Sports Arbitration – Contesting Olympic Judging Decisions

Most of you will have heard of the controversial figure skating win of Russian teenager Adelina Sotnikova who won the Olympic gold medal last week beating out Yuna Kim of South Korea, despite many stylistic errors and fumbles. Many media outlets and fans were surprised to say the least at what appeared to be clear favoritism on the part of the Russian judge. The South Korean Olympic Committee has already sent a protest letter to the International Skating Union, and a petition is posted on Change.org calling for more accountability in sports judging.

But what legal recourses do athletes have at their disposal if they do not agree with a decision of the Olympic Committee or another sports organization and wish to have that decision reviewed or annulled?

The most effective and direct way to bring an Olympic Games dispute to a decision-making body is through the officially established sports arbitration process.

According to article 61 of the Olympic Charter, added in 1995 just in time for the Atlanta Games, disputes arising in connection with the Olympic Games are submitted exclusively to the Court of Arbitration for Sport (CAS) in accordance with the Code of Sports Related Arbitration (Code). The CAS was established as part of the International Olympic Committee (IOC) in 1984. Disputes are also submitted to the court of arbitration when an arbitration agreement between the parties provides recourse to the CAS. Generally speaking, the two types of disputes which are submitted to the CAS are commercial (contractual disputes, sponsorship rights, etc) or disciplinary (anti-doping, violence on the field, etc) in nature. Standard Court and arbitrator fees apply before each dispute is submitted to the CAS. The CAS has a list of approximately 300 arbitrators from 87 countries who sit on its arbitration panels.

The Code governs the two main sports disputes bodies, the CAS and the International Council of Arbitration for Sport, whose seats are both in Lausanne, Switzerland. Interestingly, temporary or ad hoc courts are established in Olympic host cities in order to resolve certain punctual disputes through mediation or arbitration. Decisions of the CAS can be appealed to the Swiss Federal Tribunal.

Although case law was scarce in the early years, the CAS now generally renders judgments every few days. The CAS’ website reports on the numerous decisions it publishes, in such matters as anti-doping and contestations regarding the selection of athletes for competition. The CAS has general appeal jurisdiction for all anti-doping rule violations. Just yesterday, the CAS affirmed the eight-year suspension of cyclist Patrick Sinkewitz for anti-doping violations, and imposed a fine of 38,500 Euros.

Although the CAS has very rarely overturned referee and scoring decisions, its broad jurisdiction would technically allow it to do so in the Sotnikova/Kim case. One of the only times the CAS was called upon to resolve a judging scandal was during the Salt Lake City 2002 Winter Games, during which Canadians Jamie Salé and David Pelletier lost the gold medal to a Russian skating team, despite comparable scores – a situation very similar to the Sotnikova/Kim controversy. After final judging, the Canadian Olympic Association applied for preliminary relief to the ad hoc division of the CAS which had been established for the purposes of the Olympic Games. The COA alleged that certain of the judges had been pressured to vote in a particular manner. Significantly, it applied to U.S. courts to issue subpoenas in aid of arbitration compelling witnesses to give evidence in front of the CAS. This was the first time that common law courts were asked to come in aid of the sports arbitration process.

The Salt Lake City scandal also illustrates the speed with which application will be considered by the CAS. Ad hoc committees established by the CAS have a 24-hour dispute resolution policy, meaning that certain urgent matters may be resolved within a day, on a summary basis, similar to the way safeguard motion and provisional injunctions are dealt with in regular court. Some of you will recall the case of Ross Rebagliati, the Canadian snowboarder who tested positive for marijuana use at the 1998 Nagano games, and who was stripped of his gold medal 3 days after he won. Following the decision of the IOC, a panel of three arbitrators from the CAS was assembled and decided the next day that Rebagliati could keep the gold.

It remains to be seen whether last week’s skating controversy will be brought to the attention of the sport arbitral process. For the moment, it is being played out in the media and by way of informal petitions.

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