Thinking | 2 March 2022

Beijing 2022 Winter Olympics: Court of Arbitration for Sport decisions

By Martin Ross, Mark Lebbon and Gabrielle Fee

In February 2022, viewers around the world were dazzled by the skill and courage of athletes participating in the Beijing 2022 Winter Olympics. Behind the competitions held at Beijing 2022, the Court of Arbitration for Sport (CAS), through an ad hoc tribunal (CAS Ad Hoc Division), worked to arbitrate disputes over qualification and eligibility and doping-related matters. We summarise the decisions below.

CAS Ad Hoc Division

CAS has operated a CAS Ad Hoc Division at each Olympic Games since 1996, with the purpose of resolving disputes that arise during the Olympic Games in an expedited manner. Article 1 of the CAS Ad Hoc Division Rules, by reference to Rule 61 of the Olympic Charter provides that:

‘Any dispute arising on the occasion of, or in conjunction with, the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport (CAS), in accordance with the Code of Sports-Related Arbitration.’[1]

CAS opened two temporary offices in China to provide dispute resolution services immediately before and during Beijing 2022, operating between 25 January 2022 and 20 February 2022. Where an application is made to the CAS Ad Hoc Division, the matter is generally heard by three arbitrators.[2] A panel of nine arbitrators was appointed to the CAS Ad Hoc Division for Beijing 2022.

As at 28 February 2022, the CAS Ad Hoc Division has published decisions for six cases in relation to Beijing 2022.

Case summaries

The decisions related to:

  • jurisdiction of the CAS Ad Hoc Division;
  • qualification and selection; and
  • a decision by a tribunal of a national anti-doping authority to lift a provisional doping suspension.

Unlike in some recent Olympic Games, the CAS Ad Hoc Division did not hear any field of play disputes.

We summarise these decisions below.

Jurisdiction of the CAS Ad Hoc Division[3]

Under Article 1 of the CAS Ad Hoc Rules, the jurisdiction of the CAS Ad Hoc Division is the resolution of:

any disputes covered by Rule 61 of the Olympic Charter, insofar as they arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games.’

The dispute must not only be covered by Rule 61 (a dispute arising on the occasion of, or in connection with, the Olympic Games) but it must also either arise during the Olympic Games or no earlier than ten days before the Opening Ceremony. For Beijing 2022, the Opening Ceremony was held on 4 February 2022, meaning any dispute must not have arisen earlier than 25 January 2022.

In addition, CAS will only have jurisdiction where the applicant has exhausted all the internal remedies available to them under the statutes or regulations of the sports body concerned, unless the time needed to exhaust the internal remedies would make the appeal to the CAS Ad Hoc Division ineffective.

As such, a preliminary question for each Panel hearing an application in the CAS Ad Hoc Division is to determine whether or not it has jurisdiction to hear the application.

Facts[4]

Andrei Makhnev and Artem Shuldiakov are mogul skiers who, at the time of the application, were ranked among the four best Russian mogul skiers.

Due to COVID-19, the number of events which counted towards qualification to participate in the mogul skiing event for Beijing 2022 was reduced to 10 World Cup events and the World Championships.

Makhnev and Shuldiakov both received the Sputnik V COVID-19 vaccine. At the relevant time, the Sputnik V COVID-19 vaccine was not recognised by the USA or Canada and, as a consequence, Makhnev and Shuldiakov were unable to participate in the last four World Cup events which were held in the USA and Canada.

Under the Qualification System for mogul skiing, 30 quotas were allocated based on each athlete’s results from the World Cup events and World Championships. The Russian Olympic Committee (ROC) first requested additional quotas for Makhnev and Shuldiakov on 31 December 2021. The International Ski Federation (FIS) did not reject the request but stated that the request was premature as quotas could only be reallocated after the end of the qualification period.

On 17 January 2022 the FIS published its Allocation List. Makhnev ranked 39 on the Allocation List and Shuldiakov ranked 43, meaning that they were placed 3rd and 7th respectively on the list of ‘next best ranked athletes’ who missed out on qualifying for Beijing 2022.

The ROC then requested that two additional quotas be granted to the ROC and that, as two ROC athletes already qualified in a different event, freestyle skiing, were not able to travel to Beijing 2022 requested that these quotas should be allocated to Makhnev and Shuldiakov.

On 26 January 2022 the FIS responded by saying increases in quota places is not a decision for FIS and that the matter should be raised with the International Olympic Committee (IOC).

Decision

A threshold question arose as to whether CAS had jurisdiction to hear the application.

The Panel noted that the CAS Ad Hoc Division is a tribunal of limited jurisdiction. Article 1 of the CAS Ad Hoc Rules requires that certain conditions be met for an application to have jurisdiction. As there was no challenge to jurisdiction based on lack of exhaustion of internal remedies, the dispute raised by Makhnev and Shuldiakov had to be:

  • covered by Rule 61 of the Olympic Charter (ie be a dispute arising on the occasion of, or in connection with Beijing 2022); and
  • either arise during Beijing 2022 or during a period of ten days preceding the Opening Ceremony for Beijing 2022.

The Panel was satisfied that the first condition was met, given the dispute related to qualifying spots and athletes for Beijing 2022. However, for the second condition to be met, the relevant dispute needed to have arisen not before 25 January 2022 – ten days before the Opening Ceremony.

Importantly, the Panel noted that ‘arise’ in the CAS Ad Hoc Rules refers to the start of a dispute, not its conclusion or the end of that dispute.

The Panel formed the view that the dispute probably arose as early as 31 December 2021, when the ROC sent its first letter to the FIS, and at least as late as 17 January 2022, when the FIS published its Allocation List which did not include additional quota spots for Makhnev and Shuldiakov. As such, the Panel found that it was clear that the dispute arose well before 25 January 2022, being the effective date of jurisdiction under the CAS Ad Hoc Rules.

The Panel was unpersuaded by Makhnev and Shuldiakov’s arguments that there was no dispute until well after 17 January 2022 given the ongoing communications Makhnev and Shuldiakov had with FIS through to 26 January 2022.

