By Roshan Gopalakrishna
Introduction
The ad-hoc division of the Court of Arbitration for Sport (CAS) was set up to operate from the venues of major sporting event such as the Olympics, Commonwealth Games etc. with the intention to expeditiously resolve the disputes arising during such games. According to Article 61.2 of the Olympic Charter, “Any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport (CAS), in accordance with the Code of Sports-Related Arbitration.” Thus, it will be safe to conclude that all matters arising out of the Games may be submitted to the CAS for determination. However, with respect to a dispute in connection with any ruling of the International Olympic Committee (“IOC”), National Olympic Committee (“NOC”), International Federations governing sports or the Organising committee for the Olympic Games the ad-hoc division of CAS only entertains it, if the person seeking its intervention has exhausted all the internal redressal procedures made available to such a person through the statue or regulations enacted by the sport’s governing body. However, the CAS may create an exception in certain cases if it is established that an appeal to its ad-hoc division would be rendered infructuous on account of the time taken to exhaust the internal remedies. This principle is reflected in Article 1 of the CAS Arbitration Rules for the Olympic Games.
Since its creation, the ad-hoc division of CAS set up at the Olympic Games has rendered significant awards with respect to referee and umpiring decisions some of which have been discussed in this feature.
‘Field of Play’ Principle
The ad-hoc division of the CAS is set up in the host nation of the Olympics primarily to aid the timely and speedy resolution of disputes arising out of the Games so as to make the award more relevant and effective. The CAS has also been resolute with respect to the nature of disputes in which it shall intervene and those in which it shall not. Accordingly, the CAS has not ventured into deciding and resolving those issues which it considers would require it to step into the shoes of the referee or the umpire and interpret the technical rules and regulations on which the framework of the sporting discipline rests. This doctrine was applied by the CAS in the Atlanta Games in 1996 case of Mendy v. Ass’n Internationale de Boxe Amateur (A.I.B.A.) (CAS Ad Hoc Div. (O.G. Atlanta 1996) 1996/006) where it refused to deliberate on the merits of decision of the referee who disqualified the boxer Mendy for having breached the competition rules by planting a punch below the belt of his opponent. The CAS reasoned that if it were to peruse the video tape of the proceedings of the match and decide whether the call taken by the referee was appropriate it would fundamentally be acting ultra vires as it was not empowered to make such judgments. The CAS, therefore, only looked into the matter of whether the referee having recorded a breach made a decision in accordance with the competition rules and accordingly upheld the disqualification of the boxer.
In the case of Bernardo Segura v. International Amateur Athletic Federation (IAAF) ((O.G. Sydney) 00/013) that was brought before it for determination, the ad-hoc division employed the abovementioned rule and desisted from striking down a ruling of the referee. In this case, the applicant, Bernardo Segura, a racewalker from Mexico, contended that his disqualification from the 20km Walk Event at the Sydney Olympics in 2000 should be set aside and that he should be declared the winner of the event. The applicant, whose win was invalidated as he had committed three breaches during his race, alleged that he was not informed of such disqualification in accordance with the competition rules wherein the Chief Judge was required to show him a red sign at the time of the third violation which took place during the race or in the event it was not plausible to inform him during the race, to intimate such disqualification “immediately” on the athletes completion of the race. The ad-hoc division however, dismissed his application stating that as the Chief Judge was at another location of the race track when the applicant committed his third breach, it would have been impossible for him to convey the disqualification through the red sign and as regards the immediate communication of the disqualification after completion is concerned it should be interpreted as one given immediately under reasonable circumstances. In addition, the division observed that the IAAF rules did not state that a disqualification which is not made known to the person concerned immediately would be inoperative. Thus while confirming the decision of the judges the division held that it shall not, unless a case of mala fide on the part of the referee, umpires, judges is made out before them, review a decision which has been made by such officials with respect to the happenings on the play field by merely administering the rules of the competition. The ad-hoc division also asserted that the match officials in charge of refereeing and umpiring were appointed to the various posts as they possessed the requisite expertise and qualifications to make the relevant competition decisions, which the arbitrators did not have. This decision of the division was material as it introduced an exception wherein the CAS could examine the decision of the referee on the playing field.
The ad-hoc bench of the CAS set up at the London Olympics pronounced another award on the basis of the well-established ‘field of play’ principle and upheld the decision of the International Triathlon Unit (“ITU”) which awarded Nicola Sprig of Switzerland a gold medal and Lisa Norden of Sweden a silver in the women’s triathlon event. The Swedish National Olympic Committee (“SNOC”) and the Swedish Triathlon Federation which considered an appeal against the ITU with the ad-hoc division contended that the Swedish athlete be bestowed a gold medal along with Nicola Sprig. The result of the women’s triathlon event which took place on the 4 th of August, 2012 was made by the referee with the aid of photo-finish procedure as the athletes in the first, second and third position finished very close. The image provided to the referee was taken by a photo-finish camera situated on the finish line to the right of the athletes which displayed an image of entire torso of the athlete. An image from the secondary camera which was positioned on the left of the athletes on the finish line could not be procured as it was defunct. The referee based his final decision on the observations of the live match and his recordings and findings of the image submitted to him and accordingly awarded the first, second and third position. The SNOC then filed a protest against the decision of the referee under the ITU rules to the Technical Delegate which upheld the decision of the referee.
