Introduction 

The first part of this two-part blog on multi-club ownership in European football outlined the circumstances leading to the adoption of the initial rule(s) aimed at ensuring the integrity of the UEFA club competitions (Original Rule) and retraced the early existence of such rule(s), focusing primarily on the complaints brought before the Court of Arbitration for Sport and the European Commission by the English company ENIC plc. This second part will, in turn, introduce the relevant rule as it is currently enshrined in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (Current Rule). It will then explore how the UEFA Club Financial Control Body (CFCB) interpreted and applied the Current Rule in the Red Bull case, before drawing some concluding remarks. 

The Red Bull case: The concept of decisive influence

Background 

The company Red Bull GmbH (Red Bull) started building its football empire[1] in 2005 by transforming the Austrian club SV Wüstenrot Salzburg[2] into what would henceforth be known as FC Red Bull Salzburg (RB Salzburg). As regards its legal form, RB Salzburg is currently a limited liability company (GmbH) wholly owned by the association FC Red Bull Salzburg e.V. Until 2015, when the club began a disengagement process from Red Bull, the statutes of FC Red Bull Salzburg e.V. conferred on Red Bull the right to appoint and remove the members of the association's board.

In 2009, with the objective of playing the top-flight Bundesliga within a decade, Red Bull invested in the German club SSV Markranstädt, at that time competing in the fifth tier of German football. The club was subsequently rechristened as RasenBallsport[3] Leipzig (RB Leipzig) and rebranded. Although RB Leipzig thrived on the pitch, it attracted much criticism off the pitch for attempting to circumvent the so-called '50+1 rule', according to which German football clubs may not allow investors to acquire a majority of their voting rights.

Since Red Bull's takeover of RB Leipzig in 2009, the two clubs have maintained a close cooperation involving an increased transfer activity which has seen players moving from one club to the other on a regular basis. With the help of players like Naby Keïta, who moved from RB Salzburg to RB Leipzig in the summer of 2016, the German club finished second in the 2016/17 Bundesliga season, its first-ever in the top flight, and qualified for the 2017/18 UCL group stage. RB Salzburg, for their part, added in the 2016/17 campaign another domestic title to their collection and secured a spot in the 2017/18 UCL second qualifying round.

The Current Rule  

As mentioned above, the Current Rule is encapsulated in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (UCL Regulations). It preserves the structure of the Original Rule, making admission to the UEFA club competitions conditional upon fulfilment of three specific criteria. In terms of substance, however, the Current Rule differs in two important aspects. First, unlike the Original Rule which outlawed ownership, personal and other links only between clubs participating in the same UEFA club competition, the Current Rule extends this prohibition to clubs participating both in the UCL and the UEFA Europe League. Second, an individual or legal entity is now deemed to have control over a club not only if he/she/it (i) holds a majority of the shareholders' voting rights; (ii) is authorized to appoint or remove a majority of the members of the administrative, management or supervisory body; or (iii) is a shareholder and single-handedly controls a majority of the shareholders' voting rights, but also if he/she/it (iv) is able to exercise by any means a decisive influence in the decision-making of the club.[4] The purpose of this latter change is to address situations where an individual or legal entity falls short of having de jure control over a club, but nevertheless remains able to exercise such an influence that may, if exercised in more than one club, jeopardize the integrity of the UEFA club competitions. As will be discussed in the next section, the concept of decisive influence played a pivotal role in the Red Bull case.

Furthermore, the club coefficient no longer serves as a principal criterion in determining which of the two or more commonly owned clubs should participate in a UEFA club competition. Under the Current Rule, the club which qualifies on sporting merit for the more prestigious UEFA club competition is to be favoured.[5] If two or more commonly owned clubs qualify for the same UEFA club competition, then the club which was best-ranked in its domestic championship should be admitted.[6]

