Tokyo 2020 Olympics: Court of Arbitration for Sport decisions

While audiences were focused on the inspiring performances of athletes at the Tokyo 2020 Olympic Games (Tokyo 2020), behind the scenes the Court of Arbitration for Sport (CAS) was kept busy adjudicating disputes. We summarise the decisions, which related to eligibility, field of play and doping related disputes.

CAS Ad Hoc Division

The CAS has operated an ad hoc tribunal (CAS Ad Hoc Division) at each Olympic Games since 1996. Article 1 of the CAS Ad Hoc Division Rules provides that the purpose of the CAS Ad Hoc Division is the resolution or arbitration of any dispute covered by Rule 61 of the Olympic Charter that arises during the Olympic Games or during the 10 day period preceding the Opening Ceremony. Rule 61.2 of the Olympic Charter relevantly provides:

‘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.‘

Where an application is made to the CAS Ad Hoc Division, the matter is generally heard by three arbitrators.^[1] A panel of 10 arbitrators was appointed to the CAS Ad Hoc Division for Tokyo 2020.

For Tokyo 2020, a temporary office was established using the facilities of the Japan International Dispute Resolution Centre. Given the COVID-19 pandemic, hearings of the CAS Ad Hoc Division were held remotely via video-conference.

Case summaries

The decisions published by the CAS Ad Hoc Division for Tokyo 2020 related to:

• qualification and selection;
• field of play; and
• doping disputes.

We summarise these matters below.

Qualification and selection disputes

Participation by an athlete in the Olympic Games is the culmination of many years’ hard work and a highlight of their career. Rule 44 of the Olympic Charter sets out the requirements that must be met in order for an athlete to be accepted to attend the Olympic Games. Rule 44.3 of the Olympic Charter provides:

To be selected to participate at an Olympic Games, athletes must meet 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 International Olympic Committee (IOC) to participate in the Olympic Games, following a recommendation by the national federations (NF) for the relevant sport and after consideration of the qualification criteria for the relevant events determined by the international federation (IF) for that sport.

Jennifer Harding-Marlin v St. Kitts & Nevis Olympic Committee & International Swimming Federation Expand

 

Facts^[5]

Jennifer Harding-Marlin (Harding-Marlin) is a swimmer and member of the St Kitts & Nevis Swimming Federation (SKSF).

After competing at the 2019 FINA World Championships, Harding-Marlin believed she had met the eligibility criteria to apply for a place under FINA’s Universality System at Tokyo 2020. The Universality System allows smaller nations and those with developing swimming programs to send athletes to the Olympics even if they have not met the main qualifying time standards.

Harding-Marlin informed the National Olympic Committee of St Kitts & Nevis (SKNOC) of her eligibility and requested that it confirm any invitation she may receive for a Universality Place.

SKNOC did not address Harding-Marlin’s request and asked her to liaise with the President of SKSF instead of directly with SKNOC. SKSF was at the time under review to be admitted for affiliate membership with SKNOC.

Approximately three weeks before the deadline of preliminary selection of swimmers, FINA notified SKNOC that Harding-Marlin was eligible to apply for a Universality Place as the sole swimmer for St Kitts & Nevis. Neither SKSF nor SKNOC responded.

Approximately two weeks after the deadline for the final selection of swimmers (but during the exceptional cases registration period), Harding-Marlin wrote to SKNOC asking for it to reconsider its decision not to apply for her for a Universality Place. After learning of the situation, FINA separately contacted SKNOC asking for it to reconsider its decision. SKNOC responded to FINA and Harding-Marlin stating (without explanation) that it would not enter Harding-Marlin in Tokyo 2020.

Harding-Marlin sought a declaration that SKNOC’s original decision be annulled and a direction be issued requiring SKNOC and FINA to nominate and approve her participation in the 100m backstroke event or, in the alternative, the 100m freestyle event.

Harding-Marlin made the following submissions to the Panel:

1. SKNOC’s decision discriminated against her based on the type of sports that she plays. SKNOC had allowed a Universality Place for one female athlete in track and field but had not entered Harding-Marlin (the only other athlete in the country offered a Universality Place). Harding-Marlin contended that there was no legitimate reason for SKNOC not to enter Harding-Marlin.
2. SKNOC’s decision discriminated against her based on ‘racial, religious or political reasons’ in contravention of Article 44 of the Olympic Charter. St. Kitts and Nevis is predominantly black (92.7%) or mixed (2.2%), and only 2.2% of the population is white. Being a white woman, the Applicant is an extreme minority in the country.
3. SKNOC’s decision to allow athletes in one sport a Universality Place and not allow athletes in other sports the same place without any legitimate reason consisted of abuse of discretion in an arbitrary, unequal, unfair and unreasonable manner.
4. SKNOC’s selection procedure was improper and unfair and did not give a proper, genuine and realistic consideration to relevant factors in the selection process. Despite her repeated requests, she was not given reasons for SKNOC’s decision not to enter her.

