Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The CAS Ad Hoc Division in 2014: Business As Usual? - Part. 2: The Selection Drama

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. More...

Should the CAS ‘let Dutee run’? Gender policies in Sport under legal scrutiny. By Thalia Diathesopoulou

The rise of Dutee Chand, India’s 100 and 200-meter champion in the under 18-category, was astonishing. Her achievements were more than promising: after only two years, she broke the 100m and 200m national junior records, competed in the 100m final at the World Youth Athletics Championships in Donetsk and collected two gold medals in the Asian Junior Championships in Chinese Taipei. But, in July 2014, this steady rise was abruptly halted. Following a request from the Athletics Federation of India (AFI), the Sports Authority of India (SAI) conducted blood tests on the Indian sprinters. Dutee was detected with female hyperandrogenism, i.e a condition where the female body produces high levels of testosterone. As a result, a few days before the Commonwealth Games in Glasgow, the AFI declared Dutee ineligible to compete under the IAAF Regulations and prevented her from competing in future national and international events in the female category. Pursuant to the IAAF ‘Hyperandrogenism Policy’, the AFI would allow Dutee to return to competition only if she lowers her testosterone level beneath the male range by means of medical or surgical treatment.[1] On 25 September 2014, Dutee filed an appeal before the CAS, seeking to overturn the AFI’s decision and declare IAAF and IOC’s hyperandrogenism regulations null and void. She is defending her right to compete the way she actually is: a woman with high levels of testosterone. Interestingly enough, albeit a respondent, AFI supports her case.

IAAF and IOC rules set limits to female hyperandrogenism, which is deemed an unfair advantage that erodes female sports integrity. While these rules have been contested with regard to their scientific and ethical aspects, this is the first time that they will be debated in court. This appeal could have far-reaching ramifications for the sports world. It does not only seek to pave the way for a better ‘deal’ for female athletes with hyperandrogenism, who are coerced into hormonal treatment and even surgeries to ‘normalise’ themselves as women[2], but it rather brings the CAS, for the first time, before the thorny question:

How to strike a right balance between the core principle of ‘fair play’ and norms of non-discrimination, in cases where a determination of who qualifies as a ‘woman’ for the purposes of sport has to be made? More...

The O’Bannon Case: The end of the US college sport’s amateurism model? By Zygimantas Juska

On 8 August, U.S. District Judge Claudia Wilken ruled in favour of former UCLA basketball player O'Bannon and 19 others, declaring that NCAA's longstanding refusal to compensate athletes for the use of their name, image and likenesses (NILs) violates US antitrust laws. In particular, the long-held amateurism justification promoted by the NCAA was deemed unconvincing.

On 14 November, the NCAA has appealed the judgment, claiming that federal judge erred in law by not applying a 1984 Supreme Court ruling. One week later, the NCAA received support from leading antitrust professors who are challenging the Judge Wilken’s reasoning in an amicus curiae. They are concerned that the judgment may jeopardize the proper regulation of college athletics. The professors argued that if Wilken’s judgment is upheld, it

would substantially expand the power of the federal courts to alter organizational rules that serve important social and academic interests…This approach expands the ‘less restrictive alternative prong’ of the antitrust rule of reason well beyond any appropriate boundaries and would install the judiciary as a regulatory agency for collegiate athletics”.   

More...

Image Rights in Professional Basketball (Part II): Lessons from the American College Athletes cases. By Thalia Diathesopoulou

In the wake of the French Labour Union of Basketball (Syndicat National du Basket, SNB) image rights dispute with Euroleague and EA Games, we threw the “jump ball” to start a series on players’ image rights in international professional basketball. In our first blogpost, we discussed why image rights contracts in professional basketball became a fertile ground for disputes when it comes to the enforcement of these contracts by the Basketball Arbitral Tribunal (BAT). Indeed, we pointed out that clubs might take advantage of the BAT’s inconsistent jurisprudence to escape obligations deriving from image rights contracts.

In this second limb, we will open a second field of legal battles “around the rim”: the unauthorized use of players’ image rights by third parties. We will use as a point of reference the US College Athletes image rights cases before US Courts and we will thereby examine the legal nature of image rights and the precise circumstances in which such rights may be infringed. Then, coming back to where we started, we will discuss the French case through the lens of US case law on players’ image rights. 