Proceedings before the CFCB

On 15 May 2017, soon after RB Salzburg and RB Leipzig had both secured their place in the 2017/18 UCL, the UEFA General Secretary dispatched a letter to the CFCB, expressing his concern that the clubs might not fulfil the criteria enshrined in the Current Rule. The subsequent investigation conducted by the CFCB Investigatory Chamber relied to a great extent on compliance reports prepared by independent auditors. On 26 May 2017, the CFCB Chief Investigator referred the case to the CFCB Adjudicatory Chamber, concluding that the clubs had failed to satisfy the criteria set out in the Current Rule and, as a result, only RB Salzburg should be admitted to the 2017/18 UCL.[7] In particular, the CFCB Chief Investigator suggested that Red Bull exercised decisive influence in the decision-making of both RB Salzburg and RB Leipzig, and identified several ways in which this influence manifested itself. For instance, the CFCB Chief Investigator drew attention to the presence of certain individuals allegedly linked to Red Bull in the decision-making bodies of both clubs or an unusually high level of income received by the clubs from Red Bull via sponsorship agreements.[8]

In its decision handed down on 16 June 2017, the CFCB Adjudicatory Chamber paid attention mainly to the changes made by RB Salzburg as part of the club's disengagement process from Red Bull. As noted above, Red Bull ceased to have the right to appoint and remove the board members of FC Red Bull Salzburg e.V. in 2015, when the association's statutes were amended accordingly. With this in mind, the CFCB Adjudicatory Chamber had to examine whether Red Bull was not able to exercise decisive influence in the decision-making of RB Salzburg (and RB Leipzig) by any other means.

The CFCB Adjudicatory Chamber was confronted with an onerous task, in particular because the UCL Regulations do not specify when an individual or legal entity is deemed to have decisive influence in the decision-making of a club. Nor do these regulations clarify how such a level of influence could be attained. Having examined the wording and purpose of the Current Rule, the CFCB Adjudicatory Chamber asserted that ''the benchmark for establishing decisive influence is a high one'',[9] finding support for its conclusion in the EU Merger Regulation.[10] For the avoidance of doubt, the Chamber further noted that the concept of decisive influence is not to be confused with that of significant influence which features in the UEFA Club Licensing and Financial Fair Play Regulations, Edition 2015.[11]

In determining whether Red Bull was indeed capable of exercising decisive influence in the decision-making of both clubs, the CFCB Adjudicatory Chamber observed from the aforementioned compliance reports that RB Salzburg had removed certain individuals allegedly linked to Red Bull from the club's decision-making bodies and terminated certain loan agreements entered into with the beverage company.[12] With the aim of refuting the CFCB Chief Investigator's allegations, RB Salzburg presented additional documentary evidence. According to the CFCB Adjudicatory Chamber, it followed from such evidence, inter alia, that Red Bull had reduced the amount of sponsorship money paid to the Austrian club or that a cooperation agreement between the two clubs had been terminated.[13] This evidence alleviated the CFCB Chief Investigator's concerns to such an extent that he eventually decided to withdraw his objection to the admission of RB Salzburg and RB Leipzig to the 2017/18 UCL.[14] Consequently, the CFCB Adjudicatory Chamber held that, at the time of its decision, Red Bull's relationship with RB Salzburg resembled ''only a standard sponsorship relationship''.[15] Having concluded that Red Bull did not have decisive influence in the decision-making of RB Salzburg, there was no need for the Chamber to consider Red Bull's relationship with RB Leipzig.[16]

Furthermore, the CFCB Adjudicatory Chamber verified whether one of the clubs did not exercise decisive influence over the other. In this regard, the Chamber referred to the cooperation agreement and the increased transfer activity between the clubs. Nonetheless, the Chamber eventually stated that there was insufficient evidence to arrive at the conclusion that RB Salzburg exercised decisive influence over RB Leipzig or vice versa.[17]

Further implications and concluding remarks

Rules aimed at ensuring the integrity of club competitions also exist at the national level. In England, the Rules of the Premier League stipulate, inter alia, that a person[18] – be it either natural person, legal entity, firm or unincorporated association – may not (i) be involved in or have any power to determine or influence the management or administration of more than one club participating either in the Premier League or the English Football League;[19] and (ii) hold or acquire any significant interest in more than one club participating in the Premier League. A person is deemed to have acquired significant interest in a club if he/she/it holds 10 per cent or more of the shareholders' voting rights.[20] In Spain, an individual or legal entity may not hold 5 per cent or more of the shareholders' voting rights in more than one club participating in a professional competition at the state level.[21]

It follows that both in England and Spain, the pertinent regulations set a relatively low threshold of the shareholders' voting rights that an individual or legal entity may not exceed in more than one club participating in the same domestic club competition. Moving back to UEFA, the Current Rule sets the relevant threshold at 50 per cent (majority of the shareholders' voting rights), but complements it with the 'catch-all' notion of decisive influence.

