The year is coming to an end and it has been a relatively busy one for the CAS Ad Hoc divisions. Indeed, the Ad Hoc division was, as usual now since the Olympic Games in Atlanta in 1996[1], settling  “Olympic” disputes during the Winter Olympics in Sochi. However, it was also, and this is a novelty, present at the Asian Games 2014 in Incheon.  Both divisions have had to deal with seven (published) cases in total (four in Sochi and three in Incheon). The early commentaries available on the web (here, here and there), have been relatively unmoved by this year’s case law. Was it then simply ‘business as usual’, or is there more to learn from the 2014 Ad Hoc awards? Two different dimensions of the 2014 decisions by the Ad Hoc Division seem relevant to elaborate on : the jurisdiction quandary (part. 1) and the selection drama (part. 2).

Part. 1: The Jurisdiction quandary: Too early to be judged!

The scope of jurisdiction of the Ad Hoc Division of CAS is provided for in article 1 of the ‘Arbitration Rules for the Olympic Games’ (the same is true for the Asian Games)[2]. However, legal uncertainties over this scope of jurisdiction remain a defining feature. Many earlier disputes in front of the Ad Hoc division have tackled this question, and this has been true again this year.[3]

It is not so much the scope rationae personae that might be problematic, although one case arose at the Asian games in which two former squash players were denied access to the Ad Hoc division on the basis of not being “participating athletes”.[4] Nor is it the rationae materiae that has been a real problem, as claimants tend to submit disputes, which are related to the Games. No, the problem child is usually the jurisdiction rationae temporis. Indeed, article 1 of the rules states that “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” can be subjected to the jurisdiction of the Ad Hoc Division. So the key question is: When does a dispute “arise”? 

In the Birkner case[5], the Ad Hoc Division in Sochi had to grapple extensively with the question of when the dispute arose as, during the hearing, the respondent, Comitato Olympico Argentino, “denied the existence of a basis of jurisdiction of the panel”. The case concerned a selection drama for the Sochi Games (see part 2); jurisdiction rationae personae and rationae materiae were unproblematic. The CAS did examine whether the local remedies were exhausted, and considered that “that there were no internal remedies to exhaust”.[6] The only barrier left for jurisdiction to be asserted was the ratione temporis. In short, “did the dispute arise in the required time frame?”[7]

This “vexing issue” [8] was touched upon repeatedly in past Ad Hoc division awards.[9] In the Birkner case, it had to be demonstrated that the dispute arose not earlier than the 28 January 2014, 10 days before the opening ceremony scheduled for the 7 February 2014. The panel first reaffirmed the fact that “the date when the dispute arose cannot, per se, be the date when the Request for Arbitration is filed” .[10]  So, back to the key question, when did the dispute arise?

The award refers extensively to the Schuler case[11]. In its main holding on jurisdiction, the 2006 panel considered that “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”.[12] Nevertheless, the 2014 panel refused to consider the Schuler precedent to be applicable to the Birkner case for two reasons: the factual situation is different and the reasoning used in Schuler is fundamentally flawed.

On the factual side, contrary to the Schuler case, the panel finds that “[i]n the present case […] the explanation was not given on a date inside the required period, as it was either on 20 January 2014, which is the date of the letter of explanation, or on 22 January 2014, which is the date on which the Applicant says that she received that letter”.[13] Both of these dates being well before the 10 days period, the panel is of the opinion that it lacks jurisdiction. On the legal side, the panel is clearly not “convinced by the legal reasoning adopted in the Schuler case” .[14] In fact, it considers that “[s]uch conclusion could extend the jurisdiction of the ad hoc Division outside the precise and limited framework set by the Rules, which this Panel is required to respect and apply” [15]. The panel is of the opinion that “the date when a dispute arises is in general […] the date of the decision with which the Applicant disagrees” .[16] However, “[s]uch a date can arise later […] if […] the decision is not self-explanatory and requires some explanation in order for the parties to know with certainty that they are in disagreement”.[17]

