Editor's note: Saverio Paolo Spera is an Italian qualified attorney-at-law. He holds an LL.M. in international business law from King’s College London. He is the co-founder of SP.IN Law, a Zurich based international sports law firm. Jacques Blondin is an Italian qualified attorney, who held different roles at FIFA, including Head of FIFA TMS and Head of FIFA Regulatory Enforcement. He is the co-founder of SP.IN Law. The Authors wish to disclaim that they have represented Ms. Nayoka Clunis before the Court of Arbitration for Sport in Lausanne in the context of the proceedings which led to the Award of 31 July 2024.

Every four years since more than a century,[1] a spectacular display of sportsmanship takes place over the course of a few weeks during the summer: the Olympic Games.[2]

         For thousands of athletes around the globe, the Olympic Games are “the pinnacle of success and the ultimate goal of athletic competition”.[3] In their quest to compete in the most important stage of their sport, they endure demanding and time-consuming efforts (often including considerable financial sacrifices). These endeavours occasionally lead to everlasting glory (the exploits of athletes of the calibre of Carl Lewis, or more recently, Usain Bolt[4] still resonate among sports’ observers), more often to a shorter gratification. Whether their gestures end up going down the sport’s history books or last the span of a few competitions, athletes are always the key actors of a magnificent event that continues to feed the imagination of generations of sports fans. 

And yet, situations may occur when athletes find themselves at the mercy of their respective federations in the selection process for the Olympic Games and, should the federations fail them (for whatever reason), face an insurmountable jurisdictional obstacle to have their voice heard by the only arbitral tribunal appointed to safeguard their rights in a swift and specialised manner: the Court of Arbitration for Sport (the “CAS”).[5]

This is the story of Nayoka Clunis, a Jamaican world class hammer throw athlete who had qualified for the Olympic Games of Paris 2024 and yet, due to no fault of her own, could not participate in the pinnacle of competitions in her sport. Though eligible in light of her world ranking, she was failed by her own federation[6] [AD1] [SPS2] and ultimately found herself in the unfortunate – but legally unescapable – vacuum whereby neither the CAS Ad Hoc Division in Paris nor the ‘regular’ CAS division in Lausanne had jurisdiction to entertain her claim.  

The aim of this paper is not to discuss whether Ms. Clunis would have had a chance to successfully prove her claims and compete in Paris had her case been heard on the merits, nor to debate about the appropriateness of a national federation’s selection process (also because Ms. Clunis never challenged it, having been eligible ‘from day one’).[7] Retracing the story of a sportswoman’s dramatic misfortune, this paper aims at providing an opportunity to reflect on how effective the safeguard of athletes’ rights in the context of the Olympic Games actually is. 

1.  The CAS Ad Hoc Division and its jurisdiction

Since the Olympic Games of Atlanta 1996, the CAS has established an Ad Hoc division for the summer and winter Olympic Games.[8]

The idea of having a specialised dispute resolution avenue in loco capable of rendering specialised and extremely fast-paced decisions, thus guaranteeing the integrity of the competition and athletes’ rights, was praised by the Swiss Federal Tribunal since the early days.[9] The Ad Hoc Division was elegantly defined as “a fruitful, albeit challenging avenue to resolve in a denationalized process […] highly emotional controversies”.[10]

Its success lies in the technical preparation of the appointed arbitrators and the promptness of its decision-making. It is structured in a way that allows panels (of expert arbitrators) to render decisions in a matter of days, sometimes hours.[11] In order to facilitate the start of the procedure, considering the urgency of the matters, a pre-established application form is published on the CAS website.[12] Immediately upon receipt of the application, the President of the Ad Hoc Division (appointed by the ICAS, as the rest of the arbitrators) appoints the panel and designate the president (or appoints a sole arbitrator, as deemed fit).[13] In cases of extreme urgency, the panel can order the stay of the challenged decision inaudita altera partem.[14]

Many cases filed at the Ad Hoc Division, however, never reach the stage of a discussion on their merits.[15] This is due to the fact that the Ad Hoc Division has jurisdiction only insofar as the prerequisites established at Article 61(2) Olympic Charter[16] and Article 1 Arbitration Rules applicable to the CAS Ad Hoc Division for the Olympic Games[17] are met. The two rules combined provide that in order for the Ad Hoc Division to have jurisdiction: (i) the dispute must have arisen during the Olympic Games or in connection with the Olympic Games, as long as it is during the 10 days preceding the opening ceremony of the Olympic Games, and (ii) the applicant must have exhausted the internal remedies available, unless doing so would render the appeal ineffective. 

On more than one instance over the years, the so called ’10-day rule’ revealed to be “a vexing issue”.[18] Indeed, it is not always easy for a panel to identify when a dispute arises. This is particularly true for eligibility matters, which can sometimes comprise a number of steps and communications (or resolutions) from national and international federations, each potentially identifiable as giving cause to the dispute.[19] Moreover, these disputes sometimes originate a few weeks prior to the opening ceremony of the Olympic Games[20] and they can cause protracted exchanges of correspondences between the parties involved, the last of which might end up inside the 10-day limit.[21]

The fact that the most problematic jurisdictional issue arises precisely in what are considered to be the most delicate matters brought before the attention of Ad Hoc panels[22] is somewhat troublesome. 

As will be seen, the one concerning Ms. Clunis was a case in point. 

