Once again, we take a look at the decisions of the Court of Arbitration for Sport’s Ad Hoc and Anti-doping Divisions for the recently concluded 2018 Pyeongchang Winter Olympic Games.
CAS Ad Hoc Division
The Court of Arbitration for Sport (CAS) has operated an ad hoc tribunal (CAS Ad Hoc Division) at each Olympic Games since 1996. The purpose of the CAS Ad Hoc Division is to promptly resolve disputes arising during the Olympic Games.
Where an application is made to the CAS Ad Hoc Division, the matter is heard by a tribunal of one to three arbitrators. A panel of nine arbitrators was appointed to the CAS Ad Hoc Division for the 2018 Pyeongchang Winter Olympic Games (2018 Olympic Games). One of the arbitrators for the 2018 Olympic Games was Ms Zali Steggall, an Australian barrister and former Olympic slalom skiing medallist.
For the 2018 Olympic Games, two temporary offices of the CAS Ad Hoc Division operated from 30 January 2018 until 25 February 2018 and heard six cases.
The number of matters heard by the CAS Ad Hoc Division for the 2018 Olympic Games is comparable to the number of cases at the Sochi Winter 2014 Olympic Games but considerably less than the number of cases heard at the Rio Summer 2016 Olympic Games (20 cases).
The cases considered by the 2018 CAS Ad Hoc Division related to:
- the allocation of spots by International Federations for athletes to participate in events at the 2018 Olympic Games;
- the selection by National Olympic Committees of athletes to participate in the 2018 Olympic Games; and
- applications by athletes and coaches and physicians from Russia seeking to participate in the 2018 Olympic Games.
Unlike previous ad hoc panels at the Winter Olympics, the 2018 CAS Ad Hoc Division did not have to deal with any ‘in play’ disputes.
Allocation and selection disputes
Participation in the Olympic Games is a career highlight for many athletes. However, as stated in Rule 44.3 of the Olympic Charter, ‘nobody is entitled to any right of any kind to participate in the Olympic Games’.1
Athletes who satisfy the applicable citizenship criteria for a country may be nominated by their national Olympic committee (NOC) to the International Olympic Committee (IOC) to participate in the Olympic Games, usually following a recommendation by the national federations (NF) for the relevant sport and after consideration of the qualification criteria for the relevant events determined by the international federation (IF) for that sport.
Most disputes regarding qualification and selection are resolved in advance of the Olympic Games, however, in some instances, qualification and selection disputes are still active in the immediate lead up to the Olympic Games and result in applications to the CAS Ad Hoc Division.
Virgin Islands Olympic Committee v International Olympic Committee2
The Virgin Islands Olympic Committee (VIOC) applied to the CAS Ad Hoc Division in relation to the number of spots allocated to participants for the women’s skeleton event for the 2018 Olympic Games.
In total 20 quota places were allocated to women’s skeleton by the International Bobsleigh and Skeleton Federation (IBSF), the IF for the sports of bobsleigh and skeleton. Although Ms Kathryn Tannenbaum from the Virgin Islands met the minimum qualification criteria for the 2018 Olympic Games, due to the restricted number of quota positions available in women’s skeleton, the VIOC was not allocated a place for that event by the IBSF.
The VIOC sought an additional quota place in order for Mrs Tannenbaum to participate in women’s skeleton. The applicant submitted that there is a principle of universality at the Olympic Games that should be applied to the allocation procedure for additional or further invitation places in order to offer opportunities for NOCs with traditionally small delegations to be represented at the Olympic Games.
In rejecting the application, the CAS Ad Hoc Division acknowledged the principle of universal representation at the Olympic Games but found that this principle does not give every country the right to participate.3 The Panel held that the quota system was properly applied by the IBSF.4
VIOC’s application was unsuccessful – the quota allocation for women’s skeleton was properly applied by the IBSF.
Jeffrey Zina v Lebanese Olympic Committee (LOC)5
Mr Jeffrey Zina is a 19-year old Lebanese alpine skier who had won the Lebanese Junior Championships and also won the 2015/16 Lebanese Men’s Alpine Skiing Championships.
