Tokyo 2020 Olympics: Court of Arbitration for Sport decisions

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.

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.

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.

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.

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 (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.