The Olympic Games: Citius, Altius, Fortius and Litigious?

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The Games of the XXXII Olympiad will soon begin. They will be played under the Olympic motto of Citius, Altius, Fortius (faster, higher, stronger). But to what extent will the Games also be litigious?

In this OnPoint, we consider the following five categories of disputes that may arise in relation to major sporting events.

  • Governance disputes – covering allegations of corruption, discrimination and breaches of legal obligations by administrators.
  • Qualification and team selection disputes – including in recent times complex questions regarding gender, diversity and the right to fair competition.
  • Disciplinary disputes – which encompass anti-doping rule violations and other forms of athlete misconduct.
  • Commercial issues – including breaches of contract and claims to force majeure arising from COVID-19.
  • Intellectual property disputes – covering sponsorship and marketing disputes.

A. Governance disputes

Sporting bodies, as with other segments of society, are expected to adhere to high standards of governance, including eliminating all forms of corruption. A failure to live up to these standards can lead to significant consequences, which will often then be disputed. For instance, the Russian Federation was excluded from Rio 2016 by the International Association for Athletics Federation (the IAAF) after the World Anti-Doping Agency (WADA) uncovered evidence of state-sponsored mass doping among Russian athletes, leading to a significant number of disputes at the Court of Arbitration for Sport (CAS).1

The Russian Federation remains excluded from Tokyo 2020 following a CAS ruling in December 2020 that the Russian Anti-Doping Agency had tampered with anti-doping test results handed over to a WADA team investigating institutionalised doping in Russia.2 Russian athletes can only participate as ‘authorised neutral athletes’ and are forbidden from using the Russian flag or anthem. Nonetheless, 335 ‘Russian’ athletes will still be competing in Tokyo.3

The IOC has also refused to recognise the election of Viktor Lukashenko as the Belarus National Olympic Committee (NOC) President after allegations of political discrimination towards athletes.4 Similarly, the International Boxing Association (AIBA) has been banned from Tokyo 2020, along with all of the adjudicators who judged the boxing in Rio 2016, due to ‘severe concerns with its governance, finances and refereeing and judging.’5 They have been replaced by an Olympic Boxing Task Force to ensure that the bouts in Tokyo are fair and the points scoring consistent.

Closer to home, Dechert’s Singapore international arbitration team recently successfully pursued two appeals at CAS against the Asian Football Confederation (AFC) in relation to its conduct of elections. Specifically, the AFC was found to have held elections in 2019 for executive positions within the AFC and FIFA (the world body for football) which discriminated against women, and which were further compromised by the unlawful interference in the elections by third parties.6 In doing so, the CAS Panel confirmed that individual candidates have standing to pursue challenges against sports administrators who fail to uphold their legal and ethical obligations.

During the build-up to Tokyo 2020, the former Japanese prime minster, Yoshiro Mori, reportedly complained about the involvement of women in meetings of the organising committee for the Tokyo Olympic and Paralympic Games, which led to an outcry, his resignation and replacement (ironically) by a woman. International sports administration remains dominated by men, which may lead to more discrimination claims in the future.7

B. Qualification criteria, team selection and diversity

Qualification and selection disputes have probably occurred in every Olympics since they were first staged in ancient Greece 3,000 years ago. Of greatest import in recent times have been disputes regarding gender, diversity and nationality.

This includes the well-publicised case of Caster Semenya, who, after winning gold in the 800m in London 20128 and Rio 2016, is now excluded from Olympic competition unless she takes medication to suppress her naturally elevated testosterone level.9 Ms. Semenya is currently pursuing a challenge before the European Court of Human Rights.10 Two Namibian athletes have also recently been banned from the Tokyo Olympics on similar grounds.11 These are complex issues affecting people’s livelihoods to which there are no easy answers. Ultimately, a balance needs to be struck between respect for the rights (and the welfare) of each potential competitor and the desire to ensure fair competition.

