In a first
blog last month we discussed the problem of the scope of jurisdiction of
the Ad Hoc Division of the Court of Arbitration for Sport. The key issue was
whether an athlete could get his case heard in front of the CAS Ad Hoc Division
or not. In this second part, we will also focus on whether an athlete can access
a forum, but a different kind of forum: the Olympic Games as such. This is a
dramatic moment in an athlete’s life, one that will decide the future path of
an entire career and most likely a lifetime of opportunities. Thus, it is a
decision that should not be taken lightly, nor in disregard of the athletes’
due process rights. In the past, several (non-)selection cases were referred to
the Ad Hoc Divisions at the Olympic Games, and this was again the case in 2014,
providing us with the opportunity for the present review.
Three out of four cases dealt with
by the CAS Ad Hoc Division in Sochi involved an athlete contesting her eviction
from the Games. Each case is specific in its factual and legal assessment and
deserves an individual review.
I.
Daniela Bauer (CAS OG 14/01)
Daniela Bauer is an Austrian
halfpipe freestyle skier contesting the decision by the Austrian Olympic
Committee (AOC) and the Austrian Ski Federation (ASF) not to select her for the
Sochi Olympic Games. Shortly before the Games, a member of the ASF had informed
Ms. Bauer that she would get to participate in the Olympics if Austria were
offered an additional quota place for the halfpipe competition.[1]
But, when the AOC got the opportunity to fill such a quota spot, it declined to
use it. It did so because “the sporting performances of the Austrian athletes
in this discipline were not good enough and would adversely affect the overall
perception of the Federation and its athletes at the Olympics”[2].
Hence, on 2 February 2014, the athlete decided to file an application with the
CAS Ad Hoc Division against her non-selection.
She claimed that ASF and AOC had
“induced legitimate expectations in the Applicant that having qualified under
the FIS Rules she would be selected through the use of quota places”. Therefore,
ASF and AOC “are estopped[3]
from changing their course of action, i.e. from relying on their authority in
any given case to decline the quota allocated to Austria”[4].
Moreover, she argued that “[t]he right of the ASF to recommend an athlete to
the AOC (Rule 44.4 of the OC) as well as the right of the AOC to select an
athlete for the Olympic Games (Rule 27.7.2 of the OC) cannot be exercised in an
unreasonable manner”[5].
This standard of reasonableness was not met in her case because[6]:
- “no reasons were given”;
-
“the Respondents’ discretion not to
recommend and select her was exercised arbitrarily”;
-
“the applicant was never notified
that reference would be made to the above-mentioned criterion of sporting
perspective”;
-
“the AOC violated Rule 44.4 of the OC
by not investigating whether the ASF’s non-recommendation was based on
discrimination”;
-
“the AOC should accept all the
quotas allocated to it, irrespective of the potential results of the nominated
athletes”;
- and she “should have been
immediately informed of the decisions taken by the ASF and AOC”.
The ASF and AOC opposed that “[n]o
person has the authority to bind the ASF and the AOC with respect to the
Applicant’s participation in the Olympic Games” and, therefore, “[t]he AOC has
the exclusive authority under Rule 27 of the OC to decide which athletes shall
take part in the Olympic Games” [7].
The jurisdiction of the CAS Ad Hoc
Division was not contested and the panel moved directly to the merit of the
case. The panel refers to its settled case-law and reminds that “it is not in issue
that it is for an NOC to select its competitors for the Olympics […] (CAS OG
08/03)”[8].
Hence, “although the Applicant satisfied the FIS minimum qualification
standards and the AOC was below its maximum athlete quotas for all freestyle
events, the AOC would have violated the OC by nominating her for a quota
allocation for women’s halfpipe as she had not been recommended by the ASF”[9].
Even though it is acknowledged that ASF member Mr. Rijavec “may have created an
expectation that the ASF would recommend to the AOC that she would be nominated
for a quota allocation”, he “was not authorized to make any representations,
promises or guarantees regarding whether the AOC would nominate her if she
satisfied these standards”[10].
Consequently, no legitimate expectations to be selected could arise. In
addition to this, the panel found that the ASF disposes of a “significant
degree of subjective discretion”[11]
as it does not have recourse to any objective criteria regarding the selection
of freestyle skiers.[12]
Nevertheless, it “has a legal duty not to be arbitrary, unfair, or
unreasonable”, which it was not in this instance as “it had a legitimate sports
performance justification” .[13]
Finally, the Panel, in a remarkable twist
of mind, “wishes to express in clear terms that it does not condone its lack of
published qualification criteria that misled the Applicant by failing to
provide clear and timely notice of the performance standards she was required
to meet in order to be recommended by the ASF for the nomination by the AOC to
the Austrian Olympic team”. Additionally, “the panel strongly recommends that
the ASF establish, identify, and publish clear criteria to enable athletes to
determine in a timely manner the Olympic Games qualification standards they are
required to meet” .[14]
Despite these final remonstrances, the panel concludes that the claims of Ms. Bauer
lack merit.