Decision

In rejecting Harding-Marlin’s application for lack of merit, the Panel noted that:

• Universality Place entry is not automatic. Qualification for a Universality Place does not guarantee entry and the right to enter an athlete through Universality belongs to the NOC (and, in this case, SKNOC).
• SKNOC submitted that one reason for not entering Harding-Marlin was the failure of SKSF to be a member of SKNOC (even though SKSF was recognised by FINA). While this failure did not prevent SKNOC from entering Harding-Marlin, relying on this to deny entry did not make the denial arbitrary.
• SKSF did not provide convincing evidence on why it was not admitted to SKNOC; however, no actual evidence was adduced by Harding-Marlin that SKNOC intentionally created the situation in order to deny the possibility for swimmers to be entered as participants at Tokyo 2020.
• There was no compelling evidence that SKNOC had denied Harding-Marlin entry on the basis of her race, economic conditions and/or social connections or sporting activity.
• Although SKNOC could have been more cooperative with SKSF, their failure to do so did not mean that their decision was discriminatory, arbitrary, unfair and/or unreasonable. While SKNOC’s decision may be inappropriate, it does not make it discriminatory, arbitrary, unfair and/or unreasonable.

Outcome

Application unsuccessful – the Panel dismissed the application and Harding-Marlin was not able to participate at Tokyo 2020.

Maxim Agapitov v International Olympic Committee Expand

 

Facts^[6]

This decision concerns the withdrawal by the IOC of the accreditation of weightlifting official Maxim Agapitov (Agapitov) for Tokyo 2020. Agapitov is the Acting President of the European Weightlifting Federation and the President of the Russian Weightlifting Federation. Agapitov sought accreditation to attend Tokyo 2020 as an official of the International Weightlifting Federation (IWF).
Agapitov was initially accredited as an official for Tokyo 2020 and was sent a ‘Pre-Accreditation Card’, known as a PVC, as well as information about Tokyo 2020.

Following the issue of accreditation to Agapitov, the International Testing Agency released a publication which found severe ‘mishandling and impropriety on the part of certain IWF officials in relation to its anti-doping program’. As a result of this publication, the IOC created revised criteria for IWF officials to gain accreditation for Tokyo 2020. Among the criteria was a requirement that officials ‘Not have a personal history linked to any anti-doping rule violation and/or sanction’ (personal history criteria).

The IOC wrote to Agapitov stating his accreditation had been withdrawn on the basis he did not satisfy point B on the basis:

1. Agapitov received an ADRV (a doping sanction) in 1994 when competing as an athlete.
2. A report on doping within the IWF written by Professor McLaren mentioned Agapitov’s name.
3. Agapitov was involved in high level functions within the Russian and European weightlifting federations.

Agapitov challenged the withdrawal of his accreditation on the basis it was unfair.

Decision

The Panel found that the decision of the IOC to withdraw Agapitov’s accreditation was not enforceable nor appropriate.

The Panel rejected the IOC’s submission that the accreditation was not granted in the first place and therefore was never granted rather than ‘withdrawn’. The Panel found the IOC’s use of the language ‘withdrawn’ in their letters to Agapitov, as well as their conduct in sending Agapitov a PVC and information about Tokyo 2020 meant the accreditation was granted and then withdrawn.

The Panel also found the revised criteria set out in the personal history criteria was so vaguely worded and without limitation that it was unenforceable. In particular, the use of vague terms such as ‘personal history’ and an excessively loose connection with ADRV and/or sanction without any reasonable limitation with respect to the time or to the person concerned was broad. This, in the Panel’s view, did not comply with the requirement for precision, clarity and predictability in the drafting of rules and the description of misconduct which is likely to be sanctioned.

In any case, the Panel found that the IOC’s application of the personal history criteria to Agapitov was inappropriate. They found the historic doping sanction that occurred 27 years ago was so remote in timing and circumstance that it should have no bearing on Tokyo 2020. It was far beyond the time that could reasonably be considered as part of Agapitov’s ‘personal history’ likely to affect the reputation of weightlifting at Tokyo 2020. In addition, the Panel noted that the violation was committed while Agapitov was an athlete, not in his current role as a sports official.

