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 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…

The Olympics have been amazing. Great athletes, amazing venues, wonderful organization. The Chinese have much to be proud of. But whatever goodwill that the Olympics have engendered in me is quickly being lost based on their treatment of dissent. The Chinese are being utterly hypocritical in promising to afford opportunities for dissent but not making good on those promises. Demonstrators require permits, but permission is never granted. If you try to procure a permit you will fail in that attempt, as Nicholas Kristof recently reported. But then if you protest without a permit you will be arrested. Five American students are now being detained for unfurling a Free Tibet banner for about twenty second last night at midnight. Twenty seconds of dissent gets you thrown in jail or deported? This could have been prevented had the IOC established appropriate contractual obligations and penalties for violating representations and warranties in the Olympic selection process. IOC President Jacques Rogge strongly supports a rule preventing “no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or areas.” But he should be just as adamant that promises to allow demonstrations in designated areas be enforced.

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….

Although the Modern Olympic Games have been held since 1896, it was only recently that professional athletes were permitted to participate in the Olympics. Until the late 1980s, in a futile effort to prevent professionalization of the Olympics, only “amateur” athletes were deemed eligible by the International Olympic Committee to compete in the Olympic Games. Since then, the international federation or governing body for each sport has had the authority to determine whether professional athletes may compete in the Olympics or other international sports competition under its auspices. In the 1992 Barcelona Olympics, with NBA players participating for the first time, the U.S. “Dream Team” won the gold medal in men’s basketball.

In the 21st century professional athletes’ participation in the Olympics is commonplace, and many sports are dominated by professionals. All members of the U.S. “Redeem Team” that are competing in the Beijing Olympics are NBA players, and most players on the women’s basketball team are on WNBA rosters. The best athletes competing in sports such as softball, beach volleyball, track and field, and tennis are professionals….

We don’t insist that our major-league ball players come from the cities that they play for. Why should we demand any more from Olympic athletes?

The Beijing Games includes more athletes with tenuous ties to the country whose flag they followed into Friday’s opening ceremonies. There are some who have jumped states in search of better-funded Olympic programs. Others couldn’t make the grade in their home states, and play on eligibility in states where they can.

The IOC and sporting federations have tried to put some brakes on the phenomenon, with rules I describe after the jump. But these efforts are doomed as top athletes join the ranks of highly mobile transnational elites.

Bad thing? Maybe not. Just because your country is represented by a newly minted national doesn’t stop you from rooting for the home team. And the detachment of competitors from national identity marks the decline of the Olympics as combat (think US and USSR), surely a welcome development in international athletics. . . .

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….

Opinio Juris is pleased to announce a panel of international sports law experts as guest bloggers during the Beijing Olympics. Throughout the Olympic Games they will discuss international sports law and provide expert commentary on any Court of Arbitration for Sport (CAS) arbitrations that take place. Matt Mitten, Maidie Oliveau and Antonio Rigozzi are all leading experts in the field of international sports law. It is an area that may not be familiar to most of our readers, but it has been growing in importance ever since the establishment of CAS in the early 1980s. The establishment of arbitration under the CAS ad hoc divisions for the Olympic Games beginning in 1996, UEFA Cup in 2000, and the FIFA World Cup in 2006 has played a major part in making the Court of Arbitration for Sport the most important international sports law institution in the world….