The Olympic Arbitration Procedures in a Nutshell

by Maidie Oliveau

The Olympic Games are an intense environment for disputes. They draw unbelievable scrutiny and international attention, with the media on site dedicated to report even the hint of a controversy. The athletes at their center are competing in the most important event of their sporting careers, with the highest possible stakes. In this charged atmosphere, the Court of Arbitration for Sport (CAS) sets up the ad hoc Division (the Division) to resolve disputes that arise in connection with the Games.

The CAS is the body with jurisdiction for final appeal of any decisions which arise on the occasion of the Olympic Games, based on the provisions of the Olympic Charter. The Division does not function as the equivalent of instant replay, but rather, legal issues only are subject to its review. CAS sat its first Division at the 1996 Atlanta Olympic Games.

The Division’s functioning starts less than a year before the Olympic Games when the CAS invites a group of CAS members from throughout the world to serve on the Division, which consists of nine arbitrators for the Winter Games and twelve arbitrators for the Summer Games. I have had the honor to serve on the Division for the last four Olympic Games and will detail some of the inner workings of the Division here.

The CAS Secretary General sets up a local office which opens ten days before the Games begin with a small contingent and the entire group of arbitrators on site available 24/7 within two days before Opening Ceremonies. The arbitrators are on call to serve on panels as cases arise.

The arbitrators are volunteers, serving without pay, but with lots of other wonderful and unique benefits: working with colleagues from other parts of the world in a collegial environment, making a meaningful impact in the world of sport, attending as many competitions as possible and visiting an Olympic city. Each Olympic Games has its own distinct character and though the experience varies, it is always fantastic.

The mandate of the Division is to be “fast, fair and free”. CAS has adopted Arbitration Rules for the Olympic Games which call for decisions to be made within 24 hours of the filing of an appeal, or sooner if the circumstances dictate. The Division’s services are free to the parties.

Each case is initiated by an application filed with the Division’s office. This application is sometimes prepared by counsel and other times, handwritten by a team official. The need for quick resolution will dictate. Once received by the CAS, the appeal application will be served on the respondent and other interested parties with a notice of the hearing. If any sort of interim relief has been requested, a decision may be made ex parte by the Division president (another volunteer on site) or if there is time, it will be submitted to the panel once it has been appointed.

At the same time, the Division president appoints a panel consisting usually of three arbitrators, none of whom can be from the same country as any of the parties or anyone who might be affected by the outcome of the appeal. These criteria are to protect against any perception of bias and because there is no time for the parties to appoint arbitrators, as is done in CAS cases otherwise.

Upon being appointed to serve on a specific appeal, each arbitrator reviews the appeal application and any other submissions and signs a statement of independence, where s/he discloses any circumstances which might be deemed to affect his/her independence. If there are any concerns regarding the arbitrator’s independence, the arbitrator will be replaced.

The hearing is held as promptly as is required depending on the exigencies of the circumstances. Each of the parties will present its case, produce evidence and other interested persons may also appear at the hearing. Interested persons may include, for example, an athlete who might be affected by the panel’s decision or the International Olympic Committee which may implement the decision.

The panel has the full power to establish the facts as each CAS hearing is a “de novo” hearing. Witnesses and any experts may appear in person, or if necessary, by phone or in writing. The law governing the merits consists of the Olympic Charter, the applicable rules and regulations of the sports body involved and general principles of law and other rules of law, the application of which the panel deems appropriate. The seat of the hearing is deemed to be Lausanne, Switzerland. This allows for consistent results while the Olympic Games are held in various countries with differing legal systems.

The panel will then deliberate and issue its decision within twenty four hours of the filing of the application unless circumstances require it sooner (or allow it to be later and the parties consent). The award is a reasoned award which may be delivered by the panel simultaneously with its decision, or issued shortly thereafter. The timing will depend on the needs of the parties, for example if there is a competition affected by the outcome of the appeal. The panel will sometimes work through the night on the writing of the award until it is done and ready for publication. Though all of this is done at a rapid pace, the panel members are very careful to be deliberate and considerate as they go through the process. The CAS Secretary General then issues a press release describing the decision of the panel. Each of the awards and the press releases announcing the filing and deciding of a case can be found on the CAS web site.

