From Provincial Court to Olympics Sport Court

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When Rio de Janiero hosted the 2016 summer Olympics from August 5 to 21, 2016 Provincial Court Judicial Justice Carol Roberts was there! As one of 12 international arbitrators appointed to the ad hoc Court of Arbitration for Sport (CAS) she was responsible for resolving the disputes that arose before and during the Games.

The Rio Games were historic in many ways. It was the first time the Olympics were held in South America and competitors included the first-ever Refugee Olympic Team. The Games were historic for CAS as well, with a record number of arbitrations and the first ad hoc Doping Panel.

Museum of Tomorrow, Rio de Janiero
Shortly after her return, JJ Roberts shared some of her experiences and reflections with eNews. She reported that her work in Rio began ten days before the Games opened in order to decide issues involving athletes’ eligibility to compete. Permanent CAS staff had arrived earlier from their base in Lausanne, Switzerland to set up temporary CAS offices and hearing rooms in a hotel in Barra de Tijuca, near one of four Olympic venues. She and the other arbitrators - lawyers, judges and law professors from around the world with expertise in sports law and arbitration - were housed in a nearby hotel.

Governed by Swiss law due to the location of its head office and to ensure a uniform legal procedure for all sport matters, CAS applies sports law as well as the regulations of each sport. All participants – athletes, coaches and officials - sign a contract agreeing CAS has exclusive jurisdiction for disputes arising in connection with the Games. Its hearings are conducted by panels of 3 arbitrators, but a single arbitrator may deal with procedural issues like whether requests for review have been made within required time limits. English and French are the official languages of CAS but interpreters are provided for those who need them. Athletes can choose someone to advocate for them, and, in conjunction with the Rio de Janiero Bar Association, “pro bono” lawyers (for the public good) were available to assist Games participants without charge. Arbitrations are commenced by written applications but procedures are simple, flexible and free of charge. Evidence in a hearing is based largely on documents but the panels may also hear from parties, witnesses or review video evidence.

18 appeals were filed with CAS before the Games opened - 16 of them related to bans of Russian athletes. You may recall that the World Anti-Doping Agency (WADA) appointed Canadian professor Richard McLaren, to inquire into allegations of state-sponsored doping of Russian athletes in the 2014 Sochi Olympics. In July 2016 when his report found the Russian Ministry of Sport had orchestrated systematic cheating to subvert the doping control process in 30 sports, including 20 Olympic summer sports, WADA recommended that the International Olympic Committee (IOC) consider banning all Russian athletes from the Rio Olympics. The IOC declined to do this. Instead, it asked international sports federations to determine the eligibility of Russian athletes in their sports.

Those who had previously been sanctioned for doping were already banned from competition, but CAS had to decide the eligibility of other Russian athletes when they were banned by their sports federations. CAS upheld the decisions of several international sport federations, finding they had acted within their powers and rules in banning all athletes. Some Russian athletes who had been residing and training outside Russia and were able to provide evidence that they had met rigorous testing procedures were allowed to compete. The other 12 appeals heard by the CAS dealt with issues involving team selection, national eligibility, satisfaction of entry requirements, the application of competition rules, and athlete misconduct, amongst others.

Rafael Nadal, Olympic tennis

All CAS decisions are available on its website, but the case of French swimmer Aurelie Muller is a good example of an athlete misconduct case. When Ms. Muller appealed her disqualification for swimming over her opponent to prevent her touching the wall, the CAS panel applied the sports law doctrine of “field of play”. That doctrine applies to decisions made by the referees on the field, which are reviewable only if they are made in violation of the law, the rules and regulations of the sports federation, or general principles of law. Since Ms. Muller did not establish any such violation, her appeal was dismissed.

JJ Roberts said, “In order to avoid delaying events and provide certainty about the status of an athlete or competition outcomes, we were required to give reasoned decisions within 24 hours. We issued the operative decision first, shortly after the hearing, and then the panel drafted its reasons. They were generally concise and not overly analytical, but well reasoned. We were often able to explain legal principles by referring to previous CAS decisions, and this helped keep our reasons relatively brief. Nevertheless, one colleague stayed up until 3:00 a.m. to write the decision for a panel he was a member of. Our collaborative approach to decision-making fostered consensus with the result that all CAS decisions at the Games were unanimous.”

