REUTERS | Paulo Whitaker

Rio 2016 Olympics: no time for a real warm up for the CAS ad hoc Division

Legal disputes arising during Olympic Games (including, amongst others, eligibility, disciplinary or doping-related disputes) are decided by a temporary “office” of the Court of Arbitration for Sport (CAS), referred to as the CAS ad hoc Division. The CAS ad hoc Division has operated at each edition of the Summer and Winter Olympic Games since 1996, as well as at other major sporting events such as the Commonwealth Games, the UEFA European Football Championships, the AFC Asian Cup, the FIFA World Cup and the Asian Games.

The CAS ad hoc Division operates on the site of the Olympic Games. The turn-around time for arbitration decisions made by the ad hoc Division is as short as 24 hours. It is worth recalling, for the sake of completeness, that irrespective of the fact that the arbitrations conducted under the ad hoc Division arbitration rules take place on the site of the Games, the seat remains in Lausanne (Switzerland). The consequence is that those proceedings are governed by Swiss arbitration law. Furthermore, the Swiss Supreme Court has sole jurisdiction over any attempts to have arbitral awards issued during the Olympic Games set aside.

The CAS ad hoc Division for the Rio 2016 Olympics is presided over by Mr Michael Lenard (USA), with Justice Ellen Gracie Northfleet (Brazil) serving as co-President. It is composed of twelve arbitrators.

In addition to the CAS ad hoc Division, and for the first time in the history of the Olympic Games, a new CAS division (the CAS Anti-doping Division), presided over by Ms Carole Malinvaud (France) was created to hear, at first instance, doping-related disputes arising during the Games, in accordance with the International Olympic Committee (IOC) Anti-Doping Rules. So far, cases of doping during the Olympic Games were treated by a disciplinary committee of the IOC. Decisions made by the CAS Anti-doping Division may be appealed before the CAS ad hoc Division in Rio or before the CAS in Lausanne after the Olympic Games conclude.

In simple terms, the CAS Anti-doping Division handles doping-related disputes as a first-instance authority, whereas the CAS ad hoc Division handles:

  • Appeals in doping-related cases.
  • Disputes over qualification and eligibility for Olympic events.
  • Challenges to the decisions of linesmen, referees and other officials and disciplinary matters.

On 26 July 2016, the CAS ad hoc Division and the CAS Anti-doping Division were opened at the Rio 2016 Summer Olympic Games. Those two Divisions shall operate every day until Sunday 21 August 2016.

Since its opening, the CAS ad hoc Division has registered eighteen proceedings, setting a new record of cases for one edition of the Olympic Games. By comparison, the CAS ad hoc Division established for the 2012 Olympics in London had registered eleven applications over its total duration.

That surge, which is unlikely to stop there, is mainly the result of the IOC’s decision not to impose a blanket ban on Russian athletes, but to allow individual sporting federations to decide whether those athletes can compete on a case-by-case basis. As things stand, two thirds of the cases currently handled by the CAS ad hoc Division are related to the participation of Russian athletes excluded from the Olympics amid allegations of state-sponsored doping.

So far the CAS ad hoc Division has not made any decision which would be in favour of Russian athletes or Russian sporting federations. Notably, the CAS ad hoc Division has rejected appeals filed by the Russian Weightlifting Federation (RWF) and a group of Russian rowers against their exclusion from the 2016 Olympic Games. It held that the World Rowing Federation decision to deny Games’ entry to these athletes had been made in accordance with the IOC decision of 24 July 2016, which set forth the criteria for the admission of the Russian athletes.

More recently, the CAS ad hoc Division has rendered an important decision in Anastasia Karabelshikova & Ivan Podshivalov v FISA. The ad hoc Division upheld in part appeals lodged by Russian athletes by ruling that the IOC’s decision banning the athletes with doping records from participating in the Olympic Games was “unenforceable” because it would run contrary to “the rules of natural justice” and deprive the athletes of the presumption of innocence.

As the discussion above shows, the Rio 2016 doping saga is far from over. Stay tuned for more to follow… or as the Brazilians would say, “Fiquem ligados!”

Schellenberg Wittmer Sebastiano Nessi

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