While the Panel was sympathetic to the difficulties faced by the Makhnev and Shuldiakov with continued changes to border rules as a result of the COVID-19 pandemic, the Panel found that it did not have jurisdiction and further was not able to express a view as to whether they should have been granted additional quotas.

Outcome

The CAS Ad Hoc Division did not have jurisdiction to hear the application.

Qualification and selection disputes

For many athletes, participation in the Olympic Games is the pinnacle of their career. However, participation is a privilege not a right and rule 44.3 of the Olympic Charter provides that ‘[n]obody is entitled to any right of any kind to participate in the Olympic Games’.

To be selected to participate at an Olympic Games, athletes must satisfy a number of criteria. Athletes who satisfy the applicable citizenship criteria for a country may be nominated by their national Olympic association (NOC) to the IOC to participate in the Olympic Games. This nomination usually follows a recommendation by the national federations (NF) for the relevant sport and after consideration of the qualification criteria for the relevant events, as determined by the international federation (IF) for that sport.

Most disputes regarding qualification and selection are resolved in advance of the Olympic Games. Sometimes those disputes are heard by CAS’s ‘ordinary’ tribunal. However, in some instances, qualification and selection disputes are still active in the immediate lead up to the Olympic Games and result in applications to the CAS Ad Hoc Division.

Facts[5]

On 16 January 2022 the International Bobsleigh and Skeleton Federation (IBSF) published the quota of athletes per NOC, contemplated in the Olympic Games Qualification System (Qualification System) for the Skeleton event. The next day, the IBSF released its ranking in Women’s Skeleton for the Qualification System.

On 18 and 19 January 2022, both the French and Swedish NOC declined the quota place they had earned, resulting in an allocation of 24 out of 25 available quotas.

On 24 January 2022, the Qualification System for Beijing 2022 was issued, which amended the Qualification System criteria issued in 2020 by expanding eligibility from the top 45 women to the top 55 women, and by reducing the number of races in which athletes were required to rank during the ranking period (Qualification System Amendment). On the same day, the IBSF republished the Women’s Skeleton quota and reallocated the quota declined by France and Sweden to United States Virgin Island NOC, and its athlete Ms Tannenbaum, who was ranked 49th.

Megan Henry from USA, petitioned the IBSF Appeals Tribunal to be selected for the open quota spot allocation, instead of Ms Tannenbaum. The IBSF Appeals Tribunal issued a decision denying Henry’s petition on 25 January 2022.

Appealing the decision of the IBSF Appeals Tribunal, Henry submitted to the CAS Ad Hoc Division that the IBSF be required to adhere to the eligibility requirements set out in the Qualification System prior to the Qualification System Amendment. Henry contended that the Qualification System Amendment was enacted after the deadline for which the IBSF would reallocate all of the unused quota places, and resulted in Henry (who was ranked 15th on the IBSF Ranking List) being bypassed by Ms Tannenbaum who was ranked 49th. As a result, Henry argued that the change to the Qualification System was ‘unfair to, and prejudicial to, the Applicant’.

Decision

The Panel noted, in considering Henry’s submissions, that it is not for them to engage with the reasons behind the Qualification System and whether or not there could be a better system. The Panel is required only to look at the provisions of the Qualification System, which it considered to be ‘clear’.

The Qualification System provides that quota places are allocated to the NOC and then it is at the discretion of the NOC to select athletes for those allocated quota places. If reallocation of a quota place is required, this reallocation is not to an athlete but to a NOC which did not earn a quota place and which has the next best ranked athlete.

The Panel then noted that the US NOC had been allocated the maximum number of quota places under the Qualification System for a NOC, being two, and had filled the number of places allocated to it, with two athletes. When a place became available for reallocation in the competition, it could not be allocated to the US NOC for two reasons:

  • US NOC already had an allocation quota and so was not eligible for any reallocation; and
  • if Henry were the subject of reallocation the US NOC would have three athletes and would exceed its quota in breach of the Qualification System.

Section F of the Qualification System provided, inter alia, that, as part of the reallocation of unused quota places, exceeding the total amount of quota places is not allowed under any circumstances. The Panel also confirmed that the Qualification System Amendment had no influence on the eligibility of Henry to be reallocated a quota place.

The Panel noted that despite Henry’s submissions citing principles set out in the Olympic Charter, including the commitment to athletes, women in sport, the qualification of athletes, the absence of discrimination and athlete safety concerns, as grounds for the reallocation of the quota spot to her, those principles are only able to apply the Qualification System which the IBSF adopted. In the absence of special circumstances, which were not found in this case by the Panel, the Panel should not and cannot substitute its judgment on such matters.

It was not necessary for the Panel to consider the effect of the timing or reason for the Qualification System Amendment or whether Henry has standing to challenge it, as the Panel determined that it did not affect the outcome of the case. It was also not open for the Panel to address other matters raised, including the perceived unfairness behind the allocation/reallocation criteria of the Qualification System.

Outcome

The application was dismissed and the decision of the IBSF Appeals Tribunal on 25 January 2022 stands.

Facts[6]

On 17 January 2022, the IBSF published the Ranking List for the 2-man Bobsleigh event (Event) for Beijing 2022. According to the Ranking List, the national governing body for bobsleigh and skeleton in Israel, Bobsleigh Skelton Israel (BSI), did not qualify for the Event, but appeared in the first position in the list of potential NOC candidates for reallocation of quota places.

On 21 January 2022, the President of the BSI, Mr Greaves, emailed IBSF, copying Mr Edelman, a bobsled pilot of Israeli nationality and a member of the BSI, inquiring on behalf of the BSI (and the Nigerian Bobsled Federation), regarding the allocation of quota places within the IBSF Qualification System for Beijing 2022 for the Event. Greaves submitted that since not all available athlete quota spots were allocated, the BSI assumed that it could be granted the unused places, as it was first on the list of NOCs considered for reallocation.

