L’important c’est participer…

The most famous quote from the founder of the modern Olympic Games is: “The important thing is not to win, but to take part” (L’important n’est pas de gagner, mais de participer). So far, the Beijing experience of the CAS Ad Hoc Division seems to give a new relevance to this Olympic slogan.
Indeed, after the first week of competition, the Division had do decide several pre-Olympic disputes regarding the right to take part in the Olympics but has not (yet) been confronted with a single dispute arising out of the competition. Only the future will tell whether this will remain a significant trend or is temporary. As I already indicated following the last Turin Olympics, it is fair to say that the decrease in the number of cases is due to the outstanding work done by the previous Ad Hoc Divisions, which had a preventive effect by encouraging the International Olympic Committee (IOC) and the International Federations (IFs) as well as the National Olympic Committees (NOCs) to enhance their regulations and practice in order to avoid disputes arising.

The present posting is a brief summary of those pre-Olympic cases. In substance they show that the main issues are Selection and Eligibility, whereby the issue of nationality seems to play a dominant role:

Schuettler v. ITF: Mr. Shuettler was proposed by the German National Olympic Committee as one of the 4 players (See ITF Rules, Section II) to join the German tennis team at the Olympics. However in the overall international ranking, two other players were ranked above him, so that the International Tennis Federation (ITF) contended his participation. Thus “the real issue [was] whether the ITF Rules oblige NOCs to nominate players strictly in accordance with the [competition rankings of the ITF]”. The CAS found that this was not the case, based in summary on the fact that NOCs (usually in agreement with the national federations) decide which athletes will take part in the Olympic Games and that this dichotomy “represents the dual sovereignties of national and international bodies”. In conclusion, Mr. Schuettler was allowed to attend the Olympic Games.

Two short comments: first, if the ITF wishes to make sure that only the best players (according to its ranking) take part to the Olympics, then it must adopt qualification criteria that (indirectly) deprive the NOCs of their right to provide for subjective selection criteria, for instance “A NOC shall select its four (4) highest ranked eligible players based on the computer ranking.” Second, objective and subjective criteria have both advantages and drawbacks and it is almost impossible to find the right balance between clarity and fairness. What is sure from previous CAS case law is that if the selection criteria entail a subjective assessment by the selection body, the CAS will limit its review to whether (i) the selection body has exceeded the limit of that discretion and (ii) whether it has been exercised in a reasonable, fair and non-discriminatory manner. This might explain why the two players ranked above Mr. Schuettler decided not to challenge the NOC’s decision.

Azerbaijan Field Hockey Federation (AFHF): At first sight, this case concerns a purely objective qualification criterion – i.e. the outcome of a qualifying event (here: a game between Spain and Azerbaijan, which ended 3:2 for Spain). The AFHF tried, no less than 3 (!) times, to be reinstated on the ground that two Spanish players tested positive during said game and that the International Hockey Federation (IHF) anti-doping rules provided that “if more than one team member […] is found to have committed an Anti-Doping Rule violation during the Event, the team may be subject to Disqualification or other disciplinary action.” As correctly pointed out by the Panel, the disqualification of the Spanish Team “is still a discretionary matter to be determined by the Disciplinary Commission”, so that the “Panel would have to establish an improper exercise by the Disciplinary Commission of its discretionary powers under Article 11 of the Anti-Doping Policy”.

