The Olympic Games: Citius, Altius, Fortius and Litigious? | Dechert LLP

The Video games of the XXXII Olympiad will quickly start. They are going to be performed underneath the Olympic motto of Citius, Altius, Fortius (quicker, increased, stronger). However to what extent will the Video games even be litigious?

On this OnPoint, we take into account the next 5 classes of disputes that will come up in relation to main sporting occasions.

• Governance disputes – overlaying allegations of corruption, discrimination and breaches of authorized obligations by directors.
• Qualification and workforce choice disputes – together with in current occasions complicated questions relating to gender, range and the appropriate to truthful competitors.
• Disciplinary disputes – which embody anti-doping rule violations and different types of athlete misconduct.
• Industrial points – together with breaches of contract and claims to drive majeure arising from COVID-19.
• Mental property disputes – overlaying sponsorship and advertising disputes.

A. Governance disputes

Sporting our bodies, as with different segments of society, are anticipated to stick to excessive requirements of governance, together with eliminating all types of corruption. A failure to stay as much as these requirements can result in vital penalties, which is able to usually then be disputed. As an illustration, the Russian Federation was excluded from Rio 2016 by the Worldwide Affiliation for Athletics Federation (the IAAF) after the World Anti-Doping Company (WADA) uncovered proof of state-sponsored mass doping amongst Russian athletes, resulting in a big variety of disputes on the Court docket of Arbitration for Sport (CAS).¹

The Russian Federation stays excluded from Tokyo 2020 following a CAS ruling in December 2020 that the Russian Anti-Doping Company had tampered with anti-doping take a look at outcomes handed over to a WADA workforce investigating institutionalised doping in Russia.² Russian athletes can solely take part as ‘authorised impartial athletes’ and are forbidden from utilizing the Russian flag or anthem. Nonetheless, 335 ‘Russian’ athletes will nonetheless be competing in Tokyo.³

The IOC has additionally refused to recognise the election of Viktor Lukashenko because the Belarus Nationwide Olympic Committee (NOC) President after allegations of political discrimination in the direction of athletes.⁴ Equally, the Worldwide Boxing Affiliation (AIBA) has been banned from Tokyo 2020, together with all the adjudicators who judged the boxing in Rio 2016, as a consequence of ‘extreme issues with its governance, funds and refereeing and judging.’⁵ They’ve been changed by an Olympic Boxing Job Pressure to make sure that the bouts in Tokyo are truthful and the factors scoring constant.

Nearer to dwelling, Dechert’s Singapore worldwide arbitration workforce just lately efficiently pursued two appeals at CAS in opposition to the Asian Soccer Confederation (AFC) in relation to its conduct of elections. Particularly, the AFC was discovered to have held elections in 2019 for government positions inside the AFC and FIFA (the world physique for soccer) which discriminated in opposition to ladies, and which have been additional compromised by the illegal interference within the elections by third events.⁶ In doing so, the CAS Panel confirmed that particular person candidates have standing to pursue challenges in opposition to sports activities directors who fail to uphold their authorized and moral obligations.

Through the build-up to Tokyo 2020, the previous Japanese prime minster, Yoshiro Mori, reportedly complained in regards to the involvement of girls in conferences of the organising committee for the Tokyo Olympic and Paralympic Video games, which led to an outcry, his resignation and alternative (paradoxically) by a girl. Worldwide sports activities administration stays dominated by males, which can result in extra discrimination claims sooner or later.⁷

B. Qualification standards, workforce choice and variety

Qualification and choice disputes have most likely occurred in each Olympics since they have been first staged in historical Greece 3,000 years in the past. Of best import in current occasions have been disputes relating to gender, range and nationality.