2. The selection process which led to Ms. Clunis’ exclusion 

The facts of the case are relatively straightforward. On 20 December 2022, World Athletics (“WA”) published its qualifying system for the Paris 2024 Olympic Games pursuant to which, inter alia, the hammer throw event would have 32 entries each for men’s and women’s categories. The qualification for these spots were assigned by Entry Standard or World Ranking. On 19 June 2024, WA informed Member Federations, inter alia, that (i) athletes not included in the Event Entry System (the “EES”) would not be considered for Paris 2024, setting 4 July 2024 midnight Monaco time as deadline for the entries and (ii) unused quotas would be reallocated to the next best available athletes by world ranking.

On 1 July 2024, the Jamaica Athletic Administrative Association (the “JAAA”) made 89 pre-entries. The day after, WA confirmed the list of athletes who qualified by Entry Standard and World Ranking. Due to her ranking (23^rd in the world), Ms. Clunis was identified as eligible for nomination. At the same time, WA reminded the Member Federations to submit the pre-entries through the EES by the 4 July deadline.

On 3 July 2024, the JAAA informed Ms. Clunis that, based on her ranking, she had been selected to compete at the Paris Olympic Games. On the same day, Hurricane Beryl hit Jamaica.[23] On 4 July 2024, the JAAA submitted the pre-entries on the EES, however without including Ms. Clunis. 

On 5 July 2024, WA reallocated and offered the unused quota to the next best ranked athlete for hammer throw, Ms Iryna Klymets from Ukraine, who accepted. On the same day, WA informed Member Federations and the IOC of the athletes ultimately considered for Paris. The list did not include Ms. Clunis. 

On 6 July 20224, the JAAA President contacted WA “seeking assistance in adding hammer thrower Nayoka Clunis as a Quota Athlete”, explaining that her name was not inserted due to the disarray caused by Hurricane Beryl.[24] On the same day, WA published the final list of athletes who would compete at the Paris Olympic Games and Ms. Clunis was informed by her coach that she was not one of them. 

On 8 July 2024, WA submitted the list of participating athletes to the IOC, which did not include Ms. Clunis. On the same day, in reply to the request for assistance, the Director of Competitions and Events Department of WA informed the JAAA that it was no longer possible to guarantee Ms. Clunis’ participation in the upcoming games but that she would be considered before any other in case of any cancellation or withdrawal in the women’s hammer throw prior to the beginning of the games. In response, the JAAA thanked for the assistance offered and “remain[ed] hopeful that eventually she [would] be added” in case of withdrawals.[25]

On 15 July 2024, the JAAA President wrote to WA to inform about the athlete’s severe emotional distress and asking that she be included in the list of athletes even in the absence of withdrawals or cancellations. The day after, Ms. Clunis was informed that there were no updates from WA and she resolved herself to bring the matter to the CAS.

3. The jurisdictional barrier 

On 18 July 2024, Ms. Clunis filed an application at the Ad Hoc division in Paris in order to try and remedy JAAA’s mistake and get a spot at the Olympic Games. The appointed panel, however, found not to have jurisdiction to entertain her claim. 

On 25 July 2024, Ms. Clunis seized the ‘regular’ CAS division in Lausanne with the same aim, however also with the same result: the sole arbitrator found not to have jurisdiction to entertain her claim. 

3.1. The CAS Ad Hoc Division lacked jurisdiction due to the timing of the events

Ms Clunis could not avail herself of the Paris Ad Hoc Division because the decision concerning her eligibility had been issued ‘too early’. 

As explained, the Ad Hoc Division has jurisdiction to entertain disputes covered by Article 61 Olympic Charter only insofar as they arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games. 

The opening ceremony for the Paris Olympic Games was 26 July 2024. Ms Clunis’ dispute, however, arose before 16 July 2024. Though when filing her application at the Ad Hoc Division Ms Clunis had not identified the challenged decision,[26] the appointed panel determined that, whichever communication had to be intended as giving rise to the dispute, that communication did not ground the AD Hoc Division’s jurisdiction anyway as dated before 16 July 2024 (indeed, her name had been omitted from the list sent to WA on 4 July 2024; she was informed by the JAAA that her name was not on the list sent to WA by the JAAA on 7 July and WA informed the JAAA that her name could not be added to the list of competitors on 8 July 2024). 

Hence, the panel in Paris did not need to resolve the uncertainty as to when exactly the dispute arose (i.e., whether it was when Ms. Clunis became aware that her name had not been included on the list submitted by the JAAA to WA or when she first became aware that the mistake would not be rectified by the latter) as in any case it was before the 10 days prior to the Opening Ceremony of the Paris Olympic Games.[27]

As the ‘10-day rule’ had not been met, the panel did not have to assess whether there was jurisdiction under Article 61 Olympic Charter either.[28]

While fully recognising the unfairness to Ms. Clunis, and the impact on her being deprived of the opportunity to participate in the Paris Olympic Games, the panel was bound to declare that the Ad Hoc Division did not have jurisdiction to entertain her claim.[29]

3.2. The CAS ‘regular’ division did not have jurisdiction with respect to WA

In her second (and last) attempt to have her case urgently heard by an arbitral tribunal, Ms. Clunis seized the CAS ‘regular’ division in Lausanne against the decision of WA’s Director of Competitions and Events Department of 8 July 2024, proposing an ultra-expedited procedure (accepted only by the IOC and WA but not by Ms. Iryna Klymets and the Ukrainian Athletic Association). In this context, Ms. Clunis claimed that WA had the possibility to include her name in view of the exceptionality of the circumstances and that its decision not to do so severely affected her position (rather than JAAA’s). Hence, any determination that CAS lacked jurisdiction to hear her claim would amount to a denial of (access to) justice. 

The sole arbitrator appointed analysed all the pieces of WA legislation brought to his attention and concluded that the CAS had no jurisdiction ratione personae, nor ratione temporis or ratione materiae, as far as the Athlete’s position vis-à-vis WA was concerned. 

