The Establishment of the CAS Ad Hoc Division
The rise in international sport-related disputes in the early 1980s, coupled with the absence of any specific adjudicatory authority, lead to the International Olympic Committee (IOC) in instituting an arbitration system.
The Court of Arbitration for Sport (CAS), a permanent judicial body based in Lausanne, dealt fundamentally with sport-related issues until its mandate was extended to international anti-doping disputes in 2003 as a result of the adoption of the World Anti-Doping Code. However, the distinct organizational requirements of the Olympic Games and other sporting events called for special procedures designed to resolve disputes within a very short timeframe.
A dedicated structure of the CAS, operating in situ at the 1996 Olympic Games in Atlanta, was created in the form of the Ad Hoc Division. This special tribunal, called the CAS ad hoc Division, has functioned at each edition of the Summer and Winter Olympic games since 1996, as well as at other important sporting competitions like the UEFA European Football Championships, the Commonwealth Games, the AFC Asian Cup, the FIFA World Cup and the Asian Games. Similar worries led to the formation of an additional division during and after the 2016 Rio Olympics, dealing with anti-doping disputes emerging during the Games, in conformity with the International Olympic Committee (IOC) Anti-Doping Rules.
The need for regulation and speed resulted in concise and clear rules of procedure for these dispute mechanisms.
The purpose of the division
The CAS ad hoc Division functions in situ of the Olympic Games. It is pertinent to note, for the sake of completeness, that regardless of the fact that the arbitrations regulated under the ad hoc Division arbitration rules take place in situ of the Games, the seat remains in Lausanne (Switzerland). The result is that these proceedings are governed by Swiss arbitration law. In addition, the Swiss Supreme Court has sole jurisdiction over any chances to have arbitral awards issued during the Olympic Games set aside. The Olympics have proven to be a prolific time for the development of lex sportiva and a variety of disputes have arisen prior to and during the Games.
In simple terms, the CAS Anti-doping Division deals with doping-related disputes as a first-instance authority, whereas the CAS ad hoc Division deals with:
1. The Court of Arbitration for Sport’s jurisdiction;
2. Affected Third Parties and National eligibility rules;
3. Rationality of athlete suspensions by the International Olympic Commitee and International Federations;
4. The principle of non-interference with the verdicts of sports officials;
5. Doping violations and the existing strict liability regime;
6. The resolution of business advertising issues at the Games; and
7. Using sporting rules for strategic advantage.
Thus, the Ad Hoc Rules are designed to provide an arbitral process that is gratuitous, speedy and just. For example, at the 2016 Olympics, one procedure lasted just 3 hours 20 minutes from start to finish.
Jurisdiction of CAS Ad Hoc Division
Jurisdiction for CAS is restricted to sports-related conflicts as well as from League Charters, Constitutions, statutes and contracts granting appeal to CAS. For example, the Olympic Charter Section 61(2) states all disputes from the Olympic Games are directed to the CAS, and ad hoc tribunals are set up for each Olympic event cycle for this reason. Similarly, FIFA accepts CAS review in Article 49 of the FIFA Disciplinary Code and thus, CAS has the power to quash or modify the FIFA judgment.
The jurisdiction of the division lies during the Olympic Games and during a period of ten days preceding the Opening Ceremony. During the Olympic Games, the CAS anti-doping division, upon deputation of the IOC Executive Board, arbitrates alleged breaches of the Anti-doping Code. At other times, questions of such nature are heard by anti-doping institutions.
The CAS AHD panel has complete control over the evidentiary proceedings, and if it views itself to be adequately well-informed, can decide not to hold a hearing and to give out an award instantly. During London Games 2012, in case of an Irish horse rider Denis Lynch; with the consensus of the parties, it even decided to bifurcate the proceedings, as one party had not received all of the applicable documents by the time the hearing started.
It is important to note that Decisions are final, and there is no right of appeal, except to the Swiss Federal Tribunal after the conclusion of the Olympic games (which is rare in practice). As such, the CAS AHD does not have private jurisdiction, and its jurisdiction intersects with that of CAS during the period of the Olympic Games.
Structure of the Divisions
Every division is headed by a president and a co-president. The president selects arbitrators to sit on the panels arbitrating specific disputes.
A Court office, led by the CAS secretary general, accepts the written applications and supports the Divisions. In the 2020 Tokyo Olympics, a temporary office was set-up using the facilities of the Japan International Dispute Resolution Centre. As a precautionary measure for the COVID-19 pandemic, hearings of the CAS Ad Hoc Division were held via video-conference remotely.