This contains the well-publicised case of Caster Semenya, who, after successful gold within the 800m in London 2012⁸ and Rio 2016, is now excluded from Olympic competitors except she takes treatment to suppress her naturally elevated testosterone degree.⁹ Ms. Semenya is presently pursuing a problem earlier than the European Court docket of Human Rights.¹⁰ Two Namibian athletes have additionally just lately been banned from the Tokyo Olympics on related grounds.¹¹ These are complicated points affecting individuals’s livelihoods to which there aren’t any straightforward solutions. In the end, a steadiness must be struck between respect for the rights (and the welfare) of every potential competitor and the need to make sure truthful competitors.

The world swimming physique, FINA, is presently reviewing its ban on swimmers sporting a ‘Soul Cap’ designed for voluminous hair typical of individuals of African descent in response to a public backlash.¹² Criticism has additionally been voiced relating to the choice of Laurel Hubbard, a transgender athlete, who will symbolize New Zealand in feminine weightlifting in Tokyo (though no authorized proceedings have been introduced).¹³

Double amputee, Blake Leeper from the USA unsuccessfully challenged a 2019 CAS award which confirmed he was ineligible to compete within the Olympics on the premise that the peak of his prosthetic legs give him an unfair benefit.¹⁴ Mr. Leeper argued earlier than the Swiss Federal Tribunal (the SFT) that the CAS ruling was racially discriminatory as the bounds for the peak of prosthetics have been derived from physique proportions of white and Asian athletes.¹⁵ Earlier this yr, CAS dismissed one other attraction filed by Mr. Leeper.¹⁶

Whereas the sports activities world continues to work by these complicated points, it’s clear {that a} one-size-fits-all binary strategy will now not suffice, reflecting evolving attitudes in broader society. Thus, CAS just lately dominated that the qualification standards set by the Tokyo Olympics Boxing Job Pressure (which is the non permanent alternative of the AIBA as talked about above) was discriminatory for failing to make allowance for girls who have been pregnant or postpartum through the qualifying interval.¹⁷

As famous, Dechert attorneys just lately efficiently established that the AFC’s election procedures discriminated in opposition to ladies as a result of solely 5 of the 25 seats on the AFC Government Committee have been made obtainable for girls. Equally, whereas Asia is entitled to have six representatives on the FIFA Council, solely one among these could possibly be contested by ladies within the AFC’s 2019 elections. A CAS Panel discovered that, slightly than setting a flooring on the minimal participation of girls within the administration of Asian soccer, the AFC had by its guidelines, practices and procedures imposed a ceiling on their participation, which is discriminatory.¹⁸

Disputes also can come up over which nation an athlete is entitled to symbolize. A dual-national athlete was barred from competing at Rio 2016 after failing to provide the proper passport of the nation he was representing (Kenya) upon his arrival on the Olympic Village. A subsequent attraction to CAS was dismissed.¹⁹ The final rule is that an athlete should be a nationwide of the nation they search to symbolize and can’t have represented a special nation inside the earlier three years.²⁰ Exceptionally, CAS dominated that Angel Perez, a kayaker, was eligible to symbolize the US at Sydney 2000 regardless of having simply acquired U.S. citizenship after beforehand being stateless following his defection from Cuba in 1993.²¹

C. Disciplinary disputes

Below the phrases of the WADA Code, an athlete is presumed to have dedicated an anti-doping rule violation if a prohibited substance is discovered of their take a look at pattern.²² This has given rise to a plethora of disputes, with athletes usually difficult the validity of the anti-doping checks, the severity of the penalties handed down, or the authorized foundation of the disciplinary proceedings.²³ Certainly, there was a flurry of appeals to CAS in opposition to doping-related bans in current weeks within the lead as much as Tokyo 2020.²⁴

Doping offences also can have an effect on an athlete’s eligibility to compete in future Olympic Video games. The IOC’s so-called Osaka Rule (launched in 2008) prohibits an athlete from competing within the Olympic Video games if they’d served a suspension of six months or extra through the previous four-year Olympic cycle. Whereas the rule was struck down by CAS twice in 2011 and 2012, it has been argued by Dechert attorneys that these instances might have been wrongly determined.²⁵ In any occasion, the rule was reinstated by the IOC in 2016 to assist make sure the integrity of Olympic sport. It was then relied upon to exclude a embellished Asian athlete from Rio 2016, who appealed to CAS in a case by which Dechert defended the Osaka Rule however which was finally withdrawn earlier than a call was made by CAS on its legality.²⁶