The world swimming body, FINA, is currently reviewing its ban on swimmers wearing a ‘Soul Cap’ designed for voluminous hair typical of people of African descent in response to a public backlash.12 Criticism has also been voiced regarding the selection of Laurel Hubbard, a transgender athlete, who will represent New Zealand in female weightlifting in Tokyo (although no legal proceedings have been brought).13

Double amputee, Blake Leeper from the USA unsuccessfully challenged a 2019 CAS award which confirmed he was ineligible to compete in the Olympics on the basis that the height of his prosthetic legs give him an unfair advantage.14 Mr. Leeper argued before the Swiss Federal Tribunal (the SFT) that the CAS ruling was racially discriminatory as the limits for the height of prosthetics were derived from body proportions of white and Asian athletes.15 Earlier this year, CAS dismissed another appeal filed by Mr. Leeper.16

While the sports world continues to work through these complex issues, it is clear that a one-size-fits-all binary approach will no longer suffice, reflecting evolving attitudes in broader society. Thus, CAS recently ruled that the qualification criteria set by the Tokyo Olympics Boxing Task Force (which is the temporary replacement of the AIBA as mentioned above) was discriminatory for failing to make allowance for women who were pregnant or postpartum during the qualifying period.17

As noted, Dechert lawyers recently successfully established that the AFC’s election procedures discriminated against women because only five of the 25 seats on the AFC Executive Committee were made available for women. Similarly, while Asia is entitled to have six representatives on the FIFA Council, only one of these could be contested by women in the AFC’s 2019 elections. A CAS Panel found that, rather than setting a floor on the minimum participation of women in the administration of Asian football, the AFC had through its rules, practices and procedures imposed a ceiling on their participation, which is discriminatory.18

Disputes can also arise over which country an athlete is entitled to represent. A dual-national athlete was barred from competing at Rio 2016 after failing to produce the correct passport of the country he was representing (Kenya) upon his arrival at the Olympic Village. A subsequent appeal to CAS was dismissed.19 The general rule is that an athlete must be a national of the country they seek to represent and cannot have represented a different country within the previous three years.20 Exceptionally, CAS ruled that Angel Perez, a kayaker, was eligible to represent the United States at Sydney 2000 despite having just acquired U.S. citizenship after previously being stateless following his defection from Cuba in 1993.21

C. Disciplinary disputes

Under the terms of the WADA Code, an athlete is presumed to have committed an anti-doping rule violation if a prohibited substance is found in their test sample.22 This has given rise to a plethora of disputes, with athletes often challenging the validity of the anti-doping tests, the severity of the penalties handed down, or the legal basis of the disciplinary proceedings.23 Indeed, there has been a flurry of appeals to CAS against doping-related bans in recent weeks in the lead up to Tokyo 2020.24

Doping offences can also affect an athlete’s eligibility to compete in future Olympic Games. The IOC’s so-called Osaka Rule (introduced in 2008) prohibits an athlete from competing in the Olympic Games if they had served a suspension of six months or more during the preceding four-year Olympic cycle. While the rule was struck down by CAS twice in 2011 and 2012, it has been argued by Dechert lawyers that those cases may have been wrongly decided.25 In any event, the rule was reinstated by the IOC in 2016 to help ensure the integrity of Olympic sport. It was then relied upon to exclude a decorated Asian athlete from Rio 2016, who appealed to CAS in a case in which Dechert defended the Osaka Rule but which was ultimately withdrawn before a decision was made by CAS on its legality.26

Athletes can also be banned for a range of other disciplinary offences, including for racism,27 being drunk and disorderly,28 and cheating.29

Decisions made in the field of play, however, usually cannot be challenged through arbitration. By way of exception, the CAS Ad Hoc Division (AHD) established for the Olympic Games30 has the power to review field of play decisions to the extent that they are arbitrary or made in bad faith.31 This is a high bar to meet.32

Dechert’s Mark Mangan has been engaged in over ten doping disputes, including those arising from Athens 2004, Turin Winter Olympics 2006, Beijing 2008, London 2012 and Rio 2016.

D. Commercial disputes

International sport today is of course big business. Rio 2016 was reportedly watched on television by over half of the world’s population and received some 7.2 billion views of online video content.33 NBC, the main broadcaster for Rio, raked in US$1.2 billion in marketing revenues.34 In anticipation of similar audience figures, more than 60 Japanese companies have paid a record ¥361 billion (US$3.3 billion) in sponsorship money, the most for any Games.35 The cost of holding Tokyo 2020 is US$15.4 billion according to the organisers or US$25 billion according to Japanese government audits.36

There are vast swathes of contracts needed to stage the Olympic Games. Some will give rise to disputes to be determined in accordance with the parties’ agreement, which could include the referral of disputes to the CAS Ordinary Division or some other arbitral institution such as the ICC, SCC or SIAC.

