Disputes connected with the Tokyo Olympic Games and speedy dispute resolution through CAS sports arbitration
The Tokyo Olympic Games was held between 23 July and 8 August 2021 after a year-long postponement. News coverage of the games had not only focused on the stunning performances of the athletes, but also on disputes arising in connection with the eligibility of Olympic athletes and the disciplinary measures levied against them. But what kind of remedy is available to athletes who are dissatisfied with penalties or sanctions like being declared ineligible immediately before the games?
This article will explain the unique procedural rules of the Court of Arbitration for Sport in connection with Olympic-related disputes.
2. What is CAS?
Headquartered in Lausanne, Switzerland, the Court of Arbitration for Sport (CAS) is an institution independent of any sports organization, which provides services to facilitate the settlement of sports-related disputes through arbitration or mediation by means of procedural rules adapted to the specific needs of the sports world. It is generally referred to by the acronym “CAS,” and will accordingly be referred to as such in this article.
As the tribunal for the settlement of sports-related disputes, CAS appoints arbitrators to arbitrate disputes arising among international athletes and sports organizations. A list of candidates for arbitrators, among whom are included lawyers and professors from around the world, is disclosed on its website.
Over the course of an Olympic season, CAS establishes an ad hoc division in the host country to promptly resolve disputes arising immediately before and during the games. This division, known as the CAS Ad Hoc Division, operates during both Summer and Winter Olympic Games. This article will focus on the dispute resolution procedures of the CAS Ad Hoc Division.
3. What kind of cases are handled by the CAS Ad Hoc Division?
The CAS Ad Hoc Division deals with cases pertaining to various Olympic-related disputes, including athlete eligibility, field of play decisions and disciplinary measures levied against athletes. Only in exceptional cases does CAS arbitrate challenges to field of play decisions.
As described below, the CAS Ad Hoc Division applies speedy and flexible procedures to quickly resolve disputes arising immediately before and during the Olympic Games.
Although the CAS Ad Hoc Division handles Olympic-related disputes, its jurisdiction is limited to disputes arising immediately before and during the Olympic Games. Specifically, such disputes must:
1) be covered by Rule 61 of the IOC Charter; and
2) arise during the Olympic Games, or within ten days prior to the Opening Ceremony of the Olympic Games (in the case of the Tokyo Games, on or after 13 July 2021). (Article 1 of the Arbitration Rules applicable to the CAS Ad Hoc Division for the Olympic Games (the “Arbitration Rules”))
Disputes between athletes, national Olympic committees and sports organizations usually meet the first condition listed above. In practice, it is important to meet the second condition in order to file for arbitration with CAS, otherwise the dispute will be deemed out of its jurisdiction and subsequently rejected.
For example, should an athlete be informed of a decision of being ineligible to the Olympic Games one month prior to the Olympic Games, the second condition will not be met. On the other hand, it will be met should the athlete be informed of the decision ten days prior to the Opening Ceremony.
If an athlete is decided to be ineligible to the Games one month prior to the Olympic Games, yet is actually notified of such decision within ten days prior to the Opening Ceremonies, the dispute will meet the second condition. This conclusion is not obvious based on the interpretation of the Arbitration Rules; however, there are cases in which CAS has ruled that such circumstances meet the second condition, and this understanding is common in practice.
4. The CAS Ad Hoc Division and speedy arbitration process
Some of the disputes, such as eligibility disputes, filed with the CAS Ad Hoc Division must be resolved by the competition day the applicant was originally scheduled to attend, otherwise the applicant will not have an effective remedy to recover his or her interest or right. To this end, a speedy arbitration process is essential. For this reason, the CAS Ad Hoc Division applies special procedural rules that differ from normal CAS procedures. The following are considered to be unique characteristics of the Ad Hoc Division procedures:
(1) Decision given within 24 hours from application (basic principle)
A decision shall be given within 24 hours from the lodging of an application (Article 18 of the Arbitration Rules). However, there are cases in which a decision is not delivered within 24 hours. Some cases may take several days before a decision is delivered.
For matters requiring a speedy settlement (e.g. an eligibility dispute that arises two or three days before a competition is scheduled to be held), a decision may be made within 24 hours, or, when such is impractical, an attempt at speedy arbitration would be undertaken.
(2) The opportunity to make claims and introduce evidence
Parties shall be summoned to a hearing on short notice, and a hearing shall be held by video or telephone conference. In some cases, because a party has been summoned on short notice, he or she may not be able to attend. Even in such cases, arbitrators may nevertheless proceed.
At the hearing, parties may be questioned, and, depending on the matter, witnesses may be examined. The Panel will decide on how exactly the hearing will proceed.
Furthermore, any defense of lack of jurisdiction must be raised by the start of the CAS Ad Hoc Division hearing at the latest (Article 15 of the Arbitration Rules).
The decision is enforceable immediately upon being communicated to the parties (by email or other method). Because this process places an emphasis on promptness, arbitrators may decide to communicate the operative portion of the decision to the parties, prior to the reasons behind the decision (Article 19 of the Arbitration Rules).
In the event that the parties are dissatisfied with the ruling, an appeal may be made to the Federal Supreme Court of Switzerland within 30 days from the notification of the decision (Article 21 of the Arbitration Rules). However, since it may take several months for the Supreme Court to reach a decision, and considering that the grounds for appeal are limited, decisions made by the CAS Ad Hoc Division have great significance—that is, they are often considered to be final.
As described above, the CAS Ad Hoc Division conducts speedy dispute resolution customized for the Olympic Games, one that offers athletes and sports organizations an effective opportunity to settle Olympic-related disputes. Hopefully, this article will enlighten athletes and sports organizations on the CAS Ad Hoc Division procedures, and serve as a practical guide for the speedy and effective resolution of disputes involving Olympic athletes and sports organizations.