Decisions of the Court of Arbitration for Sports ad hoc Division at the Sochi 2014 Winter Olympic Games

This article summarises the four decisions of the Court of Arbitration for Sports ad hoc Division at the Sochi 2014 Winter Olympics.

This article was originally published in the Australia and New Zealand Sports Law Association (ANZSLA) Commentator.

The CAS ad hoc Division

The Court of Arbitration for Sport (CAS) has operated an ad hoc tribunal at each Olympic Games since 1996.

The purpose of the CAS ad hoc Division is to resolve, in an expedited manner, legal disputes which arise during the Olympic Games (and during the 10 day period leading up to the Opening Ceremony).  A temporary office is established in the relevant host city to facilitate the CAS ad hoc Division.

At the recent Sochi 2014 Winter Olympics, the CAS ad hoc Division heard four cases, all involving skiers.

Case summaries

A summary of the cases considered by the 2014 CAS ad hoc Division is provided below.

Clyde Getty v International Ski Federation¹

Clyde Getty claimed that he was eligible to compete at the Sochi 2014 Winter Olympics in the men’s aerials competition after the International Ski Federation (FIS) originally allocated a quota place to the Argentinian NOC. Less than 12 hours later (and after Mr Getty had been informed of the quota place) the FIS withdrew the allocated place on the basis that it was erroneously attributed because no Argentinian athlete was eligible to participate in the event.

The CAS Panel found that the wording in the provisions of the Freestyle Skiing Qualification System was clear and unambiguously required a competitor to meet the individual eligibility requirements to be eligible to compete at the Olympic Games. This included a requirement that the individual have a minimum of 80 FIS points at the end of the qualification period. Mr Getty had not obtained 80 FIS points by the end of the qualification period, therefore the Panel held he was not eligible to compete, even if the Argentinian NOC had been allocated a quota place.

The CAS Panel noted that FIS qualification requirements were supported by Rule 44.5 of the Olympic Rules which provides that ‘the NOCs shall send to the Olympic Games only those competitors adequately prepared for high level international competition’. Mr Getty was unable to point to any instance in the past where an athlete was allowed to compete at the Olympic Games without meeting the eligibility requirements.

The CAS Panel also rejected Mr Getty’s other arguments, including his claim that he should be allowed to compete because, amongst other things, it would be in the spirit of the Olympic movement, Mr Getty was the only male freestyle skier representing South America, Mr Getty had shown dedication to the sport and was popular amongst the freestyle skiing community were matters of policy for the FIS to consider and not questions of law for the Panel to consider when asked to apply the existing rules.

Daniela Bauer v Austrian Olympic Committee & Austrian Ski Federation²

Daniela Bauer filed an application against the Austrian Olympic Committee (AOC) and Austrian Ski Federation (ASF) seeking an order she be selected in the Austrian Olympic team to compete in the women’s freestyle ski halfpipe.

Unlike Mr Getty, Ms Bauer had met the minimum FIS qualification requirements so was prima facie eligible to compete, subject to selection by the AOC. The AOC however, on recommendation of the ASF, declined a quota place for a female halfpipe freestyle skier which had been offered to it by the FIS and could be filled by Ms Bauer. Ms Bauer asserted she had previously been given the impression that because she had met the minimum FIS qualification standards she would be selected through the use of the quota places. The ASF however decided not to recommend her for selection because they thought her performance, results and technical skill level were not sufficient to allow her to achieve a positive result at the Olympics, notwithstanding she had met the minimum qualification standards.

The CAS Panel found that under the ASF’s regulations the ASF had a significant degree of subjective discretion in making recommendations which did not contain any qualification rules (i.e. there were no objective criteria which would qualify a freestyle skier for the Austrian Olympic team if those criteria were satisfied). The CAS Panel held that the ASF did not exercise this discretion in an arbitrary, unfair or unreasonable manner because it had a legitimate sports performance justification for not recommending that the AOC nominate Ms Bauer for an allocation quota in women’s halfpipe. In coming to this conclusion the CAS Panel held that the ASF did not discriminate on grounds of race, religion, politics, gender or otherwise as against Fundamental Principle of Olympism 6 of the Olympic Charter.

The CAS Panel did however make it clear that it did not condone the lack of published qualification criteria and strongly recommend that the ASF establish, identify and publish clear criteria to enable athletes to determine the qualification standards they are required to meet to be recommended for selection by the AOC.

Maria Belen Simari Birkner v Comité Olímpico Agentino & Federación Argentia de Ski y Andinismo³

Maria Belen Simari Birkner filed an application against the Argentinian Ski Federation (FASA) and the Argentinian NOC against her non selection in the Slalom, Super G and Giant Slalom events. Ms Simari Birkner’s application alleged she had been discriminated against on a number of bases, including her family affiliation which she described as ‘a legendary family … that has dominated Argentinian Alpine Skiing for over 30 years’.

The CAS Panel, which included Justice Annabelle Bennett from Australia, decided that the CAS Panel did not have jurisdiction to hear the case as the dispute fell before the date when the jurisdiction of the CAS Panel became effective (i.e. 10 days before the Opening Ceremony). In doing so the Panel held that the dispute arose when Ms Simari Birkner was notified of her non-selection and not, as had been held in the Schuler case⁴,  when Ms Simari Birkner had decided to appeal and filed her notice of appeal. The Panel felt that following the decision in the Schuler case would extend the jurisdiction of the CAS Panel outside the precise and limited frameworks set by the CAS ad hoc Rules.

