Journal of Dispute Resolution Journal of Dispute Resolution
Volume 2022 Issue 2 Article 13
2022
Is Arbitration for Olympic Athletes Arbitrary? Is Arbitration for Olympic Athletes Arbitrary?
Shelby Ehrmann
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Is Arbitration for Olympic Athletes Arbitrary?
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185
IS ARBITRATION FOR OLYMPIC ATHLETES ARBITRARY?
Shelby Ehrmann
1
I. INTRODUCTION
In December of 2021, Professional Russian Figure Skater Kamila Valieva
completed a doping control test during a Russian National Figure Skating Championship.
2
On February 7, 2022, a World Anti-Doping Agency (WADA) accredited laboratory detected
the presence of a banned substance from Kamila’s December 2021 test.
3
The Russian Anti-
Doping Agency, (RUSADA) which is in charge of the application of WADA, first
implemented a provisional suspension on Kamila, prohibiting her from competing in the 2022
Olympic Winter Games.
4
The RUSADA’s Disciplinary Anti-Doping Committee (DADC)
then moved to lift this provisional suspension.
5
The International Olympic committee, the
WADA and the International Skating Union appealed this decision to lift the provisional
suspension.
6
Because this appeal was brought during the period of the 2022 Olympic Winter
Games, the Court of Arbitration for Sports’ Ad Hoc Division obtained jurisdiction of the
case.
7
Ultimately the Ad Hoc Division decided that the lifted suspension would remain in
place and Kamila would compete in the women’s Single Skating event during the Winter
Games on Feb 15, 2022.
8
Achieving a spot at the Olympics is said to be a dream for most athletes. The Court
of Arbitration for Sport (CAS) and its Ad Hoc Division (AHD) can be a last ditch effort for
an athlete being considered for the Olympics—as when an athlete is disputing a drug testing
policy and the CAS can choose whether to admit the athlete into the Olympics.
9
During the
Games, many athletes challenge judgements during their sporting events, such as referee
calls, and look to the CAS for resolution.
10
The AHD can resolve these “competition-related
1
B.A., Stephen F. Austin State University, 2013; J.D. Candidate, University of Missouri School of Law, 2023;
Associate Member, Journal of Dispute Resolution, 2021-2022. I am grateful to Professor Rafael Gely for his
insight, guidance, and support during the writing of this Note, as well as the Journal of Dispute Resolution for
its help in the editing process.
2
COURT OF ARBITRATION FOR SPORT, AD HOC DIVISION – XXIV OLYMPIC WINTER GAMES IN BEIJING, IOC,
WADA, & ISU V. RUSADA, KAMILA VALIEVA, ROC, CAS ARB. (2022), https://www.tas-
cas.org/fileadmin/user_upload/OG_22_08-09-10_Arbitral_Award__publication_.pdf.
3
Id.
4
Id.
5
Id.
6
Id.
7
COURT OF ARBITRATION FOR SPORT, AD HOC DIVISION – XXIV OLYMPIC WINTER GAMES IN BEIJING, IOC,
WADA, & ISU V. RUSADA, KAMILA VALIEVA, ROC, CAS ARB. (2022), https://www.tas-
cas.org/fileadmin/user_upload/OG_22_08-09-10_Arbitral_Award__publication_.pdf.
8
Id.
9
Christian Keidel & Alexander Engelhard, Key CAS Ad Hoc Division Cases Handed Down At The
Olympics, LAWINSPORT (Aug. 4, 2016), https://www.lawinsport.com/topics/item/key-cas-ad-hoc-division-
cases-handed-down-at-the-olympic-games.
10
Id.
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186
decisions.”
11
This division, created in 1996, aims to “provide all participants in the Games
with free access to justice within time limits to keep pace with the competition.”
12
There are several factions that led to the creation of the AHD. The International
Olympic Committee (IOC) is the “guardian of the Olympics and the leader of the Olympic
Movement.”
13
The International Council of Arbitration for Sport (ICAS) is an organization
that resolves disputes within the sporting community through arbitration and mediation.
14
CAS is financed by the ICAS, maintains the arbitrator list, and “provides for the arbitral
resolution of sports-related disputes.”
15
Finally, the AHD is a temporary tribunal that settles
disputes at the Olympics within 24 hours of the initial dispute.
16
Each member of these organizations intermingles with the next. Is it fair to have
IOC members a part of and establishing the ICAS? Should the CAS and its AHD arbitration
selection processes mirror each other to ensure just dispute resolutions? This Note analyzes
these questions to demonstrate that the AHD does not afford athletes a just process for dispute
resolution during the Olympics. The IOC is not independent from the CAS because of the
organization of IOC and the member appointment process. The AHD should be restructured
to resemble the procedural processes of the CAS Ordinary Tribunal to ensure fair and just
dispute resolution decisions throughout the Olympics.
Part II discusses the establishment and history of the IOC and CAS and the later
implementation of the ICAS. It also discusses the history and reasons why the CAS
established their AHD for the Olympics. Part III discusses the organizational alignment of
the ICAS in relation to its IOC members and the structure of the CAS and its AHD. Part IV
explains the arbitrator selection process and waiver requirement that athletes must abide by
through the CAS and their AHD. Part V argues that because of the arbitration process through
the AHD during Olympics and those differences in reference to the CAS Ordinary Tribunal,
athletes are under a disadvantage during their arbitration process. Part V also argues that
because of the ties between the IOC, ICAS, and CAS, athletes are at the discretion of the IOC
during arbitration at the Olympics and do not maintain due process of law while competing in
a world class event. This Note will conclude with recommendations on how to rectify this
issue, primarily by restructuring the AHD to resemble procedural processes of the CAS
Ordinary Tribunal.
II. HISTORY OF THE IOC TO THE CAS AHD
The history of the IOC, including the establishment of the ICAS, CAS, and the
AHD, spans over a century.
17
Each organization’s implementation created assistance for the
11
Id.