Source: http://philadelphia.cbslocal.com/2013/09/27/ea-sports-settles-college-likeness-case/ More...


The Olympic Agenda 2020: The devil is in the implementation!

The 40 recommendations of the Olympic Agenda 2020 are out! First thought: one should not underplay the 40 recommendations, they constitute (on paper at least) a potential leap forward for the IOC. The media will focus on the hot stuff: the Olympic channel, the pluri-localisation of the Games, or their dynamic format. More importantly, and to some extent surprisingly to us, however, the IOC has also fully embraced sustainability and good governance. Nonetheless, the long-term legacy of the Olympic Agenda 2020 will hinge on the IOC’s determination to be true to these fundamental commitments. Indeed, the devil is always in the implementation, and the laudable intents of some recommendations will depend on future political choices by Olympic bureaucrats. 

For those interested in human rights and democracy at (and around) the Olympics, two aspects are crucial: the IOC’s confession that the autonomy of sport is intimately linked to the quality of its governance standards and the central role the concept of sustainability is to play in the bidding process and the host city contract.  More...

UEFA’s tax-free Euro 2016 in France: State aid or no State aid?

Last week, the French newspaper Les Echos broke the story that UEFA (or better said its subsidiary) will be exempted from paying taxes in France on revenues derived from Euro 2016. At a time when International Sporting Federations, most notably FIFA, are facing heavy criticisms for their bidding procedures and the special treatment enjoyed by their officials, this tax exemption was not likely to go unnoticed. The French minister for sport, confronted with an angry public opinion, responded by stating that tax exemptions are common practice regarding international sporting events. The former French government agreed to this exemption. In fact, he stressed that without it “France would never have hosted the competition and the Euro 2016 would have gone elsewhere”. More...

The New Olympic Host City Contract: Human Rights à la carte? by Ryan Gauthier, PhD Researcher (Erasmus University Rotterdam)

Three weeks ago, I gave a talk for a group of visiting researchers at Harvard Law School on the accountability of the IOC for human rights abuses caused by hosting Olympic Games. On the day of that talk, Human Rights Watch announced that the International Olympic Committee (“IOC”) would insert new language into the Host City Contract presumably for the 2022 Olympic Games onwards. The new language apparently requires the parties to the contract to:

“take all necessary measures to ensure that development projects necessary for the organization of the Games comply with local, regional, and national legislation, and international agreements and protocols, applicable in the host country with regard to planning, construction, protection of the environment, health, safety, and labour laws.”More...

The UN and the IOC: Beautiful friendship or Liaison Dangereuse?

The IOC has trumpeted it worldwide as a « historical milestone »: the United Nations has recognised the sacrosanct autonomy of sport. Indeed, the Resolution A/69/L.5 (see the final draft) adopted by the General Assembly on 31 October states that it  “supports the independence and autonomy of sport as well as the mission of the International Olympic Committee in leading the Olympic movement”. This is a logical conclusion to a year that has brought the two organisations closer than ever. In April, UN Secretary General Ban Ki-moon appointed former IOC President, Jacques Rogge, Special Envoy for Youth Refugees and Sport. At this occasion, the current IOC President, Thomas Bach, made an eloquent speech celebrating a “historic step forward to better accomplish our common mission for humanity” and a memorandum understanding was signed between the UN and the IOC. This is all sweet and well, but is there something new under the sun?More...

Image Rights in Professional Basketball (Part I): The ‘in-n-out rimshot’ of the Basketball Arbitral Tribunal to enforce players’ image rights contracts. By Thalia Diathesopoulou

A warning addressed to fans of French teams featuring in the recently launched video game NBA 2K15: Hurry up! The last jump ball for Strasbourg and Nanterre in NBA 2K 15 may occur earlier than expected. The French Labour Union of Basketball (Syndicat National du Basket, SNB) is dissatisfied that Euroleague and 2K Games did not ask (nor paid) for its permission before including the two teams of Pro A in the NBA 2K15 edition. What is at issue? French basketball players’ image rights have been transferred to SNB, which intends to start proceedings before the US Courts against 2K Games requesting 120.000 euros for unauthorized use of the players’ image rights. SNB is clear: it is not about the money, but rather to defend the players’ rights.[1] Strasbourg and Nanterre risk to “warm up” the virtual bench if this litigation goes ahead. 

Source: http://forums.nba-live.com/viewtopic.php?f=149&t=88661&start=250 More...

