Editor’s note: Guido graduated cum
laude from the Vrije Universiteit Amsterdam. He teaches law at the Erasmus
Universiteit Rotterdam. He specializes in sports law and provides legal advice for the professional sports sector.
Introduction
This blog is a commentary on a recent case that hit
like a bombshell in the Netherlands (and
beyond) during
the recent Olympic Games in Rio. The case concerns a Dutch athlete, Yuri van
Gelder, who reached the Olympic finals in his sport, got sent home by ‘his’ NOC
(NOC*NSF) after a night out in Rio and launched legal proceedings in front of a
Dutch court to claim back his place in the finals. This commentary will attempt
to explain the Dutch ruling and evaluate whether a different legal route would
have been possible and preferable.
Yuri van Gelder is a Dutch gymnast, who is specialized
in the rings. He became internationally known as ‘The Lord of the Rings’ after
winning the gold medal at the World Championship in Melbourne in November 2005.
After some setbacks in his career, he was not able to qualify for the 2008 Beijing
Olympics. In 2009, during the Dutch Championships he was tested
positive on the use of cocaine. He admitted that he had a drug problem and had been
using cocaine for some years. He was suspended for a year by the Dutch
Gymnastics Federation (KNGU), excluded from the 2012 London Olympics under the
regulations of the IOC and even lost
his job in the military.
After winning the gold medal at a World league game in Gent on his comeback in
2010, he was taken off the team for the World Championships by the KNGU, claiming
that he had used cocaine again.
In October 2011 the CAS
found the IOC-rule that
excluded athletes, who had been suspended for six months or longer, from future
Olympic Games to be invalid and unenforceable. Van Gelder was therefore allowed
to participate at the 2012 London Olympics, but again was not able to qualify,
after failing to meet the required score at the World Championship in Tokyo at
the end of 2011. From that moment on, the athlete decided to fully focus on the
2016 Rio Olympics, for which he eventually qualified. Like all other Dutch
athletes who qualified and had been selected for the 2016 Rio Olympics, Van
Gelder had to sign a so called ‘Athlete Agreement’ with NOC*NSF, which encapsulates the period of
preparation before as well as the duration of the Games. At 33 years of age,
these Olympics were his last chance to finally win that Olympic medal he so
anxiously craved for.
Sent home
from the Olympics
On Saturday 6 August in Rio, Van Gelder qualified for
the individual finals on the rings, which were to take place nine days later,
on 15 August. That same Saturday night he left the Olympic village and came
back somewhere around 5 am. On Sunday he stayed in bed until approximately 3
pm, thereby missing a scheduled training session with the team. On Monday 8
August, the NOC*NSF, after hearing Van Gelder, disqualified him from further
participation in the Games. That same day, an NOC*NSF employee was sent with
the athlete to escort him to the airport from where he was flown back to the Netherlands. The NOC*NSF
then removed Van Gelder from the finals through the International Gymnastics
Federation (FIG), which appointed a replacement. A short press
release by NOC*NSF stated that, in consultation with the KNGU, Van
Gelder was sent home after the Federation had informed the NOC that he had come
back to the village early in the morning, in spite of the team rules. It
further stated that the athlete had admitted to the use of alcohol. This fueled
speculation in the media, considering Van Gelder’s past. However, there was
also criticism regarding the NOC*NSF’s decision, as many felt that it was
disproportionate to disqualify an athlete, who had worked so hard to reach the
finals, for celebrating one night out with still more than a week to go to
those finals.
Van Gelder, now back in the Netherlands, took a lawyer
and decided to start proceedings
in front of the Dutch interlocutory judge of the Court of Gelderland (the Van Gelder
Case). The oral proceedings, broadcasted live on Dutch television, took place
on Friday 12 August, three days before the Olympic finals.
The
ruling of the interlocutory Judge of Gelderland
Van Gelder’s lawyer requested from the court to order
NOC*NSF to do everything in its power to make sure Van Gelder could participate
in the individual finals on the rings on 15 August, including starting
proceedings before the CAS Ad Hoc Division in Rio, or that NOC*NSF assist Van
Gelder in starting proceedings for the CAS Ad Hoc Division and grant him a fee
in advance for the costs.[1]
The court had to determine on which grounds the
decision(s) to disqualify Van Gelder from participating in the Games had been
taken and whether the severity of the measure(s) was proportionate in relation
to the noncompliance with the obligations laid down in the Athlete Agreement.