The 2017 Lebanese Alpine Ski Championship was conducted over a period of three to four days in January 2017 and March 2017. During the January session, Mr Zina won the slalom event. During the March session, Mr Zina sustained an injury to his lower back which hindered his further competitive performance and he placed fifth for the 2017 Championship.
In January 2018, the Ski Federation International (FIS) published its Points List for the 2018 Olympic Games.
Another Lebanese skier, Mr Allen Behlok, had 127.14 FIS points in slalom and 122.56 FIS points in the giant slalom. Mr Zina’s total was 92.07 FIS points in slalom and 127.14 FIS points in the giant slalom. Mr Behlok ranked slightly better in the slalom and Mr Zina ranked slightly better in the giant slalom, but overall, Mr Zina was the highest ranked of the two.6
The Lebanese Ski Federation (LSF) named Mr Behlok for the one spot at the 2018 Olympic Games allocated to the Lebanese Olympic Committee (LOC) for alpine skiing.
Mr Zina applied to the CAS Ad Hoc Division seeking to overturn the decision of LOC not to appoint him to the Lebanese Olympic team.
Mr Zina’s primary submission was that the LOC’s decision not to select him for the 2018 Olympic Games was a contradiction of representations made to him by representatives of the LSF in March 2017, upon which he relied, to the effect that the LOC’s decision would be based exclusively on the Olympic FIS Points List (where Mr Zina had finished ahead of Mr Behlok).7
In response, the LOC asserted that it had issued a written circular in December 2016 setting out the criteria for selection of athletes. These criteria required athletes to have:
- obtained sufficient points to compete in the slalom and giant slalom competitions and
- must have been in the top 3 ranking athletes in the Lebanese Championship in 2017 (top 3 criteria).8
The LOC also disputed that representatives of the LSF had asserted that only the FIS Points List was determinative for selection (to the exclusion of the top 3 criteria).9
In rejecting Mr Zina’s application, the CAS Ad Hoc Division noted that Rule 27.7.2 of the Olympic Charter provides that a NOC like the LOC has the exclusive right to send competitors, team officials and other team personnel to the Olympic Games and that the authority and discretion granted the national federations in making Olympic selections is broad and deep.10
The CAS Ad Hoc Division found that the top 3 criteria was part of the relevant selection criteria and that because Mr Zina had not satisfied that criteria, the decision of the LOC must stand.
Mr Zina’s application was unsuccessful – confirmed that the only quota place allocated for Lebanon in men’s alpine skiing events was correctly attributed by the LOC to Mr Behlok.
Applications relating to Russian Athletes and Coaches and Physicians
Following reports on the Russian doping scandal and the decision to suspend the Russian Olympic Committee (ROC), in December 2017 the IOC’s Executive Board (IOC EC) established a process for an independent panel (IRP) to determine which Russian athletes could compete at the 2018 Olympic Games as an Olympic Athlete of Russia (OAR) under the Olympic flag.11 The ROC submitted 500 athletes for potential inclusion.12 After conducting an individual assessment of each athlete based on a written admission criteria, the IRP established that 389 of the 500 athletes could potentially be permitted to participate in the 2018 Olympic Games.13 On 19 January 2018, the IOC’s Olympic Athlete from Russia Implementation Group (OAR IG) invited 169 athletes to participate in the 2018 Olympic Games.14
In CAS OG 18/02 and CAS OG 18/03, 32 Russian athletes applied to the CAS Ad Hoc Division seeking orders that they could participate in the 2018 Olympic Games.
