribunal at the London Olympics of 2012?

 

CAS ad hoc: its fundamental rationale

 

The founding and fundamental rationale of CAS ad hoc’s dispute resolution service remains twofold in nature: to provide a CAS ad hoc jurisdiction and remit which is easily accessible for all those taking part in the Olympics or at the sporting event in question; and to provide a dispute resolution service that is simple, flexible and free of charge in operation. A quick review of the most recent, Olympic-related, ad hoc rules and cases illustrates the above principles in action.

 

Rational 1: accessibility

 

On the (wider) jurisdictional point, the first point of reference is to Rule 59 of the Olympic Charter which states succinctly that “any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to CAS, in accordance with the Code of Sports-Related Arbitration”. Article 1 of the current ad hoc rules reiterates this jurisdictional point insofar as such disputes “arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games”.

 

Typically in a CAS ad hoc hearing, the jurisdictional issue is raised by the respondent in an effort to strike out the applicant’s claim. Pursuant to Article 15(a) of the ad hoc rules, any defence of lack of jurisdiction must be raised at the start of the proceedings or, at the latest, at the commencement of the hearing. The jurisdictional remit is extremely and deliberately broad and the jurisdictional point usually succeeds only where in the case of a request for arbitration the claimant has not, before filing such request, exhausted all the internal remedies available to him/her pursuant to the statutes or regulations of the sports body concerned. Even then, Article 1 of the ad hoc rules provides that if “the time needed to exhaust the internal remedies would make the appeal to the CAS Ad Hoc Division ineffective” the ad hoc division retains a discretionary power to allow matters proceed.

 

A recent case of interest here was that involving the German speed skater Claudia Pechstein who attempted to use the ad hoc division of CAS at the Vancouver Winter Olympics to, in effect, force her way onto the German team in spite of the fact that she was serving a drugs ban, which had itself survived “blood profiling” scrutiny at CAS.[4] The thrust of Pechstein’s appeal was “new evidence” placing doubt, she alleged, about the integrity of the testing procedure used previously in her case. The CAS panel in question dismissed her appeal holding that there was no Vancouver Olympics-related decision to which they had jurisdiction and even if they had jurisdiction they did not have the power to overturn Pechstein’s doping ban.[5]

 

An even more recent case, which would certainly have tested the jurisdictional remit of CAS ad hoc at the London Games, concerns the interpretation of Rule 45 of the Olympic Charter. Rule 45, described in the Olympic Charter as a regulation regarding participation in the Olympic Games, was enacted by the IOC in 2008 and mandated that, as a condition of eligibility to compete in any Olympic Games, athletes, who had been suspended for more than six months for an anti-doping violation, would be prohibited from participating in the next Olympic Games following the expiration of their suspension. The most celebrated “victim” of Rule 45, was the American sprinter, LaShawn Merritt, the 2008 Olympic champion in Beijing in the men’s 400 meters but who in 2010 was given a 21-month doping ban and thus, pursuant to Rule 45, would not have been eligible to defend his title at the London Olympics of 2012.[6]

 

As it transpires, rather than leave its ad hoc division open to an “ambush” appeal by disgruntled athletes (such as Merritt or other high profile Rule 45 “victims” including US swimmer Jessica Hardy or British cyclist David Millar) in the days preceding the London Olympics, CAS wisely decided to hear the claim in 2011 in order to give it time to consider the issue without the pressure of an immediately imminent Games. Ultimately, the CAS panel in CAS 2011/O/2422 USOC v IOC held that Rule 45 was invalid and unenforceable and thus Merritt, and the others who have previously served lengthy doping bans, are now, pending qualification and selection, eligible to compete at the London 2012. Moreover, CAS ad hoc has avoided what would have been a fraught and difficult hearing in both its jurisdictional and substantive elements and one which would doubtless have been accompanied by intense media speculation and hype as well as the potential to disrupt and distract the preparation of the Games and, most importantly, athletes whose selection might have been affected by the outcome.