In response, the Secretary General to the IBSF, answered:

‘In regard to the quota spots I cannot give you a precise answer as well, as it very much depends whether a bobsleigh team nominates the same team for 2-man and 4-man – so just that means more or less people. The decisive point are the quota places in our qualification system which are limited to 25 both in Men and Women Skeleton, 20 places in 2-woman bobsleigh as well as 20 places in Women’s Monobob, 30 in 2-man bobsleigh and 28 in 4-man bobsleigh. The qualification system states, exceeding the total amount of quota places is not allowed under any circumstances, furthermore, unused quota places in an event cannot be reallocated to another event’.

On 24 January 2022 Edelman responded to IBSF, stating that:

‘there is a differentiation between quotas allocated for people and crews allocated for the event. There are 124 males quota'd, of which countries have elected to fill 117 positions. Seven quota slots are therefore left unfilled, enough for the addition of a 2 and 4 man team to fill the remaining quota positions.’

The BSI shared the position held by Edelman and requested that an additional crew for both disciplines be added to the Event, granting the BSI the benefit of the unused quota places.

By email dated 27 January 2022, the Secretary General to the IBSF informed the BSI that its request had been rejected by the IBSF Executive Committee based on the overall number of maximum allowed athletes, and the overall number of qualifying teams (Decision).

On 29 January, Edelman and the BSI filed an application with the CAS Ad Hoc Division appealing the Decision.

The Edelman and the BSI submitted the following:

  • there were only 117 places filled by athletes out of the 124 available qualification quota places for male athletes, and as a consequence, there were 7 athlete qualification quota places unfilled that could be further allocated;
  • the BSI be granted the unused athletes’ quota spots as it was the first ranked in the list for reallocation, which would allow Edelman to participate in the 2-man Bobsleigh event;
  • according to the IBSF Qualification System, the maximum number of quota places only referred to the number of athletes allowed into the competition and not to the number of crews of each NOC and therefore, the decision of the Executive Committee of the IBSF to reject their request was wrong; and
  • there is no provision in the IBSF Qualification System limiting the number of crews. Therefore, the number of crews was irrelevant when considering the allocation of quota places.

The IBSF did not dispute that after conclusion of the qualification phase, 7 quota places out of the total amount of 124 remained unfilled. However, the IBSF’s position was that although the final number of allocated quota spots may vary because of the same athlete competing as pilot in both the 2-man and the 4-man bobsleigh, there is no right of reallocation in case not all of these individual quota places have been filled. Further, all 19 NOCs used the full quota of 1, 2 or 3 crews for the 2-man Event which meant that there was no unused quota.

Decision

A preliminary issue arose about the Panel’s jurisdiction to hear the matter. The Panel noted that Edelman and the BSI had not exhausted all internal remedies prior to making its application to the CAS Ad Hoc Division and should, pursuant to the IBSF’s internal regulations, have challenged the decision with the IBSF Appeal Tribunal. However, pursuant to Article 1 of the CAS Ad Hoc Rules the CAS Ad Hoc Division can have jurisdiction if ‘the time needed to exhaust the internal remedies would make the appeal to the CAS Ad Hoc Division ineffective’. Although the Panel stressed the extraordinary character of this exemption, they held that given the need to urgently resolve the dispute to allow Edelman enough time to travel to Beijing, enter the health protocols and train for the Event meant that there were special and exceptional circumstances which meant it did have jurisdiction over the dispute.

The Panel observed that the issue before it was whether Edelman and the BSI were entitled to the assignment of the 7 unused spots, based on the position of the BSI at the top of the list of potential candidates for reallocation. In order to decide the dispute, the Panel considered the provisions under the IBSF Qualification System with respect to the Men’s Bobsleigh competition.

According to Section B.1 of the IBSF Qualification System, the qualification quota places for male athletes across the 2 man and 4 man bobsleigh amounts to a maximum of 124. Section B.2 specifies the maximum number of athletes per NOC in the 2-man Bobsleigh is distributed as follows:

  • Maximum of 2 NOCs with 3 crews per event
  • Maximum of 7 NOCs with 2 crews per event
  • Maximum of 10 NOCs with 1 crew per event

The Panel considered the legal framework and concluded that the 124 athletes’ quota are to be allocated in such a way that the following limits are not exceeded for the 2 man bobsleigh:

  • a maximum number of 19 qualified NOCs; and
  • a maximum number of 30 crews distributed among the 19 NOCs (of which, maximum 2 NOCs with 3 crews, maximum 7 NOCs with 2 crews and the remaining 10 NOCs with 1 crew each).

The Panel furthered considered that the final number of male athletes in the bobsleigh competition, up to the maximum of 124, may vary because the same athlete may compete as pilot in both the 2-man and the 4-man bobsleigh, which had occurred in this instance. In view of the above, the Panel found that Edelman and the BSI’s allegation that there is no provision in the IBSF Qualification System limiting the number of crews was baseless and required to be rejected.

The Ranking List showed that all 19 eligible NOCs had used the full quota of 1, 2 or 3 crews for the 2-man bobsleigh competition and, as a result the Panel found that there was no ‘unused quota’ for another crew left, even if not all individual athlete quotas for the ‘bobsleigh, men and women’ discipline has been filled.

The Panel observed that, upholding Edelman and the BSI’s request to be allocated two quota unused spots for the Event would have the effect to exceed both the maximum number of qualified NOCs, and the maximum number of crews, which was not in compliance with the IBSF Qualification System and also expressly prohibited under Section F of the same regulations.

Outcome

The Panel dismissed the application and the decision of IBSF Executive Committee stands.

Facts[7]

In December 2019 the IOC approved the ‘Qualification System for XXIV Olympic Winter Games, Beijing 2022 – Skeleton’ (Skeleton Qualification System) which provided, in part, for the distribution of the 50 quota places equally between male and female athletes (ie 25 places for male athletes and 25 places for female athletes). This was a reduction of the quota for males and an increase in the quota for females.