12
Elizabeth Kantor, Performance-Enhanced Arbitration? The CAS Ad Hoc Division, MEDIATE (Aug. 2012),
https://www.mediate.com/articles/KantorEbl20120827.cfm.
13
International Olympic Committee, https://olympics.com/ioc/overview (last visited Nov. 26, 2021).
14
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION (2020), https://www.tas-
cas.org/fileadmin/user_upload/CAS_Code_2020__EN_.pdf.
15
Id.
16
History of the CAS, TAS / CAS, https://www.tas-cas.org/en/general-information/history-of-the-cas.html (last
visited Nov. 26, 2021).
17
Ansley C. Christine, International Athletic Dispute Resolution: Tarnishing the Olympic Dream, 12 ARIZ. J.
INT’L & COMP. L. 277, 277 (1995).
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Is Arbitration for Olympic Athletes Arbitrary?
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growing Olympic Movement and established codes to improve disputes within the
international sporting world.
18
Throughout history, athletes viewed these organizations as
intertwined associations that did not provide an impartial venue for athletes to resolve
disputes.
19
History shows each organization has expanded upon itself in hopes to diminish
the scrutiny it has received involving autonomy and impartiality.
20
A. IOC to CAS
In 1894, the International Athletic Congress of Paris, created the IOC to revise
ancient Olympic Game traditions into a “modern Olympics.”
21
Prior to the 1800s, only men
from Greek city-states were allowed to compete in the Games, held every four years in
Olympia.
22
The creation of the modern games allowed women and other nations to compete,
and expanded the locations of the games.
23
In the 1980s, the steady increase in international
sports-related disputes and the lack of authority specializing in these disputes to create a
binding decision prompted IOC leaders to create an organization that “resolved disputes
directly or indirectly related to sport.”
24
As generally provided by arbitration, IOC leaders
wanted this organization to encompass “flexible, quick, and inexpensive procedures.”
25
In
creating statutes that embodied arbitration for sport-related instances and financially
developing and maintaining the organization, the IOC created the Court of Arbitration for
Sport (CAS).
26
The CAS is independent of all other sports entities and provides services to
assist sports-related disputes using mediation and arbitration with procedural rules related to
the particular needs of the sporting industry.
27
B. CAS reform to ICAS and establishing the Ad hoc Division
In 1992, a horse rider named Elmar Gundel brought notice to the CAS’s lack of
independence and autonomy from the IOC.
28
During Gundel’s time as a horse rider, the
18
Id.
19
James Carter & Alexander Chaize, Caster Semenya ruling and the pros and cons of the Court of Arbitration
for Sport, DLA PIPER (Sep. 6, 2019), https://www.dlapiper.com/en/uk/insights/publications/2019/09/sport-
now/caster-semenya-ruling-and-the-pros-and-cons-of-the-court-of-arbitration-for-sport/.
20
History of the CAS, TAS / CAS, https://www.tas-cas.org/en/general-information/history-of-the-cas.html (last
visited Nov. 26, 2021).
21
David J. Ettinger, The Legal Status of the International Olympic Committee, 4 PACE INT’L L. REV. 97, 98
(1992).
22
A Short History of the Olympics, OLYMPICS,
https://www.allthingstopics.com/uploads/2/3/2/9/23290220/lesson-olympics-history1.pdf.
23
Id.
24
History of the CAS, TAS / CAS, https://www.tas-cas.org/en/general-information/history-of-the-cas.html (last
visited Nov. 26, 2021).
25
Id.
26
Id.
27
Frequently Asked Questions, TAS/CAS, https://www.tas-cas.org/en/general-information/frequently-asked-
questions.html#c194 (last visited Nov 26, 2021).
28
Ian Blackshaw, ADR and Sort: Settling Disputes Through the Court of Arbitration for Sport, the FIFA
Dispute Resolution Chamber, and the WIPO Arbitration & Mediation Center, 24 MARQ. SPORTS. L. REV. 1, 4
(2013).
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International Equestrian Federation (FEI) disqualified, suspended and fined Gundel for
participating in horse doping; Gundel appealed this decision to the CAS.
29
In this appeal, the
CAS shortened Gundel’s suspension from three months to one month, however, Gundel
remained displeased with the decision.
30
He challenged the CAS’s decision stating that CAS
was not independent or impartial from the FEI because the FEI utilized arbitration clauses
created by the CAS; thus, CAS should not be considered a “proper arbitration court.”
31
In
hearing this appeal the Swiss Federal Tribunal (Tribunal), the ultimate authority for CAS
appeals, found the CAS to be impartial from the FEI and recognized the CAS as a “proper
arbitration court.”
32
However, during this hearing, the Tribunal noticed numerous connections
between the CAS and the IOC.
33
The Tribunal noticed the “considerable power given to the
IOC and its President to appoint members of the CAS, that the CAS was largely financed by
the IOC, and that the IOC could modify CAS statutes.”
34
This called into question “the
independence of the CAS in the event of the IOC being a party to proceedings before it.”
35
The Tribunal, held that the CAS needed to be independent of the IOC in its organizational and
financial structure.
36
This holding led to the creation of the ICAS to run and finance the CAS, which
ensured the CAS established autonomy from the IOC.
37
This structural change enabled the
ICAS to help facilitate arbitration and mediation with the CAS and be responsible for
administration and financing of the CAS.
38
The ICAS is essentially the middleman between
the IOC and CAS.
In 1996, the ICAS created the AHD for the Atlanta Olympics. This division was
created to increase the “speed and efficiency” for major sporting events.
39
Its purpose is to
“settle finally and within a 24-hour time-limit any disputes arising during the Olympics.”
40
The AHD has been implemented into every Olympics since its establishment in 1996.
41
In
fact, the CAS’s AHD extends outside the Olympics; these other sporting events that utilize
the AHD include “the European Football Championships, the Commonwealth Games, the
AFC Asian Cup, the FIFA World Cup, and the Asian Games.”
42
29
Id.
30
Id.
31
Id.
32
Id.
33
Blackshaw, supra note 28.
34
Id.
35
Id.
36
Id.