Sport and EU Competition Law: uncharted territories - (II) Mandatory player release systems with no compensation for clubs. By Ben Van Rompuy

The European Commission’s competition decisions in the area of sport, which set out broad principles regarding the interface between sports-related activities and EU competition law, are widely publicized. As a result of the decentralization of EU competition law enforcement, however, enforcement activity has largely shifted to the national level. Since 2004, national competition authorities (NCAs) and national courts are empowered to fully apply the EU competition rules on anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU).

Even though NCAs and national courts have addressed a series of interesting competition cases (notably dealing with the regulatory aspects of sport) during the last ten years, the academic literature has largely overlooked these developments. This is unfortunate since all stakeholders (sports organisations, clubs, practitioners, etc.) increasingly need to learn from pressing issues arising in national cases and enforcement decisions. In a series of blog posts we will explore these unknown territories of the application of EU competition law to sport.

In this second installment of this blog series, we discuss a recent judgment of the regional court (Landgericht) of Dortmund finding that the International Handball Federation (IHF)’s mandatory release system of players for matches of national teams without compensation infringes EU and German competition law.[1] More...

Asser International Sports Law Blog | The CAS Ad Hoc Division in 2014: Business As Usual? - Part. 2: The Selection Drama

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The CAS Ad Hoc Division in 2014: Business As Usual? - Part. 2: The Selection Drama

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


[1] CAS OG 14/01, point 2.5

[2] CAS OG 14/01, point 2.10

[3] For a quick introduction to the doctrine of Estoppel see : http://en.wikipedia.org/wiki/Estoppel

[4] CAS OG 14/01, point 4.2 a)

[5] CAS OG 14/01, point 4.2 b)

[6] CAS OG 14/01, point 4.2 b) i) to vi)

[7] CAS OG 14/01, point 4.3 a) and c)

[8] CAS OG 14/01, point 7.5

[9] CAS OG 14/01, point 7.10

[10] CAS OG 14/01, point 7.12

[11] CAS OG 14/01, point 7.15

[12]In contrast with CAS OG 06/08 and CAS OG 06/02.

[13] CAS OG 14/01, point 7.15

[14]CAS OG 14/01, point 7.16

[15] CAS OG 14/02, point 4.2 a)

[16] CAS OG 14/02, point 4.2 a)

[17] CAS OG 14/02, point 4.2 b)

[18] CAS OG 14/02, point 4.2 c)

[19] CAS OG 14/02, point 4.2 c)

[20] CAS OG 14/02, point 4.3 a)

[21] CAS OG 14/02, point 7.4

[22] CAS OG 14/02, point 8.9

[23] CAS OG 14/02, point 8.10

[24] CAS OG 14/02, point 8.17 i.

[25]CAS OG 14/02, point 8.17 ii.

[26] CAS OG 14/02, point 8.17 iii.

[27] CAS OG 14/02, point 8.17 vi.

[28] CAS OG 14/02, point 8.17 vii.

[29] CAS OG 14/02, point 8.20

[30] CAS OG 14/03, point 4.3

[31] CAS OG 14/03, point 4.4

[32] CAS OG 14/03, point 7.4-7.7

[33] CAS OG 14/03, point 7.16-7.25

[34] CAS OG 14/03, point 7.19

[35] CAS OG 14/03, point 8.2

[36] CAS OG 14/03, point 8.3

[37] CAS OG 14/03, point 8.4

[38] CAS OG 14/03, point 8.4

[39] See the following cases : CAS OG 12/06 ; CAS OG 12/01 ; CAS OG 12/02 ; CAS OG 06/008 ; CAS OG 06/002 ; CAS OG 08/002; CAS OG 08/003; CAS OG 02/005

[40] A problem already identified by Antonio Rigozzi, which noted in 2006 that « This case law [CAS OG 06/002  & CAS OG 06/008] could lead to a switch (back) from selection based on objective criteria to more subjective process. This would be a regrettable evolution. To reduce the risk of dispute, the selecting bodies should enact objective criteria, which are easily intelligible, make sure that they are communicated to (and understood) by the athletes, and avoid any modification of the « rules of the game » during the selection » process. » A. Rigozzi, ‘The Decisions Rendered by the CAS Ad Hoc Division at the Turin Winter Olympic Games 2006’, Journal of International Arbitration, pp.453-466, p.466

Comments are closed