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.
Part I was published in the last issue of Sports Litigation Alert. Here’s Part II.
Edelman v. International Bobsleigh & Skeleton Federation and Bobsleigh Skeleton Israel CAS OG 22/04
After not being included on the International Bobsleigh & Skeleton Federation ranking list (“Ranking List”) for the 2-man Bobsleigh event at the 2022 Winter Olympic Games, the president of Bobsleigh Skeleton Israel (“BSI”) wrote the IBSF inquiring in allocation of quota places. BSI believed that, because all available athlete quota places had not been allocated, it could be granted the unused places, since it was listed on the Ranking List in first position of NOCs considered for reallocation. BSI interpreted the Ranking List to distinguish between quotas allocated for people and the number of crews allocated for an event. Thus, under this belief, of the 124 males Bobsleigh athlete quota places, participating countries had elected to fill 117 positions. Therefore, seven quota places remain unaccounted for, thus subjecting them to reallocation.
After exchanging several correspondences with IBSF, BSI formally requested a hearing with the IBSF Executive Committee on its request for allocation of seven unused quota places. Following deliberation, the Executive Committee rejected BSI’s request. BSI filed its application with the CAS Ad Hoc Division on January 29, 2022.
As an initial point, the IBSF challenged the Panel’s jurisdiction, claiming BSI had not “exhausted all the internal remedies available” to it before filing its application with the CAS Ad Hoc Division pursuant to Article 1 CAS Arbitration Rules for the Olympic Games
At hearing before the Panel, BSI again stressed their position that seven quota spots remained unfilled and were subject to reallocation. IBSF did not dispute 7 quota places out of the total 170 remained unfilled. It added, however, that the final number of quota spots could vary because the same athlete could be competing as a pilot in both the 2-man and 4-man bobsleigh.
The Panel first addressed the issue of jurisdiction raised by IBSF. It noted that, at hearing, IBSF recognized the existence of special and exceptional circumstances due to the short window between a hearing before the CAS Ad Hoc Division and the beginning of bobsleigh practice runs in Beijing on February 2, 2022. After a strict reading of the applicable IBSF regulation, the Panel found that BSI should have first appealed the Executive Committee denial to the IBSF Appeals Tribunal before filing an application leading to the then-present hearing. However, given that (i) the present dispute concerned the request for allocation for unused quota places for the participation in the 2-man Bobsleigh competition; (ii) the risk imposed by the time needed to exhaust the internal remedies in making the appeal to the CAS Ad Hoc Division ineffective; and (iii) the explicit acceptance for the Panel to deliberate on the matter given by the Respondent at the hearing, the Panel found that jurisdiction was, indeed, proper pursuant to the “appeal ineffective” exception under Article 1 CAS Arbitration Rules for the Olympic Games.
After a review of the IBSF Qualification System for bobsleigh events at the 2022 Winter Olympic Games, the Panel articulated its understanding of the applicable rules. To the Panel, the 124 maximum quota places for male bobsleigh athletes could be allocated in such a way so as to not exceed a maximum of 19 NOCs and a maximum of 30 crews distributed among the 19 NOCs. In light of this assessment, the Panel considered that the final number of male athletes may, indeed, vary and not amount to the full allowable count of 124 male athletes, due to the same athlete competing as a pilot in both 2-man and 4-man bobsleigh. Based on similar reasoning, the Panel found there to be no “unused quotas” available for reallocation. Thus, the Panel held BSI’s complaint of the IBSF limiting the number of crews to be baseless and, therefore rejected the same.
Fenlator-Victoria v. International Bobsleigh & Skeleton Federation CAS OG 22/07
At the time the International Bobsleigh & Skeleton Federation (“IBSF”) released its ranking list for the 2-woman bobsleigh event at the 2022 Winter Olympic Games, Jamaican athlete Jazmine Fenlator-Victoria (“Fenlator-Victoria”) was tied with French athlete Margot Boch (“Boch”) at 674 points each. Fenlator-Victoria competed in eight races included in the North American Cup Competition, earning 674 points in her seven best races. On the other hand, Boch had accrued an identical number of points while competing in the World Cup Competition and the Europacup competition. Despite showing that Boch had competed in six competitions, it was discovered that she had actually competed in only five.
