VANASOC & Vanuatu Beach Volleyball Federation v FIVB & Rio 2016 Organizing Committee1
You probably didn’t see the Vanuatu beach volleyball team of Ms Miller Patta and Ms Linline Matautu competing in the Rio 2016 Olympic Games (the Games). That’s because they weren’t there. But it was not for want of trying, or that perhaps they hadn’t earned a spot in the lineup. The real reason that they weren›t able to compete was because of an age old principle of court and arbitration procedure; the higher threshold for evidence and argument an applicant to an unopposed proceeding faces when seeking orders against an absent defendant.
On 3 August 2016 the Italian athlete Ms Viktoria Orsi Toth, who was to participate in the beach volleyball in the Rio games, tested positive for an anabolic substance.2 Accordingly, she was excluded from competing in the Games. The Italians sought to replace her with Ms Laura Giombini. On 4 August 2016, Volleyball’s governing body, the Fédération Internationale de Volleyball (FIVB) approved the swap and wrote to the Vanuatu Beach Volleyball Association (presumably because the 16th ranked pair of Patta and Matautu were next in line to compete) noting that the Rio Organising Committee (ROC) had approved the swap in accordance with the Late Player Replacement Policy for the Rio 2016 Olympic Games (Policy).3
The Policy allowed the Rio Organising Committee to authorise substitutions of players in teams (in consultation with the relevant international federation) where the replacement is required because there are “urgent medical conditions preventing the participation of an Athlete, or otherwise on a case-by-case basis for exceptional circumstances.”4
The Vanuatu delegation promptly appealed to the ad hoc division of the Court of Arbitration in Sport (CAS) established in Rio for the Olympic Games.
The appeal was brought urgently – the documents were lodged at 8:30am with a decision requested by noon – to the CAS so that the Ni-Vanuatu could fly to Rio if successful. The tribunal, constituted by one member, gave the FIVB, the ROC, the IOC, the Italian Olympic Committee and Italian team members players an opportunity to give submissions by 10:30am. None were forthcoming so the Arbitrator had to make her decision solely on the basis of material adduced by the Ni-Vanuatu.5
The essence of the Ni-Vanuatu argument was that the rules of beach volleyball are such that joint liability is imposed on both members of the team. Thus, if one team member is disqualified for doping then both are to be prevented from participating and that doping was not an “exceptional circumstance” which would permit substitution under the Late Player Replacement Policy.6 At first blush it seems like a compelling argument. On a plain and ordinary reading of the Policy it is difficult to see how doping is an «exceptional circumstance”, particularly in circumstances where, as at 5 August 2016, the CAS was dealing with 13 individual arbitrations involving Russian athletes, all of which concerned doping allegations.7
However the Arbitrator, a former judge in the Federal Court of Australia, dismissed the appeal. The Arbitrator’s reasoning was that the materials and argument produced to the CAS were insufficient for the Ni-Vanuatu to discharge the onus of proof that they bore to demonstrate that the discretion in the Policy for substitution in “exceptional circumstances” was not complied with.8
It is tempting to think that an unopposed application is akin to striking a ball at an open goal. However, as this decision confirms, the reverse is true. Although the award does not refer to any authorities regarding the special obligations that an unopposed applicant bears in formal dispute proceedings, there can be no doubt that the Arbitrator›s training and experience in the common law system influenced her reasoning. In litigation or arbitration the absence of an opposition means that the bar is set higher for the applicant. In such situations, unopposed applicants will be required by the tribunal to show the utmost good faith, identify crucial points for and against the application, present the case fairly and accurately and make full and frank disclosure to the tribunal.9 In this case, the Ni-Vanuatu may well have done so but, for reasons that are not immediately clear on reading the arbitral award, their match winning spike was blocked by the CAS.