37
Id. at 4–5.
38
Code: ICAS Statutes §2, TAS/CAS, https://www.tas-cas.org/en/icas/code-icas-statutes.html (last visited May
30, 2021).
39
Sports Arbitration: Certain Unique Features and the Court of Arbitration for Sport (the “CAS), ACERIS
LAW (Mar. 22, 2021), https://www.acerislaw.com/sports-arbitration-certain-unique-features-and-the-court-of-
arbitration-for-sport-the-cas/.
40
Id.
41
Blackshaw, supra note 28, at 7.
42
Id. at 16; see also Everything about the CAS Ad Hoc Division, SENSATO SPORTS LAW (Sept. 9, 2021),
https://www.sensatosportslaw.com/post/everything-about-the-cas-ad-hoc-division.
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Is Arbitration for Olympic Athletes Arbitrary?
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III. ORGANIZATION OF THE ICAS AND CAS AHD
The IOC, ICAS, and CAS are organizations created within and by each other.
43
The
IOC created the CAS, and in turn also created the ICAS, and the CAS then established the
AHD. Each organization’s composition consists of executive and appointed members
selected by members of their superior organization.
44
The ICAS has members exclusively
from the IOC; CAS has members, and its executive board, exclusively from the ICAS; and
the AHD’s executive board is made up of the ICAS’s executive board.
45
Although each of
these entities have independent purposes from their counterparts, their organizational
structures intertwine, making it difficult to understand where one ends and the other begins.
A. ICAS and CAS: Structure
The ICAS consists of twenty members.
46
Four members are appointed by the
International Sports Federations, consisting of the Association of the Summer and Winter
Olympic International Federations.
47
These federations include international sporting entities
such as basketball, badminton, golf, and more.
48
Then the National Olympic Committees and
IOC each appoint four members, chosen from within or outside their own organizations.
49
These twelve members then appoint an additional four members, making sixteen, who
altogether appoint the final four members—who are independent of the bodies of
organizations who have already been selected as members – bringing the total to twenty.
50
The IOC, Summer and Winter Olympic International Federations, and the National
Olympic Committee consult with one another before electing the President and Vice
President of the ICAS.
51
Those who win the election also become the President and Vice
President of the CAS.
52
The CAS is broken into three subdivisions: (1) The Ordinary Arbitration Division,
also known as the Ordinary Tribunal; (2) the Anti-Doping Division; and (3) The Appeals
Arbitration Division.
53
The CAS Ordinary Tribunal is most comparable to the AHD. This
Ordinary Tribunal consists of a panel whose responsibility entails resolving disputes using
ordinary procedures, and performs all other functions to efficiently manage those
procedures.
54
The arbitration panel formed during a AHD dispute remains assigned
throughout the resolution process, similarly to the Ordinary Tribunal.
55
The applicable law
43
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION art. B1 §4 (2020).
44
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION art. B1 §4 (2020).
45
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION art. B2 §6 (2020).
46
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION art. B1 §4 (2020).
47
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION art. B1 §4 (2020).
48
International Sports Federations, INT’L OLYMPIC COMMITTEE, https://olympics.com/ioc/international-
federations (last visited Feb. 27, 2022).
49
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION art. B1 §4 (2020).
50
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION art. B1 §4 (2020).
51
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION art. B2 §6 (2020).
52
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION art. B3 §9 (2020).
53
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION art. C3 §20 (2020).
54
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION art. C3 §20 (2020).
55
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION art. C3 §20 (2020).
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utilized during arbitrations in the CAS Ordinary Tribunal is established by what the parties
deem the applicable law is based on “the merits of their dispute,”
56
unlike the AHD’s law,
which is dependent on the arbitration panel.
57
Under Article 17 of the AHD rules “the panel
must decide the dispute pursuant to the Olympic Charter, the applicable regulations, general
principles of law and the rules of law, the application of which it deems appropriate.”
58
In the
arbitration of Kamila Valieva, the applicable law deemed appropriate by the AHD’s
arbitration panel included the All-Russian Anti-Doping Rules (ADR), and the World Anti-
Doping Code to determine whether Kamila was a “protected person” because she is a minor,
and would not be of an intellectual capacity to understand prohibitions in the ADR.
59
Appointed members of ICAS are not allowed on the CAS arbitrator list and cannot represent
any party during an arbitration proceeding.
60
However, the ICAS appoints and removes
members who constitute the list of CAS arbitrators, showing the intertwined intricacies of
these organizations.
61
B. CAS AHD: Structure
Like the CAS, the AHD’s President and Co-President are selected from members
within the ICAS.
62
The President and the Co-president must be independent to all parties
during arbitration and must disqualify themselves “in one another’s favor.”
63
The AHD is
established ten days before the Opening Ceremony of the Olympic Games through the
completion of the Olympics.
64
The law deemed applicable for disputes in the AHD depends
on the arbitration panel.
65
The panel deems which law is appropriate in pursuant to the
Olympic Charter, applicable regulations to the Olympics, and general principles of law.
66
The
IOC’s mission is to fulfill the roles and responsibilities assigned to it by the Olympic
Charter.
67
The IOC holds annual sessions, and any decisions rendered during these sessions are
final.
68
One role of these sessions is for the IOC to adopt or amend the Olympic Charter.
69
This shows a dominance of power for the IOC even before a dispute arises regarding an
56
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION art. C §R58 (2020).
57
COURT OF ARBITRATION FOR SPORT, ARBITRATION RULES FOR THE OLYMPIC GAMES art. 17 (2021). Article
17 states, “The Panel shall rule on the dispute persuant to the Olympic Charter, the applicable regulations,
general principles of law and the rules of law, the application of which it deems appropriate.”
58
IOC, WADA, ISU v. RUSADA, Kamila Valieva, ROC, CAS Arb. found at https://www.tas-
cas.org/fileadmin/user_upload/OG_22_08-09-10_Arbitral_Award__publication_.pdf.
59
Id.
60
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION art. B1 §5 (2020).
