By Jared P. Vasiliauskas & Michael V. Viverito, Power & Cronin, Ltd.
With the 2022 Beijing Winter Olympic Games having concluded on February 20, 2022, the Court of Arbitration of Sport (“CAS”) Ad Hoc Division released its decisions relative to the cases it heard pursuant to Article 1 of the CAS Arbitration Rules for the Olympic Games. This article will provide a summary of each decision, so as to highlight the issues raised and the reasoning behind the CAS Ad Hoc Division panelists’ decision. This article is not offered as a critique of the decision, nor does it strive to take a position in support of or against the decisions rendered. This article simply provides a means to convey to readers the facts behind each decision, and does not represent the opinions of the authors.
Makhnev & Shuldiakov v. International Ski Federation & Russian Olympic Committee CAS OG 22/2
On May 23, 2021, the International Ski Federation (“FSI”) published its Qualification System for the XXIV Olympic Winter Games, Beijing 2022 – Freestyle Skiing. The ongoing COVID-19 pandemic caused the cancellation of several World Cup events, leading to only ten qualifying events from December 2020 until January 14, 2022, in addition to the 2021 FIS Freestyle Ski World Championships.
Russian mogul skiers Andrei Makhnev (“Makhnev”) and Artem Shuldiakov (“Shuldiakov”) participated in the first six qualifying events. The final four events were set to take place in Quebec, Canada, and Utah, United States of America (“USA”) from January 7-8, 2022, and January 12-14, 2022, respectively. In November 2021, COVID-19 entry requirements for the USA and Canada were amended to limit entry to individuals who had received a COVID-19 vaccination authorized for use in their respective countries. Makhnev and Suldiakov were both administered the Sputnik V vaccination, the vaccine authorized for use in Russia. However, this specific vaccine was not on the list of authorized vaccines for the USA or Canada.
Despite efforts from the Russian Olympic Committee (“ROC”) and the Russian Freestyle Federation, the United States Ski & Snowboard Federation provided notice via email to the ROC, United States Olympic Planning Committee, the FIS and the International Olympic Committee (“IOC”) on December 4, 2021, that no exceptions would be granted by the United States government to allow Makhnev and Shuldiakov to travel to the USA.
After several back-and-forth correspondences, the matter reached conclusion on January 17, 2022, with the publication of the Freestyle Quotas List for Olympic Winter Games 2022 (“Quota List”) by FIS, which did not include any additional athlete quotas, as requested by the ROC president. On January 25, 2022, Makhnev and Shuldiakov petitioned the FIS requesting confirmation that two additional quotas would be granted to the ROC in male ski moguls in their favor. The following day, FIS responded that a request for such an increase in quotas was not within its purview, and invited Makhnev and Shuldiakov to raise the issue with the IOC. An application was filed with the CAS Ad Hoc Division on January 27, 2022.
At hearing, FIS raised the argument that this issue was outside the jurisdiction of the CAS Ad Hoc Division, as the issue identified by Makhnev and Shuldiakov was outside the 10-day period preceding the 2022 Winter Olympic Games Opening Ceremony on February 4, 2022. The purpose behind Article 1 of the CAS Arbitration Rules for the Olympic Games, adopted October 14, 2003 and amended July 8, 2021 (the “CAS Ad Hoc Rules”) is to provide a channel for swift resolution of disputes covered by Rule 61 of the Olympic Charter in force as of July 17, 2020, “insofar as they arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games.” For an understanding of the word “arise”, the Panel looked to the plain English definition, “to come into existence or begin to be noticed; happen”.
Guided by this definition, the Panel determined that the dispute arose as early as December 31, 2021, when the ROC sent its letter to FIS into the possibility of additional athlete quotas to allow for Makhnev and Shuldiakov to compete, despite missing the final four World Cup events. Makhnev, Shuldiakov and the ROC argued that no dispute arose until after January 17, 2022 because the Quota List was not final and there were further communications regarding the additional quota request through January 26, 2022, when FIS advised the ROC that any issues regarding quotas would need to be raised with the IOC. The Panel disagreed. The CAS Ad Hoc Rules require that the dispute must arise within the requisite time period. A new request on the same matter does not create a new basis for CAS Ad Hoc Division jurisdiction. The Panel held that the dispute clearly arose outside the requisite time period and that it lacked jurisdiction.
Henry v. International Bobsleigh & Skeleton Federation CAS OG 22/03
The International Bobsleigh & Skeleton Federation (“IBSF”) released its rankings in Women’s Skeleton on January 17, 2022. Over the following two days, the French National Olympic Committee (“NOC”) and Swedish NOC declined their quota, resulting in 24 out of 25 available quotas allocated for the Women’s Skelton event pursuant to the IBSF Qualification System for the 2022 Winter Olympic Games (“Qualification System”). On January 23, 2022, the IBSF requested that the International Olympic Committee (“IOC”) approve an adjustment to the IBSF eligibility requirements, changing consideration for the Women’s Skeleton event from the top 45 women to the top 55 women. This request was approved by the IOC on January 24, 2022, and confirmed with IBSF’s publication of its quotas for Women’s Skeleton, which reflected such a change, in addition to a reduction of the number of races in which athletes were required to rank during the ranking period. That same day, the IBSF published its quotas for Women’s Skeleton and reallocated the quota declined by France and Sweden to the United States Virgin Islands NOC (“VIOC”). The VIOC athlete, Katie Tannenbaum (“Tannenbaum”), was ranked 49th.