I believe that the CFCB Adjudicatory Chamber may have missed a golden opportunity in the Red Bull case to clarify further the rather vague concept of decisive influence. Unfortunately, the Chamber limited itself to stating that ''the benchmark for establishing decisive influence is a high one'',[22] without providing any concrete examples of how such a level of influence could be attained or manifested in practice.[23] The concept of decisive influence therefore remains shrouded in legal uncertainty. Moreover, in order to avoid speculations, the Chamber could have provided more details about the changes made by RB Salzburg. For instance, it could have specified which individuals allegedly linked to Red Bull were removed from the club's decision-making bodies or how the amount of sponsorship money paid to the club was reduced. Such details become particularly important if the concept of decisive influence plays a central role, because in this context the general public will not be able to access most of the relevant information via commercial registers. In contrast, this will not be the case with legal systems in England or Spain which employ a threshold of the shareholders' voting rights as a key criterion. Thus, if UEFA fails to provide such details (subject to confidentiality rules) in its decisions, its credibility might suffer.

Despite the fact that this post has identified certain flaws of the concept of decisive influence, I do not believe that a modification of the Current Rule should be a matter of urgency. As suggested above, a well-reasoned decision may foster UEFA's credibility and help reduce the legal uncertainty emanating from the concept of decisive influence. Bearing in mind the recent revitalization of multi-club ownership in European football, UEFA might soon get another opportunity to deliver such decision.

[1]   It should be noted that in addition to FC Red Bull Salzburg and RasenBallsport Leipzig, Red Bull also owns the U.S. club New York Red Bulls and the Brazilian club Red Bull Brasil.

[2]   It was often referred to as SV Austria Salzburg, a name that was given to the club at its foundation in 1933.

[3]   In fact, due to the rules prohibiting clubs to be named after their sponsors, the abbreviation 'RB' does not officially stand for Red Bull, but rather for RasenBallsport which can be roughly translated as 'lawn ball sports'.

[4]   UCL Regulations, Article 5.01(c).

[5]   Ibid. Article 5.02(a).

[6]   Ibid. Article 5.02(b).

[7]   As the Austrian club finished first in its domestic championship (whilst RB Leipzig finished second).

[8]   CFCB Adjudicatory Chamber AC-01/2017 RasenBallsport Leipzig GmbH and FC Red Bull Salzburg GmbH, Decision of 16 June 2017, para. 11.

[9]   Ibid. para. 41.

[10] Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings, Article 3(2). See also Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings.

[11] CFCB Adjudicatory Chamber decision (n 8) para. 40.

[12] Ibid. para. 50.

[13] Ibid. para. 51.        

[14] Ibid. para. 52.

[15] Ibid. para. 55.

[16] Ibid. para. 57.

[17] Ibid. para. 58.

[18] Rules of the Premier League to be found in the Premier League Handbook, Season 2017/18, Rule A.1.122.

[19] Ibid. Rule F.1.2. This provision in essence corresponds to Article 5.01(b) of the UCL Regulations.

[20] Rules of the Premier League, Rule F.1.3.

[21] Royal Decree No 1251/1999 on Sports Limited Liability Companies, Article 17(1) and (2). Professional football competitions at the state level include only La Liga and Segunda División A.

[22] See CFCB Adjudicatory Chamber decision (n 8) para. 41.

[23] Such examples could only be inferred from the changes made by RB Salzburg.

My latest article has just been published online by the Journal of Law and Society. It is available open access here.

The article stems from a conference organised by Jiri Priban from Cardiff University on Gunther Teubner's idea of societal constitutionalism applied to transnational regimes. My role was to test whether his descriptive and normative framework was readily applicable to the lex sportiva, and in particular its overarching "constitutional" text: the Olympic Charter.