 

Rationale 2: simplicity

 

This point is illustrated is three ways. First, it is demonstrated by the “applicant-friendly” nature of the typical application process contained within the principles laid down in Article 10 of the ad hoc rules (the specific application process for the London Games has, at the time of writing, not yet been published by CAS). The usual application process necessitates, with admirable conciseness, only a copy of the decision being challenged; a brief statement on the jurisdictional, factual and legal arguments; and an outline of the relief sought. Second, the flexibility of procedure inherent in Article 15 of the ad hoc rules strikes a proper balance between due process and the “particular constraints of speed and efficiency specific to the ad hoc procedure”. Finally, and pursuant to Article 22, the facilities and services of the CAS ad hoc division, including the provision of arbitrators to the parties to a dispute, are free of charge, albeit the parties must pay their own costs of legal representation, experts, witnesses and interpreters. Given the abridged time frame, Article 8 of the ad hoc rules provides that the parties may be legally represented and it is of interest that the Bar Council (representing barristers in England and Wales), the Law Society (representing solicitors), the British Association for Sport and Law (a professional association representing sports law practitioners, administrators and academics) and Sports Resolutions (the leading independent sports dispute resolution facility in the UK) have combined to establish a London 2012 Pro Bono Legal Advice and Representation Service for the benefit of all those taking part at the Games.[7]

 

Overall, the approach adopted by CAS ad hoc in its rules and in its operation provides a useful model for any sports body at any level seeking “best practice” in the provision of an effective, internal dispute resolution facility. CAS ad hoc also demonstrates that, even at the apex of sporting endeavour – the Olympics – the elemental principle of fairness common to all dispute resolution mechanisms does not have to be surrounded by overly complicated procedures and technicalities in order to be “fit for purpose”.

 

CAS ad hoc: in action

 

Ad hoc hearings take place in a concentrated period of time and in a pressurised atmosphere. For instance, the general rule pursuant to Articles 18 and 19 is that an ad hoc panel must deliver a full reasoned award within 24 hours of the lodging of an application. Although they have the power to review de novo (Article 12), ad hoc panels often, and understandably, review applications in a brief but incisive manner and by way of a two-step test. The first step is the consideration of factors such as whether (on what might be called a “balance of convenience” approach) the relief sought is necessary to protect the applicant from irreparable harm; the likelihood of success on the merits of the claim; and whether the applicant’s interests outweigh those of the respondent or other members of the Olympic Community. In the second step, CAS ad hoc panel typically concern themselves with the “lawfulness” of the primary decision-taker’s actions i.e., whether the procedure was fair; whether the sanction was proportionate; and whether any exercise of judgment or discretion fell outside or within the reasonable limits open to the primary decision maker under their own regulations.

 

The pressure on ad hoc arbitrators at the Olympics is not, of course, simply internal in nature, it is also external given the significant media presence and scrutiny at any major sporting event. As it happens, the very first ad hoc CAS dispute had a number of characteristics that were to become fairly typical of ad hoc panels. CAS OG 96/001 US Swimming v FINA concerned an objection by US Swimming to a decision by FINA, the world swimming authority, permitting an Irish swimmer, Michelle Smith, to modify her entry forms thus allowing her to compete in the 400 metre freestyle event at the Atlanta Games. The appeal was dismissed and, at first glance, a contemporary reading of the panel’s decision appears to reveal that it did little more than apply the contra preferendum rule to its reading of the relevant FINA regulations. Nevertheless, the background was that the case had to be decided, within its limited timeframe, under significant pressure and in the face of intense media coverage. This was because Smith, an unexpected winner of swimming gold at the Atlanta Olympics, was surrounded by the suspicion of doping, and there appeared to be a concerted effort by a number of the larger swimming federations to use technical procedure to disqualify the Irish swimmer from further participation at the Games.

 

Similarly, and at the next Summer Olympics in Sydney in 2000, a CAS ad hoc panel upheld the IOC’s order that the Romanian gymnast, Andreea Raducan, return the gold medal awarded for her first place in the gymnastics (artistic) women’s individual all-round competition on the grounds of a drugs violation.[8] Based on the rigid form of the legal principle of strict liability, the Raducan award was handed down against a backdrop of mounting public and media sympathy for the slight, young gymnast, who had taken a headache tablet on the orders of her coach; not for the purposes of performance enhancing gain, but in order to alleviate stress.

 

CAS ad hoc: on the field of play

 

In a general sense, awards handed down by the various CAS ad hoc divisions, and the topics they have had to deal with, have, in a substantive legal way, been extremely influential and authoritative in the development of a corpus of law specific to sporting disputes globally, i.e. lex sportiva. This point is underpinned and evidenced by a glance at CAS ad hoc’s contribution to a highly contentious area of dispute in sport – when, if ever, so-called “field of play” decisions by umpires, that significantly alter the final outcome of a contest, can by reviewed or challenged thereafter. CAS ad hoc awards have been seminal in establishing the principle that “in play” refereeing decisions are not generally reviewable save in the exceptional circumstances of proof of bad faith by the official or officials in question – CAS OG 96/006 M v AIBA; CAS OG 00/013 S v IAAF; CAS OG 02/007 KOC v ISU; CAS OG 04/007 Bettina Hoy; and the aforementioned CAS OG 08/007 SNOC and Ara Abrahamian v FILA.