This is a noteworthy consideration, which indicates a substantial reduction of the scope of jurisdiction of the CAS Ad Hoc Division. If the parties do not agree to the jurisdiction of CAS (in practice they often do not contest the jurisdiction[18]) it will render more difficult the referral of a dispute to the Ad Hoc Division. This understanding of the start of a dispute is contradicting the overall aim of the Ad Hoc Division, which is to deal swiftly with all disputes intimately linked to the Games. In this light, a more flexible interpretation of the jurisdiction rationae temporis, as suggested in the Schuler case, is preferable. Athletes are no legal experts; they (and sometimes their lawyers) need time to find their way through the jungle of sporting regulations and dispute resolution mechanisms potentially applicable. The crucial importance of the Olympic Games for an athlete’s career call for an interpretation of the start of the dispute that focuses on the intention to challenge the decision as highlighted in the Schuler award[19]. Moreover, any doubts concerning the starting date of the dispute should play in favour of the athlete, unless the time between the date of notification of the contentious decision and the decision to lodge a complaint in front of CAS is disproportionately (and abusively) long. The attack by the Birkner panel on the reasoning adopted in Schuler is no anodyne move; in the future it may threaten the access to justice of athletes and their ability to obtain a swift and fair decision, in a context where they most urgently need it.

[1] On the early days of the CAS Ad Hoc Division at the Olympics, the book by Gabrielle Kaufmann-Kohler is a must read : G. Kaufmann-Kohler, Arbitration at the Olympics, Kluwer Law, 2001.

[2] Article 1 of the Arbitration Rules for the OG stipulates that:

“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 him/her 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.”

[3] CAS OG 14/03; CAS AG 14/01; CAS AG 14/02.

[4] See CAS AG 14/01, §2.5. See also CAS OG 12/03, §2.3.

[5] CAS OG 14/03

[6] CAS OG 14/03, §5.14

[7] CAS OG 14/03, §5.17-5-30

[8] CAS OG 14/03, §5.20

[9] Most notably in the Schuler case, CAS OG 06/002. For a general commentary see: I.S.LR. 2006 pp.50-51 and A. Rigozzi, ‘The decisions rendered by the CAS Ad Hoc Division at the Turin Winter Olympic Games 2006’, Journal of International Arbitration 23 (5): 453-466, 2006

[10] CAS OG 14/03, §5.21

[11] CAS OG 14/03, §5.24

[12] CAS OG 06/002, §14

[13] CAS OG 14/03, §5.25

[14] CAS OG 14/03, §5.25

[15] CAS OG 14/03, §5.27

[16] CAS OG 14/03, §5.28

[17] CAS OG 14/03, §5.28

[18] See for example CAS OG 14/01 §6.2 and CAS OG 14/02 §6.5

[19] In cases, in which the dispute overtly arose earlier than 10 days before the games such a restrictive interpretation could be tolerated. See for example: CAS OG 12/03, §2.3.23; CAS OG 12/02, §4.10; CAS OG 12/04, §5.2.

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.  

Good Governance = Autonomy

“Good governance and autonomy are strongly linked; they are two sides of the same coin”

This statement is to be found in the only document that really matters to understand the depth of the reforms envisaged: The context and background report. It is a confession; there is no autonomy of sport, unless this autonomy is in the hands of irreproachable institutions. The IOC is prone to consider itself as abiding to such standard, but it is not for itself to judge. The global public will be the sole arbiter of this pledge to good governance, as the IOC recognises: “Autonomy has to be earned”. 

In this regard, the IOC’s Agenda 2020 proposes a certain number of institutional and “good governance” reforms:

Recommendation 27 Comply with basic principles of good governance

The Agenda 2020 foresees that “all organisations belonging to the Olympic Movement [are] to accept and comply with the Basic universal Principles of Good Governance of the Olympic and Sports movements”. To this end, the organisations will be monitored and mentored and self-evaluation tests (probably similar to WADA’s compliance test) will be introduced. Furthermore, the IOC will update the principles of good governance with the help of a working group composed of “experts”. Obviously, the impact of this recommendation depends very much on the stringency of the monitoring and of the nature of the good governance requirements imposed. 

Recommendation 29: Increase Transparency

The IOC vows to publish financial statements according to the International Financial Reporting Standards and to produce an annual activity and financial report, including the allowance policy for IOC members. This is an important step, since it enables external observers to better scrutinise the financial flows in the Olympic movement and to have a full picture of the allowances received by each individual member of the IOC. It will be easier to follow where the IOC’s money is going and it will make money laundering harder. However, external revenues received by IOC members will stay undeclared, leaving the door open for suspicions.  

Recommendation 30: Strengthen the IOC Ethics Commission independence

This recommendation aims at securing the IOC’s ethics commission independence by proposing to elect its chair and its members via a secret ballot of the Session (the IOC’s parliament, assembling all IOC members). This seems quite an obvious thing in a democratic society, but for an institution versed in nepotism, it is a big step. Once implemented, the nomination process of the members of the Commission will be more difficult to control, and, thus, reinforce the independence of the sole potential counter-power (to the executive board) inside the IOC’s institutional structure. Again, this is no cure-all, and the Ethics Commission has yet to prove itself as an effective control mechanism, but it is a first step towards a more balanced institutional game.