The Skeleton Qualification System also provided a maximum number of athletes per NOC in Skeleton as follows:

Male

  • Maximum of 2 NOCs with 3 male athletes
  • Maximum of 6 NOCs with 2 male athletes
  • Maximum of 7 NOCs with 1 male athlete

Female

  • Maximum of 2 NOCs with 3 female athletes
  • Maximum of 4 NOCs with 2 female athletes
  • Maximum of 11 NOCs with 1 female athlete

As such, although the total number of quota places was the same, there were 4 additional quota places for NOCs with 1 athlete in the women’s event as compared to the men’s event.

On 15 September 2020, as a result of the COVID-19 pandemic, the IBSF issued the ‘Exception to the IBSF International Bobsleigh Rules and IBSF International Skeleton Rules’, pursuant to which ‘Quotas for the 2021/22 season will be based on the IBSF Ranking system 2019/20’.

On 17 January 2022, the IBSF published the IBSF Ranking Men’s Skeleton (2021/2022) OWG Qualification System containing the ranking of the maximum number of quotas, as per the relevant provisions of the Skeleton Qualification System. In particular, the section titled ‘NOCs considered for reallocation’ of the published ranking contained the following list:

ROU 409

IRL 385

ISR 363

JPN 321

FRA 316

DEN 280.’

On 22 January 2022, the Irish Bobsleigh & Skeleton Association (IBSA) filed an Appeal before the IBSF Appeals Tribunal and IOC, requesting four additional quota places to men’s skeleton to ensure equal opportunity across genders for NOCs with 1 athlete to participate in Beijing 2022. In essence, they wanted the maximum number of quota places for NOCs with 1 athlete in the men’s event to be increased to 11, being the equivalent quota for the women’s event. Alternatively, the IBSA requested the unused men’s bobsleigh quota places be reallocated to men’s skeleton. On 23 January 2022 the IBSF published the final allocation of 25 quota places for men’s Skeleton which did not include a quota place for the IBSA’s athlete (Decision).

On 29 January 2022, the IBSA filed an appeal of the Decision in the CAS Ad Hoc Division, submitting that the December 2019 rule changes to the Skeleton Qualification System unfairly prejudiced several NOCs, particularly smaller nations which feature only one male athlete. The IBSA sought four additional quota placements to the men’s skeleton at Beijing 2022 to rectify the harm created by the Skeleton Qualification System changes by creating an equal opportunity for athletes from single sled nations to qualify sleds in the men’s field as their counterparts have in the women’s field. In the alternative, the IBSA asked that these four additional quota placements be made available from unused quota placements in the men’s bobsleigh, following precedent set in a 2010 case, CAS OG 10/01.

The jurisdiction of the CAS Ad Hoc Division was not contested as IBSF and IOC both waived any requirement for the IBSA to exhaust all internal remedies.

Decision

The Panel found that the IBSA had relied on two legal bases to support its application, namely:

  • that the Skeleton Qualification System as it relates to NOCs earning 1 quota placement are arbitrary and have a disparate impact against male athletes from emerging nations with only one athlete; and
  • in the past, when IBSF quota placements were unused and there were no eligible athletes to use them, these places have been reallocated to other disciplines under the IBSF’s jurisdiction.

In respect of its first argument, the IBSA relied on Fundamental Principle 4 of the Olympic Charter, which provides that ‘[e]very individual must have the possibility of practicing sport, without discrimination of any kind and in the Olympic spirit,’ and also Fundamental Principle 6 of the Olympic Charter which provides that ‘The enjoyment of the rights and freedoms set forth in the Olympic Charter shall be secured without discrimination of any kind…’. The Panel found that there was no evidence of discrimination in any sense, whether it was direct or indirect discrimination.

The Panel also found that the efforts of the IBSF to ensure gender equality when considering all of its disciplines at the Olympic Winter Games is a matter of policy to be taken up by IBSF and is not a legal basis for a discrimination claim. There was no evidence that male athletes were not treated equally under the published and approved criteria, or that anyone set out to discriminate against male athletes from countries with one male athlete. In addition, the Panel observed that the IBSF approved the Skeleton Qualification System in 2019 and there were no complaints from the IBSA until after one of its athletes failed to qualify. The Panel found that the IBSA was estopped from raising issues about the Skeleton Qualification System which it could have raised during the last two years.

In respect of its second argument, the IBSA relied on the decision in CAS OG 10/01. The Panel distinguished the application from that previous decision. The Panel stated that the threshold issue of finding a legal violation must be met before relief can be granted, and the Panel found that threshold was never met. In addition, the Panel noted that the issue in CAS OG 10/01 was the ambiguity in the qualification process and that in the current application no such ambiguity was alleged. The Panel also noted that CAS OG 10/01 was specifically not followed in CAS OG 20/05 so the weight given to CAS OG 10/01 as a precedent is low.

In any event, the Panel stated that if the relief sought by the IBSA was granted (ie allocating 4 additional spots to male athletes or reallocating unused spots from the men’s bobsleigh) it would circumvent the clear and specific requirement in the Skeleton Qualifying System that exceeding the total amount of quota places for men is not allowed under any circumstances.

The Panel found that the relief requested by the IBSA required the Panel to put itself into a role of policymaking for skeleton, and it was not appropriate for the Panel to do this.

The Panel summarised the decision by stating:

‘Sympathy is no reason for overlooking unambiguous and properly adopted rules as written or for ignoring qualifying criteria to which all athletes in a sport are subject.’

Outcome

The Panel dismissed the application.

Facts[8]

On 17 January 2022 the IBSF published the Ranking List of the 2-woman Bobsleigh event for Beijing 2022. The Ranking List showed that Ms Jazmine Fenlator-Victorian was tied with French athlete Ms Margot Boch in the 2-woman Bobsleigh ranking, each with 674 points. Based on these point rankings and pursuant to the IBSF Qualification System for Beijing 2022 – Bobsleigh (Qualification System), the IBSF allocated the final quota spot for the 2-woman event to the Comité National Olympique et Sportif Français (CNOSF) instead of the Jamaican Olympic Association (JOA).