Regarding the mention of Agapitov in the report of Professor McLaren, the Panel was presented with a written witness statement of Professor McLaren, which highlighted Agapitov’s affirmative approach in fighting against doping, support in restructuring the governance of the IWF and his ‘outstanding cooperation’ with Professor McLaren’s report.

Outcome

Application successful – the Panel set aside the IOC’s decision to withdraw Agapitov’s accreditation and reinstated in full Agapitov’s accreditation for Tokyo 2020.

Krystsina Tsimanouskaya v National Olympic Committee of Belarus (NOCB) Expand

 

Facts^[7]

Krystsina Tsimanouskaya (Tsimanouskaya) is a Belarussian who had entered the women’s 100m and 200m track events at Tokyo 2020.

Two Belarussian athletes who were going to compete on the women’s 4x400m relay team had been excluded from attending Tokyo 2020 because they had failed to undertake sufficient doping tests. Tsimanouskaya, along with another athlete, were added to the Belarussian relay team; however, Tsimanouskaya posted a video on Instagram stating that she and the other teammate had been included on the relay team without the Belarus Athletics Federation (BAF) discussing the inclusion with her.

The Belarussian delegation subsequently withdrew Tsimanouskaya from the women’s 200m event at Tokyo 2020 on the basis of a doctor’s report on Tsimanouskaya’s mental and emotional state (Appealed Decision).

Tsimanouskaya refuted the findings about her mental and emotional state and asserted that NOCB was trying to forcibly, without her consent, remove her from Japan and return her to Belarus. Tsimanouskaya was taken to an undisclosed site by Japanese police, where she had commenced the process of seeking asylum.

Tsimanouskaya sought an urgent application for the stay of the Appealed Decision. As the application was made just two hours before the scheduled start of the 200m event, the President of the CAS Ad Hoc Division rendered his decision ex parte without appointing a panel.

Decision

Under Article 14 of the CAS Ad Hoc Division Arbitration Rules, provisional relief can be granted:

• to protect the applicant from irreparable harm;
• if there is a likelihood of success on the merits of the claim; and
• if the interest of the applicant outweigh those of the opponent or of other members of the Olympic Community.

Tsimanouskaya alleged she was the victim of the discrimination due to her public criticism of the coaches and other officials of the NOCB and BAF and that the reasons for her exclusion were wrong and based on political reasons and, as such, the Appealed Decision should be considered arbitrary and discriminatory.

The President noted that codes of conduct and behavioural standards may be applicable in making decisions to exclude athletes; however, the discretion and application of such standards must be exercised properly and within limitations to safeguard athletes’ rights.

The President determined that he did not have enough information and evidence at the time to conclude the likelihood of success requirement under Article 14 was satisfied. In particular, the inability to seek direct testimony from Tsimanouskaya given the extremely short time frame and her being held in an undisclosed location made it difficult to make a ruling that the likelihood of the success requirement was satisfied. In the circumstances, the other requirements for provisional relief (irreparable harm and the balancing of interests) did not need to be considered.

Outcome

Application unsuccessful – the application to stay the decision to exclude Tsimanouskaya from the 200m event was dismissed.

Oksana Kalashnikova & Ekaterine Gorgodze v International Tennis Federation, Georgian National Olympic Committee, Georgia Tennis Federation Expand

 

Facts^[8]

Oksana Kalashnikova (Kalashnikova) and Ekaterine Gorgodze (Gorgodze) are female Georgian tennis players who are members of the Georgia Tennis Federation (GTF).

In March 2021, Kalashnikova and Gorgodze met with GTF to provide information for their application to compete as a Women’s Doubles pair at Tokyo 2020. At the meeting, GTF confirmed that it would prepare their entry for Tokyo 2020.

On 22 June 2021, Kalashnikova asked the Captain of GTF if GTF had submitted their application. The Captain confirmed the submission.

On 1 July 2021, the International Tennis Federation (ITF) published an entry list for the Women’s Doubles competition at Tokyo 2020 (Original Entry List). The Original Entry List stated that ‘entries are based on the ATP and WTA rankings of 14 June’ and that the entry lists ‘are still subject to change‘. Kalashnikova and Gorgodze did not appear on the Original Entry List.

On 16 July 2021, the ITF published a revised entry list (Revised Entry List) under which five teams mentioned on the Original Entry List had been removed and replaced by five new teams. Kalashnikova and Gorgodze were not among the five new teams, despite the fact that two of the new teams had a lower combined ranking than Kalashnikova and Gorgodze as of 14 June 2021.

The following day, Kalashnikova sent a request to ITF asking for clarification why their team did not appear on the Revised Entry List. ITF responded that their entry had not been submitted by GTF or by the Georgian National Olympic Committee (GNOC). The same day, Kalashnikova sent an email to the Sports Director of GNOC asking for clarification. GNOC responded stating it had submitted their application to the ITF.

