As the Olympic torch rapidly approaches Paris, multiple stakeholders prepare for two weeks of intense competition. Individual athletes and nations seek glory on the playing field; financially interested third parties—including sponsors, suppliers and media entities—seek commercial success off-pitch. With all to play for, disputes are inevitable.
To the extent such disputes arise, they generally require swift resolution. The outcome of a selection dispute, or a disciplinary action over an alleged anti-doping violation, may impact whether or not an athlete can compete at all. Similarly prompt action is required in respect of potential copyright infringements, including as a result of unauthorized (and often creative) “ambush marketing” attempts.
With the games about to begin, we provide an overview of available mechanisms for resolving disputes during Paris 2024 and identify potential categories of disputes that may arise.
The Role of the Court for Arbitration for Sport
The Court for Arbitration for Sport (CAS) is an international body whose purpose is to resolve sports-related disputes. Although originally created by the International Olympic Committee (IOC) in 1984, CAS operates as an independent institution, overseen by the International Council for Arbitration for Sport (ICAS). As with other international arbitration procedures, parties must consent to submit disputes to CAS—usually through an employment contract or through the standing rules of relevant sporting organizations (which provide a right to appeal decisions to CAS). CAS arbitral proceedings are seated in Lausanne, Switzerland and are subject to the Code of Sports-Related Arbitration (CAS Code).
CAS is the central dispute resolution body at the Olympic Games: the IOC, National Olympic Committees (“NOCs”), international federations and Organising Committees for the Games are required to comply with the Olympic Charter, which expressly submits “any dispute arising on the occasion of, or in connection with the Olympic Games” exclusively to the jurisdiction of CAS (Rule 61.2, Olympic Charter). Additionally, individual athletes who compete at Paris 2024 agree to certain conditions of participation in their entry form, including that any disputes will be finally resolved through CAS arbitration.
The CAS Ad Hoc Division
In order to resolve legal disputes arising during the Games as efficiently as possible, CAS convenes an on-site Ad Hoc Division (the CAS AHD), which operates from 10 days prior to the Opening Ceremony until the Closing Ceremony. The CAS AHD aims to provide a “fair, fast and free” dispute resolution method, applying an expedited procedure set out in the Arbitration Rules applicable to the CAS ad hoc division for the Olympic Games (the AHD Rules). In particular:
- Prior to the Games, CAS selects a “special list” of arbitrators, taken from the broader CAS general list of arbitrators, and ICAS elects a president and co-president of the AHD from among ICAS members (Art. 3, AHD Rules). The arbitrators selected for the Olympics special list must be legally trained and must “possess recognized competence with regard to sport” (Art. 12, AHD Rules).
- If an individual wishes to challenge a decision at the Olympics, they must file a written application to the CAS AHD (in English, French or Spanish) (Art. 10, AHD Rules). There is no fee for doing so (Art. 22, AHD Rules), and CAS also publishes a list of lawyers available to provide advice on a pro bono basis.
- Upon receipt of the application, the president of the CAS AHD establishes a panel of three arbitrators from the special list (or, if appropriate, a sole arbitrator) (Art. 11, AHD Rules).
- Unless it considers a different procedure more appropriate, the panel immediately summons the parties to a hearing, at which the panel hears evidence (Art. 15(c), AHD Rules).
- The panel delivers a decision to the parties within 24 hours of receiving the application (Art. 18, AHD Rules). The panel’s decision may constitute a final award, which is immediately enforceable on the parties (Arts. 20(a), 21, AHD Rules). Alternatively, the panel may refer the dispute (or part of the dispute) to CAS to be handled through regular CAS arbitration proceedings (Art. 20(c), AHD Rules). In that circumstance, the dispute will proceed before either the CAS Ordinary Arbitration Division or the CAS Appeal Arbitration Division in Lausanne and under the CAS Code, rather than go through the expedited procedure provided by the AHD Rules to the extent its provisions are not contrary to the AHD Rules (Art. 20(c)(iii), AHD Rules).