Fenlator-Victorian scored 674 points from 7 of her 8 best races in the North American Cup Competition. Ms Boch accrued the same number of points from the World Cup Competition and the Europe Cup Competition. Although Ms Boch had only actually competed in 5 races, her results showed that she competed in 6 races. This was because the race in the Europe Cup competition scheduled for 4 December 2021 was cancelled due to weather and, as it was unable to be re-scheduled, the IBSF decided to double count the points athletes accumulated in the Europe Cup race on the 5 December 2021 which Ms Boch competed in (Executive Committee Decision).

On 31 January 2022, Fenlator-Victorian submitted a petition to the IBSF Appeals Tribunal against the decision of the IBSF Executive Committee awarding CNOSF the last 2-woman bobsleigh spot for Beijing 2022. Fenlator-Victorian challenged the point ranking table and the allocation of the final 2-woman bobsleigh quota spot to CNOSF instead of JOA. Further, Fenlator-Victorian argued that, in accordance with Article 7 of the IBSF Code of Ethics, it is prohibited from awarding points twice for a competition that did not take place. On 2 February 2022 the IBSF Appeal Tribunal dismissed Fenlator-Victorian’s petition without holding a hearing (Appealed Decision) because Fenlator-Victorian lacked standing as an individual athlete given the Qualification System allocates quota spots to NOCs and not individual athletes.

On 5 February 2022 Fenlator-Victorian filed an application with the CAS Ad Hoc Division against the IBSF regarding the Appealed Decision.

In relation to the question of standing, Fenlator-Victorian argued that the Appeals Tribunal was incorrect in stating that she did not have legal standing, given she was directly affected by the decision concerning her individual point rankings as calculated by the IBSF. Fenlator-Victorian produced a letter from the JOA stating that if the application resulted in the allocation of a quota spot to JOA then JOA would assign Fenlator-Victorian and her brake woman, Audra Segree, to that quota spot.

In her application Fenlator-Victorian sought that the point rankings be recalculated without the double-counted result, which would result in Fenlator-Victorian having 674 points and Ms Boch having 564 points. As a result, Fenlator-Victorian submitted that the final quota allocation should be awarded to JOA but also that an additional quota spot to be allocated to the CNOSF to permit greater inclusion of female athletes at Beijing 2022. Fenlator-Victorian’s arguments for seeking this relief were:

  • the allocation of the quota spot to the CNOSF was unfair and discriminatory given the race on 5 December 2021 was a race which JOA athletes could not attend due to logistical and financial reasons, particularly as a result of the COVID-19 pandemic. This further exacerbated the difference between European-based and non-European based athletes;
  • in making the Executive Committee Decision, the IBSF did not respect the applicable regulations as regards to the athletes’ point rankings. In particular:
    • ‘fictitious’ results must be excluded given section D.2.1 of the Qualification System requires that the results to be included in the ranking are restricted to ‘the best results of each pilot in all races that she had participated in…’;
    • under Article 3.8 of the IBSF Statutes the IBSF is permitted ‘To recognise only those competitions which comply with these Statutes and the Rules of IBSF’; and
    • there is no provision within the IBSF Statutes or Regulations allowing the IBSF to award points for a competition which did not take place, based on the results of another race. Article 7 of the IBSF Code of Ethics, provides that the IBSF cannot ‘alter the course or result of a competition except as expressly permitted by the rules and regulations governing the competition’; and
  • the Executive Committee Decision was arbitrary since sports results are unpredictable and the results of the race on 4 December 2021, had it taken place, would have been completely different from the results of the race on 5 December 2021. There was also no reason to double count points from the 5 December race rather than another race from the qualification period.

The IBSF and CNOSF (an interested party to the proceedings) argued that:

  • Fenlator-Victorian failed to raise a timely formal complaint against the Executive Committee Decision (the decision was issued on 9 December 2021) and had a complaint been raised earlier it would have given Ms Boch and others a chance to compete in additional competitions in the event the complaint had been successful;
  • under Article 22 of the IBSF Statutes the Executive Committee is entitled to take any decision unforeseen in the Statutes, and under Article 10.6.12 of the IBSF Rules, the replacement in case of race cancellation is an option and not a requirement for the IBSF Executive Committee, especially if replacement of a race is not feasible;
  • the Executive Committee Decision was made because cancelling one Europe Cup race would be disadvantageous to European countries with athletes wanting to gain points for Beijing 2022 as they would have one less race to compete in than those competing in the North America Cup;
  • rescheduling the 4 December 2021 race was not feasible. Therefore, retroactively double counting the results of the 5 December 2021 race was within the IBSF’s scope;
  • there were two additional races on the Europe Cup after the 5 December competition which Fenlator-Victorian could have competed at to obtain further points;
  • Fenlator-Victorian’s arguments regarding discrimination were misplaced as she could have participated in the remaining European Cup races, the Executive Committee Decision was not aimed at a particular athlete or category of athletes and no complaints were raised against the Qualification System based on allegedly discriminating discrepancy between female and male quota places; and
  • Fenlator-Victorian’s request to add an additional quota for the 2- woman Bobsleigh competition to also allow Ms Boch to compete is not allowed under the IBSF Qualification System as it is expressly prohibited under Section F.

Decision

Firstly, the Panel needed to decide whether Fenlator-Victorian had standing to submit the application for its claims relating to the setting aside and recalculation of ranking points. In order to have standing, Fenlator-Victorian needed to demonstrate that they were sufficiently affected by the Executive Committee Decision and had a tangible interest, of financial or sporting nature, at stake. The Panel held that, as an individual athlete, Fenlator-Victorian had a direct interest in the proper conduct of the qualification process and in the compliance with the applicable rules, with a view to her possible qualification. That interest became tangible when the Executive Committee Decision to double count the results meant she had the same ranking points as Ms Boch which determined whether or not she qualified for Beijing 2022. Although Fenlator-Victorian was a third party to the Executive Committee Decision (since she was not registered for the 4 December race and did not take part in the 5 December race), she still had standing because the Executive Committee Decision affected not only those to whom it was directed but it also directly affected Fenlator-Victorian as a third party.