The COVID-19 pandemic poses unique challenges for the staging of the Olympic and Paralympic Games, with the events themselves having been delayed by 12 months. Unfortunately, a state of emergency has recently been declared in Tokyo and all spectators have been banned from Olympic events due to be held in the capital, with limited spectators permitted at events in outlying prefectures.37 This could give rise to requests for refunds or claims for compensation from spectators, sponsors, broadcasters and service providers. Indeed, much of the investment will have been premised on the ability to reach a broad spectator base in Tokyo and images beamed around the world reflecting the unique cacophony of noise and colours generated by an excited audience at Olympic venues. The rights of the contracting parties in these circumstances will be determined by the terms of the contract, including any protections for force majeure events,38 and the applicable law.

For the athletes themselves, COVID-19 could lead to last-minute timing and competition changes, quarantine restrictions and even mandatory withdrawals. Several athletes have already been excluded due to positive COVID tests – including two members of the South African soccer team who had already entered the Olympic Village.39 Others have complained about stricter regulations being imposed against athletes originating from certain countries.40 CAS, for its part, confirmed last year that COVID restrictions and penalties such as enforced forfeitures (where a team’s members tested positive and had to quarantine) are justified.41

E. Intellectual property

Finally, major sporting events can lead to significant intellectual property disputes including conflicts between the sponsors of an athlete or team and those sponsoring the event itself. Cristiano Ronaldo recently snubbed Coca Cola during a Euro 2020 press conference, allegedly causing a US$4 billion drop in the company’s market value.42 Dechert’s Mark Mangan advised the International Cricket Council (ICC) in relation to disputes arising out of the 2003 ICC Cricket World Cup after certain players sponsored by Coca Cola refused to wear team shirts depicting the tournament sponsor, Pepsi; while others refused to wear shirts with an LG Electronics logo while being sponsored by a competitor.

This should be less of a problem at Tokyo 2020 following the removal of the controversial ‘blackout’ period of previous years, which prevented athletes from endorsing non-official sponsors during the Games.43 The National Olympic Committees are responsible for the interpretation and implementation of the newly relaxed rules. Germany has eased most restrictions; Australia will allow athletes to run campaigns during the Olympic period but without any reference to the Olympics; and American athletes are allowed to post a maximum of seven ‘thank you’ advertising messages during the Games. British athletes, however, have already brought a claim against the British Olympic Association’s allegedly restrictive approach and other disputes may arise if athletes fail to follow national guidelines.44

Ambush marketing may also be a cause of frustration and potential litigation. Non-sponsors sometimes seek to associate themselves with an event through creative advertising tactics,45 with teams of lawyers on standby to issue injunctions to quickly put a stop to it. This should be less of a problem at the Olympic Games, which is an all-of-government activity, extending to the introduction of legislation protecting the intellectual property associated with the Olympics and the tight control of cities hosting events. Further, the fact that athletes can associate themselves with non-event sponsors during Tokyo 2020 may discourage ambush marketers from being more aggressive in seeking to associate themselves with the event itself.

F. Conclusion

Major sporting events can have a significant impact on the lives and fortunes of the athletes, those hosting the event and the companies that seek to associate themselves with the virtues of elite sport. It is inevitable that there will be disputes when the stakes are so high. For Tokyo 2020, it is hoped that it will provide welcome relief from the challenges, and for some the misery, caused by COVID-19; with the headlines over the coming weeks dominated by athletic achievement rather than a worsening pandemic.

Footnotes

1) The Russian Olympic Committee initiated CAS proceedings jointly with 68 Russian athletes, with a separate appeal filed by 67 of the same athletes. Both were dismissed. (‘The Court of Arbitration for Sport (CAS) Rejects the Claims/Appeal of the Russian Olympic Committee (ROC) and of 68 Russian Athletes’, CAS Media Release dated 21 July 2016. The IAAF did introduce, however, a new IAAF Competition Rule 22.1A, which provides exceptional circumstances under which athletes may still be eligible to participate in competitions, even if their national federations have been banned. The IOC Executive Board subsequently issued a decision that all Russian athletes were banned from the Rio Olympics unless they could ‘rebut the applicability of collective responsibility’ and meet a number of conditions, including that they had never been sanctioned for doping. In light of these developments, there were 14 challenges filed with the CAS Ad Hoc Division (AHD) constituted for Rio 2016 relating to the status/eligibility of Russian athletes and one appeal lodged with the on-site CAS Anti-Doping Division. Four athletes succeeded (in whole or in part) in having their eligibility reinstated although two were still barred from participating on other grounds: CAS OG 16/24 Darya Klishina v IAAF, Award dated 15 August 2016; CAS OG 16/04 Yulia Efimova v ROC, IOC & FINA, Award dated 4 August 2016; CAS OG 16/13 Anastasia Karabelshikova & Ivan Podshivalov v FISA & IOC, Award dated 4 August 2016. (Of the remaining cases, six were dismissed and six were withdrawn.) A related challenge brought by the Russian Paralympic Committee was rejected by CAS: CAS 2016/A/4745 Russian Paralympic Committee v International Paralympic Committee, Award dated 23 August 2016 (with the reasoned award rendered on 30 August 2016).