In cases of extreme urgency, the panel may grant a stay of the effects of the decision being challenged or other preliminary relief. In considering an application for such relief, the panel will consider whether the relief is necessary to protect the applicant from “irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the applicant outweigh those of the opponent or of other members of the Olympic Community” (Art. 14, AHD Rules).
The CAS AHD Rules provide that Lausanne, Switzerland, is the seat of arbitration, although the proceedings will take place in Paris (Art.7, AHD Rules). The panel will decide a dispute “pursuant to the Olympic Charter, the applicable regulations, general principles of law and the rules of law, the application of which it deems appropriate” (Art. 17, AHD Rules).
Awards delivered by the CAS AHD are final and binding upon the parties, subject to limited recourse in the Swiss courts (Art. 21, AHD Rules). In practice, a party’s interest in challenging a CAS award in the Swiss courts will likely depend on whether filing a challenge would have the effect of staying the enforcement of the panel’s decision—for example, if a nonqualifying team would miss qualification in any event, it may not have an interest in appealing the decision. In this respect, in deciding whether to stay the enforcement of the award pending the challenge, the Swiss courts consider factors similar to those in Article 14 of the AHD Rules—i.e., whether (i) the award causes serious and irreparable harm, (ii) the “balance” of opposing interests is in favor of the applicant, and (iii) the challenge has a prima facie good chance of success (Art. 104, Swiss Supreme Court Act).
The CAS Anti-Doping Division
Since Rio 2016, CAS has operated an additional ad hoc branch of its Anti-Doping Division for each Olympic Games (the CAS ADD), which is also located on-site and has jurisdiction over alleged anti-doping rule violations related to the Games.
The CAS ADD follows a set of expedited rules, specifically applicable to each Games (for Paris—the Procedural Rules applicable to the CAS Anti-Doping Division Olympic Games Paris 2024). The CAS ADD Rules are similar in structure to the CAS AHD Rules: they are likewise applicable for the time period between 10 days prior to the Opening Ceremony until the Closing Ceremony; provide for a “special list” of ADD judges to be selected prior to the Olympics from which any required panel is established to hear a dispute; and require a panel to deliver its decision within 24 hours of receiving any ADD application.
Paris 2024: Potential Disputes
Just hours before the Opening Ceremony, the CAS AHD and ADD are already in situ, at the Tribunal Judiciaire of Paris. We briefly discuss below potential disputes that might arise at Paris 2024, though some have already been determined to fall outside CAS AHD’s confined jurisdiction.
Field of Play
Decisions made by referees/umpires during a competition are generally precluded from review, pursuant to the so-called field of play doctrine. This doctrine both protects competitions from constant interruption and prevents intervention from external arbitrators who are not specifically familiar with the rules of the sport in question and were not necessarily present to observe the game firsthand.1 The doctrine applies even in instances of technical error: for example, in the case of the French boxer Mourad Aliev, who memorably disputed a referee’s quarter-final decision in Tokyo by staging an hourlong ringside sit-in, the CAS AHD found the referee may have made a technical error, but that the decision had been taken in the field of play and should therefore stand.2
There are exceptions to the doctrine, and the CAS AHD is empowered to review field of play decisions in cases of fraud, bad faith or corruption, or where rules were applied arbitrarily. In practice, however, this is a high bar: at Tokyo 2020, all three field of play decisions that were submitted for appeal to the CAS AHD were dismissed.3
Qualification and Selection Disputes
Inevitably, there will be disputes concerning whether athletes qualify to compete in scheduled events. Potential issues include simple administrative errors: Jamaican hammer thrower Nayoka Clunis, for example, is currently unable to compete in the Paris Games because the Jamaica Athletics Administrative Association neglected to submit her name to World Athletics for an Olympic spot. Last week, the CAS AHD determined it lacked jurisdiction to hear her case on the basis that the relevant decision arose outside of the 10-day period prior to the Games.4
Selection disputes may also concern complex questions about diversity and potential discrimination. Such cases are not clear-cut and the legal landscape is evolving.