However, in respect of Fenlator-Victorian’s other claim relating to the granting of quota spots, the Panel confirmed that Fenlator-Victorian lacked sufficient legal interest and standing to obtain a change in the allocation of the quota place from one NOC to another or to order an additional quota for her NOC given quota places are allocated to NOCs and not athletes individually. The Panel found this is the case regardless of whether Fenlator-Victorian had the support of the JOA that any disputed quota would be granted to Fenlator-Victorian. The Panel also noted that it would not be appropriate in any event for it to award additional quota places simply to satisfy all parties. That would require a change in the competition format and also in the organisation and logistics which could impact on the operations of the competitions.

In relation to the substance of the application as to whether the Executive Committee Decision was justified, the Panel determined:

  • Article 10.6.12 of the IBSF Rules provided that if a race is cancelled the IBSF Executive Committee can decide to hold a replacement race, however there is not a requirement to do so. Article 22 of the IBSF Statutes provided that the Executive Committee is deemed competent to take any decision not foreseen in the present Statutes;
  • the cancellation of the 4 December race left the Executive Committee with exceptional circumstances where, due to many different factors, it was not feasible to replace the race and the Executive Committee needed to find a solution so that there were an equal number of competitions on the Europe Cup compared to the North American Cup;
  • there was no exclusion of any kind against Fenlator-Victorian from World Cup or Europe Cup events as she had the option to participate in other races, including two competitions in the Europe Cup. The Panel noted that, despite the financial and logistical issues, other athletes from Jamaica took part in competitions in Europe;
  • there was no evidence that Fenlator-Victorian was discriminated against. The Executive Committee Decision was of a general nature and made no distinction between athletes on the basis of their nationality and applied equally to all athletes who participated in the competition on 5 December 2021 irrespective of whether they were from a small country or a non-winter sports nation;
  • the number of quota spot for athletes in the male bobsleigh competition compared with the number of quota spots in the female competition is a policy issue for the IBSF, but the disputed calculation of ranking points is based on the Executive Committee Decision and had nothing to do with the fact Fenlator-Victorian was a woman; and
  • any principle of ‘non-retroactivity’ was not applicable due to the fact Fenlator-Victorian was not registered for the cancelled race on 4 December 2021.

In summarising, the Panel did acknowledge that had the race on 4 December 2021 actually taken place, the results probably would have been different to the results of the 5 December 2021 and so the Executive Committee Decision awarded a fictitious score. It noted that fair competition is based on actual merits and so the Executive Committee Decision cannot be considered a desirable or recommended decision. However, the Panel found that the particular circumstances made it impossible for the Executive Committee to replace the cancelled race or adopt an alternative solution due to time constraints and other practical impediments. As a result, the Executive Committee Decision was a compromise solution taken in order to compensate the disadvantage created by the cancellation of the 4 December race due to force majeure.

The Panel found that the Executive Committee Decision was neither arbitrary nor unreasonable and it was justified within the discretionary powers afforded under Article 22 of the IBSF Statutes.

Outcome

The application was dismissed.

The Valieva case

The Valieva case at Beijing 2022 attracted worldwide attention. The matter involved an application to the CAS Ad Hoc Division seeking to overturn a decision of the Russian anti-doping committee made during the course of Beijing 2022 (to cancel a provision suspension imposed on an athlete) that effectively allowed a 15-year-old Russian figure skater to continue to participate in Beijing 2022.

Facts[9]

On 25 December 2021, Kamila Valieva, a 15-year-old Russian figure skater, provided a urine sample to the Russian Anti-Doping Agency (RUSADA) for doping control testing.

On 7 February 2022, the testing report for the sample disclosed that Trimetazidine (a substance prohibited under the World Anti-Doping Code) was present in Valieva’s sample with a concentration of 2.1ng/ml. The delay in providing results was said to have arisen because the testing laboratory had personnel shortages due to COVID-19.

On 7 February 2022, Valieva also competed in the Team Event - Women’s Skating - Free Skating at Beijing 2022 as a member of the Russian Olympic Committee (ROC) team. The team placed first in the event.

On 8 February 2022 RUSADA notified Valieva, the World Anti-Doping Agency (WADA), the International Testing Agency (ITA) and the International Skating Union (ISU) that Valieva was provisionally suspended due to the adverse finding of a prohibited substance (Provisional Suspension).

On 9 February 2022 a hearing took place before the RUSADA Disciplinary Anti-Doping Committee (DADC) in relation to the Provisional Suspension. The DADC cancelled the Provisional Suspension (DADC Decision) for the following reasons:

  • the DADC found that Valieva did not use the prohibited substance intentionally and contamination was most likely caused as a result of domestic interaction with her grandfather who uses Trimetazidine. DADC noted Valieva had undergone multiple doping controls from August 2019 to February 2022 and had not recorded any other positive result;
  • two medical experts gave evidence that Trimetazidine is detrimental to athletes due to side effects such as dizziness, it requires a prescription and is forbidden for use in children and that the drug needed to be taken on a regular basis to offer any benefits. The experts also noted that intake through contamination is possible;
  • DADC referred to Article 9.4.3 of the All-Russian Anti-Doping Rules (RADR) which provides that a mandatory provisional suspension may be lifted if the athlete demonstrates that the violation is likely to have involved a contaminated product;
  • Valieva had to demonstrate on the balance of probabilities the anti-doping rule violation more likely happened through contamination than not. However, Valieva is a minor and falls within the definition of a ‘protected person’ under the RADR and the WADA Code. The consequence of this is that a lower standard of proof applies. Articles 10.6.1.3 of the WADA Code and 12.6.1.3 of the RADR both provide for a reduction of the sanction for a doping rule violation not involving a substance of abuse for protected persons. In addition, DADC held that the definition of ‘No Fault and Negligence’ and of ‘No Significant Fault and Negligence’ in the Appendix to the RADR and the WADA Code means that protected persons are exempt from the obligation to establish how a substance came into their system;
  • the DADC found that the standard set out in Article 9.4.3 of the RADR for establishing a doping rule violation through a contaminated product is less onerous for a protected person, and Valieva need only prove that there was a ‘reasonable possibility’ (a standard less strict than ‘balance of probabilities’) of contamination; and
  • the DADC found that Valieva had established the presence of a prohibited substance likely resulted from the ingestion of a contaminated product (ie ‘a product that contains a Prohibited Substance that is not disclosed on the product label or in information available in a reasonable Internet search’).

