With a one year delay, the Summer Olympic Games were held this year - this time in Tokyo. This sporting event has traditionally attracted the attention of millions of viewers despite the fact that most of them had to watch sports performances only through television screens. However, what can be seen on television is of course, only a fraction of what is happening in the venue of the Olympic Games and what helps to make the whole event as smooth as possible. One of the tools that helps to ensure a smooth organisation of the Games is the CAS Ad Hoc Division, which has been a part of every Olympics since 1996, when it was established for the first time at the Summer Olympic Games in Atlanta.
CAS Ad Hoc Division
To understand the functioning of the CAS Ad Hoc Division, it is necessary to take a look at the CAS Arbitration Rules for the Olympic Games[1]. Article 1 of these rules states that the purpose of the CAS Ad Hoc Division is to resolve any disputes covered by Rule 61 of the Olympic Charter, insofar as they arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games. The jurisdiction of the CAS Ad Hoc Division is then set out in the Rule 61.2 of the Olympic Charter [2]., which provides:
"Any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport, in accordance with the Code of Sports-Related Arbitration."
As for the proceedings before the CAS Ad Hoc Division itself, that usually takes place before the Panel of three arbitrators, who are being assigned to individual cases, but in exceptional cases the President of the Ad Hoc Division may determine that the case will be decided by a single judge. To be more specific regarding the organisation of the division, 10 arbitrators have been appointed for this year's Olympic Games in Tokyo and as at the Rio Olympics, the Ad Hoc Division was further divided into tow sub-divisions, one dealing solely with doping cases and the other one with other disputes that arose during the Games.
One of the main reasons for the existence of the CAS Ad Hoc Division is then the fact that disputes that arise during the Olympic Games need to be resolved quickly, and ordinary proceedings before the CAS could definitely not provide this speed and readiness. The time limit for issuing a decision is actually really short as according to Article 18 of the Arbitration Rules for the Olympic Games[3], the decision should be issued in 24 hours from the application. In exceptional cases, this period may be extended by decision of the President of the Ad Hoc Division, but only if the circumstances of the case so require.
Tokyo 2020
In terms of the number of cases before the Ad Hoc Division, compared to the London and Rio Olympics, where 11 and 26 cases were decided, it seems that the CAS Ad Hoc Division in Tokyo had less work than in previous years. Three days after the end of the Olympic Games was published a total of 9 decisions by the CAS and an information that in another case was reached an agreement between the parties of the dispute. However, when comparing the number of cases, we cannot ignore thee fact that the high number of cases, we cannot ignore the fact that the high number of cases in Rio was caused by the doping scandal of Russian athletes. Last but no least, I would like to mention that all hearings in Tokyo were due to anti-pandemic measures held by videoconference , which, in my view, could the whole process speed up even more than usually.
As regards the subject-matter of the disputes themselves, they can be divided into three categories:
qualifications and participation of athletes at the Olympics
field of play
doping
Statistically there was the most cases within the first of the above-mentioned categories, including the one that eventually ended in an agreement. On thee contrary, the Doping Division surprisingly dealt with only one case during the Games.
Anyway, so we can imagine better what is the CAS Ad Hoc division practically dealing with, I chose one case from each category to present it's facts and conclusions of the CAS Ad Hoc Division.
A. Qualification and participation of athletes at the Olympics
The case that definitely attracted the most attention in the media was the story of the Belarusian athlete Krystsina Tsimanouskay[4], who qualified for the 100 and 200 meters race in Tokyo. Independently on that, two Belarusian athletes who were supposed to take part in the 4x400 meter relay were disqualified on the basis of positive doping tests. Following this chain of events, Tsimanouskay posted a video on her instagram account stating that she and another teammate had been placed in the aforementioned relay without any prior consultation with the Belarusian Athletics Federation (BAF). Not long after posting this video, the Belarusian sprinter was withdrawn from the race for 200 m and as a reason for this withdrawal from the race BAC cited a medical report, which according to its findings did not allow Tsimonaouskaya to participate in the race based on her mental state. This decision was then the one that Tsimanouskaya appealed and that's why the case got before the CAS Ad Hoc Division.
The main reason why this case provoked so many reactions around the world was the subsequent statement of Tsimonaouskay about the purposeful issuance of a medical report on her mental health with the aim of forcibly moving her from Japan back to Belarus because of her political beliefs and views that are inconsistent with its politics. Following this statement, a wave of international aid broke out, in which the athlete was offered asylum in foreign countries including Czech Republic, and she was even provided with police protection by the Japanese authorities.
Following the above events, Tsimanouskaya filed an application for interim measurers in the form of immediate suspension of the decision of the Belarusian delegation, and as it was filed only two hours before the scheduled 200 m race, it was decided ex officio by the chairman of the CAS Ad Hoc Division without appointing a Panel.