To start with, while recognising the CAS as a forum to submit claims involving WA, Article 84(2) [30] According to the WA Constitution, in other words, only the JAAA (and not Ms. Clunis) could have brought a claim to the CAS (Ordinary Division) against WA. Had the JAAA done so within 5 days from the event giving rise to the dispute,[31] the CAS would have had jurisdiction to analyse the merits of the matter.

The only piece of WA legislation which would have given the CAS jurisdiction ratione personae vis-à-vis WA was no longer applicable ratione temporis. In fact, while the 2019 edition of the WA Dispute Rules included a clause allowing athletes to seize the CAS directly,[32] the [33]

Ultimately, therefore, there was no provision in the entire WA regulatory framework providing for the jurisdiction of the CAS for the situation Ms. Clunis found herself in: an eligibility matter versus WA which arose prior to the 10 days preceding the opening ceremony of the Olympic Games. 

Moreover, Article 61(2) Olympic Charter, while arguably providing for jurisdiction ratione materiae for Olympic Games-related disputes,[34] did not provide CAS jurisdiction for a dispute between Ms. Clunis and WA either (the provision being found in the governing document of the IOC).[35]

3.3. The CAS ‘regular’ division did not have jurisdiction with respect to the IOC

The situation concerning CAS jurisdiction vis-à-vis the IOC was not any different.

Due to the fault of the JAAA, Ms. Clunis had never been invited to sign the Games Participation Agreement for the Olympic Games Paris 2024, which included an arbitration agreement with the IOC in favour of the CAS.[36]

In the absence of an arbitration agreement, the existence of which must not be accepted lightly pursuant to the jurisprudence of the Swiss Federal Tribunal (SFT),[37] the CAS could not have jurisdiction. At the same time, a systematic interpretation of Article 61(2) Olympic Charter would suggest not to construe the provision as awarding third parties the right to litigate the IOC before the CAS.[38]

4. Conclusions

Two separate CAS divisions fully recognised the injustice suffered by Ms. Clunis. 

The Ad Hoc division’s panel on 22 July 2024 appreciated “the unfairness to the Athlete of the events that have occurred and of the impact on her of being deprived of the opportunity to compete in the Paris Olympic Games”.[39] For his part, the sole arbitrator on 31 July 2024 recognised that what had been brought to his attention was “a very unfortunate case” whereby “a great injustice ha[d] been committed vis-à-vis the Appellant, a world-class, Olympic-level athlete who had qualified for the Olympic Games Paris 2024”.[40]

It was clear that Ms. Clunis suffered an incommensurable damage: she was inexplicably deprived of the recognition she had earned through years of hard work. Moreover, and this is the sad irony that prompted this paper, Ms. Clunis was an innocent victim of her federation’s negligence. 

Not only did the JAAA make the mistake of not inserting her name in the list within the prescribed deadline,[41] but, most importantly, it remained passive and let the deadline to bring a claim before the CAS expire (when it was the only entity having the possibility to do so as per the WA Constitution).[42] Ms. Clunis played no part in the events eventually causing her misfortune and yet she could not do anything about it, as she was “caught in an unfortunate legal position wherein she ha[d] no legal proximity to both WA and the IOC for her to appeal the case to the CAS and where she was not yet invited to sign the Games Participation Agreement (containing the CAS arbitration clause)”.[43]

The JAAA was the only culprit in this sad story.[44] However, what remains once the blame has been (rightfully) apportioned is a regulatory framework that cannot prevent a similar situation from occurring again. 

Indeed, the decisions of the Paris panel and the sole arbitrator were not discretionary. Their hands were tied by the rules: the existing regulatory framework and the timing of events determined that no CAS forum (neither the one in Paris nor the one in Lausanne) could possibly have jurisdiction to decide on the case and eventually remedy the injustice (were Ms. Clunis’ argumentation on the merits found to be solid, that is). Though Ms. Clunis was “bona fide endeavouring to seek meaningful recourse for an unfortunate situation that was entirely out of her control”,[45] her attempts were doomed to fail from the moment in which the deadline for the JAAA to bring a claim to the CAS had expired.

While it is true that the facts of the case were particularly exceptional (both the JAAA’s blatant mistake, possibly determined by the exceptional natural events which occurred in Jamaica prior and during the deadline day, and the timing of WA’s decision, issued too early to ground the Ad Hoc Division’s jurisdiction), it remains a regrettable state of affairs that if a dispute concerning an athlete’s eligibility arises earlier than  10 days before the opening ceremony of the Olympic Games, the relevant claim against WA can only be brought to the CAS by his/her federation (within 5 days). In every such situation, in other words, the athlete is at the mercy of the negligence of his/her federation, which has to: (i) first, do its job properly during the selection process and (ii) second, bring the claim against WA to the CAS Ordinary Division in a timely fashion (if the case warrants being litigated).

Hence, regardless of the peculiarities of Ms. Clunis’ case, this issue goes beyond the specifics of this case. Is it reasonable to leave the choice to contest a life-changing decision for an athlete in the hands of a party which is only indirectly affected by it (and which might have caused the issue, for instance by gross negligence, in the first place)? 

Last year, the JAAA might have suffered a damage having lost its most prominent athlete in the female hammer throw at the Olympic Games, but it only had itself to blame. Ms. Clunis lost the chance of a lifetime to shine on a global stage without having played any part in the mishap and, to add insult to injury, without having any possibility to have the CAS review the decision of the WA. In short, she was denied access to justice to challenge one of the, if not the, most consequential decisions of her life.  

This prompts a couple of observations. 