Athletes may also be banned for a spread of different disciplinary offences, together with for racism,²⁷ being drunk and disorderly,²⁸ and dishonest.²⁹

Selections made within the area of play, nonetheless, often can’t be challenged by arbitration. By the use of exception, the CAS Advert Hoc Division (AHD) established for the Olympic Video games³⁰ has the facility to evaluation area of play selections to the extent that they’re arbitrary or made in dangerous religion.³¹ It is a excessive bar to fulfill.³²

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

D. Industrial disputes

Worldwide sport at the moment is after all large enterprise. Rio 2016 was reportedly watched on tv by over half of the world’s inhabitants and obtained some 7.2 billion views of on-line video content material.³³ NBC, the principle broadcaster for Rio, raked in US$1.2 billion in advertising revenues.³⁴ In anticipation of comparable viewers figures, greater than 60 Japanese firms have paid a document ¥361 billion (US$3.3 billion) in sponsorship cash, essentially the most for any Video games.³⁵ The price of holding Tokyo 2020 is US$15.4 billion in line with the organisers or US$25 billion in line with Japanese authorities audits.³⁶

There are huge swathes of contracts wanted to stage the Olympic Video games. Some will give rise to disputes to be decided in accordance with the events’ settlement, which might embody the referral of disputes to the CAS Bizarre Division or another arbitral establishment such because the ICC, SCC or SIAC.

The COVID-19 pandemic poses distinctive challenges for the staging of the Olympic and Paralympic Video games, with the occasions themselves having been delayed by 12 months. Sadly, a state of emergency has just lately been declared in Tokyo and all spectators have been banned from Olympic occasions as a consequence of be held within the capital, with restricted spectators permitted at occasions in outlying prefectures.³⁷ This might give rise to requests for refunds or claims for compensation from spectators, sponsors, broadcasters and repair suppliers. Certainly, a lot of the funding can have been premised on the flexibility to achieve a broad spectator base in Tokyo and pictures beamed world wide reflecting the distinctive cacophony of noise and hues generated by an excited viewers at Olympic venues. The rights of the contracting events in these circumstances might be decided by the phrases of the contract, together with any protections for drive majeure occasions,³⁸ and the relevant regulation.

For the athletes themselves, COVID-19 might result in last-minute timing and competitors adjustments, quarantine restrictions and even obligatory withdrawals. A number of athletes have already been excluded as a consequence of optimistic COVID checks – together with two members of the South African soccer workforce who had already entered the Olympic Village.³⁹ Others have complained about stricter rules being imposed in opposition to athletes originating from sure international locations.⁴⁰ CAS, for its half, confirmed final yr that COVID restrictions and penalties reminiscent of enforced forfeitures (the place a workforce’s members examined optimistic and needed to quarantine) are justified.⁴¹

E. Mental property

Lastly, main sporting occasions can result in vital mental property disputes together with conflicts between the sponsors of an athlete or workforce and people sponsoring the occasion itself. Cristiano Ronaldo just lately snubbed Coca Cola throughout a Euro 2020 press convention, allegedly inflicting a US$4 billion drop within the firm’s market worth.⁴² Dechert’s Mark Mangan suggested the Worldwide Cricket Council (ICC) in relation to disputes arising out of the 2003 ICC Cricket World Cup after sure gamers sponsored by Coca Cola refused to put on workforce shirts depicting the match sponsor, Pepsi; whereas others refused to put on shirts with an LG Electronics brand whereas being sponsored by a competitor.