Both matters were heard together.15
The applicants made a number of submissions, including that the IOC’s refusal to invite the applicants to participate in the 2018 Olympic Games had no basis in law and was discriminatory, the admission criteria applied did not have a legal basis, the applicants had not committed any doping rule violation, the criteria were unclear and it was not apparent how the criteria had been applied.16
In response, the IOC submitted that its decision to suspend the ROC and to establish a process for allowing certain Russian athletes to participate in the 2018 Olympic Games was different to a proceeding relating to doping rule violations.17 Further, the IOC asserted that the invitation process, whilst discriminatory was justified and properly implemented.18
The CAS Ad Hoc Division noted that it was faced with evaluating an unprecedented response to an extraordinary situation, that is, a state-sponsored doping scheme.19
In finding that the IOC process was justified, the CAS Ad Hoc Division characterised the IOC’s actions not as a sanction but rather as an eligibility dispute.20 The Panel expressly found that the process was designed to protect the rights of individual Russian athletes who were not implicated in State sponsored doping and that the process that was adopted by the IOC was ‘a considered and measured response to the confirmed state-sponsored doping scheme’.21
In considering whether the IOC’s process was discriminatory, arbitrary or otherwise unfair, the CAS Ad Hoc Division found that the process was credible, reliable, independent and the criteria applied was rationally connected to its subject matter (that is, to enable individual Russian athletes considered to be ‘clean’ or for whom there were no suspicions, to participate in the 2018 Olympic Games).22
The CAS Ad Hoc Division panel found that the IRP and OAR IG acted in good faith and applied the criteria to the 500 athletes identified by the ROC in a consistent manner.23 Further, the Panel found that any assessments made were, as far as possible in the circumstances, made in an appropriate and fair manner.24
In summary, the CAS Ad Hoc Division found that the relevant process was not arbitrary, unfair or unreasonable.25
The Panel dismissed both the applications. The applicants were not able to participate in the 2018 Olympic Games.
No jurisdiction to determine the applications
On 7 February 2018, in CAS OG 18/0426 and CAS OG 18/0527, 15 Russian athletes, coaches and physicians challenged the IOC’s refusal to invite them to participate in the 2018 Olympic Games.
The CAS Ad Hoc Division panel first dealt with the issue of jurisdiction. The CAS Ad Hoc Division only has jurisdiction regarding matters ‘that arise during the Olympic Games, or during a period of ten days preceding the Opening Ceremony of the Olympic Games’.28
The applicants request to be invited to participate in the 2018 Olympic Games was refused on 2 February 2018. The applicants argued that this was the relevant date for determining whether CAS Ad Hoc Division has jurisdiction.29
The CAS Ad Hoc Division disagreed and were satisfied the date the dispute arose was on 19 January 2018, as soon as the applicants became aware of their non-selection.30
In the circumstances, the CAS Ad Hoc Division panel found that it had no jurisdiction to deal with the Applicants’ applications.31
The Panel dismissed both the applications. The applicants were not able to participate in the 2018 Olympic Games.
CAS Anti-Doping Division
At the 2018 Olympics, CAS operated the CAS Anti-Doping Division (CAS Anti-Doping Division) for the second time in the history of the Olympic Games.
On 25 January 2018, the IOC published Anti-Doping Rules applicable to the 2018 Olympic Games (IOC Anti-Doping Rules). The IOC Anti-Doping Rules are consistent with the World Anti-Doping Authority’s World Anti-Doping Code and the Prohibited Substances and Methods List. Under these rules, athletes cannot use prohibited substances and are subject to doping-control testing during the 2018 Olympic Games.
Where a violation of the IOC Anti-Doping Rules is alleged by the IOC during the 2018 Olympic Games or the 10 day period immediately preceding them, the IOC is required to promptly file an application with the CAS Anti-Doping Division. In these applications the IOC will typically seek a finding that a violation of the IOC Anti-Doping Rules has occurred and pursue available sanctions.
In accordance with the IOC Anti-Doping Rules, the CAS Anti-Doping Division acts as a first instance authority for doping-related matters arising at the 2018 Olympic Games.
The CAS Anti-Doping Division may impose provisional suspensions pending the outcome of the hearing. Decisions in this division may be appealed to CAS in Lausanne, Switzerland, at CAS’ head office (after the completion of the 2018 Olympic Games). As such, at the time of publishing this summary, written decisions for a number of these matters had not been published.