Kalashnikova and Gorgodze sought a declaration to compete in the Women´s Doubles Tennis at Tokyo 2020, a ruling invalidating the Revised Entry List (to the extent required to let them compete) and/or a recommendation to ITF/IOC that they be eligible to participate in addition to the other 32 pairs.

Kalashnikova and Gorgodze argued that:

1. They were eligible for entry into the Women’s Doubles event and the Revised Entry List was not consistent with the ITF’s qualification system for Tokyo 2020. They asserted they complied with the provisions of the Olympic Charter, are in good standing with their National Association and ITF and their combined ranking was higher than two of the five teams nominated on the Revised Entry List.
2. They had acted in reliance upon GTF and GNOC and should be legally protected. They had done everything that they could to confirm their participation at Tokyo 2020 and there had been no negligence or misconduct on their part.
3. Their requests for relief be accepted on the basis of the legal principle of estoppel and of natural justice. In relation to the former, GTF and GNOC should be held accountable for their words that the Applicants’ entry was sent to ITF, and ITF should honour its statements on the basis of the principle of estoppel. In relation to the latter, their entry could be accepted without any detriment to the other players already admitted, as an extra place could be given.

Decision

In rejecting Kalashnikova and Gorgodze’s application, the Panel noted that:

• Kalashnikova and Gorgodze had not been nominated by GNOC to the ITF for entry at Tokyo 2020. Kalashnikova and Gorgodze did not bring any evidence that they were nominated for entry by GNOC, and GNOC did not appear at the hearing. While there was a suggestion that GNOC may have verbally confirmed everything had been done to enter Kalashnikova and Gorgodze, the serious nature of entry of athletes to the Olympics means that written documentation is required (and indeed this had been done for another Georgian tennis player that was correctly entered for Tokyo 2020). Kalashnikova, Gorgodze and GTF should have requested a copy of the written application from GNOC.
• The failure of GNOC to appear at the hearing or provide submissions was unfortunate and was disrespectful to Kalashnikova and Gorgodze and also appear to be contrary to the Olympic spirit. The absence of GNOC made it impossible for the Panel and parties to ask questions and obtain explanations regarding GNOC’s failure to enter Kalashnikova and Gorgodze for Tokyo 2020.
• In the absence of a nomination by GNOC (an essential condition for entry), ITF did nothing wrong in adopting the Revised Entry List. ITF cannot be held responsible for the failure of GNOC.
• The admission of Kalashnikova and Gorgodze could go to the detriment of other players already properly admitted and would create an inequality with respect to other players who might meet the qualifications criteria but were not entered into by their National Olympic Committee.
• It would be practically and administratively impossible to order ITF at a late stage (two days before the start of the competition) to add an extra place to the Women’s Doubles event.
• The principle of estoppel had no merit. The Panel could find no declaration or action by ITF on which Kalashnikova and Gorgodze had relied to their detriment.
• The principle of natural justice had no merit. The Panel referred to the necessity to take into account the expectations of all other participants already admitted to Tokyo 2020 and noted that these expectations should be respected.

Outcome

Application unsuccessful – the Panel dismissed the application and Kalashnikova and Gorgodze were not able to participate at Tokyo 2020.

Nazar Kovalenko v World Athletics (WA) & Athletics Integrity Unit (AIU) Expand

 

Facts^[9]

This case concerns an eligibility dispute between Ukrainian racewalker Nazar Kovalenko (Kovalenko), World Athletics and the Athletics Integrity Unit (AIU).

AIU declared Kovalenko ineligible to compete at Tokyo 2020 due to a failure to meet certain anti-doping requirements. The relevant anti-doping requirements had been updated in 2018 to allow more stringent requirements to be placed on ‘category A Member Federations’. The Ukraine had been listed as a Category A member. Rule 15.5.1(c) of the World Athletics Anti-Doping Rules relevantly provides athletes must undertake at least three no-notice out-of-competition doping tests in the 10 months before an Olympic Games (testing eligibility rule). Kovalenko failed to undertake the required number of no-notice out-of-competition tests in accordance with the testing eligibility rule.