This needs to be much less of an issue at Tokyo 2020 following the removing of the controversial ‘blackout’ interval of earlier years, which prevented athletes from endorsing non-official sponsors through the Video games.⁴³ The Nationwide Olympic Committees are accountable for the interpretation and implementation of the newly relaxed guidelines. Germany has eased most restrictions; Australia will permit athletes to run campaigns through the Olympic interval however with none reference to the Olympics; and American athletes are allowed to submit a most of seven ‘thanks’ promoting messages through the Video games. British athletes, nonetheless, have already introduced a declare in opposition to the British Olympic Affiliation’s allegedly restrictive strategy and different disputes might come up if athletes fail to comply with nationwide tips.⁴⁴

Ambush advertising can also be a reason for frustration and potential litigation. Non-sponsors generally search to affiliate themselves with an occasion by artistic promoting ways,⁴⁵ with groups of attorneys on standby to concern injunctions to rapidly put a cease to it. This needs to be much less of an issue on the Olympic Video games, which is an all-of-government exercise, extending to the introduction of laws defending the mental property related to the Olympics and the tight management of cities internet hosting occasions. Additional, the truth that athletes can affiliate themselves with non-event sponsors throughout Tokyo 2020 might discourage ambush entrepreneurs from being extra aggressive in searching for to affiliate themselves with the occasion itself.

F. Conclusion

Main sporting occasions can have a big influence on the lives and fortunes of the athletes, these internet hosting the occasion and the businesses that search to affiliate themselves with the virtues of elite sport. It’s inevitable that there might be disputes when the stakes are so excessive. For Tokyo 2020, it’s hoped that it’s going to present welcome aid from the challenges, and for some the distress, brought on by COVID-19; with the headlines over the approaching weeks dominated by athletic achievement slightly than a worsening pandemic.

Footnotes

1) The Russian Olympic Committee initiated CAS proceedings collectively with 68 Russian athletes, with a separate attraction filed by 67 of the identical athletes. Each have been dismissed. (‘The Court docket of Arbitration for Sport (CAS) Rejects the Claims/Enchantment of the Russian Olympic Committee (ROC) and of 68 Russian Athletes’, CAS Media Release dated 21 July 2016. The IAAF did introduce, nonetheless, a brand new IAAF Competitors Rule 22.1A, which gives distinctive circumstances underneath which athletes should be eligible to take part in competitions, even when their nationwide federations have been banned. The IOC Government Board subsequently issued a call that each one Russian athletes have been banned from the Rio Olympics except they might ‘rebut the applicability of collective accountability’ and meet quite a few circumstances, together with that they’d by no means been sanctioned for doping. In mild of those developments, there have been 14 challenges filed with the CAS Advert Hoc Division (AHD) constituted for Rio 2016 regarding the standing/eligibility of Russian athletes and one attraction lodged with the on-site CAS Anti-Doping Division. 4 athletes succeeded (in entire or partially) in having their eligibility reinstated though two have been nonetheless barred from taking part on different 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 instances, six have been dismissed and 6 have been withdrawn.) A associated problem introduced by the Russian Paralympic Committee was rejected by CAS: CAS 2016/A/4745 Russian Paralympic Committee v Worldwide Paralympic Committee, Award dated 23 August 2016 (with the reasoned award rendered on 30 August 2016).

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

3) ‘Right here’s why you received’t discover the Russian flag or nationwide anthem at this yr’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 docket of Arbitration for Sport (CAS) partially upholds the appeals of Mariyam Mohamed associated to the 2019 Asian Soccer 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 completed second however was subsequently awarded the gold medal after the race winner was disqualified for doping.

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

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

11) ‘Tokyo 2020: Two Namibian Olympic medal contenders dominated ineligible for girls’s 400m as a consequence of naturally excessive testosterone ranges’, CNN, 3 July 2021.

12) See FINA Media Statement dated 2 July 2021.

13) Save Women’s Sport Australasia, for instance, wrote to the IOC final June highlighting issues with their transgender tips and have subsequently launched a press release questioning Hubbard’s choice.

14) CAS 2020/A/6807 Blake Leeper v. Worldwide Affiliation 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 docket of Arbitration for Sport (CAS) dismisses the 2nd Enchantment of Blake Leeper’, CAS Media Release dated 11 June 2021.