Prior to releasing its ranking list, the IBSF communicated to National Olympic Committees (“NOCs”) and athlete members that then it would be counting the 2-woman and 4-man bobsleigh Europacup event that took place on December 5, 2021, twice, as it was not possible to reschedule the December 4, 2021, event within the time remaining for Olympic qualification. The tie was broken pursuant to the IBSF Qualification System for the 2022 Winter Olympic Games (“Qualification System”). Thus, the IBSF allocated the final quota spot for the event to the Comité National Olympique et Sportif Français (“CNOSF”) instead of the Jamaican Olympic Committee (“JOC”).
Fenlator-Victoria submitted a petition to the IBSF Appeals Tribunal pursuant to Article 18 of the IBSF Statutes on January 31, 2022, seeking for clarification regarding the double-counted event leading to the tiebreaker between her and Boch. The IBSF Appeals Tribunal issued a decision dismissing Fenaltor-Victoria’s petition without a hearing on the merits. This decision was, in part, based on the IBSF’s determination that Fenlator-Victoria lacked standing, as an individual athlete, to pursue an issue regarding quota allocation that is only within the purview of NOCs. Shortly thereafter, on February 5, 2022, Fenlator-Victoria filed her application with the CAS Ad Hoc Division.
Arguments offered by Fenlator-Victoria at hearing: that there is no legal basis according to which the results of the disputed December 5, 2021, race; that the points taken into consideration when composing the ranking list must be from events in which the pilot participates; that the IBSF Rules expressly provides for the option to hold a replacement race in case of race cancellation; that the Executive Committee was not justified pursuant to the IBSF Statutes; that the Executive Committee decision resulted in a discriminatory measure against her.
IBSF and CNOSF maintained that the Executive Committee decision was warranted under IBSF Statutes. It was further argued that, pursuant to its Code of Ethics, IBSF could not alter the course of a competition unless expressly permitted by the rules and regulations governing the competition.
Fenlator-Victoria requested the Panel set aside IBSF’s athlete ranking for the 2-woman bobsleigh event, recalculate rankings based on races that occurred and without retroactively double counting races, grant the final quota spot for the 2-woman bobsleigh event to Jamaican NOC instead of French NOC, order IBSF and IOC to add an additional quota spot to be allocated to French NOC.
The Panel first considered whether Fenlator-Victoria lacked standing to submit the appeal and whether the Panel itself lacked jurisdiction due to Fenlator-Victoria’s failure to exhaust all internal remedies available to her, i.e., appeal the Executive Committee decision to the IBSF Appeals Tribunal.
As to the former, the Panel noted that standing is recognized if a person appealing against a certain decision can demonstrate that he or she is sufficiently affected by the appealed decision and has a tangible financial or sporting interest at stake. There is no doubt that the IBSF ranking system and the way of calculating the ranking points are able to affect Fenlator-Victoria’s sporting interest. Indeed, as an individual athlete, Fenlator-Victoria has a direct interest in the proper conduct of the qualification process and in the compliance with applicable rules. Without the qualification process, she would have no avenue leading to a chance to be selected for competition. The decision became “tangible” when the effects of the Executive Committee decision to double count the results from the disputed December 5, 2021, race. Thus, Fenlator-Victoria has standing to at least her first two requests for relief. As to her third and fourth requests for relief, the Panel found that Fenlator-Victoria, as an individual, lacked standing to obtain a change in the allocation of the quota place from one NOC to another or to order an additional quota for her NOC, as that power rests with the NOC directly. An indirect interest is not enough to establish standing.