 
Recommendation 32: Strengthen ethics

Here it is suggested to revise the Code of ethics, so that it “be fully aligned with the Olympic Agenda 2020’s drive for more transparency, good governance and accountability”. This is a vague, but potentially important, commitment to rethink the IOC’s Code of Ethics. Only time will tell if this revision will lead to better and accountable governance. In any event, only heightened public scrutiny can force the IOC to adopt governance standard ensuring full transparency and accountability. 

Recommendation 37: Address IOC membership age limit

The IOC is recommending a complex system to allow members over 70 to go beyond the official age limit entrenched in Article 16 of the Olympic Charter. In practice, the Session will be able to vote on allowing each member the right to stay on for maximum four years more than the age limit. This is a (minimal) concession to the IOC members strongly opposed to the age limit.  

Recommendation 38: Implement a targeted recruitment process

Recommendation 38 concerns the selection process of new IOC members. The IOC is no democratic institution. The “citizens” of the Olympic family do not elect their representatives. In fact, the IOC members are not necessarily part of the “Olympic family”. Historically, its selection process has been marred by nepotism (e.g. the Samaranch dynasty) as it is based on co-optation. The Agenda 2020 does not do away with this fundamentally oligarchic procedure, but it is slightly correcting it by empowering (and constraining) the nominations Commission, which is in charge of proposing candidates. The choice of the Commission is to be constrained by specific selection criteria, the most prominent being: gender balance; geographical balance; and the existence of an athletes’ commission within the organisation for representatives of Ifs/NOCs. As from now on, the press and the public will be able to blame the IOC if it does not follow its self-imposed requirements (gender balance being the one to watch closely) in the future. 

Some changes are also on the books concerning the Scope and Composition of IOC Commissions (Recommendation 40). Unfortunately, they are of unclear nature and magnitude.

These institutional innovations, if implemented, are positive steps forward to constrain power inside the IOC and to open it to outside scrutiny. The most remarkable outcome of the Olympic Agenda 2020 remains the crystal clear acknowledgment by IOC that the autonomy of sport is necessarily tied to the quality of the governing processes in place. This essentially means that the Agenda 2020 can only be the beginning of a dynamic institutional reform process that must lead the IOC to be more inclusive of the many constituencies of the sporting world. This is not enough, however; the IOC must also be receptive to the needs of society as a whole.  

Sustainability and Human rights in the bidding process

The bidding process should be at the centre of all critical attention. It is clear that it is the bidding process that entrusts the IOC with real political leverage. At this point, it takes fundamental decisions that will impact the life of millions (if not billions) of citizens Therefore, the brunt of the substantial (in contrast with the institutional measures discussed above) reforms was expected to impact on the bidding procedure (see the joint paper by the Swiss, German, Austrian and Swedish NOCs). It is also on the bidding process that the IOC received the most contributions in the framework of the Agenda 2020 (more than 90). In this regard, Sochi was a wake-up call, due to the abuses recorded on the human rights and anti-discrimination front, and the environmental sustainability side. The IOC Agenda 2020 is not shy of tackling these issues and, with caveats discussed below, should be praised for doing so. First, and this is a fundamental point, the Host City Contract will from now on be made publicly available (for now we only have leaked draft documents as for the 2022 contract). This is a necessary move for an institution claiming to follow good governance principles. Indeed, it will ease the work of critics and commentators scrutinising the contract and the public as a whole will have access to the official document itself.  

Recommendation 1: Shape the bidding process as an invitation

This first recommendation contains a variety of proposals. The spirit of which is “to invite potential candidate cities to present an Olympic project that best matches their sports, economic, social and environmental long-term planning needs”. Thus, for “reasons of sustainability”, the IOC will tolerate that events do not take place in the Host-city but in another nearby city or country (modification of article 34 of the Olympic Charter). The Host City Contract will include a provision banning discriminations, as was previously announced and celebrated by Human Rights Watch. In addition to this, article 21 of the 2022 Host City Contract will impose sustainability requirements on the Host city. Yet, the transformative quality of these provisions is still to be demonstrated. The main point remains that new regulations for the bidding procedure will be drafted. These will be key to set in stone the sustainability and Human rights turn of the Olympic family and will be the place to look at in order to assess whether the IOC is really serious about the changes put forward in the Olympic Agenda 2020.