61
COURT OF ARBITRATION FOR SPORT, CODE OF SPORTS-RELATED ARBITRATION art. B2 §6.4 (2020).
62
COURT OF ARBITRATION FOR SPORT, AD HOC DIVISION, art. 4 (2021).
63
Id.
64
Id. art. 1.
65
Id. art. 17.
66
Id.
67
INT’L OLYMPIC COMM., Olympic Charter 15.3 (July 17, 2020),
https://stillmed.olympic.org/media/Document%20Library/OlympicOrg/General/EN-Olympic-Charter.pdf.
68
Id. at 18.1.
69
Id. at 18.2.1.
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Is Arbitration for Olympic Athletes Arbitrary?
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athlete.
70
These athletes, who file disputes against the IOC during the Olympics, do not get to
choose the law applicable to their dispute and must rely on the AHD arbitration panel to do
so.
71
The Olympic Charter is automatically viewed during disputes, deemed by Article 17 of
the CAS AHD Rules, giving the IOC an upper hand because they themselves amend the
charter.
72
IV. ARBITRATION SELECTION AND WAIVER REQUIREMENT
In general arbitration disputes, parties normally choose their arbitrators.
73
Three
methods are utilized for determining an arbitrator: (1) parties can request a list of arbitrators
from organizations to review; (2) parties can agree on a single arbitrator; or (3) parties can
mutually agree on a panel of arbitrators that are selected on a rotating basis.
74
However, in
the AHD there are narrower bounds of which a party to a dispute may choose its arbitrator
and ultimately asks the parties to waive any arguments they have in regards to the narrow
process, number, and selection of arbitrators for the Olympics.
75
A. Arbitration Selection and Process
The CAS Ordinary Tribunal selects a panel of three arbitrators when an arbitration
request is submitted to the CAS.
76
In this process, each party to the arbitration selects one
arbitrator from the CAS arbitration list; the third arbitrator, who becomes president of the
arbitration panel for that dispute, is chosen by the two arbitrators selected by the parties.
77
When selecting an arbitrator, the parties have a choice between at least 150 arbitrators.
78
Within the course of a CAS Ordinary Tribunal, arbitration can last anywhere from a few
months to a year.
79
In the AHD, arbitrators are selected from a “special list” composed by the ICAS
who select arbitrators from the CAS’s general list of arbitrators. This special list is published
before the Opening Ceremony, and the ICAS can modify it at their discretion.
80
Although
there is not a definite number of arbitrators published for the special list, the Tokyo 2020
Olympics consisted of ten arbitrators.
81
Generally, three arbitrators form a panel for disputes
70
Id.
71
IOC v. RUSADA, CAS OG 22/08 at ¶ 165.
72
Id.
73
How Are Arbitrators Chosen?, ARB. INFO (Oct. 14, 2015),
https://law.missouri.edu/arbitrationinfo/2015/10/14/how-are-arbitrators-chosen/.
74
Id.
75
COURT OF ARBITRATION FOR SPORT, ARBITRATION RULES FOR THE OLYMPIC GAMES art. 20(c) (2021).
76
Frequently Asked Questions, TAS/CAS, https://www.tas-cas.org/en/general-information/frequently-asked-
questions.html.
77
Id.
78
Id.
79
Id. at art. 13.
80
COURT OF ARBITRATION FOR SPORT, ARBITRATION RULES FOR THE OLYMPIC GAMES art. 3 (2021).
81
Mark Lebbon & Martin Ross, A Summary of CAS Decisions at the Tokyo 2020 Olympics, L. IN SPORT (Aug.
19, 2021), https://www.lawinsport.com/topics/sports/item/a-summary-of-CAS-decisions-at-the-tokyo-2020-
olympic-games.
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during the Olympics. However, it is under the discretion of the president of the AHD to
appoint a sole arbitrator if they deem it necessary.
82
If a dispute arising from or in connection
with the Olympics occurs, it will be submitted, by a written application from any individual or
entity the dispute involves, to the AHD.
83
These individuals and entities included athletes,
coaches, or sporting organizations such as associations and federations.
84
Disputes can be
filed against any entity in correlation with the Olympics; this includes the “IOC, the National
Olympic Committee, an International Federation or an Organizing Committee for the
Olympic Games.”
85
The AHD’s panel has 24 hours to process, hear, and make a decision on
the party’s dispute.
86
Athletes can file a complaint with the AHD for multiple reasons and
against different entities.
87
The panel reaches their decision by the process of majority.
88
However, if there is not a majority, the president of the panel has discretion to make the final
decision.
89
B. Waiver Requirement
Athletes are aware that “any dispute arising on the occasion of, or in connection
with, the Olympics shall be submitted to the Court of Arbitration of Sport, in accordance with
the Code of Sports-Related Action.”
90
Furthermore, athletes must abide by a narrower
guideline when resolving disputes through the AHD.
91
This additional rule does not allow
athletes to argue the differences of the CAS from their AHD.
92
Article 20(c)(iii) of the CAS’s
rules for the Olympics states that “parties waive any provision to the contrary in the Code of
Sports-related Arbitration or in their agreement concerning the number of arbitrators and the
way in which the Panel is formed.”
93
Athletes must waive any concern they have with the
arbitrator selection process or how the arbitration panel is formed while using the AHD. A
potential example is an athlete’s exclusion from contesting the number of arbitrators on the
AHD’s special list. An athlete could not challenge the fact that, unlike the Ordinary Tribunal
and its 150 arbitrators to choose from, the AHD’s list has too few of a selection.
82
COURT OF ARBITRATION FOR SPORT, ARBITRATION RULES FOR THE OLYMPIC GAMES art. 11 (2021).
83
INT’L OLYMPIC COMM., supra note 67, at 61.
84
Recent Decisions, TAS/CAS, https://www.tas-cas.org/en/jurisprudence/recent-decisions.html (last visited
March 26, 2022) (in recent decisions from the CAS AHD, cases decided include Jazmine Fenlator-Victorian v.
