By Sergey Yurlov
Sport and its legal framework have been undergoing significant changes over the years. We can identify the following modifications within the organizational and legal framework of the Olympic Games: i) the Olympic Games are no longer open for everyone opposed to the ancient Greek Olympic Games that were a general event; ii) many commercial subjects have flowed into the world of sport; and iii) with the development of technologies and medicine modern athletes can enhance their athletic performance and sports indications. In the meantime, those developments caused new problems and challenges involving doping, violation of athletes’ rights, match fixing and corruption. For instance, athletes face unreasonable restrictions with regard to their participation in the Olympic Games, media companies compel them to compete at night. Sports governing bodies should keep pace with and tackle those developments introducing new remedies to protect rights of sports subjects. Unfortunately, athletes’ rights do not enjoy protection under the current version of the Olympic Games regulations. Therefore, the current version of the Olympic Games regulations should be amended in the following manner.
Introduction
Modern sport has developed and now it is not only trains and competitions but commercial relationships as well. In other words, modern sport is a system of different relationships connected with trains and competitions. Every sports governing body introduces a legal framework for a particular sport and for certain types of sporting competitions (for example, sporting competitions among students and school athletes). It is not a secret that the Olympic Games are the most important sporting competitions involving athletes from all over the world.
It is clear that the Olympic Games are not only sporting competitions in the Olympic Sports but also a set of proceedings. Those proceedings must be properly regulated by the rule of law and special Olympic Games legal regulations.
We believe that the current version of the Olympic Games legal Regulations should be developed with regard to the following issues:
Eligibility (individual participation, filing of an entry);
Drafting of an Effective Olympic Program;
Developing Olympic Sports; and
Developing dispute resolution procedure.
Amending Eligibility Code
It is apparent that the eligibility is the most important issue relating to the Olympic Games. The eligibility is connected with the opportunity to practice a sport, train and take part in the Olympic Games. Olympic rules and regulations should provide for a clear and simple election procedure without any bureaucracies and needless steps. Unfortunately, the current version of the eligibility code challenges athletes’ rights and legitimate interests with regard to the participation in the Olympic Games.
On the international level, the International Olympic Committee (hereinafter referred to as “IOC”) has an exclusive authority to entrench the basic principles for athletes’ Olympic participation.
According to the fourth principle of Olympism, “the practice of a sport is a human right. Every individual must have the possibility of practicing sport, without discrimination of any kind in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play”.
Pitifully, we note that the fourth principle of Olympism with regard to the Olympic Games should be construed as follows: an athlete has the right to participate in the election procedure (theoretically, every individual can take part in a national championship and to make an attempt) but it does not guarantee his nomination to the Olympic Team. Actually, there is no real and enforceable right to participate in the Olympic Games and other international (European) competitions as far as each athlete must undergo a complicated election procedure.
The IOC has adopted the Olympic Charter (hereinafter referred to as “OC”) according to which: “to be eligible for participation in the Olympic Games, a competitor, coach, trainer or other team official must comply with the Olympic Charter, including the conditions of eligibility established by the IOC, as well as with the rules of the International Federation concerned as approved by the IOC, and the competitor, coach, trainer or other team official must be entered by his National Olympic Committee”.
Therefore, we conclude that the opportunity to take part in the Olympic Games is initially restricted by the existence of the election procedure.
Sports subjects must fulfill the basics of the OC. Unfortunately; current practice shows that an athlete cannot take part in the Olympic Games on personal basis. In other words, there is no opportunity to file an entry form with an organization committee directly. In contrast, every athlete is obliged to approach a number of national and international sports governing bodies, which take a plenty of decisions before the athlete is finally elected for the participation. This conclusion is supported by recent court practice of the Court of Arbitration for Sports (hereinafter referred to as “CAS”). Thus, in Bassani-Antivari v. International Olympic Committee, 02/003 12 February 2002, the CAS ad Hoc division considered legal issues relating to the right to enter an athlete in the Olympic Games. In this case, the applicant was a 23-year-old Grenada national who had represented her country in international ski competitions since 1998. She had competed under the auspices of the Grenada International Sports Foundation (hereinafter referred to as “GISF”). GISF was accepted and recognized by the Federation Internationale de Ski in 1998. Bassani-Antivari had a good reputation (ranking and no disciplinary sanctions) and was ready to file an application for the Olympic participation. In August 2001, the President of the GISF filed with the Grenada Olympic Association a set of documents necessary to compete in Salt Lake City in 2002. However, the Grenada Olympic Association did not send an entry form in favor of Bassani-Antivari to the 2002 Games’ Organization Committee. Then something strange occurred. On January 25, 2002 the Grenada Olympic Association informed the GISF that it was unable to sanction the participation of Bassani-Antivari because the GISF was not an affiliate of the Grenada Olympic Association (the latter of which had not accepted the GISF’s application for affiliation). Therefore, Bassani-Antivari had filed her and her coach’s entry forms directly to the 2002 Games’ Organization Committee. Bassani-Antivari arrived in the U.S. in order to participate, but was informed that no one had filed an Entry form on her behalf.