Turning to the latter, the Panel found that Fenlator-Victoria lacked legal interest and standing to appeal before the IBSF Appeals Tribunal because she was not immediately affected by the Executive Committee decision and had no “tangible interest” to appeal. Such interest and standing would not have come until the adverse effects of the Executive Committee decision ultimately impacted her qualification. Thus, Fenlator-Victoria was under no obligation to first appeal the Executive Committee decision to the IBSF Appeals Tribunal.
Addressing whether the Executive Committee decision on which the ranking list was based was justified, the Panel found that, due to the cancellation of the December 4, 2021, race, the Executive Committee was faced with the reality that a replacement race would not be feasible. It considered that the IBSF determination to provide an equal number of non-World Cup races are held in Europe and North America is a legitimate policy and that, due to the impossibility of a replacement race, the Executive Committee worked to find a solution to minimize the impact of cancellation on the number of available competitions in Europe compared to North America. This decision was a matter of urgency and made in an attempt to compensate athletes affected by the cancellation. The athletes who participated in the December 5, 2021, race were the same athletes who had registered for the cancelled December 4, 2021, race. The Executive Committee decision was to the benefit of the participants that, due to their registration for the December 4 event, had obtained a legitimate interest in relying on the points issued as a result of participation in that event. Since Fenlator-Victoria was not registered for the December 4 event, she did not have a legitimate interest in those points.
At the time the Executive Committee decision was published, the qualifying period was still in progress. Thus, Fenlator-Victoria still had the chance to participate in other races in North America, in addition to 2 events in Europe. The Panel did not agree with Fenlator-Victoria’s claim that she was essentially “excluded” from events due to financial and logistical issues, as well as travel/visa issues. Other athletes from the Jamaican Federation competed in Europe while qualifying for Beijing 2022, and Fenlator-Victoria, in fact, holds a passport from the United States of America. Similarly, the Panel found no evidence of discrimination of any kind.
International Olympic Committee, WADA and International Skating Union v. RUSADA, Valieva, and Russian Olympic Committee CAS OG 22/08, CAS OG 22/09, CAS OG 22/10
On December 25, 2021, Russian Women’s Figure Skating athlete Kamila Valieva (“Valieva”) was subjected to an in-competition doping control test and provided a urine sample, at the 2022 Russian National Figure Skating Championships. Valieva later competed on February 7, 2022, Team Event in Women’s Single Skating – Free Style as a member of the Russian Olympic Committee (“ROC”). The same day, based on the sample collected in December 2021, an adverse analytical finding was issued due to the presence of trimetazidine in Valieva’s sample. On February 8, 2022, Valieva was provisionally suspended, and eventually appealed her suspension to the Disciplinary Committee (DADC), resulting in a lifting of her provisional suspension. On February 11, 2021, the International Olympic Committee (“IOC”) and the World Anti-Doping Agency (“WADA”) filed applications with the CAS Ad Hoc Division. Similarly, on February 12, 2021, the International Skating Union (“ISU”) filed an application.
At hearing, there were two issues presented for adjudication. The first related to whether the CAS Ad Hoc Division could establish jurisdiction over the issue. The second related to whether the provisional suspension should have been lifted for Valieva. As to the issue of whether the CAS Ad Hoc Division has jurisdiction to hear the matter, the Panel established that jurisdiction comes from two avenues: Rule 61.2 and By-law to Rule 44.6(ii) of the Olympic Charter. Valieva argued that the CAS Ad Hoc Division lacked jurisdiction based on ratione materiae (based on Rule 61) and ratione temporis (based on Article 1 of the CAS Arbitration Rules for the Olympic Games due to there being connection between the disputed issue and the Olympic Winter Games. To support her argument, Valieva offered that the sample was collected in advance of the 2022 Russian Figure Skating Championship, thus the alleged violation was not committed due to or in connection with the 2022 Olympic Winter Games (“2022 OWG”). Additionally, Valieva argued, the provisional suspension she received did not specifically target the 2022 OWG, nor was it imposed by an authority of the 2022 OWG. The sample was taken on December 25, 2021. The fact that the appealed decision was rendered while the 2022 OWG were in progress is purely coincidence.