International Bobsleigh & Skeleton Federation (IBSF), and Irish Bobsleigh & Skeleton Association v.
International Bobsleigh & Skeleton Federation (IBSF) & International Olympic Committee (IOC).
85
COURT OF ARBITRATION FOR SPORT, ARBITRATION RULES FOR THE OLYMPIC GAMES art. 1 (2021).
86
Id. art. 18.
87
Manali Kulkarni, A Summary of the CAS Ad Hoc Division Decisions at the Rio Olympic Games,
LAWINSPORT (Sep. 15, 2016), https://www.lawinsport.com/topics/features/item/a-summary-of-cas-ad-hoc-
divisionat-the-rio-olympic-games.
88
COURT OF ARBITRATION FOR SPORT, ARBITRATION RULES FOR THE OLYMPIC GAMES art. 19 (2021).
89
Id.
90
INTERNATIONAL OLYMPIC COMMITTEE, OLYMPIC CHARTER 103 (2020),
https://stillmed.olympic.org/media/Document%20Library/OlympicOrg/ General/EN-Olympic-Charter.pdf.
91
COURT OF ARBITRATION FOR SPORT, ARBITRATION RULES FOR THE OLYMPIC GAMES art. 20 (2021).
92
Id.
93
Id.
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C. Relevancy of the Ad Hoc Division
The AHD has seen a steady increase of disputes since its establishment in 1996.
94
As depicted in the graph below, there are an average of 10.2 arbitration cases through the
AHD for each Summer Olympics and an average of 7.5 arbitration cases through the AHD for
each Winter Olympics.
95
Although this is considerably fewer than the number of the
Ordinary Tribunal or appeals cases, the Olympics only span over the course of a month or,
like the Tokyo three2020 Olympics, as little as 16 days.
96
Starting in 1996, there were only
four ordinary arbitration cases through the CAS for the year; however, the Olympics
generated six AHD cases.
97
In 2002, there were eight ordinary arbitration cases through the
year and eight AHD cases during the Olympics.
98
In 2004, there were eight ordinary
arbitration cases through the year, and ten AHD cases during the Olympics.
99
This data shows that the AHD is relevant and that athletes are utilizing the system.
Since athletes are arbitrating through the Olympics, they deserve an impartial judgement.
94
Antoine Duval & Giandonato Marino, Quantifying the Court of Arbitration for Sport, INT’L SPORTS LAW
CTR: ASSER INT’L SPORTS L. BLOG, Graph 5 (May 23, 2014), https://www.asser.nl/sportslaw/about-the-centre.
95
Id.
96
Victor Mather, When Are the Olympics? Here’s the schedule for Tokyo., N.Y. TIMES (Aug. 1, 2021),
https://www.nytimes.com/article/ olympics-sports-schedule.html.
97
Duval & Marino, supra note 94.
98
Id.
99
Id.
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V. ANALYSIS
A. Intermingling of organizations
In reviewing Gundel’s claim, the Tribunal acknowledged a lack of autonomy and
impartiality between the IOC and CAS and called into question the independence of the CAS
from the IOC.
100
In order to combat the autonomy issue, the CAS underwent a reform.
101
The leading reform change was the creation of the ICAS, which intended to replace the IOC
in “running and financing” the CAS.
102
As noted earlier, four members of the twenty member
ICAS team are appointed by the IOC.
103
These four appointed members of the IOC then
assist in appointing an additional eight members of the ICAS.
104
This means the IOC is able
to appoint or assist in appointing 60% of the members of the ICAS team.
105
Before the election of the ICAS president and vice president, there must be a
consultation with other sport entities, including the IOC.
106
Furthermore, the president of the
ICAS is also the president of the CAS.
107
There is a straight line from the IOC to the CAS
through the appointed members of the ICAS and their election process.
108
Although the ICAS runs and finances the CAS, the IOC remains embedded in the
CAS through their ability to appoint multiple members of the ICAS. Not only does the IOC
appoint these members they also have input into the election of the ICAS President, who is
also the CAS President, creating the line between the IOC and CAS, regardless of the ICAS’s
intervention.
B. Comparing arbitration panels between Ordinary CAS and its Ad Hoc Division
There are distinct differences between the ordinary arbitrator selection process
through the CAS and the arbitrator selection process through their AHD. The CAS’s
Ordinary Tribunal has a panel of three arbitrators, with one arbitrator being selected by each
of the parties from a list of no less than 150 arbitrators; those two selected arbitrators select
the final arbitrator/panel president.
109
Contrasting from the ordinary selection process, the
AHD’s president establishes the three-arbitrator panel from an average list of ten arbitrators
for the dispute or may choose to appoint a sole arbitrator.
110
100
Blackshaw, supra note 28.
101
History of the CAS, TRIBUNAL ARBITRAL DU SPORT/COURT OF ARBITRATION FOR SPORT, https://www.tas-
cas.org/en/general-information/ history-of-the-cas.html (last visited May 30, 2022).
102
Id.
103
Code: ICAS Statutes §4, TRIBUNAL ARBITRAL DU SPORT/COURT OF ARBITRATION FOR SPORT,
https://www.tas-cas.org/en/icas/code-icas-statutes. html (last visited Nov. 26, 2021).
104
Id.
105
Id. § 6.2
106
Id.
107
Id. at § 9.
108
Code: ICAS Statutes, supra note 103, at § 4.3.
109
Frequently Asked Questions, supra note 27.
110
COURT OF ARBITRATION FOR SPORT, ARBITRATION RULES APPLICABLE TO THE CAS AD HOC DIVISION FOR
THE OLYMPIC GAMES, art. 11.
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Impartiality is a critical point in arbitration decisions; selecting an arbitrator panel is
debatably the most important step in the arbitration process.
111
Usually, parties mutually
choose their arbitrator to maintain confidence that their disputes can be resolved with an
impartial and unbiased arbitrator.
112
Multiple agencies allow parties to choose their
arbitrators. For example, the American Arbitration Association (AAA) ensures that parties
have a chance to choose their arbitrators.