In doing so, the interlocutory judge applies a ‘marginal test’, which means he
will keep certain deference towards the challenged decision and will consider
only whether the decision ‘could reasonably have been made’.
The Athlete Agreement states that the athlete is
expected to make every effort to ensure that he is capable of the maximum
athletic performance, in preparation for and during the Olympics, and thereto
devotes himself to the ‘Program’ completely and with optimal athletic effort.[2]
Furthermore, the athlete is expected to behave as a good member of ‘TeamNL Rio
2016’ both during competition and elsewhere, having in mind the rules of the
IOC Code of Ethics but not only.[3]
If the athlete is not complying with the obligations as laid down in the Agreement,
the NOC*NSF can decide to exclude the athlete from participating in the Games and/or
impose a loss of (the right to) a medal bonus.[4]
Before taking such a decision the athlete always needs to be heard/questioned.[5]
The court held for a fact that Van Gelder was told by
his trainer through ‘WhatsApp’ not to stay out too late, that he should not
drink and that he had to train the next day with the team.[6]
However, the court was not convinced of Van Gelder’s noncompliance with the
‘behavioral rules’ enshrined in article 6, paragraph 4 of the Athlete
Agreement. The Athlete Agreement or the IOC Code of Ethics do not define or
specify clearly what these ‘behavioral rules’ stand for, even though the
measures the NOC can take can severely affect the athlete. The court considers
that these kind of behavioral rules should be drafted more precisely and should
be communicated more clearly to the athletes. Thus, merely leaving the Olympic village
without permission, drinking, and coming back early in the morning cannot be
seen as violating article 6, paragraph 4 of the Agreement with the NOC.[7]
However, the fact that Van Gelder was warned and still
went out drinking, came home early in the morning and missed a scheduled
training, is undoubtedly coming short of the obligation laid down in article 6,
paragraph 3 of the Athlete Agreement. This behavior is contrary to his duty to
commit to the training and competition schedule.[8]
Furthermore, the court continued, the athlete’s behavior undermined the team’s
efforts and, considering Van Gelder’s past, this has resulted in a breach of
trust with his trainer and with the NOC*NSF. Although it is possible that,
based on this behavior, another NOC would have taken a different decision than kicking
the athlete out of the Olympics, the court considers this irrelevant as it only
applies a marginal test.[9]
In addition, Van Gelder was questioned and heard twice before the decision was
made. The decision therefore cannot be considered to have been made in haste or
without proper deliberation.[10]
In the end, the court determined that the NOC*NSF could reasonably decide that
Van Gelder has committed a serious breach of his contractual duties under the Athlete
Agreement. The same applied to the decision to disqualify Van Gelder from further
participation in the Games.
A
different legal route: The CAS Ad Hoc Division in Rio
Could Van Gelder, instead of going to the Dutch court,
have taken a different strategic approach in this case? In the author’s opinion
this would have been possible, as the CAS has (since the 1996 Atlanta Olympics)
set
up an Ad Hoc Division with the
purpose of providing for arbitration of disputes, insofar as they arise during
the Games, within 24 hours.[11]
In the case of a request for arbitration against a decision by an NOC, the
claimant must, before filing such a request, have exhausted all the internal
remedies available to him pursuant to the statutes or regulations of the sports
body concerned, unless the time needed to exhaust the internal remedies would
make the appeal to the CAS Ad Hoc Division ineffective.[12]
In this case, the internal remedy can be found in the Athlete Agreement, which
states that when a dispute arises between the parties during the Games
concerning or related to the compliance of the Agreement, the concerned party
informs the so-called ‘Chef de Mission’. If the Chef de Mission is incapable of
resolving the dispute, it will be send to a committee of binding advisors.[13]
This committee has jurisdiction in case of urgency and where the athlete and
NOC*NSF both choose an advisor, both advisors in turn choose an independent chairman,
after which the committee gives a binding decision to end the dispute.[14]
Why Van Gelder had not chosen to apply the internal
dispute resolution procedure of article 22, paragraph 3 and 4 of the Athlete
Agreement is not clear from the facts of the case. In that regard, the events
of 8 August, when Van Gelder was questioned or heard, become (even more)
important. The Dutch courts stated that Van Gelder was questioned twice by the
NOC*NSF, but did not clarify what was discussed. The only sure thing is that
directly after the decision by the NOC*NSF, Van Gelder was escorted to the
airport and flew back to the Netherlands. Would he still have left the country
if he had been informed that the Agreement provided for an internal procedure
within NOC*NSF, aimed at resolving disputes during the Games, in which he had
the right to appoint one of the binding advisors? If such a procedure would
have taken place and Van Gelder would have lost, an appeal in front of CAS
would still have been possible. Furthermore, would he have chosen to fly back,
if he had been advised that the CAS Ad Hoc Division had jurisdiction in cases
of urgency or if the NOC was unwilling or unable to trigger its internal
procedure? Would he have made the same choices had he known that it would help his
case before the CAS Ad Hoc Division if he had attended any hearing in person?