The first is that, had her incredible misadventure occurred on the road to Tokyo 2020 instead (i.e., under the aegis of the previous edition of the WA Dispute Rules), Ms. Clunis would have likely had a chance to have her claim heard on the merits. It is not clear why the WA Dispute Rules were revised in 2023 to the effect of eliminating the possibility for athletes to seize the CAS directly against WA (Circular M35/2, which accompanied the change, does not provide an explanation).[46] But given what has happened, it is legitimate to wonder whether this was a warranted amendment and whether it would not be advisable for WA to think about a regulatory ‘revival’ in this respect. 

The second observation concerns Article 1 Arbitration Rules applicable to the CAS Ad Hoc Division for the Olympic Games. The currently applicable version is the result of an amendment introduced following a bobsleigh case brought to the Ad Hoc Division at the Salt Lake City Winter Olympics of 2002.[47] At the time, according to said provision the Ad Hoc Division had jurisdiction only in the presence of an Entry Form for the Olympic Games.[48] The panel on that occasion observed that the construction of the provision could “give rise to unfairness and hardship for athletes claiming the right to be entered as competitors in Olympic Games”.[49] The rationale of the current compromise (i.e., the matter being at least in connection with the Olympic Games and arisen at least within 10 days before the opening ceremony), then, is to avoid the hardship that concerned the panel in Salt Lake City while at the same time avoiding to flood the Ad Hoc Division with every possible eligibility dispute.

It can be generally considered that eligibility matters are by definition in connection with the Olympic Games.[50] But is the 10-day prior to the opening ceremony of the Olympic Games a fair limit to meet in eligibility matters, considering that they can arise before[51]and that the most prominent international federation concerned does not provide (anymore) for CAS ('regular') jurisdiction in favour of athletes?

While respecting the need not to overwhelm the Ad Hoc Division with eligibility disputes, it would advisable to extend this limit when (and only when) the regulatory framework of the international association concerned does not provide for athletes’ recourse to the CAS ‘regular’ division (or, alternatively, it could be ensured that these associations have ‘late’ eligibility procedures, i.e., falling within the 10-day limit).[52] Such an amendment would fill a ‘regulatory gap’ without endangering the sustainability of the Ad Hoc system.[53]

The Olympic Charter expressly states that ‘‘[n]obody is entitled as of right to participate in the Olympic Games”.[54]

However, should not every athlete be entitled as of right to have at least one sports arbitral tribunal (be it the CAS Ordinary, Appeals or Ad Hoc Division) adjudicate whether his/her participation was rightfully denied or not?  

On 8 and 9 December 2014, the IOC Session held in Monaco approved the Olympic Agenda 2020 containing 20+20 Recommendations to shape the future of the Olympic Movement. One of these Recommendations had the purpose of strengthening support to athletes, advising the IOC to “put [their] experience at the heart of the Olympic Games” and “further invest in supporting [them] on and off the field of play”.[55]

Thanks to the work of the Ad Hoc Division, not just the experience but also the rights of athletes are at the heart of the Olympic Games. We believe their right to have access to justice ‘on the road’ to the Olympic Games should be equally guaranteed.

[1] Following the creation of the International Olympic Committee (IOC) on 1894 by Pierre de Coubertin, the first modern Olympic Games took place in Athens in 1896.

[2] Over the years, there were numerous changes to the Olympic Games. Amongst these, the introduction of the Winter Olympic Games (officially held for the first time in Chamonix 1924) and the Paralympic Games (officially held for the first time in Rome 1960 and in Seoul 1988 for the first time directly after the Summer Olympics using the same venues). 

[3] CAS 2011/O/2422, para. 40.

[4] Carl Lewis is widely recognised as one of the most accomplished Olympians of all times. He won 9 Olympic gold medals and 1 Olympic silver medals; he is one of six athletes to win a gold medal in the same individual event in four consecutive Olympic Games (long jump). Usain Bolt is widely considered the greatest sprinter of all times, having won 8 Olympic gold medals, still holding the world record in the 100m and 200m, being the only sprinter to have won the 100m and 200m distances in three consecutive Olympic Games. 

[5] The paper will refer to both the Ad Hoc Division and the Division (Ordinary or Appeals) seated in Lausanne. The latter will be referred to as the ‘regular’ division in order to differentiate it from the Ad Hoc Division.

[6] Whether due to force majeure or not was never decided by any arbitral panel and is, in any case, beyond the scope of this paper.

[7] For a comprehensive analysis of the issue, see A. DUVAL, ‘Getting to the games: the Olympic selection drama(s) at the court of arbitration for sport’, in Int Sports Law J (2016). 

[8] Since 2016, a CAS Anti-doping Division is established for each edition of the Olympic Games (i.e. also for the Winter Games).

[9] According to the Swiss Federal Tribunal (case Larissa Lazutina & Olga Danilova v. CIO, FIS & CAS of 27 May 2003): “In competitive sport, particularly the Olympic Games, it is vital both for athletes and for the smooth running of events, that disputes are resolved quickly, flexibly and inexpensively by experts familiar with both legal and sports-related issues […] Thanks in particular to the creation of ad hoc divisions, [the CAS] enables the parties concerned to obtain a decision quickly, following a hearing conducted by persons with legal training and recognized expertise in the field of sport, whilst protecting their right to a fair hearing”.

[10] A. DUVAL, ‘Getting to the games: the Olympic selection drama(s) at the court of arbitration for sport’ cit.

[11] See G. KAUFMANN-KOHLER, Arbitration at the Olympics. Issues of Fast-Track Dispute Resolution and Sports Law, The Hague, Kluwer, 2001.

[12] Article 10 Arbitration Rules applicable to the CAS Ad Hoc Division for the Olympic Games.

[13] Article 11 Arbitration Rules applicable to the CAS Ad Hoc Division for the Olympic Games.