Kovalenko appealed the decision to declare him ineligible. There were three main arguments Kovalenko raised that were considered by the Panel:

1. AIU’s decision to declare him ineligible was a sanction rather than the application of an ineligibility rule. Kovalenko argued that the testing eligibility rule was imposed on him in response to undesirable behaviour (ie failing to take the appropriate tests). He argued that if it is in fact a sanction, CAS should declare it an unenforceable sanction because of Kovalenko’s national federation failing to notify him of the tests, therefore not facilitating his compliance.
2. Even though Kovalenko failed to take the required tests, he had in fact taken sufficient anti-doping tests to instil confidence in authorities that he was clean of any doping. As a result, his ineligibility would be a disproportionate, unfair and illegal measure.
3. There were exceptional circumstances that exempted Kovalenko from the rule. These exceptional circumstances were:

• • qualifying late and therefore reducing the time available to take the tests on the specified schedule; and
  • his national federation failing to notify him of the testing eligibility rule.

Kovalenko challenged the decision he was ineligible for Tokyo 2020 and sought an order that his participation at Tokyo 2020 be facilitated.

Decision

The Panel found AIU’s decision was not a sanction but rather a decision on eligibility. The Panel concluded that the testing eligibility rule and AIU’s decision is not directed at sanctioning or punishing any misconduct specific to Kovalenko. Instead, all athletes need to comply with the testing eligibility rule and the decision to declare Kovalenko ineligible was the unfortunate consequence of the failure of the Ukrainian Athletics Federation to abide by the anti-doping rules rather than in response to any specific behaviour of Kovalenko.

Further, the Panel found the objective of the rule was to increase compliance by national federations with anti-doping controls and to increase the overall confidence of all stakeholders in athletics. In these circumstances ineligibility was a proportionate response to this objective. The Panel found that despite Kovalenko undertaking multiple tests, which he said complied with rule 15 in a practical sense even if they did not strictly comply with formalities, ineligibility was not a disproportionate response. In reaching this conclusion, the Panel noted no-notice out-of-competition tests were particularly effective to curb doping due to their unpredictability. Therefore, they could not be supplemented by other types of more predictable or expected tests.

The Panel also found Kovalenko still would have had time to complete the tests despite late qualification. In any case, the Panel did not consider late qualification an ‘exceptional circumstance’. The Panel noted that if late qualification were an exceptional circumstance then it could have significant consequences, such as encouraging federations to favour late qualifications in order to circumvent testing obligations. Further, the Panel found the testing requirements apply to athletes ‘likely to be selected’ for Tokyo 2020 and member federations should anticipate which athletes are likely to qualify and carry out doping tests accordingly. This case serves as a warning to member federations to carefully select their pool of athletes to ensure that proper testing is performed on the relevant athletes.

The Panel rejected Kovalenko’s argument that he was unaware of the testing requirements and testing eligibility rule because his national federation did not notify him of the requirements. The Panel noted Kovalenko had competed at an international level since 2006 and therefore should have been aware of the testing requirements. In any case, they also noted this would not be considered an ‘exceptional circumstance’.

Outcome

Application unsuccessful – the Panel dismissed Kovalenko’s application and the decision to declare him ineligible for Tokyo 2020 was upheld.

Vitaliy Khudyakov v FINA (case settled) Expand

 

Vitaliy Khudyakov (Khudyakov) is a marathon swimmer from Kazakhstan.

Khudyakov won the 9th Asian Open Water Swimming Championships in 2019, which at the time had been identified as a qualifying event for Tokyo 2020. However, FINA subsequently informed the Swimming Federation of the Republic of Kazakhstan that the 9th Asian Open Water Swimming Championships was not a qualification event for Tokyo 2020, as the event was not in the official qualification pathway set out in FINA’s bylaws.

Khudyakov filed an application with the CAS Ad Hoc Division seeking a ruling that he be entitled to compete in the marathon swimming event at Tokyo 2020.

The matter was amicably resolved when FINA granted an additional quota place for the marathon swimming event at Tokyo 2020. As a result, Khudyakov withdrew his application to the CAS Ad Hoc Division and was able to participate in the marathon swimming event.

Field of play disputes

The application and interpretation by umpires, referees and officials of the rules which govern sporting competitions are known as ‘field of play’ decisions. These decisions can include pure sporting decisions, such as determining whether a foul is committed, or more technical applications, such as appeal procedures.

NOC Belgium v World Athletics & US Olympic and Paralympic Committee & NOC Dominican Republic; and NOC Netherlands Sports Federation v World Athletics & US Olympic and Paralympic Committee & NOC Dominican Republic Expand

 

Facts^[13] & ^[14]

During the heats of the mixed 4 x 400m track relay:

• the team from the United States of America exchanged their baton outside of the designated takeover zone; and
• the team from the Dominican Republic switched lanes in the last moment from the outside position to the inside lane.