For the first time, the IF may also intervene in the CAS Anti-Doping Division procedures in order that the same case is heard only once.
Judge Mark Williams SC from Australia was an arbitrator for the 2018 Olympics Games.
The CAS Anti-Doping Division heard a total of four matters in relation to the 2018 Olympic Games. At the Rio 2016 Olympic Games the CAS Anti-Doping Division heard 8 cases.
The matters considered by the CAS Anti-Doping Division for the 2018 Olympic Games arose from both out-of-competition testing and in-competition testing.
Kei Saito v International Olympic Committee and the International Skating Union32
Mr Kei Saito (Saito), a short track speed skating athlete from Japan tested positive in an out-of-competition test to acetazolamide.
Following a request for a provisional suspension from the IOC, joined by the International Skating Union (ISU), the CAS Anti-Doping Division granted the provisional suspension of Mr Saito.
Mr Saito accepted the provisional suspension in relation to the 2018 Winter Games and any future ISU competition pending the resolution of the matter.
The CAS Anti-Doping Division will issue a final award after the end of the 2018 Olympic Games.
Mr Saito voluntarily accepted his provisional suspension and did not participate in the 2018 Olympic Games.
Nadezhda Sergeeva v. International Olympic Committee33
Ms Nadezhda Sergeeva (Sergeeva), a Russian bobsled athlete tested positive to an out-of-competition test to trimestizaine.
Following a request from the IOC, joined by the International Bobsleigh and Skeleton Federation (IBSF), the CAS Anti-Doping Division, disqualified Ms Sergeeva from the women’s bobsleigh event at the 2018 Olympic Games.
Ms Sergeeva admitted to the anti-doping violation but reserved her ‘rights to seek the elimination or reduction of the ineligibility period’ following the conclusion of the 2018 Olympic Games.
The proceeding continues before CAS between the IBSF and Mr Sergeeva.
Ms Sergeeva voluntarily accepted her provision suspension and did not participate in the 2018 Olympic Games.
Ziga Jeglic v. International Olympic Committee34
Mr Ziga Jeglic (Jeglic), an ice hockey player from Slovenia tested positive during an in-competition test to fenoterol.
Following a request from the IOC, the CAS Anti-Doping Division issued Mr Jeglic with a suspension from competing in the remainder of the 2018 Olympic Games.
The CAS Anti-Doping Division will issue a final award after the conclusion of the Games.
Jeglic accepted his suspension.
Aleksandr Krushelnitckii v. International Olympic Committee and World Curling Federation35
Mr Aleksandr Krushelnitckii (Krushelnitckii), a Russian curling athlete won bronze in the mixed curling event.36
On 12 February 2018 and 13 February 2018, Mr Krushelnitckii tested positive to meldonium in two in-competition tests and was found to have committed an anti-doping rule violation in accordance with Article 2.1 of the IOC ADR.37
Judge Mark Williams SC was the sole arbitrator in this matter.
Following the positive test, the mixed curling pair of Mr Krushelnitckii and Ms Anastasia Bryzgalova was disqualified, resulting in the forfeiture of their bronze medal.38
Mr Krushelnitckii admitted the anti-doping violation with a reservation to seek elimination or reduction of the ineligibility period on the basis of ‘no fault or negligence’ in further disciplinary proceedings outside the period of the 2018 Olympic Games.39
On 22 February 2018 the IOC informed the CAS Anti-Doping Division that ‘despite the Athlete’s admission of the violation, its remaining requests for relief in its application were maintained’.40 The CAS Anti-Doping Division requested that Mr Krushelnitckii respond to the WCF’s provisional suspension submission.41
On the same day, Mr Krushelnitckii accepted the provisional suspension beyond the period of the 2018 Olympic Games and reserved all rights accordingly.42 The CAS Anti-Doping Division accepted the parties’ respective positions and cancelled the hearing.43
Mr Krushelnitckii admitted the doping violation, was provisionally suspended and his medal forfeited.