[14] Article 14 Arbitration Rules applicable to the CAS Ad Hoc Division for the Olympic Games.

[15] From the information publicly available, in Paris 2024 the Ad Hoc Division declined jurisdiction due to the 10-day prerequisite not having been met in two cases (OG 24/01and OG 24/03).

[16] Article 61(2) Olympic Charter: “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”.

[17] Article 1 Arbitration Rules applicable to the CAS Ad Hoc Division for the Olympic Games: “The purpose of the present Rules is to provide, in the interests of the athletes and of sport, for the resolution by arbitration of 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. In the case of a request for arbitration against a decision pronounced by the IOC, an NOC, an International Federation or an Organising Committee for the Olympic Games, the claimant must, before filing such request, have exhausted all the internal remedies available to her/him pursuant to the statutes or regulations of the sports body concerned, unless the time needed to exhaust the internal remedies would make the appeal to the CAS Ad Hoc Division ineffective”.

[18] OG 14/03 Maria Belen Simari Birkner v. Comité Olímpico Argentino (COA) & Federación Argentina de Ski y Andinismo (FASA). The panel in that instance held that “the date when a dispute arises is in general – in fact in most cases – the date of the decision with which the Applicant disagrees (“a disagreement on a point of law or fact” as stated by the ICJ). Such a date can arise later, in some cases, if, for example, the decision is not self-explanatory and requires some explanation in order for the Parties to know with certainty that they are in disagreement. Evidence would be required to establish whether a later date than the date of the decision should apply” (para. 5.28). In OG 06/002 Andrea Schuler v. Swiss Olympic Association & Swiss-Ski, the panel, confronted with a somewhat different factual scenario, had instead adopted a particularly flexible interpretation (paras. 13 – 14: ”Ms Schuler received a written explanation of her exclusion on 1 February 2006. […] It was open to Ms Schuler to accept the Swiss Olympic’s determination or decide to appeal. Accordingly, in the Panel’s opinion, it would not be possible to say that a dispute had arisen until Ms Schuler had decided to appeal and had filed notice of her appeal”). The Panel in OG 14/03 openly expressed its disagreement with the legal reasoning adopted in the Schuler case (OG 14/03, para. 5.26). For a deeper analysis of these issues, see A. DUVAL , ‘Getting to the games: the Olympic selection drama(s) at the court of arbitration for sport’cit. 

[19] See, inter alia, OG 14/03 cit., OG 24/01 discussed infra (this is Ms. Clunis’ case: the panel did not have to decide which communication constituted the event giving rise to the dispute as they were all outside of the limit), OG 24/02 (see footnote 21).

[20] In OG 24/03, the sole arbitrator denied jurisdiction as the application was directed against a decision of 24 May 2024 of the International Weightlifting Association, notifying the athlete that – due to his provisional suspension in relation to a previous doping violation – he had missed the mandatory event necessary to fulfill the minimum eligibility requirements (the opening ceremony being on 26 July 2024, the 10-day prerequisite had not been met by an abundant margin). 

[21] In OG 24/02, the sole arbitrator accepted jurisdiction because the international federation concerned (World Aquatics) had made it possible to meet the 10-day prerequisite by agreeing to reconsider the matter on various occasions (de facto rendering its previous decisions on the matter not final). 

[22] A. DUVAL, in ‘Getting to the games: the Olympic selection drama(s) at the court of arbitration for sport’ cit. notes that “a non-selection for the Olympic Games is often the toughest setback faced by an athlete in her career”.

[23] Hurricane Beryl was a category 5 hurricane which hit the Caribbean, the Yucatán Peninsula and the Gulf Coast of the United States between 28 June 2024 and 9 July 2024, reaching a peak of intensity on 2 July 2024 and hitting the south coast of Jamaica on 3 July 2024.  

[24] CAS 2024/A/10760, para. 17.

[25] CAS 2024/A/10760, para. 23.

[26] OG 24/01, para. 49.

[27] OG 24/01, para. 53.

[28] OG 24/01, para. 56.

[29] OG 24/01, para. 58.

[30] Article 84(2) WA Constitution: “In the event there is a dispute or difference between: a. a Member Federation or Member Federations and World Athletics; or b. an Area Association or Area Associations and World Athletics; that cannot be resolved as set out in Article 84.1, the matter will be submitted to arbitration before the CAS (Ordinary Arbitration Division), to the exclusion of any other court or forum, in accordance with Article 84.3, below. The CAS will resolve the dispute definitively in accordance with the CAS Code of Sports–related Arbitration”.

[31] Article 84(3) WA Constitution : “Any dispute submitted to the CAS under Article 84.2 must be filed either within five (5) days of the date of the dispute first arising or within five (5) days of any failure to resolve the dispute in accordance with Article 84.1(whichever the case may be)”. 

[32] Article 3.1. WA Dispute Rules (2019 ed.): “This Rule 3 relates to any legal dispute of any kind whatsoever arising between World Athletics on the one hand and any Member, Area Association, athlete, athlete support personnel or other person who is subject to the Constitution and/or any of the Rules or Regulations on the other hand, in relation to the Constitution and/or any Rule or Regulation and/or any World Athletics decision or act or omission, howsoever arising, that is not covered by the dispute resolution provisions of the Constitution or any Rules or Regulations (each, a "Dispute"). Subject to, and in accordance with Article 84 of the Constitution, a Dispute shall be submitted to arbitration before the CAS (Ordinary Arbitration Division or Appeal Arbitration Division, depending on the circumstances of the case), to the exclusion of any other court or forum. The CAS will hear and determine the Dispute definitively in accordance with relevant provisions of the CAS Code of Sports-Related Arbitration. The law governing the Dispute will be the Constitution and Rules and Regulations, with the laws of Monaco applying subsidiarily. Unless the parties agree otherwise, the arbitration proceedings before the CAS will be conducted in the English language before a Panel consisting of three arbitrators. Pending determination of the Dispute by the CAS, any provision of the Constitution or Rule or Regulation or decision or act or omission under challenge will remain in full force and effect unless the CAS orders otherwise. The ultimate decision of the CAS on the merits of the Dispute will be final and binding on all parties, and all parties waive irrevocably any rights they might otherwise have to any form of appeal, review or other challenge in respect of that decision, except as set out in Chapter 12 of Switzerland’s Federal Code on Private International Law”.