2) ‘CAS Decision in the Arbitration WADA v. RUSADA’, CAS Media Release dated 17 December 2020 (WADA had sought a four-year ban which CAS reduced to two years).

3) ‘Here’s why you won’t find the Russian flag or national anthem at this year’s Olympics’, Washington Post, 6 July 2021.

4) Michael Pavitt, ‘IOC refuses to recognise election of President's son as Belarus NOC head’, 8 March 2021.

5) Liam Morgan, ‘IOC slam lack of progress made by AIBA since suspension of recognition’, 10 January 2021.

6) ‘The Court of Arbitration for Sport (CAS) partially upholds the appeals of Mariyam Mohamed related to the 2019 Asian Football Confederation (AFC) Elections’, CAS Media Release dated 25 January 2021.

7) Mark Mangan, Ananya Mitra and Miranda Elvidge, ‘An unequal playing field’, Global Arbitration Review, 8 March 2021.

8) ‘Ms Semenya finished second but was subsequently awarded the gold medal after the race winner was disqualified for doping.

9) CAS dismissed Ms Semenya’s appeal in 2019: CAS 2018/0/5794 Mokgadi Caster Semenya v IAAF, Award dated 30 April 2019.

10) ‘Semenya taking case to European Court of Human Rights’, Associated Press, 25 February 2021.

11) ‘Tokyo 2020: Two Namibian Olympic medal contenders ruled ineligible for women's 400m due to naturally high testosterone levels’, CNN, 3 July 2021.

12) See FINA Media Statement dated 2 July 2021.

13) Save Women’s Sport Australasia, for example, wrote to the IOC last June highlighting concerns with their transgender guidelines and have subsequently released a statement questioning Hubbard’s selection.

14) CAS 2020/A/6807 Blake Leeper v. International Association of Athletics Federations, Award dated 23 October 2020.

15) Michael Houston, ‘Leeper to challenge "racially discriminatory" CAS ruling at Swiss Supreme Court’, 28 November 2020.

16) ‘The Court of Arbitration for Sport (CAS) dismisses the 2nd Appeal of Blake Leeper’, CAS Media Release dated 11 June 2021.

17) ‘Canadian boxer Bujold wins appeal to compete at Tokyo Games’, Associated Press, 1 July 2021.

18) ‘The Court of Arbitration For Sport (CAS) partially upholds the appeals of Mariyam Mohamed related to the 2019 Asian Football Confederation (AFC) Elections’, CAS Media Release dated 25 January 2021; Mark Mangan, Ananya Mitra and Miranda Elvidge, ‘An unequal playing field’, Global Arbitration Review, 8 March 2021; ‘Dechert Represents Asian Football Official, Mariyam Mohamed, in Landmark Gender Discrimination and Third-Party Interference Case Against the Asian Football Confederation’, 26 January 2021.

19) CAS OG 16/026 Carvin Nkanata v IOC, Award dated 18 August 2016 (operative part of 14 August 2016).

20) Olympic Charter, Bye-Law to Rule 41.

21) CAS ad hoc Division (O.G. Sydney) 00/009 Angel Perez v IOC, Award dated 25 September 2000.

22) International Olympic Committee Anti-Doping Rules applicable to the Games of the XXXII Olympiad Tokyo 2020 (as of March 2021); World Anti-Doping Code 2021, Article 2.1.3.

23) For example, in CAS ad hoc Division (O.G. Sydney) 00/010 Alan Tsagaev / International Weightlifting Federation (IWF), Award dated 25 September 2000, an athlete successfully appealed that the IWF did not have jurisdiction to exclude the entire Bulgarian Weightlifting Federation from the Sydney Olympics 2000 because of doping violations by three of its athletes.