As you will see my conclusion is mixed. I find that the Olympic Charter (OC) displays many constitutional features and is even able to regularly defend successfully its autonomy vis-à-vis national states and their laws. However, while I document some inception of limitative constitutional rules, such as the ban on discrimination or the principle of fair play, I also conclude that those have limited impact in practice. While constitutional changes to the OC can be triggered by scandal, resistance and contestation, as illustrated by the emergence of environmental concerns after the Albertville Games and the governance reshuffle of the IOC after the Salt Lake City scandal, I am also sceptical that these were sufficient to tackle the underlying problems, as became obvious with the unmatched environmental damage caused by the Sotchi Games in 2014.

In conclusion, more than sporadic public outrage, I believe that the intervention of national law and, even more, European Union law will be capable and needed to rein the Olympic regime and impose external constitutional constraints on its (at least sometimes) destructive operations.

Here is the abstract of the article: This article examines various aspects of Teubner's theory of societal constitutionalism using the lex sportiva as an empirical terrain. The case study focuses on the operation of the Olympic Charter as a transnational constitution of the Olympic movement. It shows that recourse to a constitutional vocabulary is not out of place in qualifying the function and authority of the Charter inside and outside the Olympic movement. Yet, the findings of the case study also nuance some of Teubner's descriptive claims and question his normative strategy.

Good read! (And do not hesitate to share your feedback)

In a first blog last month we discussed the problem of the scope of jurisdiction of the Ad Hoc Division of the Court of Arbitration for Sport. The key issue was whether an athlete could get his case heard in front of the CAS Ad Hoc Division or not. In this second part, we will also focus on whether an athlete can access a forum, but a different kind of forum: the Olympic Games as such. This is a dramatic moment in an athlete’s life, one that will decide the future path of an entire career and most likely a lifetime of opportunities. Thus, it is a decision that should not be taken lightly, nor in disregard of the athletes’ due process rights. In the past, several (non-)selection cases were referred to the Ad Hoc Divisions at the Olympic Games, and this was again the case in 2014, providing us with the opportunity for the present review.

Three out of four cases dealt with by the CAS Ad Hoc Division in Sochi involved an athlete contesting her eviction from the Games. Each case is specific in its factual and legal assessment and deserves an individual review.

I.               Daniela Bauer (CAS OG 14/01)

Daniela Bauer is an Austrian halfpipe freestyle skier contesting the decision by the Austrian Olympic Committee (AOC) and the Austrian Ski Federation (ASF) not to select her for the Sochi Olympic Games. Shortly before the Games, a member of the ASF had informed Ms. Bauer that she would get to participate in the Olympics if Austria were offered an additional quota place for the halfpipe competition.[1] But, when the AOC got the opportunity to fill such a quota spot, it declined to use it. It did so because “the sporting performances of the Austrian athletes in this discipline were not good enough and would adversely affect the overall perception of the Federation and its athletes at the Olympics”[2]. Hence, on 2 February 2014, the athlete decided to file an application with the CAS Ad Hoc Division against her non-selection.

She claimed that ASF and AOC had “induced legitimate expectations in the Applicant that having qualified under the FIS Rules she would be selected through the use of quota places”. Therefore, ASF and AOC “are estopped[3] from changing their course of action, i.e. from relying on their authority in any given case to decline the quota allocated to Austria”[4]. Moreover, she argued that “[t]he right of the ASF to recommend an athlete to the AOC (Rule 44.4 of the OC) as well as the right of the AOC to select an athlete for the Olympic Games (Rule 27.7.2 of the OC) cannot be exercised in an unreasonable manner”[5]. This standard of reasonableness was not met in her case because[6]:

• “no reasons were given”;
• “the Respondents’ discretion not to recommend and select her was exercised arbitrarily”;
• “the applicant was never notified that reference would be made to the above-mentioned criterion of sporting perspective”;
• “the AOC violated Rule 44.4 of the OC by not investigating whether the ASF’s non-recommendation was based on discrimination”;
• “the AOC should accept all the quotas allocated to it, irrespective of the potential results of the nominated athletes”;
• and she “should have been immediately informed of the decisions taken by the ASF and AOC”.