One well-documented example is that of Caster Semenya, who challenged the IAAF’s DSD Regulations, which require female athletes with endogenous testosterone levels above a certain threshold to take testosterone-suppressing medication to compete in selected international athletics competitions. In 2019, CAS dismissed Semenya’s challenge and found the DSD Regulations were necessary, reasonable, proportionate and nonarbitrary to ensure fair competition.5 The Swiss Federal Supreme Court upheld this decision in 2020.6 However, the European Court of Human Rights determined last year that the application of the DSD Regulations was discriminatory and the Swiss Federal Supreme Court’s review of the case had violated Semenya’s right to an effective remedy.7
More recently, transgender swimmer Lia Thomas has been barred from competing in the female category at Paris 2024 pursuant to the 2022 World Aquatics Rules, which prohibit anyone who has undergone “any part of male puberty.” CAS recently dismissed Thomas’s legal challenge against World Aquatics for lack of standing.8
In January this year, the IOC introduced a new, nonbinding framework titled “Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations,” designed to provide a clear set of principles in response to controversies regarding gender, in particular. Although the intent is to reduce disputes, the interpretation and application of the framework may nonetheless give rise to qualification appeals at Paris 2024.
Disciplinary Actions
The CAS ADD will almost inevitably be required to handle alleged anti-doping violations during Paris 2024. Following its “Clean Road to Paris” campaign, the International Testing Agency has indicated plans to conduct doping tests on up to 4,000 athletes during the course of the Games.
This comes in the wake of frequent doping controversies at recent Games. The case of 15-year-old Russian figure skater Kamila Valieva received significant media attention during the Beijing Winter Olympics 2022. In that case, despite a positive doping test, the CAS AHD permitted Valieva to participate in the remainder of the Games, but her results in the team and individual skating events remained provisional.9 Following an investigation, the Russian Anti-Doping Authority found Valieva bore no fault for the positive test, on account of her age. However, the World Anti-Doping Authority (WADA) appealed. In January this year, CAS upheld WADA’s appeal, imposing a four-year competition ban on Valieva (retroactive from 2021).10 In the last 24 hours, CAS dismissed three related appeals brought by the Russian Olympic Committee, the Figure Skating Federation of Russia, and Valieva’s skating team members, who sought reranking in relation to the figure skating team event.11
Commercial Disputes
The Olympic Games represent one of the most significant global events in the sporting calendar—Tokyo 2020 had a reported global audience of approximately 3.05 billion. As a result, it is not just the athletes who are going for gold: there are substantial revenues to be made from broadcasting rights, sponsorship deals, merchandising and ticket sales.
Given the high financial stakes, commercial disputes will almost inevitably arise in connection with broadcasting rights, use of Olympic branding and sponsorship exclusivity. The forum for resolving those disputes will depend on the parties’ contractual agreements, which may include referral to CAS or other arbitral institutions.
At past Olympic Games, disputes have arisen as the result of ambush marketing—in which companies that are not official sponsors of the Olympic Games strategically associate their advertising with the Games. During the PyeongChang 2018 Winter Olympics, Mumm Champagne’s #NextVictory campaign featured Usain Bolt challenging athletes to pose with his signature lightning bolt move on the podium to win a bottle of champagne. The campaign went viral by association with the Games, even though Mumm was not an official sponsor.
When it comes to advertising and sponsorship during the Olympics, athletes are bound by Rule 40 of the Olympic Charter (although, in the Mumm example, Rule 40 did not apply because Usain Bolt was not competing at the Winter Olympics). Rule 40 permits athletes only limited mention of personal sponsors subject to prescribed Rule 40 Principles—for example, athletes can release a maximum of one thank-you message to any sponsor that is not an official Olympic partner. Responsibility for imposing sanctions against noncompliant athletes lies with NOCs (in their respective territories) and the IOC (internationally). Any athlete looking to challenge a decision imposed by NOCs or the IOC may seek to appeal to CAS through the CAS Appeal Procedure.
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Paris 2024 is set to be a spectacle of sporting achievement. But it’s not all fun and games; inevitably, in the background, multiple disputes will arise (and possibly be resolved) over the course of the next two weeks, and arbitration will play a key role in resolving those disputes.
Footnotes