On 10 February 2022, RUSADA notified the ISU, WADA and ITA of the DADC Decision.

On 11 February 2022 the following applications were filed in the CAS Ad Hoc Division in relation to the DADC Decision:

  • IOC filed an application against RUSADA;
  • WADA filed an application against RUSADA and Valieva; and
  • ISU filed an application against RUSADA, Valieva and the ROC.

The IOC submitted that the CAS Ad Hoc Division was the competent body to hear the case based on Article 61(2) of the Olympic Charter and Articles 1 and 2 of the CAS Ad Hoc Rules given Valieva has been advised of an alleged doping offence potentially impacting her eligibility to compete in Beijing 2022 and the fact the DADC Decision was issued during Beijing 2022. The IOC argued that the circumstances allowing the lifting of a mandatory provisional suspension in the case of a doping violation before the analysis of the B-sample are narrowly identified at Article 7.4.1 of the WADA Code (as incorporated at Article 9.4.3 of the RADR). The IOC submitted that the DADC Decision be overturned and a new decision be made after all parties and interested parties are heard.

WADA submitted that the CAS Ad Hoc Division had jurisdiction to hear the matter because the DADC Decision was notified to WADA within the period of Beijing 2022 and the decision was clearly connected with Beijing 2022. WADA argued the Provisional Suspension was correctly imposed according to Article 9.4.1 of the RADR and that in accordance with Article 9.4.3, suspension may be lifted if athletes can demonstrate that the relevant violation was ‘most likely’ caused by a contaminated product. Since Trimetazidine is not a substance of abuse, the only basis to lift the Provisional Suspension is if Valieva demonstrates that the violation is likely to have involved a contaminated product.

Given Trimetazidine was not disclosed in her doping control form as a ‘contaminated product’, she did not meet the mandatory criteria to have the Provisional Suspension lifted. Further, there was no independent or documentary evidence that Valieva’s grandfather used Trimetazidine and no evidence that the specifics of the urine sample were compatible with Valieva’s explanation of accidental exposure. WADA requested that the DADC Decision be set aside, and the Provisional Suspension be imposed on Valieva with immediate effect.

The ISU argued that the DADC Decision should not have been lifted by DADC. The ISU asserted that the DADC Decision imposed a new standard of proof for protected persons that is below the standard of ‘balance of probability’ and asserted that balance of probability is the appropriate standard. The ISU further argued that the assumption by the two medical experts that Trimetazidine would not enhance sports performance was incorrect and that Valieva failed to establish that the ingestion took place out-of-competition. The ISU requested that the DADC Decision be set aside and the Provisional Suspension be re-instated with immediate effect.

Valieva submitted:

  • although Article 15.2 RADR provides that ‘a decision to apply or lift a provisional suspension based on a preliminary hearing’ can be appealed before CAS, there is no provision in the RADR granting jurisdiction to the CAS Ad Hoc Division. Therefore, the CAS Appeals Division should be the competent body to hear the dispute;
  • the CAS Ad Hoc Division did not have jurisdiction in this matter. Valieva objected that her sample was collected and the alleged violation was not committed in connection with Beijing 2022, RUSADA did not act as the ‘Results Management Authority’ when it provided the Provisional Suspension, the Provisional Suspension did not specifically target Beijing 2022, and the DADC Decision was not rendered in connection with Beijing 2022. Valieva also noted that the urine sample was taken on 25 December 2021 and the fact that the DADC Decision was rendered during Beijing 2022 was a pure coincidence due to an irregular delay of the anti-doping laboratory;
  • the performance enhancement characteristics of Trimetazidine are scientifically not proven and it has a negative impact on coordination. Further, the level of Trimetazidine in the sample was extremely low and Valieva’s previous tests had never been positive;
  • as a protected person, she did not need to adduce actual evidence of a contamination in order to have the Provisional Suspension lifted under Article 9.4.3 of RADR. The threshold of proof is lower and the relevant standard is ‘reasonably possibility’. Valieva said she had met this standard and submitted that the substance entered her body through accidental contact via domestic interaction; and
  • Valieva submitted: (a) there was a likelihood of success on the merits; (b) there was irreparable harm if the Provisional Suspension was not lifted and (c) the interests of the applicant outweighed those of the opposing parties.

RUSADA argued that Valieva had very limited time to prepare and present evidence at the DADC hearing and therefore the evidence she was able to present may not have been complete. RUSADA was confident that Valieva would be able to complete her submission with respect to evidence before the Panel which aimed to confirm that the presence of Trimetazidine in her urine sample was most likely caused by the use of a contaminated product. RUSADA requested a hearing to take place at which all interested parties may be heard and a full consideration by the Panel of all the relevant evidence to take place.

The ROC argued that Valieva had very limited time to prepare her defence and the ROC should not be a true respondent in this case given it did not play any role in the result management process which is handled by RUSADA. The ROC did not challenge the jurisdiction of the CAS Ad Hoc Division.

