Thinking | 11 August 2021

Tokyo 2020 Olympics: Court of Arbitration for Sport decisions

By Martin Ross and Mark Lebbon with assistance from Ben McIver and Rachel Shaw

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.

As at 11 August 2021, the CAS Ad Hoc Division has published decisions for nine cases in relation to Tokyo 2020 and announced an amicable settlement had been reached in one further case. A further application was withdrawn[2] and another case dismissed[3] on the basis that CAS did not have jurisdiction.[4]

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:

Nobody 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 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.

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.

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.

The CAS Ad Hoc Division has the power to review and overturn field of play decisions. However, it will only overturn such decisions if there is some evidence that the relevant field of play decision was tainted by fraud or arbitrariness or corruption.[10] This approach preserves the finality and certainty of sports results under the authority of sports referees and avoid disruption of competitions.[11] While this places a high hurdle for applicants, if the hurdle were lowered it would be much easier for any dissatisfied participant to seek the post-sporting contest review of a field of play decision and would open the floodgates for dissatisfied participants to seek review.[12] It would also be unfair to the decision-makers and other athletes to interfere in the decisions made by officials, who are the technical experts.

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.


[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.

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.

Related industries

You might be also interested in...

Corporate & Commercial | 13 Apr 2021

Exclusive negotiation periods: comments from ASIC v Mitchell

We examine ASIC v Mitchell (No 2), which provides useful guidance on how exclusive negotiation period clauses may be interpreted.

Sport | 16 Apr 2020

Six COVID-19 legal changes Australian sporting organisations need to know about

What are the most important legal changes for Australian sporting organisations in response to the coronavirus pandemic? Partner Martin Ross reports.