The ASF and AOC opposed that “[n]o person has the authority to bind the ASF and the AOC with respect to the Applicant’s participation in the Olympic Games” and, therefore, “[t]he AOC has the exclusive authority under Rule 27 of the OC to decide which athletes shall take part in the Olympic Games” [7].

The jurisdiction of the CAS Ad Hoc Division was not contested and the panel moved directly to the merit of the case. The panel refers to its settled case-law and reminds that “it is not in issue that it is for an NOC to select its competitors for the Olympics […] (CAS OG 08/03)”[8]. Hence, “although the Applicant satisfied the FIS minimum qualification standards and the AOC was below its maximum athlete quotas for all freestyle events, the AOC would have violated the OC by nominating her for a quota allocation for women’s halfpipe as she had not been recommended by the ASF”[9]. Even though it is acknowledged that ASF member Mr. Rijavec “may have created an expectation that the ASF would recommend to the AOC that she would be nominated for a quota allocation”, he “was not authorized to make any representations, promises or guarantees regarding whether the AOC would nominate her if she satisfied these standards”[10]. Consequently, no legitimate expectations to be selected could arise. In addition to this, the panel found that the ASF disposes of a “significant degree of subjective discretion”[11] as it does not have recourse to any objective criteria regarding the selection of freestyle skiers.[12] Nevertheless, it “has a legal duty not to be arbitrary, unfair, or unreasonable”, which it was not in this instance as “it had a legitimate sports performance justification” .[13]

Finally, the Panel, in a remarkable twist of mind, “wishes to express in clear terms that it does not condone its lack of published qualification criteria that misled the Applicant by failing to provide clear and timely notice of the performance standards she was required to meet in order to be recommended by the ASF for the nomination by the AOC to the Austrian Olympic team”. Additionally, “the panel strongly recommends that the ASF establish, identify, and publish clear criteria to enable athletes to determine in a timely manner the Olympic Games qualification standards they are required to meet” .[14] Despite these final remonstrances, the panel concludes that the claims of Ms. Bauer lack merit.

II.             Clyde Getty (CAS OG 14/02)

The claimant, Mr. Getty, is an Argentinean freestyle skier competing in the aerials discipline; the respondent is the International Ski Federation (FIS). This is a case also related to the attribution of an additional quota spot to participate to the Sochi Olympic Games. On 24 January the Argentinean Ski Federation (FASA) received an email from the FIS informing it that it was allocated a quota spot for the aerials competition in Sochi. The FASA immediately informed Mr. Getty of the good news. However, later that day, after confirming its interest in the spot, the federation received a second email from FIS stating that FASA “does not have an athlete that is eligible to participate in the Aerials men event” and therefore cannot get the spot misleadingly offered in the first email. Henceforth, Mr. Getty decided to challenge his proclaimed ineligibility to participate to the Olympics in front of the CAS Ad Hoc Division. 

Mr Getty claims that he is “eligible to be entered into the Sochi Games by the Argentinean NOC irrespective of his current FIS points”[15]. He is of the opinion that FIS rules are ambiguous on the selection process for quota spots and therefore should be interpreted in his favour on the basis of the contra preferentem principle.[16] Moreover, he argues that “FIS is estopped from denying [him] a quota place” [17]. In other words, Mr. Getty claims FIS had prompted legitimate expectations, especially after the 24 January  email, that he would be participating to the Sochi Olympic Games. Finally, Mr Getty submits that denying him the participation in the Sochi Games “would be unfair and contrary to the spirit of the Olympic Movement” [18]. He bases his claim, amongst many other things, on the fact that he is the only freestyle athlete representing South America and that his “dedication to sport is an inspiration to many” [19]. The FIS disputes these claims and points out that “the Applicant’s description of the qualification procedure is incorrect and misleading” [20]. In fact, Mr. Getty never reached the minimum points for eligibility, nor is any alternative qualification criterion accessible. Likewise, the FIS is not estopped, as it could not create any legitimate expectations with its email.