 

The importance and usefulness of this “ad hoc” authority is threefold. First, it has meant that permanent CAS panels presented with a similar set of contentious circumstances have been able to avail of this rich body of arbitral jurisprudence to inform their opinion.[9] Second, it means that where a controversial referring decision, that appears to have influenced the outcome of a high profile game, occurs and, before any possible appeal to CAS is considered, extant authority can be considered as a guide to the applicants’ probability of success and whether the (significant) time and costs needed to sustain a full CAS appeal should be undertaken. This author has had personal experience of this when in the aftermath of the controversial France vs Ireland World Cup playoff in November 2009 (when French striker, Thierry Henry, clearly handled the ball in the build-up to the goal that led to France qualifying for the 2010 FIFA World Cup tournament) there were calls from the Irish sports public, media and administration for efforts to be made to, in some way, “appeal” against the result to FIFA or even CAS. On calm explanation of the restrictive nature of CAS’s view on overturning in-play refereeing decisions, these calls evaporated quickly.

 

The third and final point here is that CAS ad hoc’s firm and consistent line on the questioning of in-play refereeing decisions is also more generally reflective of its own role at the Olympic Games and other sporting events. Ideally, CAS ad hoc should always act as a good referee does. “It should be firm but unobtrusive. It should, where possible, fade into the background and not unduly influence matters on the pitch or in the arena. In sum, it should act primarily to enhance the enjoyment of games, and to facilitate participation in, rather than the litigation of, sport.”[10]

 

Conclusion: CAS ad hoc at London 2012

 

So what to expect of CAS ad hoc at London 2012? The answer can only be speculative in nature because every Games has presented CAS ad hoc with different, and at times, unusual challenges. At the Commonwealth Games of 2010 in New Delhi, for example, CAS ad hoc had to consider the residency requirements of an applicant seeking to represent Norfolk Island in lawn bowls.[11] More likely, it is the eligibility and selection issues of the kind that manifested themselves in the women’s bobsled event at the Vancouver Games of 2010 which provides a better guide as to the type of work CAS ad hoc arbitrators can expect at London 2012. In those proceedings, a complex dispute arose involving Ireland, Australia and Brazil and regarding the International Bobsleigh & Tobogganing Federation’s application and interpretation of its qualification and quota system for the games in question.[12]

 

Finally, the jurisprudence that has emerged from the various CAS ad hoc divisions over the years illustrates starkly that the competitive nature of sport now extends outside the Olympic arena and, occasionally, into the legal domain. This is most likely also to be reflected at the 2012 Games though it is hoped that CAS ad hoc’s influence on the sporting summer of 2012 will be minimalist in nature; and instead it is that which is achieved by athletes on the track, rather than on appeal, that will lie at the heart of the London Games.

 



[1] Dr Jack Anderson, Reader in Law, School of Law, Queen”s University, Belfast. E-mail: jack.anderson@qub.ac.uk.

[2] This paper was first delivered at the 2nd Annual Conference on Law, Policy and the Olympic Movement, Ithaca College, London Centre, 18-20 May 2011, with an accompanying report by the author in (2011) 9 (6) World Sports Law Report 10-11.

[4] CAS OG 10/04 Claudia Pechstein v DOSB & IOC.

[5] For further background see D. McArdle, “Longitudinal profiling, sports arbitration and the woman who had nothing to lose” in: M. McNamee and V. Miller (eds.), Doping and Anti-Doping Policy in Sport (London, Routledge, 2011) pp.50-65.

[6]The US anti-doping agency admitted that at least 33 other athletes were directly affected by Rule 45. The IAAF estimated that there were around 50 athletes who were disbarred from the London Olympics by Rule 45. See further: O. Gibson, “La Shawn Merritt’s Olympic ban overturned giving hope to UK Athletes” in: The Guardian, 7 November 2011, Sport, p.5.

[7] For further details see www.sportresolutions.co.uk.

[8] CAS OG 2000/011 Raducan v IOC.

[9] Note the use of CAS ad hoc jurisprudence in the following, recent review of “field of play” principles – CAS 2010/A/2090 FSA & Saarinen v FIS.

[10] J. Anderson, Modern Sports Law: A Textbook (Oxford, Hart, 2010), p xvii.

[11] CAS CG 2010/01 Jones v CGF.

[12] CAS OG 10/01 and 02.