The Cleanest Games Ever

by Maidie Oliveau

This year, I am watching the Olympic Games on television in the United States for the first time since the 1988 Seoul Olympic Games. It has been my singular honor to have been selected to be an arbitrator on the ad hoc Division of the Court of Arbitration for Sport at the last four Olympic Games. Serving on the Division is such a desirable gig among the CAS arbitrators that it is now someone else’s turn … so I have a new perspective from which to watch. I still enjoy my role as a CAS arbitrator and am thus an avid watcher of the Division’s activities. And of course, I am always looking at the Games from my sports business perspective.

The Games have as anticipated been a huge success, both for host Beijing and the athletes. The athletes of the world deserve a quality platform on which to perform their fantastic feats and to showcase all of their hard work. I do very much miss being there on site to share in the palpable energy of all the fans and the athletes. It just does not come across on TV. I believe if one could bottle the atoms in the air during Opening Ceremonies, for example, the bottle would contain love and pure joy. That is what we miss when watching on TV. Being in an Olympic city is just a joyful experience. I gather that as usual the Beijing businesses thought the Games would be a bonanza but this is always an exaggerated view of the potential and that bubble seems to have burst with hotels at low occupancy and retailers not selling all their excess goods. The venues seem to have also expected higher occupancy – perhaps the difficulty in getting visas (hotel reservations had to be demonstrated before a visa could be obtained) contributed to all of this, but it is a classic scenario in an Olympic host city.

The controversies have been few and, even more surprising after Jacques Rogge predicted 40 positive doping tests, so far I have only seen 4 reported. Maybe that rhetoric worked its magic or all those pre-Games withdrawals took care of the anticipated positives. We can expect these Games to be the cleanest ever.

Reading the press during past Games, it sounded like the CAS ad hoc Division’s work revolved mainly around doping cases, but that is not the case. The appeals of positive doping results tend to come after the Games are over. The majority of the cases appealed to the Division are ‘eligibility’ cases which are those appeals filed by athletes seeking to participate after some perceived error in the selection process. This is where the Division is at its most effective because of the ability to hear a case and resolve it quickly, before the competition. I actually heard an eligibility case before the Games as an arbitrator for the American Arbitration Association, involving the women’s 10 meter platform synchro U.S. Olympic team.

To date, the CAS ad hoc Division has received 8 appeals, with 6 of them being eligibility cases and 2 involving appeals of decisions made on the ‘field of play’. The Division will not act as ‘instant replay’ though it will review any legal errors which may have been made in the context of a competition (i.e. on the ‘field of play’). As an example, Ara Abrahamian, the Swedish wrestler who rejected his medal because of a claimed judging error, appealed that judging to the Division, but did not appeal the IOC’s withdrawal of his medal. Other than that case, my colleagues on the Division so far have not been asked to hear a highly reported case yet these Games, but there is still time! The gymnastics age controversy seems to be brewing but the Division will close on Sunday, so there is very little time left. Under the Olympic Charter, the Division would have jurisdiction over that issue if it is appealed on the occasion of the Olympic Games. I do wonder what possible reasons there could be for not filing an appeal.

Since I have been getting lots of questions on this, here is the detail on the recourse for the Chinese Gymnastics dispute: An appeal will have jurisdiction with CAS if it is based on some sort of legal non-compliance with an International Federation’s (such as the International Gymnastics Federation) rules and the IF’s rules provide for appeal to the CAS. I am not sure about the Gymnastics IF’s rules, but normally, the IF’s rules provide for review of its decisions by its own judicial committee, with the exception of anti-doping doping rule violations (i.e. disciplinary decisions) which are subject to appeal to CAS. Each International Federation establishes the eligibility criteria for their sport. Any affected party (a National Olympic Committee on behalf of its athletes) could appeal to the ad hoc Division if there was a dispute about an IF decision which arises on the occasion of the Olympic Games. The CAS rules for the Olympic Games provide that any dispute that arises “on the occasion of the Olympic Games” can be submitted to the division, thus there would be jurisdiction if this is not a new dispute. In any event, an appeal could be lodged by the applicable National Olympic Committee and the ad hoc Division would determine its jurisdiction based on the facts presented. The IOC may make a decision to overturn the IF’s apparent decision that the Chinese gymnasts’ passports are accurate evidence of their ages. That IOC decision would then be subject to appeal to CAS’ ad hoc division by any affected party (in this case, the Chinese NOC).

So, another Games has uplifted us and I am grateful for that.

http://opiniojuris.org/2008/08/23/the-cleanest-games-ever/

One Response

  1. Thank you Maidie for these insights.
    With respect to the title of your posting, I am afraid that the BALCO investigation clearly established that there is no correlation between the number of positive tests and the cleanness of the sports…

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