II.
Clyde Getty (CAS OG 14/02)
The claimant, Mr. Getty, is an
Argentinean freestyle skier competing in the aerials discipline; the respondent
is the International Ski Federation (FIS). This is a case also related to the
attribution of an additional quota spot to participate to the Sochi Olympic
Games. On 24 January the Argentinean Ski Federation (FASA) received an email
from the FIS informing it that it was allocated a quota spot for the aerials
competition in Sochi. The FASA immediately informed Mr. Getty of the good news.
However, later that day, after confirming its interest in the spot, the
federation received a second email from FIS stating that FASA “does not have an
athlete that is eligible to participate in the Aerials men event” and therefore
cannot get the spot misleadingly offered in the first email. Henceforth, Mr.
Getty decided to challenge his proclaimed ineligibility to participate to the
Olympics in front of the CAS Ad Hoc Division.
Mr Getty claims that he is “eligible
to be entered into the Sochi Games by the Argentinean NOC irrespective of his
current FIS points”[15].
He is of the opinion that FIS rules are ambiguous on the selection process for
quota spots and therefore should be interpreted in his favour on the basis of
the contra preferentem principle.[16]
Moreover, he argues that “FIS is estopped from denying [him] a quota place” [17].
In other words, Mr. Getty claims FIS had prompted legitimate expectations,
especially after the 24 January email, that
he would be participating to the Sochi Olympic Games. Finally, Mr Getty submits
that denying him the participation in the Sochi Games “would be unfair and
contrary to the spirit of the Olympic Movement” [18].
He bases his claim, amongst many other things, on the fact that he is the only
freestyle athlete representing South America and that his “dedication to sport
is an inspiration to many” [19].
The FIS disputes these claims and points out that “the Applicant’s description
of the qualification procedure is incorrect and misleading” [20].
In fact, Mr. Getty never reached the minimum points for eligibility, nor is any
alternative qualification criterion accessible. Likewise, the FIS is not estopped,
as it could not create any legitimate expectations with its email.
The jurisdiction of the CAS Ad Hoc
Tribunal was not contested and the panel proceeded directly to the merit. As a
preamble, the arbitrators remind that “[u]nder Swiss law, the interpretation of
statutes has to be rather objective and always start with the wording of the
rule”[21].
After reviewing the wording of the FIS’s regulations, the panel concludes that,
in the present case, “[a] good faith common sense reading leads to the
conclusion that the rules unambiguously require all competitors to meet the
individual eligibility requirements” [22].
Additionally, “[t]he fact that the Applicant cannot point to a single instance
in the past where an athlete was allowed to compete in the Olympic Games
without meeting the eligibility requirements […] is further evidence of this
conclusion” [23].
Moreover, the FIS is not deemed estopped
from denying Mr. Getty a quota place for the Sochi Olympic Games. In this
regard, the Panel notes that “FIS never made during the qualification period a
representation that Mr. Getty was eligibile” [24],
nor is there “evidence that during the qualification period Mr. Getty received
from FIS an individual assurance that he was eligible” [25],
and “the fact that COA might ultimately obtain a quota place did (and could)
not suggest that FIS would waive the minimum individual qualification
requirement for any athlete assigned to that quota place” [26],
most importantly “all correspondence between FASA or COA and FIS on 24 October
2014 did not contain any express and individual reference to Mr. Getty”[27].
This is a fundamental difference compared to the existing precedents invoked by
Mr. Getty. Indeed, in those cases “the athlete had been given specific and
individual assurances about his eligibility” (CAS OG 02/06 & CAS OG 08/02)
or “the international federation changed its rules with retroactive effects,
depriving an athlete of the eligibility that could be assumed on the basis of
prior rules”[28]
(CAS 2008/O/1455).
Finally, the Panel also held that
the fact that the participation of Mr. Getty to the Sochi Games would be in
line with the Olympic spirit is a matter of policy. These concerns are for “FIS
to consider when adopting the eligibility rules for the Olympic games; they are
not for this Panel which is only asked to apply the existing rules”[29].
Even though the Panel is sympathetic to the athlete’s drive to participate to
the Sochi Olympic Games it rejects the application filed by Mr. Getty.
III.
Maria Birkner (CAS OG 14/03)
The final, and maybe most complex and
controversial case, is the one involving a well-known Argentine alpine skier:
María Birkner. The National Olympic Committee for Argentina (COA) and the
Argentinean Ski Federation (FASA) are the respondents in the proceedings. On 20
January 2014 the FASA told Ms. Birkner that she was not selected for the Sochi
Olympic Games. This decision not to select her is challenged in front of the
CAS Ad Hoc Division.