24) Notable cases include those of Shelby Houlihan (banned by World Athletics; decision upheld by CAS, June 2021); Salwa Eid Naser (CAS upheld appeal from Athletics Integrity Unit and WADA (joint) against the ruling of World Athletics’ Disciplinary Tribunal which absolved Naser of breaching anti-doping regulations, July 2021); Sha'Carri Richardson (ban from US Anti-Doping Agency for Marijuana use, not appealed, July 2021); Brianna McNeal (World Athletics ban upheld by CAS, July 2021); and Sun Yang (original FINA sentence shortened by CAS, June 2021).

25) M Mangan and H Defriez, ‘The case for the reinstatement of the Osaka Rule Prohibiting Athletes with prior doping suspensions from competing in the Olympic Games’, [2017] I.S.L.R Issue 2, p 45.

26) CAS 2016/A/4600 and CAS 2016/A/4661 Mr Tae Hwan Park v Korean Sport and Olympic Committee (KOC) and Korean Swimming Federation (KSF).

27) At London 2012, for example, Greek triple jumper and long jumper Paraskevi Papachristou was expelled by the Greek Olympic Committee after posting a racially insensitive comment on Twitter.

28) Notably, Ryan Lochte was suspended for 10 months and given a US$100,000 fine by the U.S. Olympic Committee and USA Swimming following a drunken episode during Rio 2016. ‘U.S. Olympic Committee and USA Swimming announce disciplinary measures for four athletes’ U.S. Olympic Committee, 8 September 2016.

29) Cheating could disqualify an athlete or an entire team. This year CAS upheld the decision of the International Swimming Federation (FINA) to disregard certain results from Olympic qualifying meets conducted by the Uzbekistan Swimming Federation in light of allegations of cheating. ‘CAS rejects Uzbekistan appeal against FINA invalidation of Olympic qualifying event’, Press Trust of India, 12 July 2021.

30) Rule 61, Olympic Charter; Article 1, Arbitration Rules applicable to the CAS ad hoc division for the Olympic Games. According to Article 18, cases submitted to the AHD during the period of the Olympics (starting up to 10 days prior to the Olympics) are required to be resolved within 24 hours and are subject to specific arbitration rules.

31) Arbitration CAS ad hoc Division (OG Rio) 16/028 Behdad Salimi & National Olympic Committee of the Islamic Republic of Iran (NOCIRI) v. International Weightlifting Federation (IWF), Award dated 21 August 2016.

32) The AHD did not overturn any field of play decisions at the Rio Olympics 2016: See the CAS Report on the activities of the CAS Divisions at the 2016 Rio Olympic Games.

33) IOC Marketing Report, Rio 2016.

34) S&P Global Market Intelligence, 26 March 2020.

35) Financial Times ‘Lex Letter from Seoul: the hidden costs of the Tokyo Olympics’, 21 July 2021.

36) Ibid.

37) Events being held at venues in Miyagi, Ibaraki and Shizuoka are open to spectators, as things currently stand.

38) See Dechert’s previous OnPoint ‘COVID-19 Coronavirus: The Consequences on Contract Performance and the Resolution of Disputes’.

39) NPR Live Updates: The Tokyo Olympics ‘Two Athletes Have Tested Positive for COVID-19 Inside the Olympic Village’, 18 July 2021.

40) Channel News Asia, ‘India protests 'unfair' Tokyo Olympic rules for nations hit by COVID-19’, 22 June 2021.

41) CAS 2020/1/7356 SK Slovan Braislava v UEFA & KI Klaksvik, Award dated 1 October 2020.

42) ‘Cristiano Ronaldo snubbed Coca Cola. The company’s market value fell $4 billion.’ Washington Post, 16 June 2021.

43) Bye-law (3) to Rule 40 of the Olympic Charter (2010) stated ‘Except as permitted by the IOC Executive Board, no competitor, coach, trainer or official who participates in the Olympic Games may allow his person, name, picture or sports performances to be used for advertising purposes during the Olympic Games.’ The updated bye-law in the Olympic Charter (2020) now states ‘3. Competitors, team officials and other team personnel who participate in the Olympic Games may allow their person, name, picture or sports performances to be used for advertising purposes during the Olympic Games in accordance with the principles determined by the IOC Executive Board.’

44) The original approach of the British Olympic Association (the BOA) was to allow athletes to voice one ‘thank you’ message to sponsors. Following legal action taken by 20 British athletes, the BOA softened its stance.

45) During London 2012, Nike ran a ‘Find Your Greatness’ campaign, featuring ‘Londoner’ athletes performing in alternative towns named London – London, Ohio; East London, South Africa; Little London, Jamaica etc. – much to the annoyance of Adidas, the official sponsor.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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