The jurisdiction of the CAS Ad Hoc Tribunal was not contested and the panel proceeded directly to the merit. As a preamble, the arbitrators remind that “[u]nder Swiss law, the interpretation of statutes has to be rather objective and always start with the wording of the rule”[21]. After reviewing the wording of the FIS’s regulations, the panel concludes that, in the present case, “[a] good faith common sense reading leads to the conclusion that the rules unambiguously require all competitors to meet the individual eligibility requirements” [22]. Additionally, “[t]he fact that the Applicant cannot point to a single instance in the past where an athlete was allowed to compete in the Olympic Games without meeting the eligibility requirements […] is further evidence of this conclusion” [23].

Moreover, the FIS is not deemed estopped from denying Mr. Getty a quota place for the Sochi Olympic Games. In this regard, the Panel notes that “FIS never made during the qualification period a representation that Mr. Getty was eligibile” [24], nor is there “evidence that during the qualification period Mr. Getty received from FIS an individual assurance that he was eligible” [25], and “the fact that COA might ultimately obtain a quota place did (and could) not suggest that FIS would waive the minimum individual qualification requirement for any athlete assigned to that quota place” [26], most importantly “all correspondence between FASA or COA and FIS on 24 October 2014 did not contain any express and individual reference to Mr. Getty”[27]. This is a fundamental difference compared to the existing precedents invoked by Mr. Getty. Indeed, in those cases “the athlete had been given specific and individual assurances about his eligibility” (CAS OG 02/06 & CAS OG 08/02) or “the international federation changed its rules with retroactive effects, depriving an athlete of the eligibility that could be assumed on the basis of prior rules”[28] (CAS 2008/O/1455).

Finally, the Panel also held that the fact that the participation of Mr. Getty to the Sochi Games would be in line with the Olympic spirit is a matter of policy. These concerns are for “FIS to consider when adopting the eligibility rules for the Olympic games; they are not for this Panel which is only asked to apply the existing rules”[29]. Even though the Panel is sympathetic to the athlete’s drive to participate to the Sochi Olympic Games it rejects the application filed by Mr. Getty.

III.           Maria Birkner (CAS OG 14/03)

The final, and maybe most complex and controversial case, is the one involving a well-known Argentine alpine skier: María Birkner. The National Olympic Committee for Argentina (COA) and the Argentinean Ski Federation (FASA) are the respondents in the proceedings. On 20 January 2014 the FASA told Ms. Birkner that she was not selected for the Sochi Olympic Games. This decision not to select her is challenged in front of the CAS Ad Hoc Division.

Ms. Birkner claims “that she was discriminated against on the basis of her being a member of her family”[30]. For a number of reasons, she claims that the Federation has purposefully conspired to banish her from its activities and to exclude her from the Olympic games[31]. Chiefly, she claims the federation has purposefully informed her after the final decision of the existence of specific selection criteria and of a technical committee in charge of the selection. As discussed in the previous blog, the jurisdiction of the Ad Hoc Division was challenged and the panel found that it did not have jurisdiction. Nonetheless, it decided to consider the merits of the case anyway.

The arbitrators brushed aside any bias against the family of Ms. Birkner noting that two of her siblings were present in Sochi and that her brother had even the privilege of carrying the Argentinean Flag during the opening ceremony.[32] Furthermore, in the eyes of the panel, the claimant failed to establish that the qualification process, the Technical Committee and the selection criteria used were biased against her.[33] Indeed, “it cannot be said that the selection criteria said to be applied were arbitrary or unreasonable”[34]. The panel considers that the recriminations of Ms. Birkner against the selection process, especially the allegations of a bias from the part of the Technical Committee and that the other skiers had previous knowledge of the main selection criteria were not sufficiently substantiated and could not be established for the sake of this procedure.