113
Only when parties do not appoint an arbitrator
does the AAA send a list of ten arbitrators for the parties to agree upon an arbitrator from the
specific list.
114
Not only do parties get to choose their arbitrators, but they have the chance to
contact the arbitrator to determine if they will be impartial and fair.
115
The Hong Kong International Arbitration Centre lists one of its main advantages as
neutrality, where the parties “have the ability to appoint independent arbitrators of their
choice to form a neutral tribunal.
116
The Singapore International Arbitration Centre utilizes a
president to establish arbitrators.
117
However, the president takes into consideration any
arbitrators nominated by the parties.
118
Impartiality is crucial to negate bias in dispute resolution processes.
119
Arbitrators
are supposed to be neutral third parties who “consider evidence, law, and arguments presented
by the parties.”
120
Selecting a neutral third-party arbitrator is the first step in maintaining a
neutral and effective form of fair dispute resolution.
121
When arbitrators are selected by an agency or through a pool list, the arbitration
procedure could lose its impartiality.
122
A depiction of this is seen in the AHD. Not only do
the parties not choose their arbitrator but the arbitration list for the AHD comes from the
CAS’s list of arbitrators that is previously selected by the ICAS, who are still presided by
members of the IOC.
123
Article three of the Arbitration Rules applicable to the AHD states
that the special list of arbitrators is selected from the board members of the ICAS.
124
The IOC
has input into who the primary positions of board members are; the IOC is one of the
111
Michael Konen, A New (Deepwater) Horizon for Arbitrator Bias, 13 ARB. L. REV. 1, 1 (2021).
112
The Advantages and Disadvantages of Arbitration, SAC ATTORNEYS LLP,
https://www.sacattorneys.com/the-advantages-and-disadvantages-of-arbitration.html (last visited Nov. 26,
2021).
113
See Commercial Arbitration Rules and Mediation Procedures, R-12, AM. ARB. ASS’N (Oct. 1, 2013),
https://www.adr.org/sites/default/files/CommercialRules_Web-Final.pdf.
114
Id.
115
Staff, Whose Side is the Arbitrator On and Where Do You Find One?, ARB. INFO (Aug. 20, 2015),
https://law.missouri.edu/arbitrationinfo/2015/08/20/whose-side-is-the-arbitrator-on-and-where-do-you-find-
one-4/.
116
What is Arbitration?, HKIAC, https://www.hkiac.org/arbitration/what-is-arbitration (last visited Nov. 26,
2021).
117
SIAC Rules 2016 R-9, SIAC (2016), https://siac.org.sg/our-rules/rules/siac-rules-2016#siac_rule9.
118
Id. at 9.5.
119
See Anagha M V, The A-Z of ADR, BIMACC (Sep. 22, 2000), https://www.bimacc.org/a-z-of-adr-
independence-and-impartiality-of-arbitrators/
120
Alternative Dispute Resolution – Neutral Third-Party Mediation and Arbitration, SANDERS LLP,
https://www.sandersfirm.law/mediation-arbitration (last visited Feb. 27, 2022).
121
Anagha, supra note 119.
122
Advantages and Disadvantages, supra note 112.
123
COURT OF ARBITRATION FOR SPORT, ARBITRATION RULES APPLICABLE TO THE CAS AD HOC DIVISION FOR
THE OLYMPIC GAMES, art. 3 (2021).
124
Id.
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organizations who assist in electing the President and Vice-President of the ICAS, who then
hold these same positions in the CAS.
125
The arbitrator list for the AHD is not neutral because
its members come from an organization that is intertwined with the IOC. Allowing the AHD’s
President to choose its arbitrators from a list that maintains ties with the IOC fosters an
environment for impartiality, thus, creating an unfair and unjust dispute resolution process.
C. Compare and Contrast Waiver Requirements
The CAS AHD requests the athletes to waive their grievances with the Olympic
arbitration process in the Olympic Athlete Entry Form, which gives the AHD jurisdiction
over the games.
126
Article 20(c)(iii) of the CAS’s rules for the Olympics states, “parties
waive any provision to the contrary in the Code of Sports-related Arbitration or in their
agreement concerning the number of arbitrators and the way in which the Panel is formed.”
127
This creates a barrier for athletes to challenge selected arbitrators who may seem biased
towards the opposing party.
Although other arbitration organizations ask for waivers, these waivers do not
usually include waiving objection to the arbitration process, and if they do, the waiver comes
with stipulations.
128
The International Centre for Dispute Resolution’s procedures state that
failing to disclose circumstances surrounding impartiality of an arbitrator within a reasonable
time of acknowledging that impartiality results in a waiver of “the right to challenge an
arbitrator based on those circumstances.”
129
The International Centre also states, “a party who
knows of any non-compliance with any provision or requirement of the Rules or the
arbitration agreement, and proceeds with the arbitration without promptly stating an objection
in writing, waives the right to object.”
130
Within the International Centre, parties can waive
an award even if there are valid concerns.
131
The forementioned differs from the AHD, which
allows no stipulations in its waiver.
132
The difference in waiver requirements is not limited to the United States. The
London Court of International Arbitration includes waiver of a party’s opportunity to propose
an arbitrator, waiver of a party to re-nominate an arbitrator, waiver of rights to receive excess
amounts of awards, and waiver of rights to the arbitration process when a party knew of
improper standards but did not object to them.
133
Each of these waivers comes with
125
Statutes for the Bodies Working for the Settlement of Sports-Related Disputes, CODE OF SPORTS-RELATED
ARB. § 8 (2020).
126
See generally Richard H. McLaren, Introducing the Court of Arbitration for Sport: The Ad Hoc Division at
the Olympics, 12 MARQ. SPORTS L. REV. 515, 521 (2001) (noting the provision that grants AHD its
jurisdiction).
127
COURT OF ARBITRATION FOR SPORT, ARBITRATION RULES FOR THE OLYMPIC GAMES art. 20 (2021).
128
INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION, INTERNATIONAL DISPUTE RESOLUTION PROCEDURES
art. 14 (2021).