Ms. Birkner claims “that she was
discriminated against on the basis of her being a member of her family”[30].
For a number of reasons, she claims that the Federation has purposefully
conspired to banish her from its activities and to exclude her from the Olympic
games[31].
Chiefly, she claims the federation has purposefully informed her after the
final decision of the existence of specific selection criteria and of a
technical committee in charge of the selection. As discussed in the previous
blog, the jurisdiction of the Ad Hoc Division was challenged and the panel
found that it did not have jurisdiction. Nonetheless, it decided to consider
the merits of the case anyway.
The arbitrators brushed aside any
bias against the family of Ms. Birkner noting that two of her siblings were
present in Sochi and that her brother had even the privilege of carrying the
Argentinean Flag during the opening ceremony.[32]
Furthermore, in the eyes of the panel, the claimant failed to establish that
the qualification process, the Technical Committee and the selection criteria
used were biased against her.[33]
Indeed, “it cannot be said that the selection criteria said to be applied were
arbitrary or unreasonable”[34].
The panel considers that the recriminations of Ms. Birkner against the
selection process, especially the allegations of a bias from the part of the
Technical Committee and that the other skiers had previous knowledge of the
main selection criteria were not sufficiently substantiated and could not be
established for the sake of this procedure.
The panel is of the view that the
situation is similar to the one of the Bauer
case discussed above. Therefore, it recalls the holding of the Bauer Panel observing
that “there was a legal duty not to be arbitrary, unfair or unreasonable in the
application of objective criteria or in the exercise of subjective discretion
but that the exercise of discretion was not so characterised where there was a
legitimate sports performance justification for selection”[35].
It finds that “a discretion based on “the evolution and projection in the
future” [as invoked by the FASA] is not arbitrary, unfair or unreasonable” [36].
Nevertheless, the panel refers to the obiter holding in the Bauer case and “recommends that FASA
establishes, identifies and publishes clear criteria in a timely manner to
enable athletes to understand those criteria and the Olympic Games
qualification standards that they are required to meet in order to be
recommended for selection by COA” [37].
In the present case, “a dedicated athlete with an outstanding history of
representing her country, who had successfully competed in many international
as well as national events, was devastated by the decision made not to select
her, when she had believed that, on the criteria that she had mistakenly
understood had applied, she would represent her country at the Sochi Olympic Games” [38].
Conclusion: Deference is not enough
Selection disputes constitute a big
part of the CAS Ad Hoc Division’s caseload.[39]
This is probably inevitable, as the non-selection for the Olympic Games is
often the toughest setback faced by an athlete in her career. The Sochi cases
do not fundamentally sidestep the existing case law of the CAS Ad Hoc Division in
this regard. The deference to the subjective criteria used by the National
Olympic Committee’s (NOCs) and the International federations (Ifs) is
reaffirmed, unless those criteria are applied in an “arbitrary, unfair or
unreasonable” way. Furthermore, an athlete can hardly rely on any legitimate
expectations, unless he has been offered personally and officially a spot to
participate to the Olympic Games. Hence, a non-selection can only be challenged
successfully in the most extreme cases. However, when the behaviour of the
federation is, to say the least, ambiguous as in the Birkner case, a very heavy burden of proof lies on the shoulder of
the athlete to turn this ambiguity into the recognition of an “arbitrary,
unfair or unreasonable” behaviour.
The Sochi Ad Hoc Division’s approach
to selection cases is flawed with paradoxical feelings. On the one hand, it
urges the Ifs and NOCs to devise and publish “clear criteria in a timely
manner”, but, on the other hand, it encourages them not do so by limiting the
reviewability of their subjective and blurry selection practices. In short,
Panels openly favour objective and predictable schemes on which athletes can
rely, while incentivizing subjective and unpredictable assessments by leaving untouched
the wide scope of discretion of the Ifs and NOCs.[40]
The paradoxical and irreconcilable nature of these views should lead the CAS to
reconsider its approach to the selection process. The Sochi panels
instinctively felt there was something fundamentally unfair with the
non-selection of Ms. Bauer and Ms. Birkner. In this regard, the panels’ final
incantations for change will remain unanswered if the CAS Ad Hoc Division
refuses to contribute through its jurisprudence to the rise of clear selection
criteria. It should impose a more stringent review of the subjective criteria
used by the Ifs, by promoting a less strict understanding of the notion of “arbitrary,
unfair or unreasonable” scheme and/or by alleviating the burden of proof bearing
on athletes to establish the abusive nature of a selection process.
In fact, such an evolution would be in a line
with the will expressed by the Olympic movement during the Olympic Agenda 2020
process to be irreproachable in terms of good governance and transparency. The
existence of publicly known and clearly defined standards and rules is a
hallmark of such good governance. Getting to the Olympics is just too important
for athletes to be left at the mercy of the unchecked will