Megan Henry (“Henry”), a Women’s Skeleton athlete from the United States of America, and the 15th ranked Skeleton Athlete, petitioned the IBSF Appeals Tribunal on advocating that she should be selected for the open quota spot that had been reallocated to Tannenbaum. On January 25, 2022. the IBSF Appeals Tribunal issued its denial of Henry’s petition. On January 28, 2022, Henry filed an application with the CAS Ad Hoc Division.
Henry argued that the IBSF Appeals Tribunal erred in denying her petition and should be bound by the March 2020 Qualification System in place prior to the amendment January 2022 amendment thereto. The amendment to the Qualification System was enacted after the deadline for which the IBSF was to reallocate all unused quota places. As a consequence of reliance on an amendment enacted after the deadline for reallocation had passed, 49th ranked Tannenbaum was afforded the opportunity to compete, while 15th ranked Henry was not. Therefore, such a change is unfair and prejudicial to Henry.
The IBSF argued that pursuant to Section D.1.2 and D.1.3 of the Qualification System, unused quota places should be reallocated to the NOC with the next best ranked athlete on the respective IBSF ranking list for an NOC that did not earn a quota place. Because of Henry’s nationality, the NOC at issue is the United States Olympic and Paralympic Committee (“USOPC”). The USOPC was entitled to two quota places pursuant to Section D.1.3.2 of the Qualification System. These two spots, in turn, were used on Katie Uhlaender (“Uhlaender”) and Kelly Curtis (“Curtis”). Thus, under Section F of the Qualification System, the USOPC was no longer qualified for reallocation of any unused quota places. Indeed, USOPC’s usage of its two spots on Uhlaender and Curtis was acknowledged in a January 27, 2022 letter from the United States of America Bobsleigh & Skeleton Federation to CAS. Thus, IBSF argued, the IOC-approved amendment to the Qualification System had no influence on Henry’s eligibility, as she would have been ineligible for any unused quota places before the amendment was enacted, and ineligible thereafter, as the USOPC had already allocated its two quota places to Uhlaender and Curtis and were not entitled to third.
On review of the matter, the Panel looked to the clear provisions of the Qualification System, including the allocation provision of Section B.3, the “additional IF requirements” concerning athlete eligibility of Section C.3, the “qualification pathway” of Section D, and the reallocation of unused quotas of Section F. Upon the quota place becoming available for reallocation, it could not be allocated to the USOPC for two reasons. First, the USOPC had already filled its two available quota positions with Uhlaender and Curtis, and was ineligible for any reallocation. Second, granting the USOPC an additional quota space would bring its total athlete quota to three places, thus impermissibly exceeding the allowable quota in placing the USOPC in breach of Section B of the Qualification System.
This application of the Qualification System to a NOC was unaltered by the January 2022 amendments. The quota place and reallocation quota place are not given to a specific, individual athlete, but rather a NOC which did not earn a quota place and which has the next best ranked athlete. In neither of the eligibility criteria was Henry eligible for the open reallocation position.
Given its interpretation of the Qualification System, and in light of the absence of any special considerations, the Panel could not and would not substitute established and sound policy judgment on the issue. Thus, the Panel does not have jurisdiction to apply and enforce the requested changes Henry sought. It was determined that it is not for the Panel to make provision for a situation on which the Qualification System is silent, or to substitute Henry’s provisions in place of established guidelines. Any issues as to standing or the effect of timing or reasoning behind the January 2022 amendment did not affect the outcome of the case.
Irish Bobsleigh & Skeleton Association v. International Bobsleigh & Skeleton Association and International Olympic Committee CAS OG 22/05
In December 2019, the International Olympic Committee (“IOC”) approved the Qualification System for XXIV Olympic Winter Games, Beijing 2022 (“Qualification System”) for Skeleton events. Notably, this version of the Qualification System differed from the PyeongChang 2018 version of the Qualification System, in the equal distribution of the 50 available quota places between male and female athletes. In September 2020, the International Bobsleigh and Skeleton Federation (“IBSF”) issued an exception to its international Bobsleigh rules and its international Skeleton rules. Pursuant to this exception, quotas for the 2021/22 season would be based on the IBSF raking system from 2019/20.