What is clear is that Van Gelder got legal
representation when he was back in the Netherlands. At that point a flight back
to Rio was rather costly for the athlete. An internal procedure with the
NOC*NSF might have been impractical to carry out with eight days remaining to
the final, but informing the NOC*NSF in writing that there was a dispute and requesting
an internal procedure could have (regardless of the NOC’s reaction) helped to
establish the jurisdiction of the CAS Ad Hoc Division if needed. This CAS Ad
Hoc Division procedure could also have been started from the Netherlands.
Conclusion
The remaining unknown is whether the CAS Ad Hoc
Division would have ruled in favor of Van Gelder and/or have granted him access
to the finals. As the Dutch
court stated, the Athlete Agreement is rather unclear with respect to the
obligation of an athlete to act as a good team member. The CAS Ad Hoc Division
might have taken this vagueness into consideration. Furthermore, the CAS
Ad Hoc Division would not have applied the same level of deference as the Dutch
court. It could have also taken into account the fact that the consequences of
the decision of the NOC*NSF were very severe for the athlete, especially since
this would be his last Games. Against all this, the fact would have remained
that the behavior of the athlete did breach article 6, paragraph 3 of the
Athlete Agreement and that a replacement for Van Gelder in the finals was
already appointed. Yet, even if the CAS had invalidated the decision by the NOC
without granting Van Gelder a place in the finals, he would have been in a good
position to claim damages.
The conclusion that can be drawn from this episode is
that Van Gelder could have followed a different legal route. This might have
provided the athlete a better chance at winning his legal challenge and get
back into the Olympics. The Dutch court has made it clear that it wants the
‘behavioral rules’ drafted by the NOC*NSF, or other sports bodies for that
matter, to be more precise and better communicated to the athletes, especially
when the measures at the disposal of the NOC can severely affect the rights of
an athlete. Besides not drinking, going to bed on time, and never missing training
a week before the most important finals of your life, there is another lesson
to be learned from the case. As an athlete, when facing sanctions from a
Federation, NOC or other SGBs, it is wise to get legal representation immediately. This might increase your chances
of successfully challenging the decision and taking part in the Olympic Games
or any other competition.
[1] Van
Gelder Case, point 3.1.
[2] Article 6, paragraph 3, Athlete agreement. The Program is defined in
the agreement as: The training and competition schedule for the Athlete,
approved by the Federation after consultation with NOC*NSF, with the goal of
qualifying for and participating in the Olympic Games.
[3] Article 6, paragraph 4, Athlete agreement. TeamNL Rio 2016 is defined
in the agreement as: The group of both athletes and their trainers/coaches,
that is participating in the Olympic Games (and with whom NOC*NSF has a written
agreement for the Olympic Games Rio 2016) and that has asked for accreditation
by OCOG through NOC*NSF.
[4] Article 20, paragraph 1, sub a and b, Athlete Agreement.
[5] Article 20, paragraph 2, Athlete Agreement.
[6] Van
Gelder Case, point 4.3.
[7] Ibid, point 4.6.
[8] Ibid, point 4.7.
[9] Ibid, point 4.9.
[10] Ibid, point 4.10.
[11] See on the CAS Ad Hoc Division for example: C. Keidel and A.
Engelhard,’The Legal Framework of the CAS Ad Hoc Division at the Rio Olympic
Games’, LawInSport August 4 2016,
via: http://www.lawinsport.com/articles/item/the-legal-framework-of-the-cas-ad-hoc-division-at-the-rio-olympic-games, viewed on the 24th of August 2016. And from the same authors: ‘Key Ad
Hoc Division Cases handed down at the Olympic Games, LawInSport August 4 2016, via: http://www.lawinsport.com/articles/item/key-cas-ad-hoc-division-cases-handed-down-at-the-olympic-games, viewed on the 24th of August 2016.
[12] See Article 1 of the Arbitration Rules applicable to the CAS ad hoc
division for the Olympic Games.
[13] Athlete agreement, Article 22, paragraph 4.
[14] Ibid, Article 22, paragraph 3.