Procedure Before the Panel
The Ad Hoc Rules are alike to the standard CAS Procedural Rules in numerous ways. For instance, the legal seat will be Lausanne, Switzerland for any Ad Hoc arbitration. Furthermore, hearings shall be held in French, Spanish or English (as the 3 official languages of CAS).
The president of the division constitutes a panel of arbitrators as soon as the Court office registers the application. The panel usually consists of three arbitrators, but the president may, at discretion, appoint a sole arbitrator if it appears suitable under the circumstances. The panel must provide its decision within 24 hours of receiving the application. During the Tokyo Games, single arbitrators were appointed in all cases submitted to the CAS Anti-Doping Division (ADD).
Proceedings before the two divisions are usually twofold: an interchange of written statements followed by hearings. However, panels may decide to dispose the hearing and rule solely on the basis of written submissions. Panels may make a final or a partial award. A partial award may involve a transfer to the regular CAS procedure for any unresolved parts. The procedure on the merits of the cases will resume after the Games and the same panels will give final awards. Parties may represent or assist in proceedings before the Ad Hoc Division and the CAS ADD. The CAS dispenses a pool of pro bono lawyers for athletes.
The Tokyo games and the Ad Hoc Division
The rescheduled 2020 Tokyo Olympic Games officially opened with a spectacular opening ceremony on 23 July 2021. However, on 13 July 2021, the Court of Arbitration for Sport (“CAS”) got down to the legal games with the opening of its temporary Ad Hoc and Anti-Doping Divisions in Tokyo. As a matter of fact, both Divisions had already seen legal action before Naomi Osaka lit the Olympic cauldron.
CAS publishes details about its Ad Hoc and Anti-Doping cases on its media releases page. Within a week of the commencement of games, the CAS Ad Hoc Division had registered 7 cases and issued decisions in 4 cases. Further, a case was amicably resolved between the parties. A total of 18 cases came before the division during the Tokyo Games 2020. They were related to field of play, eligibility and doping related disputes.
Jennifer Harding-Marlin became the first athlete to refer a case to the CAS Ad Hoc Division in Tokyo. She is a swimmer and a dual citizen of Canada and Saint Kitts & Nevis. The CAS Panel disposed Ms. Harding-Marlin’s plea for an order that the St. Kitts and Nevis Olympic Committee (“SKNOC”) should put forward her name for the Women's 100 meters backstroke. Precisely, the CAS Panel found that:
· Contradictory to the Athlete’s contentions, there was no convincing evidence on file to find that the SKNOC had been biased to her in violation of Rule 44.4 of the Olympic Charter, nor had the Athlete been prevented entry on the basis of her race, socio- economic conditions and sporting activity.
· While “the practice of sport is a human right” and “every person must have the possibility of practicing sport, without bias of any kind”, “nobody qualifies for the Olympic games as a right to participate” (Rule 44.3 of the Olympic Charter).
· SKNOC could have been clearer and more transparent as to its reasons for not selecting the Athlete, which would have been in concurrence with the Olympic spirit, but its non-fulfillment in that regard did not amount to arbitrary, unreasonable or unfair conduct.
The Way Forward
The Ad Hoc Division and the Anti-doping Division play an imperative role in the conduct of the Olympic Games and other sporting events. While their principal function is the arbitration of sports-related disputes, they also play a deterrent role by ensuring compliance with the rules. The events at Olympic games in particular, have brought into sharp focus the need for these mechanisms, and their capacity to function in a coherent and flexible way. Perhaps, this is a model that can be replicated in other domains of arbitration. Therefore, as far as disposal of cases is concerned, whilst other arbitration institutions have recognized the importance of rendering a verdict quickly, they are still a long way behind the 24-hour period followed by the CAS AD Hoc Division, especially as the emergency arbitrator does not produce a final award and is appointed before the tribunal is even formed.
It is not impossible that institutions could require arbitrators to be on call in a number of vital arbitral seats in order to speed up the constitution of a tribunal in the event of an emergency. Furthermore, a type of ‘emergency arbitrator rota’ could be put in place to combat issues like strains on arbitrators’ time etc. This requirement may mean that parties would have to waive the right to have the dispute heard by an arbitrator of their choice. However, this would lead to a much more efficient and inexpensive process. Furthermore, once a tribunal has been formed, a procedural timetable along with a hearing, may not always be prerequisite. Arbitrators could be pressed to give decisions quickly without giving up the fairness of the procedure.
Thus, the CAS Ad Hoc division can inspire international arbitration to become a feasible alternative to approach the courts in an emergency situation and permit it to really ‘keep pace with the competition’.
* We would like to thank Archit Vyas (Law Student, Gujarat National Law University) who is currently doing an internship with Sensato Sports Law, for his invaluable contribution.