The panel is of the view that the situation is similar to the one of the Bauer case discussed above. Therefore, it recalls the holding of the Bauer Panel observing that “there was a legal duty not to be arbitrary, unfair or unreasonable in the application of objective criteria or in the exercise of subjective discretion but that the exercise of discretion was not so characterised where there was a legitimate sports performance justification for selection”[35]. It finds that “a discretion based on “the evolution and projection in the future” [as invoked by the FASA] is not arbitrary, unfair or unreasonable” [36]. Nevertheless, the panel refers to the obiter holding in the Bauer case and “recommends that FASA establishes, identifies and publishes clear criteria in a timely manner to enable athletes to understand those criteria and the Olympic Games qualification standards that they are required to meet in order to be recommended for selection by COA” [37]. In the present case, “a dedicated athlete with an outstanding history of representing her country, who had successfully competed in many international as well as national events, was devastated by the decision made not to select her, when she had believed that, on the criteria that she had mistakenly understood had applied, she would represent her country at the Sochi Olympic Games” [38].

Conclusion: Deference is not enough 

Selection disputes constitute a big part of the CAS Ad Hoc Division’s caseload.[39] This is probably inevitable, as the non-selection for the Olympic Games is often the toughest setback faced by an athlete in her career. The Sochi cases do not fundamentally sidestep the existing case law of the CAS Ad Hoc Division in this regard. The deference to the subjective criteria used by the National Olympic Committee’s (NOCs) and the International federations (Ifs) is reaffirmed, unless those criteria are applied in an “arbitrary, unfair or unreasonable” way. Furthermore, an athlete can hardly rely on any legitimate expectations, unless he has been offered personally and officially a spot to participate to the Olympic Games. Hence, a non-selection can only be challenged successfully in the most extreme cases. However, when the behaviour of the federation is, to say the least, ambiguous as in the Birkner case, a very heavy burden of proof lies on the shoulder of the athlete to turn this ambiguity into the recognition of an “arbitrary, unfair or unreasonable” behaviour. 

The Sochi Ad Hoc Division’s approach to selection cases is flawed with paradoxical feelings. On the one hand, it urges the Ifs and NOCs to devise and publish “clear criteria in a timely manner”, but, on the other hand, it encourages them not do so by limiting the reviewability of their subjective and blurry selection practices. In short, Panels openly favour objective and predictable schemes on which athletes can rely, while incentivizing subjective and unpredictable assessments by leaving untouched the wide scope of discretion of the Ifs and NOCs.[40] The paradoxical and irreconcilable nature of these views should lead the CAS to reconsider its approach to the selection process. The Sochi panels instinctively felt there was something fundamentally unfair with the non-selection of Ms. Bauer and Ms. Birkner. In this regard, the panels’ final incantations for change will remain unanswered if the CAS Ad Hoc Division refuses to contribute through its jurisprudence to the rise of clear selection criteria. It should impose a more stringent review of the subjective criteria used by the Ifs, by promoting a less strict understanding of the notion of “arbitrary, unfair or unreasonable” scheme and/or by alleviating the burden of proof bearing on athletes to establish the abusive nature of a selection process.

In fact, such an evolution would be in a line with the will expressed by the Olympic movement during the Olympic Agenda 2020 process to be irreproachable in terms of good governance and transparency. The existence of publicly known and clearly defined standards and rules is a hallmark of such good governance. Getting to the Olympics is just too important for athletes to be left at the mercy of the unchecked will

[1] CAS OG 14/01, point 2.5

[2] CAS OG 14/01, point 2.10

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

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

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

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

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

[8] CAS OG 14/01, point 7.5

[9] CAS OG 14/01, point 7.10

[10] CAS OG 14/01, point 7.12

[11] CAS OG 14/01, point 7.15

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

[13] CAS OG 14/01, point 7.15

[14]CAS OG 14/01, point 7.16

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

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

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

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

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

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

[21] CAS OG 14/02, point 7.4

[22] CAS OG 14/02, point 8.9

[23] CAS OG 14/02, point 8.10

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

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

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

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

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

[29] CAS OG 14/02, point 8.20

[30] CAS OG 14/03, point 4.3

[31] CAS OG 14/03, point 4.4

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

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

[34] CAS OG 14/03, point 7.19

[35] CAS OG 14/03, point 8.2

[36] CAS OG 14/03, point 8.3

[37] CAS OG 14/03, point 8.4

[38] CAS OG 14/03, point 8.4

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

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