The Olympic Games are underway and the Court of Arbitration for Sport (CAS) is on-site hearing all matters that arise. The decisions and reasoning behind those decisions signal to the sport community and, more specifically, to sport decision makers (including our own SDRCC adjudicators) important trends and principles underlying sport disputes. This blogpost will be updated with my review of each new case and I will also post on Facebook.
Case #4 – Alpine Canada, the Canadian Olympic Committee and the Slovenian Olympic Committee v. International Ski Federation
Alpine Canada Alpin (ACA), the Canadian Olympic Committee (COC) and the Slovenian Olympic Committee (SOC) challenged the French team in Men’s Ski Cross, asking that the French competitors be disqualified from the Ski Cross Big Final competition. They alleged that, just before the Big Final, French support staff changed the shaping of the lower leg suits of the riders creating an aerodynamic effect that was contrary to the International Freestyle Skiing Competition Rules (“ICR”).
The first body to hear the matter was the Competition Jury of the International Ski Federation (FIS), which ruled that the Parties had not been brought their protests in time and thus dismissed the matter. The Parties (i.e., the ACA, COC amp; SOC) appealed that decision to the ad hoc Division of the Court of Arbitration for Sport (CAS) on an urgent basis. The CAS arbitrators dismissed the appeal upholding the FIS decision that the protests had been filed late. The Big Final took place at or about 3:00pm on February 20. The SOC protest was filed at 9:47pm and the COC was filed at 10:33pm the same day. ICR rules explicitly state that a written Protest must be delivered within 15 minutes of completion of the last competitive run of that particular phase of the competition. The protests were clearly more than 6 hours out of time.
The CAS Panel emphasized that there were no extenuating circumstances mitigating the delay in filing a protest: the parties became aware of the possibility that the three French competitors may have violated the competition rules at the time the Big Final was run and could have filed any protest in a timely fashion.
Rachel Corbett, of the Sport Law & Strategy Group, has written about filing timelines with respect to the Canadian SDRCC arbitration process – applications for a hearing MUST be made within the time frame allowed by the SDRCC rules. An arbitrator may consider extraordinary circumstances, which may cause a delay in filing, but such circumstances are few and are typically circumstances considered outside the control of the applicant. A perfectly legitimate concern may go unheard simply because the protest or appeal has been filed too late under the rules for a hearing.
Selection Case Case #3 – Birkner v. Argentinean Olympic Committee (AOC) & Argentinean Ski Federation (ASF)
Ms. Birkner competes in the discipline of Alpine Skiing. She argued that the decision of the Argentinean Olympic Committee (AOC) to not include her on the Olympic Team was discriminatory on the basis of her family affiliation. The 3-person CAS Ad Hoc Panel concluded that it did not have jurisdiction in the matter. The jurisdiction of the Ad Hoc division of CAS starts 10 days before the start of competition, which was January 28, 2014. Ms. Birkner was informed of her non-selection on January 20, 2014, well before the Ad Hoc Court had jurisdiction. In past cases there has been some ambiguity over this, sometimes because a decision and its rationale have been on separate dates, or a decision is subject to confirmation at a later date, or a decision is simply ambiguous.
These situations have created real problems. However, in this case, regardless of other issues, the Panel found the application should have been made earlier to either the AFS or AOC and that it therefore did not have jurisdiction. Limitation periods are important. Once again, a missed (or misunderstood) limitation meant an athlete, even if she or he had a valid argument, would have their claim denied in the context of Canadian SDRCC arbitrations. She referenced three cases where time limitations were breached and the merits of those cases could not heard. In this case, the Panel did hear the full case and subsequently spoke to the merits of the case (time limitations at the Olympic Games would simply not allow parties to bring separate applications regarding jurisdiction and the actual merits of the case).
The Panel found that the Applicant had not proven any form of discrimination – the basis of the claim. Ultimately, if the Ad Hoc Panel had jurisdiction, it would not have found in favour of the athlete. But, what if the athlete had been able to make out a case of discrimination? Because the Panel determined it did not have jurisdiction, even though the athlete may have had a valid claim, it would have dismissed her case – for lack of jurisdiction because she had not been within the time limitation.
Some final comments: Interestingly, in its conclusions the Panel did ‘recommend’ that the ASF establish and publish selection criteria in a more timely way so as to allow the athletes to know the qualifying standards they must meet for selection to an Olympic team. This was the same admonishment given days before in the iBauer/i case, on which we previously reported; however, in this case the presence of established criteria would have completely abolished any allocations of bias, or allegation that they were established to intentionally discriminate against her.
In reading the Birkner decision, I would go even further than the Ad Hoc Panel (because I am not limited to the specific questions of the appeal, as was the Ad Hoc Panel) and suggest that the selection criteria should have been more clearly defined and, in particular, that the discretion give selectors been clearly defined. Discretion does not necessarily mean a selector can chose anyone. Discretion should be bounded by the parameters of performance that are important to selection. These can certainly include subjective elements but these subjective elements need to be defined. Selectors should also be required to justify their decisions on the basis of these boundaries, which are the discretionary elements (i.e., criteria) of selection. This way it is less likely unintended elements of consideration will enter the process and subjective opinions will be framed around the criteria. In other words, a selector is not given ‘unfettered’ discretion, no matter how well intended a decision may be.
Selection Case Case #2 – Getty v. International Skiing Federation (FIS)
Getty is an Argentinian freestyle skier competing in the discipline of aerials. He claimed he was eligible to compete in the Sochi Olympics after FIS awarded Argentina one quota position. FIS responded that it had awarded the quota position in error as no Argentinian had in fact met the qualification standards. Notwithstanding the error in awarding a quota position, the CAS Panel found that the wording of the Freestyle Skiing Qualification System was clear and unambiguous. Getty was not eligible to enter the 2014 Sochi Olympics fundamentally because he had not reached the minimum FIS point requirement before the end of the qualifying period. In this case, the error of FIS was unfortunate and troublesome; however, the unambiguous wording of the qualification system made clear the eligibility standards.
Selection Case Case #1 – Bauer v. Austrian Olympic Committee (AOC)
The athlete (Daniela Bauer) is a half pipe skier. She stated she had met the FIS standards and that the head of the freestyle division of the Austrian Ski Federation (ASF) had promised her a quota place. The CAS Panel, in dismissing the athlete’s appeal, found that the neither the ASF nor the AOC had discriminated against the athlete in their decision making, nor had they exercised their discretion in an arbitrary, unfair or unreasonable way.
Nonetheless, they had some strong words for the ASF. They found that a member of the ASF created an expectation for the athlete that she would be nominated for a quota position, although he had no authority to guarantee or make such a promise. The Panel also highlighted the lack of publish criteria resulting in the failure to provide clear and timely notice of performance standards. The Panel recommended the ASF establishes and publish performance criteria to enable athletes to determine in a timely manner the qualification standards athletes would have to meet. This is a message the Sport Law & Strategy Group has long been promoting. Had there been clear and unambiguous criteria published well before qualification began, there could have been no confusion or misleading about quota positions. A horrible situation – but it would have been an easy fix to ensure it didn’t happen. (By the way, Hon. Robert Decary, a Canadian CAS adjudicator, was one of a 3-member panel hearing the matter.)