Recommendation 2: Evaluate bid cities by assessing key opportunities and risks

The evaluation of the bids is key to the IOC’s impact on sustainability or human rights aspects (and not only to ensure that its commercial interests are safeguarded). Hence, it is good news that the IOC is to consider as positive aspects of a bid: “the maximum use of existing facilities and the use of temporary and demountable venues where no long-term venue legacy need exists or can be justified”. Furthermore, the Evaluation Commission is “to benefit from third-party, independent advice in such areas as social, economic and political conditions, with a special focus on sustainability and legacy”. In fact, the final reports by the Evaluation Commission are to include “an assessment of the opportunities and risks of each candidature, as well as of sustainability and legacy” (modification of bye-law to rule 33) and third-party independent risk-assessments are to be conducted. This will be a powerful tool in the hands of NGOs to decisively influence the selection process by providing in depth (and public) assessments of the sustainability of the different bids. It will also, and perhaps mainly, offer critical ammunitions in case the IOC is inclined to disregard the sustainability assessment provided by the Evaluation Commission. There is no rock solid guarantee that the IOC will in the end take into account the sustainability of a bid to allocate the Games. Yet, a full-blown neglect of this assessment would give way to damaging public criticism.  

Recommendation 4: Include sustainability in all aspects of the Olympic Games

This recommendation is aimed at ensuring that sustainability “is included in all aspects of the planning and staging of the Olympic Games”. Sustainability is to be achieved via “a sustainability strategy to enable potential and actual Olympic Games organisers to integrate and implement sustainability measures”. The IOC wants to assist the Organising Committees “to establish the best possible governance for the integration of sustainability throughout the organisation”. To this end, the “[n]ext Host City Contract [is] to reflect, through a number of additional obligations” these policy goals. Moreover, the IOC considers signing a “MoU with the United Nations Environment Programme (UNEP) for possible independent assessment of OCOG sustainability performances”. Again, depending on the extent to which the Host City Contract will be modified, these changes are substantial. However, the UNEP might need concrete commitments to be convinced to deepen its existing collaboration with the IOC, especially after the disaster of the Sochi Games. The Host City Contract is certainly an important lever to impose obligations on the Host City, but to effectively do so it needs to be accompanied by clear and potent procedures ensuring its enforcement.  

Recommendation 5: Include sustainability within the Olympic Movement’s daily operations

The IOC’s administration in its day-to-day operations is to follow sustainability standards. Most notably, it aims to “introduce sustainable sourcing policies in tendering processes, sponsorship, licensing and supplier agreements for renewals or new contracts”. This is an instance of IOC greening its own administrative operations to improve its image. 

Recommendation 14: Strengthen the 6^th Fundamental Principle of Olympism

In a symbolic gesture, the 6^th fundamental principle of Olympism, which forbids all types of discrimination, is to be re-written into a hybrid text of Article 14 of the European Convention of Human Rights and Article 2 of the UN Universal Declaration of Human Rights.  This is a tricky move and guessing the way the new principle will be interpreted in the future is an impossible deed. On one side, it seems that the principle is now completely in line with anti-discrimination standards widely recognised under international law. On the other, one has the impression that the new wording narrows its scope of application. Indeed, discrimination is not “incompatible with belonging to the Olympic Movement” anymore, it is merely inadmissible when exercising the rights and freedom granted by the Olympic charter. In general, this is a symbolic provision, the wording of the Host City Contract or the bidding requirements have way more practical relevance, but this development is not necessarily a sign of a more stringent action from the part of the IOC against discriminations. 

Conclusion: The Devil is in the implementation/interpretation

This leads us to a final, and crucial, caveat. Law is very much about the interpretation of the meaning of words. In our case, the IOC will be the main responsible to give a practical meaning to the sweet words enshrined in the Agenda 2020’s recommendations. Starting with the IOC Session on the 8 and 9 December in Monaco, which will decide on the modifications to the Olympic Charter or its byelaws. The legal meaning of transnational concepts such as sustainability, good governance and discrimination is more or less shared around the globe. The IOC cannot afford to betray it; there is no space for the use of newspeak, or for any other word games leading to a practical disregard of the essential gist of those concepts. The IOC and its president have raised high expectations with this set of recommendations indicating a willingness to change from the side of the Olympic movement. Such expectations cannot be disappointed over and over again; it would certainly be suicidal for the Olympic movement to betray its grand promises. Now comes the time to deliver!