As a result of these actions, both the USA and Dominican Republic teams were disqualified. However, on appeal to the World Athletics’ Jury of Appeal, both disqualifications were annulled and the teams were reinstated. The decision of the World Athletics’ Jury of Appeal was on the basis that the actions leading to the disqualifications had been the result of incorrect positioning or direction from officials responsible for the event. The effect of the reinstatement was that both teams could compete in the final. The Dominican Republic and USA participated in the final and won silver and bronze respectively.

The NOC Belgium and NOC Netherlands Sports Federation both made applications (after the final had been run) seeking the annulment of the decisions to reinstate the Dominican Republic and USA teams and an order excluding them from competing in the final.

Decision

The Panel determined that the decision which the applicants sought to challenge was a field of play decision.

There was an initial question as to whether the Panel had jurisdiction to hear the application. The Panel determined that the fact that the World Athletics Technical Rules stated that there is no appeal to CAS from a decision of a Jury of Appeal did not derogate from the jurisdiction awarded to CAS in the Olympic Charter. Whether a field of play decision may be appealed to CAS is not an issue of jurisdiction or admissibility, rather it is a decision on the merits of the appeal or on the substantive law.

While the Panel has jurisdiction and power to overturn field of play decisions, it is well established that the Panel can only overturn a field of play decision if there is direct evidence that establishes bad faith or bias or that the decision was made as a consequence of corruption or arbitrarily.

The Panel is not selected for their expertise in the particular sport and so do not review determinations made on the playing field concerning the ‘rules of the game’ if there was no fundamental violation of the relevant rules.

The Panel determined that the applicants did not assert any bad faith in the making of the decisions by the Jury of Appeal, or any other similar failure such as malicious intent or arbitrariness. Instead, the applicants pointed to matters of positioning as set out in the Technical Rules and the actions taken by the athletes in question in response to directions from officials. As such, the decisions were field of play decisions which the Panel will not interfere with.

In addition, apart from the fact that the Technical Rules precluded an appeal after the Medal Ceremony unless the circumstances justify it, the Panel noted that as the final had already been run it was too late to grant the relief sought.

Outcome

Application unsuccessful – the applications of NOC Belgium and NOC Netherlands Sports Federation were rejected.

Yuberjen Martínez & Colombian Olympic Committee & Colombian Boxing Federation v IOC Boxing Task Force Expand

 

Facts^[15]

Yuberjen Martínez (Martinez) is a Colombian boxer who participated in the Men’s Fly (48-52kg) event at Tokyo 2020. On 3 August 2021, Martinez faced Ryomei Tanaka (Tanaka) in Quarterfinal 1. At the end of the bout, the judges declared in a 4:1 split decision a ‘Win on Points’ in favour of Tanaka.

Martínez applied to the CAS Ad Hoc Division seeking a declaration that he was the winner of the bout, or a declaration that the bout was void and order a replay. In the alternate, Martínez requested to compete in the semi-final in case Tanaka was not able to fight.

Martínez alleged that the judges had acted in bad faith when judging the bout when considering the criteria for judging set out in Article 18.11 of the AIBA Technical & Competition Rules. He submitted the following in response to the judging criteria:

• Number and quality of blows on target area: he had landed more quality blows than Tanaka in all three rounds, and that, overall, he had landed an ‘overwhelming’ number relative to Tanaka and was the only boxer that showed moves to avoid blows;
• Domination of the bout by technical and tactical superiority: he had displayed greater technical and tactical superiority than Tanaka, as supported by several expert opinions and public consensus that the result of the bout was incredible; and
• Competitiveness: he was more competitive than Tanaka, as demonstrated by the fact that Tanaka required a wheelchair to leave the arena (whereas Martínez could walk out of the ring unassisted).

Decision

The Panel noted that to ensure the finality and certainty of sports results and to prevent the court being flooded with frivolous claims, it will only interfere if an official’s field of play decision is tainted by fraud or arbitrariness or corruption.

In dismissing Martinez’s appeal, the Panel noted that he had provided no evidence of any bad faith on the side of any of the judges. On this basis, the Panel felt it was ‘inappropriate’ to assess the merits of his claim. The Panel did however note that:

• There was no indication that the judges may have applied incorrect criteria or yardsticks in judging the bout. There was no fundamental violation of the rules of the game and therefore no need for the Panel to review the determinations made on the playing field.
• The fact that Tanaka required assistance to leave the arena after the bout is irrelevant and not indicative of his performance during the bout. Even still, the reason he required a wheelchair was due to dehydration and fatigue.
• The opinions of news outlets, individual experts or even untrained eyes were not sufficient to reassess a field of play decision. If such opinions were to be considered it would be a ‘nail in the coffin’ for jury sports as debates as to results or scores in jury sports are omnipresent and often differences of opinion about a decision. The only appropriate decision is to defer to the technical and specialist knowledge of the judges of the bout, who are better trained in judging boxing bouts than the members of this Panel.