Olympic Handball

She explained that the ad hoc Doping Panel operating during these Games followed a March 2016 decision of the IOC’s Executive Board to delegate all cases involving alleged anti-doping rule violations arising during the Olympic Games to CAS. The CAS Anti-doping Division (ADD) replaced the IOC’s Disciplinary Division to hear and decide doping-related cases and made the procedures more independent. While other CAS panels operated like an appeal court reviewing decisions of federations and officials, the Doping Panel was more like a trial court, responsible for hearing doping allegations and deciding whether there was sufficient evidence to disqualify the athlete. Having the ADD make decisions during the Games seems to have been well received.

Her stay in Brazil did include time for sight-seeing. JJ Roberts described her favourite sites:

Graham DeLaet, Olympic Golf

“First, I was impressed by the golf course, newly constructed for the return of golf to the Olympics after a 112-year absence. The course is located, somewhat contentiously, in a nature preserve. The grass for the course (Zeon Zoysia) was developed in Texas. It meets strict environmental regulations prohibiting chemical fertilizers and weed killers and requires less water, fertilizer and pesticides than most other types of golf turf. Since the course was built, the number of animal species has doubled and the native vegetation has increased by 167 percent, according to a government assessment report. After the Olympics are over, the course will become Brazil’s first public golf course.

Cristo Redento
Next , Cristo Redento – an art deco statue of Christ completed in 1931 – is one of the new seven wonders of the world. Constructed of reinforced concrete and soapstone, it stands 30 metres tall. After undergoing significant restoration in 2010, it was damaged by lightning in 2014. The statue is located in the Tijuca Forest National Park, one of the world’s largest urban forests, established on land reclaimed from coffee and sugar cane plantations to stop erosion and deforestation and protect Rio’s water supply. Among the forest’s many species of plants and wildlife are several threatened with extinction.

Finally, the world’s largest graffiti mural “the Ethnicities”, (also referred to as “We Are All One” to reflect unity) was created for the Olympics by Brazil’s most renowned graffiti artist, Eduardo Kobra. Consisting of five faces representing the five Olympic rings and ethnic groups from five continents, the mural has set a Guinness record for the world’s largest street mural, at 170 m long and 15.5 m high.”

We are all One – world’s largest graffiti mural

65 Olympic and 19 world records were broken at the 2016 Games. JJ Roberts said, “My personal favorite was the pole vault of the Brazilian Thiago Braz da Silva, who not only set an Olympic record but jumped 10 centimeters over his personal best, saying that “my home town wanted me to win.” The power of Brazilian fans!”

When asked about her reflections on her time in Rio, JJ Roberts said, “The fans in Rio did not seem to tolerate athletes who take prohibited substances. Brazilian fans are very vocal, treating all sporting events like football matches and their loud participation created challenges for some referees. But perhaps their boos for alleged and proven cheaters show that spectators want to see all participants competing cleanly.

I feel enormously privileged to have been part of the Rio Olympic Games. Personally and professionally it was an extraordinary experience. Above all, my experience impressed on me how very lucky Canadians are. We have a phenomenal country and we too often take what it has to offer for granted. From the quality of support our athletes receive to our excellent legal system governed by the Rule of Law, we compare so favourably with other countries. I am reminded of how lucky we are each time I travel, but it is reinforced when colleagues discuss their own legal systems and you read about athletes who seek asylum after they have finished competing. I felt fortunate to be part of the Games but even more fortunate to live in Canada.”

Olympic symbol – Rio 2016

All photo credits: Paul Jones

For summaries of some Rio games decisions and more legal information about CAS see Carol Roberts’ article, 2016 Rio Ad Hoc Court of Arbitration for Sport.

See too Provincial Court Judicial Justice appointed to International Sports Court, eNews 01/19/2016