17) ‘Canadian boxer Bujold wins attraction to compete at Tokyo Video games’, Associated Press, 1 July 2021.

18) ‘The Court docket of Arbitration For Sport (CAS) partially upholds the appeals of Mariyam Mohamed associated to the 2019 Asian Soccer 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 a part of 14 August 2016).

20) Olympic Constitution, Bye-Regulation to Rule 41.

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

22) Worldwide Olympic Committee Anti-Doping Guidelines relevant to the Video games of the XXXII Olympiad Tokyo 2020 (as of March 2021); World Anti-Doping Code 2021, Article 2.1.3.

23) For instance, in CAS advert hoc Division (O.G. Sydney) 00/010 Alan Tsagaev / Worldwide Weightlifting Federation (IWF), Award dated 25 September 2000, an athlete efficiently appealed that the IWF didn’t have jurisdiction to exclude all the Bulgarian Weightlifting Federation from the Sydney Olympics 2000 due to doping violations by three of its athletes.

24) Notable instances embody these of Shelby Houlihan (banned by World Athletics; resolution upheld by CAS, June 2021); Salwa Eid Naser (CAS upheld attraction from Athletics Integrity Unit and WADA (joint) in opposition to the ruling of World Athletics’ Disciplinary Tribunal which absolved Naser of breaching anti-doping rules, July 2021); Sha’Carri Richardson (ban from US Anti-Doping Company for Marijuana use, not appealed, July 2021); Brianna McNeal (World Athletics ban upheld by CAS, July 2021); and Solar Yang (authentic 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 within the Olympic Video games’, [2017] I.S.L.R Situation 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 instance, Greek triple jumper and lengthy jumper Paraskevi Papachristou was expelled by the Greek Olympic Committee after posting a racially insensitive touch upon Twitter.

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

29) Dishonest might disqualify an athlete or a complete workforce. This yr CAS upheld the choice of the Worldwide Swimming Federation (FINA) to ignore sure outcomes from Olympic qualifying meets performed by the Uzbekistan Swimming Federation in mild of allegations of dishonest. ‘CAS rejects Uzbekistan attraction in opposition to FINA invalidation of Olympic qualifying occasion’, Press Trust of India, 12 July 2021.

30) Rule 61, Olympic Constitution; Article 1, Arbitration Guidelines relevant to the CAS advert hoc division for the Olympic Video games. In response to Article 18, instances submitted to the AHD through the interval of the Olympics (beginning as much as 10 days previous to the Olympics) are required to be resolved inside 24 hours and are topic to particular arbitration guidelines.

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

32) The AHD didn’t overturn any area of play selections on 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) Monetary Occasions ‘Lex Letter from Seoul: the hidden costs of the Tokyo Olympics’, 21 July 2021.

36) Ibid.

37) Occasions being held at venues in Miyagi, Ibaraki and Shizuoka are open to spectators, as issues presently stand.

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

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

40) Channel Information 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 Constitution (2010) said ‘Besides as permitted by the IOC Government Board, no competitor, coach, coach or official who participates within the Olympic Video games might permit his particular person, title, image or sports activities performances for use for promoting functions through the Olympic Video games.’ The up to date bye-law within the Olympic Constitution (2020) now states ‘3. Opponents, workforce officers and different workforce personnel who take part within the Olympic Video games might permit their particular person, title, image or sports activities performances for use for promoting functions through the Olympic Video games in accordance with the ideas decided by the IOC Government Board.’

44) The unique strategy of the British Olympic Affiliation (the BOA) was to permit athletes to voice one ‘thanks’ message to sponsors. Following legal action taken by 20 British athletes, the BOA softened its stance.

45) Throughout London 2012, Nike ran a ‘Discover Your Greatness’ marketing campaign, that includes ‘Londoner’ athletes performing in different cities named London – London, Ohio; East London, South Africa; Little London, Jamaica and so forth. – a lot to the annoyance of Adidas, the official sponsor.