The Panel also dismissed Martínez’s request to compete in the semi-final in case Tanaka could not fight on the grounds that this was contrary to the applicable rules, which state that where a fighter fails a Medical Examination or Daily Weigh-in, the opponent will win by Walkover.

Outcome

Application unsuccessful – the Panel dismissed Martínez’s application and no relief was granted.

Mourad Aliev & Fédération française de boxe & Comité National Olympique et Sportif Français c. IOC Boxing Task Force & Frazer Clarke & British Olympic Association Expand

 

Facts^[16]

This decision concerns an application by French boxer Mourad Aliev (Aliev) in relation to a decision to disqualify him from the Men’s Super Heavy Quarter Final.

During the quarter final bout against Frazer Clarke (Clarke), Aliev hit Clarke, fracturing his eyebrow bone. At the time Aliev received a warning; however, it was later found that the hit was cause for disqualification. Aliev appealed the decision to disqualify him to the IOC Boxing Task Force (IOC BTF) and they rejected his appeal.

Article 19.8.2 of the relevant regulations provides that if a boxer commits an intentional foul that injures their opponent to the extent that their opponent cannot continue the match, the boxer is disqualified and their opponent is declared the winner. Aliev alleged the referee erred when applying this rule.

Aliev sought:

• a declaration that the referee committed a technical error in applying the rules;
• to set aside the decision to disqualify him; and
• to resume the match from the beginning of the second round with different referees appointed by the IOC BTF.

The respondents requested the dismissal of what they characterised as a vexatious application for review of a game rule and confirmation of the referee’s decision. The respondents submitted CAS does not have jurisdiction to review decisions made by referees in the ring unless those decisions were made arbitrarily or in bad faith. They submitted there was no evidence of such motivations in this instance.

Decision

The Panel rejected Aliev’s appeal, upholding the decisions to disqualify him.

The Panel left it open as to whether a technical error was indeed made by the referee during the bout; however, they eventually concluded the decisions to disqualify Aliev should be upheld.

The Panel confirmed its jurisdiction is limited regarding field of play decisions. The Panel stated it is not well placed to decide the technical standards of a sport as these are better judged during the competition. The Panel noted it could only decide on whether a violation of a law or legal principle occurred.

The Panel confirmed that, although the referee may have made a technical error, it was not something for the Panel to decide. CAS jurisprudence suggests decisions that have taken place on the field of play will only be overturned in very limited circumstances. The Panel noted this principle is important as to uphold the finality of sporting competitions.

Outcome

Application unsuccessful – the application of Aliev was rejected.

Doping matters

Anti-doping policies, rules and regulations are fundamental to the integrity of sport. There is a well established international anti-doping framework for high level sport and events. CAS can be involved in dealing with disputes that arise where the application of anti-doping policies, rules and regulations impact participation in the Olympic Games.

World Athletics v Alex Wilson, Swiss Anti-Doping & Swiss Olympic; and WADA v Alex Wilson, Swiss Anti-Doping & Swiss Olympic Expand

 

Facts^[17] & ^[18]

This decision concerns a provisional suspension of a Swiss track and field athlete, Alex Wilson (Wilson), due to a prohibited substance detected in an out-of-competition doping test. The substance was a hormonal steroid known as trenbolone. Wilson challenged the provisional suspension and the appeal was heard before the Disciplinary Chamber of Swiss Olympic (Disciplinary Chamber). Wilson alleged he inadvertently consumed trenbolone when he ate beef at a Jamaican restaurant in Las Vegas a few days before the test. The Disciplinary Chamber accepted Wilson’s evidence that contamination was possible and lifted the suspension on that basis. As a result, Wilson was registered to compete in the men’s 100m and 200m athletics events at Tokyo 2020.

World Athletics (WA) and the World Anti-Doping Agency (WADA) appealed the decision, alleging the Disciplinary Chamber made an error of law. WA contended the Disciplinary Chamber had failed to apply the correct test in reaching the decision to lift the provisional suspension. Rather than whether the positive test could have been the result of meat consumption, per article 7.4.1 of the Swiss ADR, the proper test was whether it was likely or probable this was the case.

Decision

The Panel set aside the Disciplinary Chamber’s decision on the basis they had applied the wrong test and made an error of law. The Panel found the proper test was whether the circumstances Wilson alleged were likely or probable, which imposes a very different burden on the athlete and necessitates a very different analysis of the evidence. The Panel also found the Disciplinary Chamber had erred in considering extraneous matters such as the impact the suspension would have on Wilson’s participation in Tokyo 2020, and the proportionality of the suspension.