Bassani-Antivari first brought an appeal before the IOC. On February 10, 2002, the IOC considered the appeal and rejected it on the grounds that it was undesirable for individual competitors to be allowed to participate in the Olympic Games in the absence of a National Olympic Committee. Then she filed an appeal to the CAS ad Hoc Division. She stated that she was improperly denied entry to the 2002 Games by the decision of Grenada Olympic Association. She claimed that she had proceeded in good faith, believing that she would participate in the Games. However, the Panel was of the view that an Entry Form which was not endorsed by the competitor’s National Olympic Committee was a unilateral document, which had no binding legal effect. More importantly, the CAS referred to the OC’s relevant provisions (Clause 49.1): Only NOCs recognized by the IOC may enter competitions in the Olympic Games. The right of final acceptance of entries rests with the IOC Executive Board. The National Olympic Committee shall only exercise such attributions upon the recommendations for entries given by national federations. The National Olympic Committee shall send to the Olympic Games only those competitors adequately prepared for high-level international competition . . . .
The CAS confirmed that it was within the National Olympic Committee’s exclusive authority to enter competitors in the 2002 Olympic Games, and rejected Bassami-Antivari’s appeal.
We believe that the current entry filing procedure should be upgraded with a view to the best interests of athletes — they should have the right to file an entry form for the participation in the Olympic Games with an organization committee directly. We should also take into account that many world sports governing bodies are in crisis and actually cannot perform their functions effectively and on a day — to — day basis. Several of them are being involved in some sort of investigations (for example, FIFA, a world sports governing body for football, is involved in criminal investigations). The Federation Internationale de Natation (hereinafter referred to as “FINA”), a world sports governing body for swimming, is being charged that it cannot deal with ongoing issues and does not protect rights of athletes. Thus, the FINA failed to tackle “night swimming finals” where swimming finals at the 2016 Summer Olympic Games are scheduled at night.
Of course, to participate in the Olympic Games, each athlete must obtain a couple of approvals from a national Olympic committee and national sports federation. In the meantime, the procedure should be more flexible. We believe that the entry filing procedure should consist of the following stages/steps:
An athlete who meets established requirements (for example, for swimming — qualifying times, “A” and “B” qualifying requirements) completes an entry form;
The athlete forwards a completed entry form to a national sports federation and to national Olympic committee that approve/endorse the form and send it back to the athlete; and
The athlete files the entry form with an organization committee directly.
Figure 1: Modern Entry Filing Procedure
More importantly, we believe that the IOC and other sports governing bodies should not establish any quotas, number of places etc. The participation in the Olympic Games should be free and without any limitations. This means that each athlete, if he meets established requirements, may participate in the Olympic Games. In our point of view, it is unreasonable to impose restrictions on the number of athletes to be elected by a national sports governing body. Thus, in swimming, only two athletes from one country could be elected for the participation in the 2016 Olympic Game in Rio. This system disregards the fact that five or ten athletes may meet the requirements. Why are these restrictions in place? Unfortunately, we are not aware of the reasoning for such restrictions. When considering these restrictions, we should refer to the experience of the ancient Olympic Games that were held in Ancient Greece. Dimitris Makristafis describing the ancient Greek Olympic Games in his book “Athens 2004” points: “The right to participate had each free Greek person”. We believe that this ancient Greek principle should be in force today as well. We do not really understand the reasoning that there will be too many athletes in case every individual will be entitled to participate in the Olympic Games. There is a misunderstanding because we are not talking about “Olympic Games for everyone” but about the legal principle according to which each athlete who meets the Olympic Games eligibility code is entitled to participate. There is no need for screening of athletes on initial stages when athletes file their entry forms because heats, semi-finals and finals have been created for this purpose. It is a “headache” of a national sports governing body to prescribe relevant, reasonable and fair election criteria that suit the needs of the Olympic movement.