[33] Article 9 Disciplinary and Appeals Tribunal Rules: “The Disciplinary and Appeals Tribunal and Disciplinary Panel shall have jurisdiction to hear and decide any alleged Non-Doping Violations over which jurisdiction is conferred on it by the Integrity Code of Conduct and the Integrity Unit Rules and any Preliminary Proceeding under the Reporting, Investigation and Prosecution Rules – Non-Doping”. Article 16 Disciplinary and Appeals Tribunal Rules: “16.2 Subject to Rule 16.1, a decision of the Disciplinary Panel under these Rules may be appealed to CAS by a party to the proceedings before the Disciplinary Panel, in accordance with this Rule 16. […] The deadline for filing an appeal to CAS will be 21 days from the date of receipt of the written decision in question by the appealing party. Where the appellant is a party other than World Athletics, to be a valid filing under this Rule a copy of the appeal must also be filed on the same day with the Integrity Unit. The decision being appealed will remain in full force and effect pending determination of the appeal unless CAS orders otherwise”.

[34] CAS 2024/A/10760, para. 99.

[35] Article 61(2) Olympic Charter: “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”.

[36] Article 7(1) of the Games Participation Agreement: “The Court of Arbitration for Sport is exclusively competent to finally settle all disputes arising in connection with my participation in the Games”.

[37] According to the SFT (SFT 4A_124/2020, consid. 3.1.2), the parties’ will to resort to arbitration must be clear and unequivocal as such consent is a waiver of the right to involve otherwise competent state courts. Though beyond the scope of this paper, one might perhaps wonder whether this should be intended as applicable to arbitration tout court or whether a distinction should be made between voluntary and mandatory arbitration in the sense of Pechstein…in other words, do athletes on the road to the Olympic Games realistically waive the jurisdiction of domestic courts for urgent eligibility matters in favour of the CAS (put it differently, do they have de facto a realistic alternative to the CAS)?  

[38] In order not to have the IOC entering, de facto, “into innumerable legal relationships with an unmanageable number of persons” (CAS 2024/A/10760, para. 108).

[39] OG 24/01, para. 58.

[40] CAS 2024/A/10760, para. 109.

[41] As mentioned, it is beyond the purpose of this paper to discuss whether the JAAA’s mistake could be entirely ascribed to the impact of Hurricane Beryl.

[42] CAS 2024/A/10760, para. 109 : “The entity having caused the problems, the JAAA, only took belated and inefficient steps to remedy the damage caused to the Appellant”.

[43] CAS 2024/A/10760, para. 109.

[44] Which, however, cannot possibly repay the damage suffered.

[45] CAS 2024/A/10760, para. 115.

[46] The Circular is not publicly available. However, it was produced in the context of the arbitral proceedings CAS 2024/A/10760 (paras. 84 – 87).

[47] OG 02/005 Troy Billington v. Fédération internationale de Bobsleigh et de Tobogganing (FIBT).

[48] The provision read as follows: “The purpose of the present Rules is to provide, in the interests of the athletes and of sport, for the resolution by arbitration of any disputes covered by Rule 74 of the Olympic Charter and by the arbitration clause inserted in the entry form for the Olympic Games (the “OG”), insofar as they arise in the host country of the OG between 1 February 2002, and 24 February 2002”

[49] OG 02/005, para. 24.

[50] A. RIGOZZI, ‘The Decisions Rendered by the CAS Ad Hoc Division at the Turin Winter Olympic Games 2006’, in Journal of International Arbitration 23(5): 453–466, 2006

[51] See footnotes 19 – 21. 

[52] Though it shall not be forgotten that a recourse to the CAS ‘regular’ division entails costs that the Ad Hoc Division does not have and that, in the ‘regular’ context, an expedited procedure is not implemented unless agreed with the counterparties. Hence, a certain inequality between athletes who can refer to the Ad Hoc Division and athletes who have only recourse to the ‘regular’ division would persist.

[53] The problem would be solved altogether if the 10-day requirement were to be interpreted in the sense that the dispute arises when the claim is submitted. This would however mean a foreseeable increase in the workload of the Ad Hoc divisions.

[54] Article 44(3) Olympic Charter. 

[55] See A. DUVAL cit.

Editor's note: We (Ben Van Rompuy and Antoine Duval) are at the origin of today's decision by the European Commission finding that the International Skating Union's eligibility rules are contrary to EU competition law. In 2014, we were both struck by the news that ISU threatened lifetime ban against speed skaters wishing to participate in the then projected Icederby competitions and convinced that it was running against the most fundamental principles of EU competition law. We got in touch with Mark and Niels and lodged on their behalf a complaint with the European Commission. Three years after we are pleased to see that the European Commission, and Commissioner Vestager in particular, fully embraced our arguments and we believe this decision will shift the tectonic structure of sports governance in favour of athletes for years to come.