The Panel then needed to decide whether it was appropriate for it to determine whether the suspension should be lifted or whether they had to remit the matter back to the Disciplinary Chamber.

The Panel found it was empowered to make a determination in relation to the suspension because:

• the entirety of the Disciplinary Chamber’s decision had been appealed;
• WA and WADA both sought CAS to impose a provisional suspension;
• Wilson would need a determination to compete in Tokyo 2020;
• under Article 13.1.1 of the Swiss ADR, CAS decides with ‘unrestricted cognition’ which meant that, in effect, the hearing before the Panel was a hearing de novo; and
• Wilson’s concern that consideration by the Panel would amount to an ADRV was unfounded because CAS would only determine whether to lift the provisional suspension and would not make any determination with respect to either the motive for the consumption of meat nor the question of any eventual fault.

The Panel concluded, on the balance of probabilities, the trenbolone in Wilson’s sample was unlikely to have come from contaminated meat in the circumstances described by Wilson. Therefore, the Panel found the provisional suspension imposed on Wilson should not have been lifted and reinstated the mandatory provisional suspension.

In coming to this decision, the Panel had before it evidence from WA, WADA and Wilson. Wilson submitted he had never and would never engage in doping and had instead consumed beef prior to testing which he believed was contaminated. He submitted evidence of other sporting bodies acknowledging meat consumption could lead to trenbolone detection in samples and also submitted evidence of Professor Kintz who concluded this was a possibility. Further, he submitted that trenbolone would not give him a competitive advantage in his sport of sprinting.

WA and WADA submitted expert reports concluding trenbolone contamination in beef was unlikely.

Wilson’s request to keep the decision confidential was denied. The Panel held there was insufficient basis for an order of confidentiality. In particular, any procedures as to the confidentiality of decisions adopted by Swiss Anti-Doping under the Swiss ADR was not a formal requirement but rather a practice that was adopted and there was no specific provision for confidentiality in the CAS Ad Hoc Rules (in fact Article 19 of the CAS Ad Hoc Rules does not provide for automatic confidentiality).

Outcome

Application successful – the Panel set aside the decision of the Disciplinary Chambers and reinstated with immediate effect the mandatory provisional suspension.

[1] 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.
[2] CAS OG 20/01 Terrence Jannings v World Taekwondo.
[3] CAS OG 20/02 Loredana Elena Toma v International Weightlifting Federation, International Olympic Committee, Romanian Olympic and Sports Committee.
[4] As at 11 August 2021, the status of two other applications, CAS OG 20/07 and CAS OG 20/09, was unknown and no decision or other information had been published by CAS in relation to those applications.
[5] CAS OG 20/03 Jennifer Harding-Marlin v St. Kitts & Nevis Olympic Committee & International Swimming Federation.
[6] CAS OG 20/04 Maxim Agapitov v International Olympic Committee.
[7] CAS OG 20/13 Krystsina Tsimanouskaya v National Olympic Committee of Belarus.
[8] CAS OG 20/05 Oksana Kalashnikova & Ekaterine Gorgodze v International Tennis Federation, Georgian National Olympic Committee, Georgia Tennis Federation.
[9] CAS OG 20/12 Nazar Kovalenko v World Athletics & Athletics Integrity Unit.
[10] CAS 2004/A/704 Tang Tae Young v FIG.
[11] CAS 2015/A/4208 Horse Sport Ireland & Cian O’Connr v Federation Equestre Internationale.
[12] CAS OG 02/007 Korean Olympic Committee v International Skating Union.
[13] CAS OG 20/10 NOC Belgium v World Athletics & USOPC & NOC Dominican Republic.
[14] CAS OG 20/11 NOCNSF v World Athletics & USOPC & NOC Dominican Republic.
[15] CAS OG 20/15 Yuberjen Martínez & Colombian Olympic Committee & Colombian Boxing Federation v IOC Boxing Task Force.
[16] CAS OG 20/14 Mourad Aliev & Fédération française de boxe & Comité National Olympique et Sportif Français c. IOC Boxing Task Force & Frazer Clarke & British Olympic Association. As at the date of writing, the decision in this case had only been published in French. As such, this summary is based on a translation of the decision and a press release issued by CAS.
[17] CAS OG 20/06 World Athletics v Alex Wilson, Swiss Anti-Doping & Swiss Olympic.
[18] CAS OG 20/08 WADA v Alex Wilson, Swiss Anti-Doping & Swiss Olympic.