Thus, in case an athlete meets the eligibility code the “door” for the Olympic participation must be open regardless of the following characteristics: age, social status etc. In order to enforce the provisions of the OC, we sholud introduce a new effective election procedure.
We are obliged to change the situation and create a new model of the Olympic Games where every individual subject to the Olympic eligibility code has the right to take part.
Drafting of an Effective and Reasonable Olympic Program
It is obvious that modern Olympic Games include a great number of sporting competitions conducted in many competition venues. The question is — how to deal with those competitions? How to create an effective Olympic Program, which will be suitable for all athletes, coaches, sports governing bodies, sport agents, television and radio channels?
First, we should ensure that the rights of athletes who participate in several sports enjoy protection. For example, swimmers may take part in open water swimming events (swimming 10 km race). Therefore, an organization committee should keep in mind interests of such athletes and should draft an Olympic Program in cooperation with them.
Unfortunately, we conclude that rights of athletes are no longer forefront in the world of sport. This fact has been confirmed by a draft program of the 2016 Summer Olympic Games (hereinafter referred to as “Program”). The Program features 28 sports, 41 disciplines and 306 events.
According to the Program, the men’s marathon swimming is scheduled for the first day August, 6th and women on August 7th. That would not only preclude any pool swimmers competing on those days from also targeting the 10 kilometers marathon, but would also make open water a far less realistic target for 800 meters and 1500 meters swimmers, given the recovery time in between events open and pool. More importantly, swimming semi-finals and finals are scheduled at 12 pm. It is not suitable for athletes’ health and their athletic performance. More importantly, those athletes returning to the Olympic village after “night” competitions will give other athletes trouble.
We believe that the Program has been drafted by the organization committee with a view to the interests of television and radio channels without involvement of athletes. However, such decisions cannot be taken without opinion of athletes. Why the FINA cannot tackle this? The question has been remaining without response…
We are of the view that the Program should be redrafted based on consultations to be conducted between athletes, coaches, media entrepreneurs and companies.
The following provision should be added to Byelaw to Rule 45 of the OC:
The IOC drafts the Programme with the participation of athletes, coaches and other officials of national and international sports federations.
Developing Olympic Sports (by the example of swimming)
In our opinion, several sporting events should be added to the Olympic program. Thus, the IOC and the FINA should introduce the following changes into the swimming competition program — 50 meters Breaststroke, 50 meters Backstroke and 50 meters Butterfly should be recognized as Olympic swimming events.
Furthermore, the IOC should recognize finswimming as an Olympic sport. Finswimming, appeared in the Russian Federation, has been existing for more than 50 years but yet has to be included in the Olympic Games program.
We are witnessing that modern sport suffers changes and therefore new sports should be added to the Olympic Program.
Revising The Olympic Dispute Resolution Procedure
The OC provides for sports disputes resolution clauses. According to Part 2 of Article 61 of the OC “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”. To adjudicate competition disputes i.e. disputes arising out of the Olympic Games, the CAS has adopted Ad hoc Rules for the Olympic Games. However, each international sports federation enshrines its own disputes resolution provisions that regulate the sports disputes resolution procedure with regard to a certain sport.
Thus, according to Article 3050.3.1 of the International Freestyle Skiing Competition Rules “a competitor or Team Captain who protests against any action by another competitor or an official during the competition must take his protest to a Jury member within 15 minutes of completion of the last competition run of that phase of competition”.
According to Article GR 9.2.2 of FINA General Rules “protest must be submitted within 30 minutes following the conclusion of the respective event or match”.
One of the most important issues relating to the sports disputes resolution procedure is a restricted 15-30 minutes timeframe for protest filing and for evidence adduction. We are of the view that this protest filing timeframe is too small due to the following. Very often, an athlete needs to prove that he has not violated technical rules or that a referee’s decision is void — in any case the burden of proof lies on the athlete. The athlete has no time for preparing a statement in oral or written form.