Today is a great day for Mark Tuitert and Niels Kerstholt, but more importantly for all European athletes. The European Commission did not only consider the International Skating Union's eligibility rules contrary to European law, it sent out a strong message to all international sports federations that the interests of those who are at the centre of sports, the athletes, should not be disregarded. This case was always about giving those that dedicate their lives to excelling in a sport a chance to compete and to earn a decent living. The majority of athletes are no superstars and struggle to make ends meet and it is for them that this decision can be a game-changer.

However, we want to stress that this case was never about threatening the International Skating Union’s role in regulating its sport. And we very much welcome the exceptional decision taken by the European Commission to refrain from imposing a fine which could have threatened the financial stability of the International Skating Union. The International Skating Union, and other sports federations, are reminded however that they cannot abuse their legitimate regulatory power to protect their economic interests to the detriment of the athletes.

We urge the International Skating Union to enter into negotiations with representatives of the skaters to devise eligibility rules which are respectful of the interests of both the athletes and their sport.

Since the summer of 2014, it has been our honour to stand alongside Mark and Niels in a 'David versus Goliath' like challenge to what we always perceived as an extreme injustice. In this fight, we were also decisively supported by the team of EU Athletes and its Chance to Compete campaign.

Finally, we wish to extend a special thank you to Commissioner Vestager. This case is a small one for the European Commission, but Commissioner Vestager understood from the beginning that small cases do matter to European citizens and that European competition law is there to provide a level playing for all, and we are extremely grateful for her vision.

Dr. Ben Van Rompuy (Leiden University) and Dr. Antoine Duval (T.M.C. Asser Instituut)

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

It has been more than seven years since the FIFA Executive Committee awarded the 2022 World Cup to Qatar. And yet only in November 2017 did the Qatari government finally agree to dismantle the controversial kafala system, described by many as modern-day slavery. Meanwhile, hundreds of World Cup-related migrant workers have reportedly been exposed to a wide range of abusive practices such as false promises about the pay, passport confiscation, or appalling working and living conditions.[1] On top of that, some workers have paid the highest price – their life. To a certain extent, all this could have been avoided if human rights had been taken into account when evaluating the Qatari bid to host the tournament. In such a case, Qatar would not have won the bidding contest without providing a convincing explanation of how it intends to ensure that the country's poor human rights record will not affect individuals, including migrant workers, contributing to the delivery of the World Cup. An explicit commitment to abolish the kafala system could have formed an integral part of the bid.

Urged by Professor John Ruggie and his authoritative recommendations,[2] in October 2017 FIFA decided to include human rights within the criteria for evaluating bids to host the 2026 World Cup, following similar steps taken earlier this year by the International Olympic Committee (IOC) and UEFA in the context of the Olympic Winter Games 2026 and the Euro 2024 respectively. This two-part blog critically examines the role human rights play in the new bidding regulations adopted by the IOC, UEFA, and FIFA. The first part sheds light on the IOC and UEFA. The second part then takes a closer look at FIFA and aims to use a comparative analysis to determine whether the new bidding regulations are robust enough to ensure that selected candidates abide by international human rights standards.

IOC: Olympic Winter Games 2026

About the host selection process

Compared to the past, cities bidding to host the 2026 Games could expect lower costs, simplified procedures, and more assistance provided by the IOC.[3] All interested cities[4] might enter a Dialogue Stage[5] and engage with the IOC to learn more about the benefits and responsibilities associated with the hosting and staging of the Games. Although the Dialogue Stage is non-committal, cities that join are supposed to present their consolidated Games concepts,[6] outlining their vision, long-term plan alignment, or initial financial strategy, as well as providing information with regard to a potential referendum.[7] These consolidated concepts, together with the IOC's own research, will serve as a basis for a preliminary report exploring the capacity of interested cities to deliver successful Games.[8] The IOC Executive Board will review this report and recommend to the IOC Session which cities should be invited to the Candidature Stage.[9] The IOC Session will designate Candidate Cities in October 2018 during its meeting in Buenos Aires.[10]

Candidate Cities will then have until 11 January 2019 to prepare and submit their Candidature Files together with an initial set of core guarantees.[11] In their Candidature Files, Candidate Cities shall provide answers to a variety of questions as set out in the Candidature Questionnaire, covering areas such as sustainability and legacy, transport, accommodation, safety and security, finance, or marketing. Thereafter, Candidate Cities will be visited by the IOC Evaluation Commission that is tasked with conducting an in-depth assessment of each bid and producing a report to help the IOC Session elect the most suitable candidate. The Host City of the 2026 Games will be elected in September 2019.[12]

Human rights as selection criteria

Little attention is paid to human rights in the Candidature Questionnaire. Candidate Cities are only required to provide a guarantee whereby the national government and relevant local authorities undertake to respect and protect human rights and ensure that any violation of human rights is remedied ''in a manner consistent with international agreements, laws and regulations applicable in the Host Country and in a manner consistent with all internationally-recognised human rights standards and principles, including the United Nations Guiding Principles on Business and Human Rights, applicable in the Host Country''.[13] This language is somewhat ambiguous because when defining human rights that should be respected and protected in connection with the hosting and staging of the Games, the guarantee first refers to human rights applicable in the Host Country and only then to the United Nations Guiding Principles on Business and Human Rights (UN Guiding Principles).[14] The latter make clear that the responsibility of business enterprises to respect human rights extends to specific international treaties and other instruments.[15] However, some of these treaties could be inapplicable in the Host Country if not ratified. This would make the guarantee to some extent self-contradictory. Apart from the guarantee, the IOC does not ask for any other human rights-related information from Candidate Cities. In the absence of such information, it is difficult to see how the Evaluation Commission[16] will assess the Candidate Cities' capacity to respect and protect human rights.