Undeterred, an appeal was then preferred by the SNOC to the ITU Executive Board who also stood by the decision of the referee. A final appeal was then made to the ad-hoc division of the CAS wherein the SNOC and the Swedish Triathlon Federation alleged that the decision was not taken by the referee in accordance with the rules of the competition insofar as the position of Swiss athlete’s torso in the image was not clear as the Swedish athlete’s torso covered it. Accordingly, they demanded that since both athletes completed at the same time it is only just that they share the gold medal. It was also contended that the CAS should review the decision of the referee as it was not made in conformity with the rules of the competition. However, CAS found that in determining the position of the winners for the triathlon race the referee had applied the appropriate rule prescribed in the competition rules for establishing at what point an athlete finishes a race. The CAS dismissing the application ruled that since there was no misapplication of the rules by the referee and since no case of arbitrariness or bad faith was brought against him, any decision of the CAS on this matter would amount to a field of play decision which it was not empowered to make.
Other decisions
In another interesting case referred to the ad-hoc division of CAS, it was alleged that the photo- finish equipment used in the race was faulty. In Neykova v. Int’l Rowing Fed’n (FISA) & Int’l Olympic Committee the applicant a Bulgarian athlete was awarded the second position in the final of the women’s single sculls event during the 2000 Olympic Games in Sydney. The race which saw the athletes in the first and second position finish very close was decided on the basis of a photo-finish. Swatch, being the official time-keeper of the Games, had installed cameras at the finish line to take photographs for the purpose of photo-finish which is resorted to by the officials to determine the results in a close match. It was alleged on behalf of the Bulgarian athlete that an unofficial television video showed her as the winner of the event. The ad-hoc panel observed that the television camera which allegedly showed Neykova as the winner was situated 10 cm ahead of the finish line and hence there was bound to be a differences in the image captured by the television camera and that of the Scan’o’vision photo finish (Swatch cameras at the finish line). Dismissing the appeal the panel concluded that squarely on the technology that was in use the Scan’o’vision photo finish sound and stable.
In the case of Canadian Olympic Committee (COC) v. International Skating Union (ISU) ((OG Turin) 06/006) (February 2006) the ad-hoc panel dismissed the appeal referred by the applicant on the grounds that it failed to follow the procedure enumerated in the competition rules of the ISU and raise a protest against the referee with respect to an alleged offence committed by a participating athlete. In this case, the applicant had failed to make a protest as prescribed by the ISU competition rules and had approached the ad-hoc division to seek an award instructing the referee to review a video footage of the final match of the ladies’ short track speed skating event (A Final) of the Olympic Winter Games of 2006 and to determine if the Bulgarian athlete who was awarded the second position had in fact committed a “kicking back” offence under the competition rules. The ad-hoc division concluded that the applicant’s ignorance of the competition rules which precluded it filing a written protest under the competition rules which would have been ideally done to rectify any objections it had with respect to the final decision of the match warranted a dismissal of the application before the ad-hoc division. In addition, the ad-hoc panel held that issue of “field-of-play” decision did not arise in this case as the referee did not view a digital replay of the match as he did not have a doubt in his mind with respect to the alleged “kicking off” offence and no assertion of bad faith was brought out against the referee.
The ad-hoc division of the CAS at the London Olympics dismissed an application filed by the Russian Olympic Committee against the International Sailing Federation (ISF) (CAS OG 12/11) requesting that the decision of the ISF to not have the fourth and fifth races semi-final of the Elliot 6m class of the Olympic (women’s) competition and that of declaring Spain as the winner of such a semi-final competition between Spain and Russia be annulled. In addition, they also asked the ad-hoc panel to direct ISF to conduct the fourth and if necessary the fifth match of the semi-final. The applicant alleged that the ISF had not followed its own rules in terminating the final two races which resulted in Spain acquiring a berth in the final as they were leading the scoreboard against Russia at the end of the three races. The applicant had not asked for a review of the decision with the Jury Office of the ISF. The sole arbitrator observed that pursuant to the rules of the competition the Race Committee could terminate at any later stage of a competition (in this case the semi-final), provided it was in accordance with a criteria which was published before the first day of competition (as per the Sailing Instructions of the London 2012 Olympic Sailing Competitions). In the present case, ISF had issued a notice which provided that the“latest attention signal for a flight will be 1730 on 10 August” which was the day the semi-final was conducted. In addition, the racing rules of sailing also provided that in the event the race was terminated the competitor with a higher score would be declared as the winner. Thus, even though it was established that the ISF had followed the required procedure for the termination of the races and even though no case of bad faith was made out against the officials the appeal failed on account of lack of jurisdiction as the applicant had not exhausted the internal remedies available to it before approaching the court without a justifiable reason.
Conclusion
The practice adopted by CAS and its ad-hoc division of not donning the hat of a match referee and official and scrutinising the decisions made by match officials on the playing field is not only laudable but also a very sound practice to ensure that the reigns of the sport do not slip into the hands of persons though learned but ill equipped and unqualified to make calculated refereeing and umpiring decisions. Umpires and referees are not only trained experts who meet the eligibility criteria to officiate a match, but informed individuals whose knowledge and understanding of the game and its various aspects, enables them to adequately regulate and administer a sporting activity, event or match. The judges or arbitrators who are seated in a place far from the playing field would be doing grave injustice to the game if they ventured into evaluating the calls made by the referees who witness the event as it unfolds. In addition, the decision to not entertain cases wherein the applicants have not availed of all the internal remedies provided to them by the governing body, the CAS not only sends out a strong statement that the option of appealing to is not be misused, but also emphasises that the governing body will essentially make decisions in the best interest of the athletes and the game. Nevertheless, factors such as corruption, bias, mala fides etc. cannot be completely eliminated and hence subjecting decisions which reek of such fallacies to a review may act as a strong deterrent. However, as a cautionary measure it will be imperative to tread carefully as this may be a potentially murky terrain.
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