The following chart shows the types of appeals heard at the last four Olympic Games:

 

  2000 Sydney 2002 Salt Lake 2004 Athens 2006 Turin
Total appeals 15 7 10 10
Issues:        
Eligibility 7 5 3 5
Rules of the game 3 2 4 1
Doping 3 0* 2* 2
Other 2 0 1 2
*After Salt Lake and Athens, there were numerous doping appeals filed with CAS.

 

Eligibility cases are those where athletes seek to compete when they previously had been denied a spot. Rules of the game (or field of play) cases are those where the panel is asked to interpret rules of the game. The standard applied to these cases has to date been that some sort of legal malfeasance be found in order for the panel to overturn a decision made under the rules of the game. Doping cases require a great deal of preparation and are ill suited for the rapid pace of an on site appeal. Thus, there are far fewer appeals of doping cases than one expects from reading press reports during the Games.

The steady case load of the Division reflects a great deal of trust placed in its decisions. At the same time, there has not been much growth in the case load of the Division over time which may be because, as was observed by the IOC legal counsel during the Athens Games, the “fear of the judge is the beginning of wisdom.” If that is the case, the Division serves its purpose, which is to guarantee that the rules of the various federations are strictly followed and to provide fair and immediate recourse for the athletes of the world if they are not.

http://opiniojuris.org/2008/08/08/the-olympic-arbitration-procedures-in-a-nutshell/

3 Responses

  1. “The arbitrators are volunteers, serving without pay, but with lots of other wonderful and unique benefits: working with colleagues from other parts of the world in a collegial environment, making a meaningful impact in the world of sport, attending as many competitions as possible and visiting an Olympic city. Each Olympic Games has its own distinct character and though the experience varies, it is always fantastic.”

    I worked with Alain Plantey at the ICC who was involved with aspects of the CAS back in the 1995-1996 period.  And of course there is Gabrielle Kaufmann-Kohler who has been at the heart of it.  The volunteer basis for this suggests that these arbitrators are either independently wealthy or have financial support from somewhere.  In either of those cases, and while we can expect the honor to be significant, I would wonder whether in all the years of the competitions what percentage of them have been people of color from various countries of the world.  Is there a geographic distribution for the assignees?

    Also, of the Americans if there have been any, has any American arbitrator not been a white male?  Have any of them people of color from the United States (African-American, Hispanics, Native Americans, for example)?

    I wrote several years ago about the color line in international commercial arbitration and I see being an Olympic arbitrator as one more place where the color line plays out.  So let us know who these “gods and goddesses of arbitration are” and what are their invisible means of support. If that is permitted to be done.

    Best,
    Ben

  2. Ben,

    The author of the post, Maidie Oliveau, is an American who has been an arbitrator the last four Olympics and she is not a white male. 

    As reported in this CAS press release, the arbitrators for the Beijing Olympics are the following individuals:  Dr. Robert Briner (Switzerland) (presiding); The Hon. Michael J. Beloff QC (England); Mrs Margarita Echeverria Bermúdez (Costa Rica); Mr Luigi Fumagalli (Italy); Mr Thomas Lee (Malaysia); Mr Chi Liu (China); Prof. Richard McLaren (Canada); Mr Stephan Netzle (Switzerland); Mr Sharad Rao (Kenya); Mr. David Rivkin (United States); Mr Alan John Sullivan (Australia); Mr Jingzhou Tao (China); The Hon. Mr Justice Deon van Zyl (South Africa). 

    I think you will be hard pressed to argue there is not sufficient diversity with the Olympic arbitrators.

    Roger

  3. Roger,

    Thanks for the message.  Folks I have to be direct on these issues simply because there is so much time used in euphemisms in this arena. 

    I congratulate Ms. Oliveau on having broken through one glass ceiling as a female having been selected.  I would like to know whether she is a white female? 

    I know many of the people involved. 

    Diversity does not mean a Latin American from the upper class.  For example, some Americans counted Spaniards from Spain as hispanics for purposes of racial diversity which I would submit is a completely absurd notion. 

    As for the United States, I know David Rivkin and of course he is a wonderful arbitrator.  In the American arbitral community are there American people of color being put in the CAS pipeline?

    I am not interested.  It is for the folks behind me who ask me all the time how an American person of color can have a career in international commercial arbitration.

    Best,
    Ben

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