After careful analysis, the Panel rejected Valieva’s arguments and found that the reasons offered in support of her contention were misconceived. With respect to Valieva’s objection to jurisdiction based on ratione materiae, the Panel held that the dispute was not about the collection of the sample given by Valieva, the relevant test, or whether or not there had been a violation of an anti-doping rule. Rather, the dispute centers on whether the appealed decision, which lifted Valieva’s provisional suspension, should be set aside or not; i.e., whether the suspension should be reinstated or not. Thus, it can be plainly observed that the dispute is directly connected with the 2022 OWG, since the outcome of the dispute is relevant for Valieva’s participation in the 2022 OWG. This is irrespective of the authority that rendered the appealed decision. Further, there is no requirement under the CAS Arbitration Rules for the Olympic Games that the provisional suspension be directed towards participation in the 2022 OWG. For good measure, the Panel found a legal connection between the dispute and the 2022 OWG pursuant to Article 15 of the CAS Arbitration Rules for the Olympic Games, which establishes that a decision imposing a provisional suspension automatically prohibits the athlete or any other person from participating in competitions.
As to Valieva’s second objection to jurisdiction based on ratione temporis, the Panel found that it was uncontested that the appealed decision was rendered during the 2022 OWG. Thus, it was irrelevant whether the initial facts of the dispute may have arisen at an earlier time. Valieva argued that she would have had an opportunity under the appeal provisions contained in the CAS Code of Sports-related Arbitration to select arbitrator to hear her case, but that she was not afforded such opportunities under the CAS Arbitration Rules for the Olympic Games. The Panel found this argument unavailing, holding that all parties to the proceeding were afforded the same rules and procedures. The only dispute raised by Valieva was whether the CAS Ad Hoc Division or the regular CAS appeals division procedures apply. In light of the foregoing findings by the Panel, held that the CAS Ad Hoc Division had proper jurisdiction to hear the dispute.
The All-Russian Anti-Doping Rules (“Russian ADR”) contains special protections for “protected persons,” i.e., persons who had not yet reached sixteen years of age. It is undisputed by all parties that Valieva is a protected person pursuant to the Russian ADR. Under the World Anti-Doping Code (“WADC”), there are several instances of rules codified specifically for protected persons, making clear the intention to afford special treatment to protected persons. Under the Russian ADR, a provisional suspension must be imposed immediately in the case of an adverse analytical finding for the presence of a prohibited substance or the use of a prohibited method not pertaining to a specified substance or specified method. An exception exists, if the athlete challenging the provisional suspension provides evidence that the violation was most likely due to use of a contaminated product or pertains to a Substance of Abuse Use and proves the right to reduction of the ineligibility period.
The World Anti-Doping Administration (“WADA”) and the International Skating Union argued that trimetazidine is not a substance of abuse, the only basis for lifting a provisional suspension if the athlete demonstrates that the violation likely involved a contaminated product. The Russian ADR defines a “contaminated product” as a “product that contains a prohibited substance that is not disclosed on the product label or in information available in a reasonable Internet search.” in 2021, WADC revised its rules regarding provisional suspensions to state that mandatory provisional suspensions only applied to adverse analytical findings for prohibited substances other than specified substances.
The Panel found that, because Valieva is a protected person, she was subject to a minimum sanction of public reprimand in the event she established no significant fault or negligence. Put differently, Valieva, as a protected person, was subject to the same ultimate sanction as other athletes who avoid a mandatory provisional suspension. However, only protected persons could potentially receive a public reprimand and no period of ineligibility and yet still be subject to a mandatory provisional suspension preventing them from competing while their case is handled. The Panel viewed this as a clearly unintended gap in the WADC and the Russian ADR. Under the relevant provisions of the WADC dealing with fault, it wasn’t just possible that protected persons would receive anti-doping sanctions ranging from a reprimand to a two year period of ineligibility, it was likely, principally due to the lack of legal capacity and the youth and immaturity of protected persons. As a result, the Panel, indeed, found evidence of a gap.