It is to be noted that the CAS considered one case connected with legal issues around sporting equipment in skiing — CAS Arbitration No. CAS OG 14/04-05 (hereinafter referred to as “Case”). On 20 February 2014, the men’s ski-cross competition of the 2014 Sochi Winter Olympic Games was held at the Extreme Park of Rosa Khutor (hereinafter referred to as “Competition”). The Competition ended at 3.00pm where three French athletes took the first three places. Six hours after the Competition had finished, the Olympic Committee of Slovenia (hereinafter referred to as “OCS”) filed a protest with the International Ski Federation (hereinafter referred to as “FIS”) alleging that French athletes had used ski suits which create ‘fairing around the lower leg of riders,’ i.e. these suits create an aerodynamic effect that allegedly constitute a violation of Article 4511.4 (Ski Suits) of the FIS Freestyle in-competition rules. These allegations were based on a video review of the Competition.
On 21 February 2014, the FIS Jury rejected the claim on the grounds that OCS did not file its protest within the 15 minutes time limit after the Competition results had been published. On 22 February 2014, the OCS filed an appeal with the CAS ad-hoc Division challenging the decision rendered by the FIS Jury. The appeal posited that the Jury had committed a fundamental breach of natural justice, as the 15-minute time limit for appeals following the Competition did not provide sufficient time to gather sufficient evidence. The appeal also argued that such a deadline was unreasonable under the circumstances and precluded proper application and enforcement of the ‘fair play’ rule. The CAS ad-hoc division concluded that the OCS did not comply with the explicit 15-minute window requirement and rejected the OCS’s appeal.
We do not support such an approach due to the following.
The Olympic Games are often considered the most important competitions for athletes all around the world, involving thousands of people. With this in mind, physically, there is often no opportunity to file a protest within a 15-minute window. Hence, we believe that the Olympic Games rules and regulations should provide for two to three hours protest filing timeframe.
More importantly, the IOC, national and international sports federations should keep in mind that all sporting competitions are generally divided into national and international, professional and amateur. On this basis, they should establish a protest filing timeframe. This looks like as follows:
Types of competitions
Protest filing timeframe (minimum “windows”)
Olympic Games — the most complicated sporting event
2 — 4 hours
World Championships
2 hours
European Championships
2 hours
National Championships
1,50 hour
Dual Meets
1 hour
Other amateur competitions aiming at being in a good shape, in a good health condition and other that pursue recreation purposes
30 minutes
Table 1: Different Protests Filing Timeframes Established Depending On Competition Types
In other words, there should be a distinction between the Olympic Games or World Championship events, and sports club competitions. It is clear that a 15-minute appeal timeframe is not long enough to be applicable to the Olympic Games. Internal sporting competitions, in turn, often involve less high profile, non-professional athletes whose primary interest is health and not results.
We are of the view that the Olympic Games rules and regulations should provide for a longer protest timeframe than the current 15 minutes. The FINA should propose the following amendments with regard to the protest filing:
“protest must be submitted within 3 (three) hours following the conclusion of the respective event or match. To prove his allegations an athlete is entitled to provide a video recording of the competition made by himself or by team officials”.
We also believe that athletes cannot be prohibited from appealing decisions rendered by the CAS. In case a decision of the CAS is unacceptable for an athlete and the CAS has violated principles of natural justice the athlete should be entitled to recourse to a state civil court. This will be in line with international conventions and treaties according to which every individual has the right of judicial defense.
Conclusions
We conclude that the current version of the Olympic Games legal regulations is not applicable to modern sport, which consists of business and commercial activities. We understand that, unfortunately, it does not correspond with the needs of athletes. In actuality, it suits the sports market interests because we are talking about protection of rights and legitimate interests of media companies but not athletes. However, those media companies have to realize that they can earn money if a sporting competition takes place. The sporting competition and athletes are central subjects of sport relationships. This fact should be accepted by all interested parties that get commercial benefit from a particular sporting competition. Therefore, the Olympic Games legal regulations must first satisfy the interests of athletes and then interests of other commercial subjects, otherwise we will wreck sport as a physical activity.
Sergey Yurlov is a Sports Law Researcher with the law faculty of Moscow State University (Lomonosov), Moscow, Russian Federation. He is a graduate from Moscow State University (Lomonosov), law faculty, civil procedure department, Master of Sports, sport judge and member of the Russian National Union of Sport Lawyers, member of the International Association of Sports Law (IASL). His email address is tommii125@yandex.ru. His primary interest is sports law, especially swimming legal regulation issues and sports disputes resolution. Mr.Yurlov is an author of more than 45 publications, including two books (monographs) relating to the legal framework of the sport of swimming.