The ROC further submitted:

  • there had been a breach of Article 5.3.8.4 of the International Standards of Laboratories in connection with the relevant sample. That article provided that ‘reporting of “A” Sample results should occur in ADAMS within twenty (20) days of receipt of the sample’. In this instance the failure to meet that requirement had negative consequences for Valieva;
  • given the above, the standard of proof asserted by the IOC, WADA and ISU was impossible to meet;
  • the IOC, WADA and ISU had failed to consider that Valieva is a protected person and therefore she did not need to prove how the substance entered her body;
  • Article 9.4.3 of the RADR was unclear where the adverse analytical finding is reported in connection with a protected person;
  • Articles 12.6.1.1, 12.6.1.2 and 12.6.1.3 of the RADR was consistent with ROC’s argument that protected persons do not need to establish the cause of a doping offence;
  • the RADR and WADA Code provided to the effect that a protected person is subject to a different standard and sanctioning regime; and
  • the proper test to be applied by the Panel was not whether Valieva proved how the substance entered her body, but whether her explanations were ‘likely’, bearing in mind that as a Protected Person she did not need to prove how the substance entered her body.

Decision

The CAS Ad Hoc Division rejected Valieva’s arguments that the CAS Appeals Division should hear the dispute instead of the CAS Ad Hoc Division.

In relation to merits, the Panel found that the RADR is set to a higher standard than the WADA Code given the words ‘most likely’ are used under Article 9.4.3 instead of ‘likely’ in the context of Valieva having to provide evidence that the violation was most likely (instead of likely) caused by the use of a contaminated product.

The Panel noted that strict application of the rules as written for provisional suspensions in every case involving a protected minor would almost certainly result in a provisional suspension longer than the likely period of actual suspension and this was not a satisfactory outcome. Accordingly, the Panel found that there was gap in the RADR and WADA Code.

The Panel determined that in cases involving protected persons, their provisional suspensions should be evaluated as optional provisional suspensions under Article 7.4.2 of the WADA Code. The Panel determined that Valieva was entitled to be subject to an optional provisional suspension as a protected person and that, under the facts and circumstances in the present matter, the option not to impose a provisional suspension should have been exercised so that she would not be prevented from competing at Beijing 2022.

Article 37 of the CAS Code and Article 14 of the CAS Ad Hoc Rules permit provisional relief to be awarded. When deciding whether provisional relief may be granted, the Panel said it was appropriate to consider whether the relief is necessary to protect the applicant from irreparable harm, the likelihood of the applicant succeeding in the substantive appeal and whether the interests of the applicant outweigh those of the respondent(s). In assessing whether this criteria was satisfied in this instance, the Panel considered the length of time the laboratory took to submit its report, the timing of the Women’s Single Skating event at Beijing 2022, the difficulty faced by Valieva in not being able to assemble proof to support her defence (including having her B-Sample analysed), the relatively low level of the prohibited substance found in her sample, the fact that she had tested negative in multiple tests before and after the test in question and the level of sanction she could have to face.

The Panel found that there was a sufficiently plausible argument that that the Provisional Suspension be lifted and that the harm or inconvenience Valieva would suffer from the refusal of the requested provisional measures would be comparatively greater than the harm or inconvenience the other parties would suffer from the granting of the provisional measures.

The Panel held that, given Valieva’s status as a protected person, the balance of interests favoured Valieva’s position.

Accordingly, the Panel held that the Provisional Suspension should remain lifted and declined to impose a provisional suspension. Valieva was able to compete in the individual Women’s Skating event later in Beijing 2022.

Outcome

The applications were dismissed.

CAS Anti-Doping Division

CAS also operates the CAS Anti-Doping Division (CAS Anti-Doping Division) as the first-instance decision-making authority for any potential doping-related disputes that arise where the application of anti-doping policies, rules and regulations impact participation in the Olympic Games during Beijing 2022. These doping-related matters are referred to it by the International Testing Agency, in accordance with the IOC Anti-Doping Rules applicable to Beijing 2022 (IOC Anti-Doping Rules).

The review of decisions of the CAS Anti-Doping Division is outside the scope of this article. However, we note that the CAS Anti-Doping Division heard one case in relation to the Beijing 2022.[10] At the Pyeongchang 2018 Olympic Games, the CAS Anti-Doping Division heard four cases.

This article was written with the assistance of Chris Bevacqua, Lawyer

[1] Rule 61.2 of the Olympic Charter.
[2] Under Article 14 of the CAS Ad Hoc Division Arbitration Rules, in instances where urgent relief is sought the President of the Ad Hoc Division can make a decision. See, for example, in Krystsina Tsimanouskaya v National Olympic Committee of Belarus.
[3] In addition to the case summarised in this section, jurisdiction was a preliminary issue which the panel had to consider in Adam Edelman and Bobsleigh & Skeleton Israel v International Bobsleigh and Skeleton Federation and also Jazmine Fenlator-Victorian v International Bobsleigh & Skeleton Federation. These cases are summarised later in this article.
[4] CAS OG 22/02 Andrei Makhnev, Artem Shuldiakov & Russian Olympic Committee v International Ski Federation & International Olympic Committee.
[5] OG 22/03 Megan Henry v International Bobsleigh and Skeleton Federation.
[6] CAS OG 22/04 Adam Edelman & Bobsleigh Skeleton Israel v International Bobsleigh and Skeleton Federation.
[7] OG 22/05 Irish Bobsleigh & Skeleton Association v International Bobsleigh and Skeleton Federation and International Olympic Committee.
[8] CAS OG 22/07 Jazmine Fenlator-Victorian v International Bobsleigh & Skeleton Federation.
[9] CAS OG 22/08 International Olympic Committee v Russian Anti-Doping Agency; CAS OG 22/09 World Anti-Doping Agency v Russian Anti-Doping Agency & Kamila Valieva; CAS OG 22/10 International Skating Union v Russian Anti-Doping Agency, Kamila Valieva & Russian Olympic Committee.
[10] 2022/ADD/43(OG) International Olympic Committee & Fédération Internationale de Ski v Hossein Saveh Shemshak.

Contact

Martin Ross

Martin practices commercial law and has extensive experience in sports and media contracts and commercial litigation.

Mark Lebbon

Mark is an experienced corporate & commercial lawyer with a particular focus on the sports and media industries.

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