Under precedent established in CAS 2006/A/1025 When CAS panels find a gap in the WADC, there is grounds for a CAS panel to fill the gap in a way that would ameliorate an overly harsh or inconsistent outcome. The Panel determined that in cases involving protected persons, any provisional suspensions should be evaluated as optional provisional suspensions under WADC Article 7.4.2 and its progeny. Thus, Valieva was entitled to benefit from being subject to an optional provisional suspension as a protected person and that, under the facts and circumstances of the case, the option not to impose a provisional suspension should have been exercised so that Valieva would not be prevented to compete in the 2022 OWG.
The Panel provided an alternative basis for its decision. It considered that, in contemplating lifting Valieva’s provisional suspension, under the narrow facts of the case and the situation in which Valieva found herself (through no fault of her own), and where Valieva could have filed a request for lifting the provisional suspension with the CAS Appeals Division had she not been brought before the CAS Ad Hoc Division due to the Applicants’ application, the well-accepted CAS and related standards used for assessing requests for provisional relief were appropriate to consider and yielded the same outcome. As a general rule, when deciding whether provisional measures may be granted, it is necessary to consider whether the measure is necessary to protect the applicant from irreparable harm, the likelihood of the applicant succeeding in the substantive appeal, and whether the interests of the applicant outweigh those of the respondent.
The Panel also considered the length of time it took for the laboratory to submit its report of an adverse analytical finding, the timing of that relative to commencement of the Women’s Single Skating event at 2022 OWG, the difficulty Valieva faced in not being able to muster substantial proof in her defense (due to the ongoing 2022 OWG), the relatively low level of trimetazidine found in her sample, the fact that he had multiple negative tests both before and after the sample in question was given for testing (October 30, 2021; January 13, 2022; February 7, 2022), Valieva’s position on contamination of the sample (whether in product or through domestic contamination), and the likely low level sanction she would have if found to have committed a rule violation.
Here, there was a likelihood of irreparable harm. Through no fault of her own, Valieva found herself being put on notice at the 2022 OWG of an alleged rule violation from a sample taken 44 days earlier. Given the length of time between collecting samples from previous and subsequent tests and the results, there was no excuse for such a delay at present. WADA argued that the International Standard for Laboratories merely recommended, but did not compel WADA-accredited laboratories to process samples within 20 days. The Panel was unpersuaded; it found that it should be possible for anti-doping laboratories and authorities to handle anti-doping tests in a swift manner when the samples are collected at significant events that may constitute qualifying events for the Olympic Games, such as the Russian National Championships in figure skating. Similarly, the Panel did not find the argument that the Stockholm laboratory charged with testing the sample experienced processing delays due to staffing problems caused by COVID-19. The Panel also found it significant that if Valieva was to remain ineligible to compete, then that would give rise, on any reasonable objective view, to per se irreparable harm.
When considering Valieva’s likelihood of success, the Panel found it hard to evaluate given such a short procedure, but felt that Valieva had credible arguments that made it sufficiently likely that she would succeed at hearing. Further, the Panel found that Valieva could show that the harm or inconvenience she would suffer from refusal of the requested provisional measures would be comparatively greater than the harm of inconvenience the other parties would suffer from the granting of the provisional measures. If the suspension was levied against Valieva, but it was later found after hearing that the suspension should be lifted or reduced, then Valieva would have lost the chance of competing at the Olympic Games without any form of recompense. However, if the athlete competes, wins a medal and is later found to be in violation of doping rules, her medal would be rescinded, and place be vacated as a result. Thus, the Panel held that this balance of interest tips in favor of Valieva because she is a protected person. Finally, the Panel found that in the face of irreparable harm to the Valieva upon issuance of a provisional suspension, there is no founded and equally tangible irreparable harm in case of lifting of the provisional suspension, neither for the Applicants nor for the other competitors.
In light of the foregoing, the Panel dismissed the applications filed by the IOC, WADA and ISU.
