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.