129
Id.
130
INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION, INTERNATIONAL DISPUTE RESOLUTION PROCEDURES
art. 31 (2021).
131
Id.
132
COURT OF ARBITRATION FOR SPORT, ARBITRATION RULES FOR THE OLYMPIC GAMES art. 20 (2021).
133
LONDON COURT OF INTERNATIONAL ARBITRATION, LCIA ARBITRATION RULES art. 2.4 (2020).
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stipulations and are not blanket waivers to the arbitration process altogether.
134
These
stipulations include objections in writing and responses within a timely manner.
135
There is no way around this waiver for athletes at the Olympics.
136
The Olympics’
binding arbitration clause prohibits an athlete from competing unless the clause is signed.
137
Stipulations within waivers, as discussed, provide parties with the opportunity to present
concerns over impartiality or rule compliance. When stipulations are non-existent, parties
either accept potentially unfair dispute resolution procedures, or in the case of the Olympics,
cannot compete if they do not sign the waiver.
138
D. Appealing Ad hoc Decisions
Although the right to appeal is narrow in general arbitration, it is possible.
139
The
Federal Arbitration Act (FAA) allows overturning of an award for “grudgingly narrow”
reasons.
140
These narrow reasons include (1) where the award was obtained by corruption,
fraud or other unwarranted measures; (2) where the arbitrators acted corruptly; (3) where the
arbitrators acted in bad faith in procedural regards to arbitration and prejudiced the parties; or
(4) where arbitrators have exceeded their power.
141
Under AAA rules, the organization can
handle an appeal on an additional basis if “the parties agreed that an appeal is allowed.”
142
Arbitration is a “creature of contract”; parties agree to a binding arbitration as if they are in a
contract, thus allowing parties to agree on a potential appeal.
143
Appealing a decision made by the CAS Ordinary Tribunal is allowed, but the CAS
limits appealable matters.
144
The allowable issues include: “(1) lack of jurisdiction, (2)
violation of elementary procedural rules, such as the violation of the right to a fair hearing,
and (3) incompatibility with public policy.”
145
Although there are narrow instances to appeal through the AAA, FAA and CAS
they do hold an opportunity for it. Decisions rendered by the AHD are final, with no right to
appeal.
146
A final decision by the AHD can hinder an athletes’ opportunity to attend future
Olympics or dismiss what they have accomplished at the Olympics the dispute arose in.
147
In
2018, Sun Yang, an international swimmer, averted the collection of a blood test for anti-
134
Id.
135
Id.
136
Jason Gubi, The Olympic Binding Arbitration Clause and the Court of Arbitration for Sport: An Analysis of
Due Process Concerns, 18 FORDHAM INTELL. PROP., MEDIA & ENT. L. J. 997, 998 (2008).
137
Id.
138
See id.
139
What Happens After the Arbitrator Issues an Award, AM. ARB. ASS’N,
https://www.adr.org/sites/default/files/document_repository/AAA229_After_Award_Issued.pdf (last visited
Apr. 22, 2022).
140
Eljer Mfg., Inc. v. Kowin Dev. Corp., 14 F.3d 1250, 1253 (7th Cir. 1994).
141
9 U.S.C. § 10(a).
142
What Happens After the Arbitrator Issues an Award, supra note 139.
143
INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION, INTERNATIONAL DISPUTE RESOLUTION PROCEDURES
art. 33 (2021).
144
Frequently Asked Questions, supra note 27.
145
Id.
146
McLaren, supra note 126, at 523.
147
See id. at 521.
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doping screening.
148
A CAS panel of arbitrators held that Sun was ineligible to compete in
any competitions for eight years.
149
In 2020, Sun alleged that this Panel was not properly
constituted because of racial prejudice.
150
A new Panel was formed in 2021 who dismissed the
first award and rendered a new ban of four years and three months.
151
If the initial award had
been decided by the AHD, Sun Yang would have had no right to appeal and would have been
banned from competing in two Olympics rather than one.
E. The AHD’s Rationale for Procedures and Arguments Against Them
The AHD was created to hasten the timeline of disputes during the Olympics.
152
The AHD’s mission is to “settle finally and within a 24-hour time limit any disputes arising
during the Olympics.”
153
The AHD is known to be faster and more flexible than normal
arbitration proceedings.
154
The AHD focuses on being fast, free and just.
155
This expedited
timeline enables dispute decisions to “keep pace with the competition.”
156
Referee calls are a
compelling example for the need of this quick pace resolution; one call in a game would need
determined quickly to establish the winner of an event in time for the next round of
competition or by the completion of the Olympics.
Although there are rationales for the AHD’s processes, these need to be balanced
with the importance of the Olympics to an athlete’s career. The Olympics are at the height of
most athletes’ careers, and it is the most critical sporting event for many athletes.
157
Thus, a
mishap in the arbitration process could hinder an athlete’s future opportunities in a sport.
Due process is also a concern for athletes.
158
The Due Process Clause, as stated in
Mullane v. Central Hanover Bank, requires notice and the opportunity to be heard.
159
Much
like Due Process through Constitutional law, arbitration applies measures of the right to be
heard in adversarial proceedings.
160
The Swiss Federal Tribunal, which governs the CAS and
its AHD, Ordinary, and Appeals divisions, uses the Swiss Federal Act on Private International
law in pursuing arbitration procedures.
161
Art 182(3) of this act gives its own form of Due
Process for parties during arbitration; “the arbitrator tribunal shall ensure equal treatment of
148
World Anti-Doping Agency v. Sun Yang & Fédération
Internationale de Natation (FINA), CAS No. 6148 (2019) (Jan Paulsson & Bernard Hanotiau, Arbs).
149
Id. at p. 6.
150
Id. at p. 5.
151
Id. at p. 88.
152
History of the CAS, supra note 16.
153
Id.
154
Institutional vs. ‘ad hoc’ arbitration, PINSENT MASONS (Aug. 12, 2011),
https://www.pinsentmasons.com/out-law/guides/institutional-vs-ad-hoc-arbitration.