On September 6, 2021, the IBSF made its Qualification System public and provided for the assignment of 25 places for each gender according to the maximum number of athletes per National Olympic Committee (“NOC”) according to the following:
Men Women
2 NOCs with 3 athletes 2 NOCs with 3 athletes
6 NOCs with 2 athletes 4 NOCs with 2 athletes
7 NOCs with 1 athlete 11 NOCs with 1 athlete
Pursuant to the Qualification System, exceeding the total amount of quota places for both men events and women events was not permitted under any circumstances. Likewise, unfilled men’s quota places could not be reallocated to fill any women’s quota place, and vice versa. Any quota places available for reallocation would be reallocated to a NOC which did not earn a quota place and with the next best ranked athlete. On January 17, 2022, the IBSF released its Men’s Skeleton rankings for the 2022 Olympic Winter Games. The Olympic Federation of Ireland (“OFI”) was listed as a NOC considered for reallocation.
On January 22, 2022, the Irish Bobsleigh & Skeleton Association (“IBSA”) filed an appeal before ethe IBSF Appeals Tribunal and IOC seeking an additional four quota places to Men’s Skeleton “to ensure equal opportunity across genders for NOCs with [one] athlete to participate in the 2022 Winter Olympic Game[s].” Alternatively, the IBSA requested that any unused Men’s Bobsleigh quota places be reallocated to Men’s Skeleton. However, on January 23, 2022, IBSF published its final allocation of the 25 quota places for Men’s Skeleton, which did not include a quota place for the OFI athlete. The IBSA then proceeded to file an application with the CAS Ad Hoc Division with respect to the IBSF decision to not grant additional quota places for Men’s Skeleton events.
The IBSA argued that the December 2019 rules changes regarding the equal distribution of quotas between male and female athletes unfairly prejudiced several NOCs, most notably smaller nations which feature only one male athlete. Only a reasonable accommodation of four additional quota place in Men’s Skeleton for the 2022 Olympic Winter Games would rectify such a harm created by the Qualification System changes by creating an equal opportunity for athletes from single sled nations to qualify sleds in the Men’s field as is the case in the Women’s field. If that relief could not be granted, the IBSF should make four additional quota places available based on reallocation of unused quota places from Men’s Bobsleigh. According to the IBSA, there was precedent established by the CAS Ad Hoc Division in CAS OG 10/01 that allowed for such reallocation.
The IBSF further argued that any deadline for a legal challenge had long since passed and would not be proper more than two years after the fact. The IBSF addressed the request that unused Men’s Bobsleigh quota places be reallocated to Men’s Skeleton by stating that it could not grant the request without violating its own rules. Such a reallocation across IBSF disciplines would increase the total number of male competitors beyond the allowable quota of 25, directly contradicting Section F of the Qualifying System. Additionally, the Qualifying System prohibited reallocation of unused quota places from one event to another event.
The IOC echoed the IBSF’s sentiments, adding that it would be impossible for the Panel to find support for IBSA’s complaint of “gender discrimination,” seeing that any grant of the IBSA’s requested relief would result in a total of 29 men and only 25 women competing in the Skeleton discipline.
After a hearing on the merits, the Panel found no evidence to suggest that male athletes were not treated equally under the published and approved criteria or that anyone set out to discriminate against male athletes from countries with one male athlete. The issues raised by the IBSA appear to be policy matters to be taken up with the IBSF in the course of its usual legislative process, which does not give rise to a legal basis upon which grounds for a discrimination claim is laid. Additionally, the Panel found that the IBSA was estopped from challenging the Qualification System after it submitted no complaints throughout the pendency of the Qualification System, had its athletes participate in competitions under the Qualification System for approximately two years, and only raised the complaint at issue after one of its athletes failed to qualify. The Panel held “waiting to see the outcome of an Olympic Games Qualification System and its effects on [one’s] own interests are not a sound basis for attacking the Qualification System,” particularly when there no assertion or evidence that the IBSF failed to apply the approved Qualification System.
The Qualification System was approved in 2019 and amended in 2020, without objection from any IBSF member federation or athlete. Further, whereas the Qualification System in the instant case contains language prohibiting exceeding established quotas, there is no such evidence that similar language was present in the relevant qualification system at issue in CAS OG 10/01.
Additionally, the Panel found that the IBSA’s requested relief of reallocating “unused” Men’s Bobsleigh quota places to Men’s Skeleton has no basis in the Qualifying System, and, in fact, directly contradicts Section F, which unequivocally states that “[e]xceeding the total amount of quota places for men is not allowed under any circumstances.” Such a request also contradicts Section F.3 in the Qualification System for XXIV Olympic Winter Games, Beijing 2022 for Bobsleigh events, which provides that “[u]nused quota places in an event cannot be reallocated to another event.”
The Panel lastly addressed the IBSA’s request that the IOC and IBSF adopt selection criteria at the commencement of each quadrennium and held that such a request for relief is outside the CAS Ad Hoc Division’s jurisdiction. Any international federation is free to adopt appropriate legislative and other decision-making procedures as they see fit, which is consistent with principles of good governance.
PART II will publish in the next issue of Sports Litigation Alert.
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