UEFA: Euro 2024

About the host selection process

While the Euro 2020 will be a bit of an experiment with games scheduled to take place in 12 different cities across the continent, the Euro 2024 returns to its classic format as only one member association will host the tournament. In March 2017, UEFA confirmed that it would be either Germany or Turkey. The next step for both member associations is to submit their Bid Dossiers to UEFA by no later than 27 April 2018.[17] In principle, the bidders must demonstrate in their Bid Dossiers that they meet all Tournament Requirements. Importantly, UEFA reserves the right to appoint independent consultants when evaluating bids.[18] A written evaluation report on each bid will be circulated in September 2018 before the UEFA Executive Committee finally decides which member association will host the Euro 2024.[19]

Human rights as selection criteria

UEFA requires that the bidders and then the Host Association respect, protect, and fulfil human rights and fundamental freedoms, including the rights of workers and children, in line with international treaties and other instruments such as the Universal Declaration of Human Rights, the ILO Declaration on Fundamental Principles and Rights at Work, the Convention on the Elimination of All Forms of Discrimination against Women, or the Convention on the Rights of the Child.[20] In order to meet this obligation, the bidders should in particular seek to culturally embed human rights, proactively address human rights risks, engage with relevant stakeholders, and implement means of reporting and accountability.[21] The bidders' capacity to respect, protect, and fulfil human rights will be evaluated based on their human rights strategy that must be included in their Bid Dossiers.[22] As part of this strategy, the member associations bidding to host the Euro 2024 should explain how they are going to integrate the UN Guiding Principles in their activities related to the organisation of the tournament.[23] While no further details are given about the required content of this strategy, UEFA suggests that a successful bid should not fail to: (i) outline proposed measures aimed at preventing human rights abuses, in particular child labour in supply chains and violations of workers' rights; (ii) provide evidence of meaningful consultation with vulnerable groups; or (iii) describe grievance mechanisms that will be available for victims of human rights abuses.[24]

Conclusion

Unlike UEFA, the IOC has attracted widespread criticism for being involved with negative human rights impacts.[25] Nevertheless, it is the former who gives more weight to human rights in its new bidding regulations. This is even more surprising given that the IOC introduced its bidding regulations later than UEFA. It seems that the IOC deliberately avoids including human rights within the criteria for evaluating bids to host the Olympic Games, hoping that this would encourage more cities to participate in the host selection process. Further reflections on human rights as selection criteria in bidding regulations for mega-sporting events will be presented in the second part of this blog that will focus on FIFA and provide some comparative perspectives.

[1]    Amnesty International, The Ugly Side of the Beautiful Game: Exploitation of Migrant Workers on a Qatar 2022 World Cup Site, 30 March 2016. See also Human Rights Watch, Qatar: Take Urgent Action to Protect Construction Workers, 27 September 2017.

[2]    John G. Ruggie, For the Game. For the World. FIFA and Human Rights, p. 32.

[3]    IOC, IOC Approves New Candidature Process for Olympic Winter Games 2026, 11 July 2017.

[4]    To the best of my knowledge, Calgary (Canada), Salt Lake City (United States), Sapporo (Japan), Sion (Switzerland), and Telemark (Norway) consider bidding.

[5]    The Dialogue Stage runs from September 2017 to October 2018. Interested cities can join until 31 March 2018. See IOC, Candidature Process for the Olympic Winter Games 2026, pp. 11-17.

[6]    Ibid.

[7]    On 15 October 2017, a referendum was held in the Austrian province of Tirol. A negative outcome prevented the city of Innsbruck from launching a bid to host the 2026 Games.

[8]    This report is to be drawn up by the Olympic Winter Games 2026 Working Group overseen by an IOC member and consisting of individuals representing the International Paralympic Committee, the IOC's Athletes Commission, International Winter Sports Federations, and National Olympic Committees. See Candidature Process for the Olympic Winter Games 2026, p. 16.

[9]    Ibid.

[10]   The capital of Argentina will host the 2018 Youth Olympic Games.

[11]   IOC, Candidature Process for the Olympic Winter Games 2026, p. 18.

[12]   Ibid. p. 22.

[13]   IOC, Candidature Questionnaire for the Olympic Winter Games 2026, pp. 86, 88.

[14]   Ibid.

[15]   These include, at a minimum, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the principles concerning fundamental rights in the eight ILO core conventions as set out in the Declaration on Fundamental Principles and Rights at Work. See UN Guiding Principles, Principle 12.

[16]   The Evaluation Commission may be assisted by experts. See IOC, Olympic Charter, Bye-Law to Rule 33.

[17]   UEFA, Bid Regulations for the UEFA Euro 2024, Article 5.05.

[18]   Ibid. Article 14.

[19]   Ibid. Articles 6.02 and 6.04.

[20]   UEFA, Tournament Requirements for the UEFA Euro 2024, Sector 03 – Political, Social and Environmental Aspects, p. 5.

[21]   Ibid. pp. 5-6.

[22]   UEFA, Bid Dossier Template for the UEFA Euro 2024, Sector 03 – Political, Social and Environmental Aspects, p. 5.

[23]   Ibid.

[24]   UEFA, Tournament Requirements for the UEFA Euro 2024, Sector 03 – Political, Social and Environmental Aspects, p. 6.

[25]   Jonathan Watts, Rio Olympics linked to widespread human rights violations, report reveals, 8 December 2015. See also Human Rights Watch, Race to the Bottom: Exploitation of Migrant Workers Ahead of Russia's 2014 Winter Olympic Games in Sochi, 6 February 2013. See also Human Rights Watch, 'One Year of My Blood': Exploitation of Migrant Construction Workers in Beijing, 11 March 2008.