In view of the above, it is necessary to state that under Article 14 of the Arbitration Rules for the Olympic Games [5], an interim measure may be granted if the following conditions are met:
protection of the. applicant from irreparable damage
probability of success based on the facts of the case
the interest of the applicant outweighs the interest of the other party or other members of the Olympic Community
Tsimanouskaya within her motion stated that she is a victim of discrimination because of criticism of her coaches and other officials of the Belarusian Olympic Committee and the Belarusian Athletic Federation, and that the main reason for her exclusion from the race was not her mental health but differing political views. She thus considered the decision to exclude her from the race to be arbitrary, discriminatory and purposeful.
The President of the Ad Hoc Division within his decision then stated that Codes of Conduct may be applicable to the exclusion of athletes from competitions, but stressed that the rules can not in any way be abusing by nature and must always be used properly so it wouldn't jeopardize rights of athletes.
In the end, the President concluded of the CAS Ad Hoc division did not have sufficient evidence and information to meet the criterion of the probability of success set out in Article 14 of the Arbitration Rules for the Olympic Games. In particular, the inability to hear the applicant, both because of the short time between the submission of the application and the start of the race and at the same time because unknown location of the athlete, it was impossible to meet the criterion due to lack of information and so the other precautionary criteria were not even taken into account and the application was therefore rejected.
B. Field of play
Another of the decisions I would like to mention briefly is the case of the Colombian boxer Yuberjen Martínez [6]. Mr. Martínez competed in the category from 48 to 52 kg and he reached the quarterfinals in which he faced Ryomei Tanaka and in which he lost 1:4 based on points based on the referees' decision.
However, the Colombian boxer did not like the above-mentioned result and submitted an application to the Ad Hoc Division requesting an alternative decision - either a declaration that would make him the winner of the fight, or a declaration of invalidity of the match and order its repetition. Another alternative mentioned in his application was the opportunity to attend the semifinals in the case Tanaka could not for any reason participate.
Within his application, Martínez claimed that the referees acted in bad faith when applying Article 18.11 of the AIBA Technical and Competition Rules [7] when judging the match and submitted the following evaluation criteria to support his claim:
number and quality of strikes on the target area
degree of competitiveness
control of the match by tactical and technical superiority
Argument that struck me most was that Martínez was allegedly more competitive than Tanaka, because, unlike him, he left the stadium on his own, while Tanaka had to use a wheelchair.
However, despite all efforts, Martínez failed to reverse the outcome of the fight, primarily because the Panel adhered to the well-established CAS case law [8], namely to ensure the finality and certainty of sports result while preventing the court to be flooded with a large number of proposals to change the sports results by athletes. Based on the above-mentioned jurisprudence it is only possible to intervene the decision within the rules of the game if it is affected by an arbitrary decision, corruption or fraud.
C. Doping
As I mentioned at the beginning of this article, the anti-doping Ad Hoc Division had less work to do in this year's Olympic Games than during the previous Games when it decided only in the case of the Swiss sprinter Alex Wilson. [9] who had a positive doping test for steroid trenbolone in March earlier this year. The case thus first came before the Disciplinary Chamber of Swiss Olympic which found that Wilson's version of consuming contaminated beef a few days before the race was probable and allowed Wilson, in accordance with Article 7.4.1. of the Swiss Anti Doping Statute, to race in Tokyo. [10] However, this decision was subsequently appealed by World Athletics and WADA claiming that there was an error of law concerning the standard of proof.
In their joint appeal, they claimed that the Disciplinary Chamber had used the wrong method of assessment in assessing the evidence and instead of the test of probability, ie whether it was likely/possible that the meat was the reason of the positive test, they focused on whether this could be the case. In its decision, the Panel set aside the decision of the Disciplinary Chamber, namely based on the error of law consisting in the use of wrong standard of proof. At the same time, the Panel acknowledged that the Disciplinary Chamber had erred in assessing the case as well as external issues such as the impact of the decision on Wilson's participation in the Olympic Games and the associated proportionality of the sanction. Considering all of that, the Panel concluded, that based on the degree of probability, it was not possible that the contaminated beef could be the reason for a positive doping test and therefore, in addition to annulling the first instance decision, resumed the temporary suspension of Alex Wilson's sport activities and so he was ultimately unable to take part in the Olympic Games.
RESOURCES:
[2] Rule 61, Olympic Charter : https://www.olympijskytym.cz/olympijska-charta
[3] Article 18 , Arbitration Rules for Olympic Games
[4] CAS OG 20/13 Krystsina Tsimanouskaya v National Olympic Committee of Belarus
[5] Article 14 , Arbitration Rules for Olympic Games
[6] CAS OG 20/15 Yuberjen Martínez & Colombian Olympic Committee &Colombian Boxing Federation v IOC Boxing Task Force
[7] AIBA Technical and Competition Rules:
https://d21c25674tgiqk.cloudfront.net/2021/07/AIBA-Technical-and-Competition-Rules_02.07.21.pdf
[9] CAS OG 20/06 World Athletics v Alex Wilson, Swiss Anti-Doping & Swiss Olympic
[10] Swiss Anti Doping Statute,
Article 7.4.1. https://www.antidoping.ch/en/laws/doping-statute