As a matter of fact, the IHF Disciplinary Commission acquitted one Spanish athlete while the other, though she was held to have violated anti doping regulations, was not found to have committed a fault or negligence and was therefore not sanctioned. Insofar as the AFHF challenged the IHF Disciplinary Commission, the Panel found that it did not have standing to appeal. Indeed, just as the World Anti-Doping Code, the IHF Doping regulations do not include the other affected athletes/teams in the list of the persons who are allowed to appeal doping decisions in front of CAS. This rule is well known and relies on an understandable rationale: namely to avoid endless litigation as to who shall be considered (sufficiently) affected to have standing to appeal. For this reason the Russian cyclist Ekimov was prevented from requesting the disqualification of Tyler Hamilton (whose disciplinary proceedings were closed due to the “B” blood sample being inconclusive) during the Athens cycling event. Despite the fact that Hamilton ranked first and Ekimov second and that the dispute was about the gold medal, the CAS decided that Ekimov had no standing to appeal. In such extreme cases, one cannot exclude that the “other” athlete would resort to the state court claiming that arbitration does not afford him true access to justice and thereby jeopardize the very reason for the establishment of the Ad Hoc Division.

Gutu v. IOC: In this rather bizarre case, Mr. Gutu was to swim for the Moldovan National team though he – for reasons, even he submitted may be “illegal” – represented Romania in the 2007 World Championships. As pointed out earlier by Mr. Spiro, Rule 42 of the Olympic Charter requires a three year “waiting period” before an athlete may represent a country after having represented another. The international swimming federation (FINA) further requires a year’s residence in the country to be represented. In this case, both the Romanian and Moldovan National Committee’s waived the waiting period for Mr. Gutu, but no response could be obtained from FINA. However, given that the court was not able to conclusively establish Mr. Gutu’s citizenship (no supporting documentation, e.g. passport, identity card or the like, was submitted to the court) or that he had actually qualified for the Beijing Olympics (the Moldovan’s only “baldly stated, without reference to dates, times or specific events, that [Mr. Gutu had] complied with the Beijing Olympic standard and won the championship of Moldova in 2008”) the Panel dismissed the application.

Simms v. FINA: This case also concerns a dual citizen (US/Philippines) swimmer, who after application to the Philippine Amateur Swimming Association (PASA) in 2007 was offered a place on the Philippine Olympic Team. PASA and the NOC in turn filed for a change of nationality with FINA, who denied the request, on 28 November 2007 (as Ms. Simms had not lived in the Philippines over the last year as required by FINA GR 2.6). However, on 4 February 2008 FINA sent a letter stating that the swimmers mentioned (including Ms. Simms) therein could participate at the Olympic Games, subject to approval by the NOC and BOCOG. In addition, in April 2008 Ms. Simms represented the Philippines in 6 events at the FINA World Championships. On 21 April 2008, following the end of the World Championships, FINA reiterated their denial of her change of nationality based on its General Rules in a decision dated 29 July 2008 from FINA’s Executive Director. Ms. Simms requested a stay of this decision before the CAS ad hoc division. The Panel found that FINA was “estopped” to hear the case as it failed to mention the “residence” clause in its letter of 4 February 2008 and also because it allowed Ms. Simms to represent the Philippines during the World Championships.

One could wonder whether the estoppels argument should not also apply to the “Philippine side” on the ground that they did not appeal the previous decision by FINA that clearly rejected the request for change of nationality. The real problem with this decision is that Ms. Simms received a much more favorable treatment than other swimmers who tried to challenge FINA’s refusal to endorse nationality change according to the rules. Although legally questionable, the Panel decision must be welcomed as it clearly indicates to FINA (and all other governing bodies) that if they want to enact strict rules that prevent athletes from participating in the Games they have to start by being strict with themselves.

Personally, I am more disappointed with the general obiter dictum according to which the decision “is not to be taken to disregard FINA Rule GR 2.6 and FINA’s interpretation of that rule, with which the Panel respectfully agrees”. This is however a much more complicated issue upon which other bloggers will surely wish to comment. To initiate the debate I would just like to put forward the following question: how can one explain that Ms. Simms who has always been a Philippine national (mother 100% Filipina and father 75% Filipino) should be prevented to compete for the Philippines just because she once represented the USA at the “1st Junior Pan Pacific Swimming Championships” and the former WNBA star Becky Hammon can play for Russia just because Russian authorities agreed to a “tailor made” naturalization process?