155
Blackshaw, supra note 28, at 6.
156
Kantor, supra note 12.
157
Maidie Oliveau, The Olympic Arbitration Procedures in a Nutshell, OPINOJURIS (Aug. 8, 2008),
http://opiniojuris.org/2008/08/08/the-olympic-arbitration-procedures-in-a-nutshell/.
158
Gubi, supra note 136, at 1017.
159
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950).
160
Richard H. McLaren, Sports Law Arbitration by CAS: is it the Same as International Arbitration? 29 PEPP.
L. REV. 101, 104 (2001).
161
Id.
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the parties and their right to be heard in adversarial proceedings.
162
The AHD and its potential
for deciding to not hold a hearing and render an award immediately if the panel deems itself
sufficiently informed can disrupt Due process in this regard.
163
Due Process in arbitration also requires the right to cross-examine opposing party’s
witnesses.
164
CAS and its AHD do not provide for cross-examination of witnesses during their
dispute resolution procedures.
165
Due process in arbitration encompasses the key concept of
procedural fairness.”
166
Arguably, the IOC is directly involved with CAS; there is not a
“neutral decision-maker” or third party during these arbitration proceedings, creating an
instance that a party can be treated unfairly or with bias.
167
Without the availability to cross-
examine the opposing party, the potential for an award rendered without a hearing, or the un-
availability of a neutral decision maker, unfair decisions are likely to be made, thus violating
due process for these athletes. To aggravate the process further, the AHD denying the right to
appeal compounds on due process issues, essentially rendering an athlete the inability to
challenge a due process claim during their arbitration procedures.
168
The AHD’s previous arbitration panelist have argued that the decline in growth of
cases submitted to the AHD stems from athletes fearing the judge and the rules they emplace;
thus, serving its purpose in providing strictly followed rules and fair and immediate
recourse.
169
Based on the arguments of this note however, this decline of cases submitted and
fear of athletes to submit them may be entwined with impartiality or injustice.
170
Potential remedies for the issues analyzed above should include: (1) selecting
arbitrators for the AHD that are not within the CAS but who continue to meet Section 14 of
the ICAS Statutes in maintaining a general knowledge of sport;
171
(2) allow appeals for
decisions made during the Olympics; and (3) create stipulations in the athletes’ waiver to
utilize arbitration. Selecting arbitrators outside the CAS would sever the link between the IOC
and AHD during the Olympics and help negate impartiality concerns. An appeals process
would allow athletes to challenge decisions in their current Olympics that could render them
the opportunity to compete in the future, like Sun Yang’s appeals through the CAS. This
appeals process could mimic the CAS’s in submitting the appeal to the Tribunal to determine
the athlete’s eligibility for future Olympics or reestablishing awards or accomplishments
during the Olympics in which the dispute took place. In order to maintain the speedy process
of the AHD, an appeals AHD could be incorporated to the procedural timeline, the appeals
AHD would need to establish a neutral third party, potentially a member of an international
committee involved in sport that is not from the same nation as the athlete or entity bringing
162
Schweizerisches Zivilgesetzbuch [ZGB], Code Civil [CC], Codice Civile [CC] [Civil Code] Dec. 18, 1987,
SR 291, art. 182(3) (Switz.), https://www.fedlex.admin.ch/eli/cc/1988/1776_1776_1776/en.
163
ARBITRATION RULES APPLICABLE TO THE CAS AD HOC DIVISION FOR THE OLYMPIC GAMES, art. XV, § c.
164
Due process, ARB. INFO. (Oct. 11, 2015), https://law.missouri.edu/arbitrationinfo/2015/10/11/due-process/.
165
Gubi, supra note 136, at 1018.
166
Simon Sloane & Emily Wyse Jackson, Arbitration awards-due process and procedural irregularities:
Challenges, FIELDFISHER (Jun. 30, 2021), https://www.fieldfisher.com/en/insights/arbitration-awards---due-
process-and-procedural-ir.
167
Gubi, supra note 136, at 1017.
168
McLaren, supra note 126, at 523.
169
Oliveau, supra note 157.
170
Id.
171
Code: ICAS Statutes, supra note 38, at § 14.
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the dispute or the opposing party. Stipulations would provide athletes the right to object to
any impartial or unfair procedures, without denying them the right to compete. These
stipulations could include the right to increase the timeframe from 24 hours to what is
necessary to enact a proper hearing if the timeline would not constrain an athlete or entity
involved in the dispute; the right to have a new arbitrator selected if impartiality or bias is
apparent, and a parties right to challenge applicable law if the party to the dispute has had the
ability to influence the law themselves.
VI. CONCLUSION
Most athletes do not have a choice in choosing the CAS and its AHD as their
arbitrator of choice.
172
These athletes must sign contracts that establish the CAS as their
dispute resolution method to compete in their desired sport at the Olympics.
173
Athletes’
entry forms for the Olympics confirm the AHD as the method of dispute resolution during the
games.
174
Because of these constraints, athletes are forced to settle for an arbitration process
that, although courts have tried to establish its impartiality, is not completely neutral. The
IOC still has a strong threshold over the CAS through its appointed members in the ICAS.
Arbitrators are selected for athletes by members of the ICAS, who are convoluted with
members of the IOC. Athletes are restrained by final decisions for a once in a four-year
opportunity, for most, a once in a lifetime opportunity. And athletes do not have the
opportunity to fight these procedures and must waive their rights to a fair process. Each of
these issues shows that although the AHD resolves disputes in a timely manner for a
condensed sporting event, it does not afford athletes a fair chance to resolve their disputes
while participating in a world-renowned, once in a lifetime, career breaking opportunity such
as the Olympics. Implementing the remedies above can be one step in correcting the
imbalance of dispute resolution in the Olympics and relieve the IOC, ICAS, and CAS of any
impartiality concerns that athletes have attributed to them for the past century.
172
Carter & Chaize, supra note 19.
173
Id.
174
McLaren, supra note 126, at 517.
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