Nevertheless, the Panel considered the merits of the matter and concluded that the Ms Simari Birkner’s claims on the merits would have failed even if the CAS Panel did have jurisdiction as Ms Simari Birkner had not established that the decision not to select her was discriminatory. Ms Simari Birkner raised a number of matters which she thought showed her non selection had been tainted by bias, including bias against her family, bias in establishment of, and non selection in, the National Team and bias in that she was not informed of the selection criteria whereas others were.

The Panel found that there was no evidence to support any of the claims of bias. In particular, the Panel noted that:

• bias against her family was hard to make out given two of her siblings and a cousin were in the Argentinian team, with her brother being given the honour of carrying the flag at the Opening Ceremony. Her parents were also both selected as coaches and were present at the Olympics;
• there was no evidence that the National Team had been formed to ‘break’ her family’s dominance in Argentinian skiing and an inference was open that it was established for the future of skiing in Argentina.  In any event there was a suggestion that her family were not interested in selection in the National Team. Some members of the National Team were not selected for the Olympics, in favour of the Ms Simari Birkner’s siblings;
• the selection criteria were not deliberately chosen to discriminate against Ms Simari Birkner and while it was unfortunate that her international results (as opposed to domestic) did not count for selection, the criteria (including consideration of ‘the evolution and projection in the future’) was not applied in an arbitrary or unreasonable manner; and
• it appears that none of the skiers or their coaches, and not just Ms Simari Birkner, were notified of the selection criteria in advance.

Although finding there to be no discrimination or bias, the Panel did endorse the statements in the Bauer case to the effect that clear selection criteria should be established, identified and published in a timely manner so that athletes can understand those criteria and the qualification standards they are required to meet.

Alpine Canada Alpin, Canadian Olympic Committee & National Olympic Committee of Slovenia v FIS & IOC⁵

The Alpine Canada Alpin and the Canadian Olympic Committee and the Slovenian Olympic Committee filed two applications regarding a decision of the Competition Jury of the FIS. The decision related to protests filed by the appellants regarding the actions of the French team in the Men’s Ski Cross competition where the French ultimately swept the gold, silver and bronze medals.

Under Article 4511.4 of the FIS Competition Rules (ICR) which regulates ski suits ‘[f]astening devices … [of any method] shall not be used to tighten the suit material closer to the body or prevent the natural fall of the clothing’. The applicants claimed that the French competitors should be disqualified because the French support staff tampered with the suits of the French riders to create a ‘fairing’ around the lower leg which provided an aerodynamic effect in contravention of the ICR. The ‘fairing’ involved a change to the lower leg of the ski suit by pulling the fabric of the suit tight around the front lower leg and shaping it in a sharp crease along the back.

The application was rejected on the basis that the Competition Jury of the FIS had been correct in determining that the protests had been filed late. Articles 3050.1 and 3050.2 of the ICR provided that ‘[n]o Protest shall be considered by the Jury unless’ a written protest is made ‘to a Jury member within 15 minutes of the completion of the last competition run of that phase of competition’.

The applicants admitted their protests were filed out of time but submitted that it was a fundamental breach of natural justice for their late protests not to be considered because the 15 minute time period did not give them enough time to attend to the athletes who had competed, gather sufficient evidence to realise that a formal protest should be raised and then actually provide notice. However, the CAS Panel noted that to lodge a protest under the ICR all that is required is the ‘reason for protest’ and not substantial evidence or proof that the violation occurred. The Panel found that, within an hour and half of the competition (if not sooner) the applicants had sufficient reason to submit a protest (it had been agreed that the Canadian coach had suspicions about the garment prior to the final). As such, there was no reason for a delay in more than six hours for the lodging of their protest.

Although the CAS Panel did not explicitly say so, it appears that the CAS Panel left open the possibility that had the protest only been filed a few minutes after the 15 minute deadline it may have considered the merits of the appeal. The CAS Panel did however note that:

‘the natural expectation of athletes, sporting governing bodies, spectators, and the public [is] that competition results are final unless promptly and properly protested within a reasonable amount of time after the competition ends.’

As such, it was for the FIS rather than the CAS Panel to change the rules governing protests.

Commentary

The cases heard by the CAS Panel at the 2014 Winter Olympics reinforce the following principles:

• while it is preferable for there to be objective qualifying criteria for athlete selection, if the criteria are based on subjective matters the relevant National Sporting Organisation (NOS) or National Olympic Committee (NOC) will have a large degree of discretion;
• it is preferable for the relevant NOS or NOC to establish, identify and publish clear criteria to enable athletes to determine the qualification standards they are required to meet to be recommended for selection by their respective NOS or NOC;
• if an athlete or country wishes to lodge a protest regarding the result of a competition, such protest must be lodged strictly within any relevant time limits provided in the competition rules; and
• where time limits to lodge a protest are relatively short, protests should be lodged as soon as the applicant has identified a ‘reason for protest’ rather than waiting to gather all relevant evidence to make their case.

¹ Clyde Getty v International Ski Federation CAS OG 14/02.
² Daniela Bauer v Austrian Olympic Committee & Austrian Ski Federation CAS OG 14/01.
³ Maria Belen Simari Birkner v Comité Olímpico Agentino & Federación Argentia de Ski y Andinismo CAS OG 14/03.
⁴Andrea Schuler v Swiss Olympic Association & Swiss-Ski CAS OG 06/2002.
⁵Alpine Canada Alpin, Canadian Olympic Committee & National Olympic Committee of Slovenia v FIS & IOC CAS OG 14/04-05.