The Olympic Games serve as an international stage for athleticism, inter-cultural celebration, and – as proposed in this piece – arbitration. Making headlines in the 2024 Paris Olympic Games, the Women’s Artistic Gymnastics Floor Finals became the center of controversy, surrounding athletes Ana Bărbosu of Romania and Jordan Chiles of the United States.[1] An alleged error in the judges’ review and scoring of the event led to a complaint filed, on behalf of the Federation of Romanian Gymnastics (“FRG”), against the Fédération Internationale de Gymnastique (“FIG”), the international governing body of the sport.[2] The complaint asserted that Bărbosu should have held the third place bronze position and that the judges improperly granted Chiles a score review outside of the designated time limits[3]; it was filed with the Court for Arbitration in Sports (“CAS”) and serves as a relevant example in the current discussion of jurisdiction for legal conflicts in international athletics.[4] While the CAS has made significant progress as an independent body in sports arbitration, cases such as the Federation Romanian Gymnastics and Ana Maria Bărbosu v. Donatella Sacchi and Fédération Internationale de Gymnastique; Claudia Pechstein v. International Skating Union; and Gundel v. Federation Equestre Internationale have exposed concerns over its perceived independence and legitimacy.[5] These controversies suggest reforms are necessary to reinforce public confidence in the CAS as a credible and impartial authority in international sports law.[6]
The CAS was created in 1984 by then president of the International Olympic Committee (“IOC”), Antonio Samaranch, and Judge Kéba Mbaye of the International Court of Justice (“ICJ”).[7] The court was established to be an independent arbitration body.[8] After a decision, appeals from the CAS can be heard in the Swiss Federal Tribunal, which is the Swiss Supreme Court; however, this court has recognized that the CAS is the “true Supreme Court of world sport,” and has stated that the “CAS offers all the guarantees of independence and impartiality to be regarded as a real court of arbitration, whose awards are comparable to the judgments of a state court.”[9] The CAS typically addresses issues in four categories: Ordinary Arbitration Procedure (generally relating to issues like sponsorship contracts, licensing deals, and broadcasting rights); Appeal Arbitration Procedure (reviewing decisions from the governing bodies of sports); Ad-hoc Division (special temporary courts placed during the Olympic games to handle related issues); and Mediation (used as a preliminary option before arbitration).[10]
Due to the historic organizational and financial ties to the IOC, initial concerns arose around the CAS’s perceived independence and authority.[11] One of the earliest controversies surrounding the CAS, and its legitimacy as an independent arbitration body, was seen in Gundel v. Federation Equestre Internationale.[12] In this case, Elmar Gundel – an equestrian athlete – was suspended after his horse was found positive when tested for doping by the International Federation for Equestrian Sports (“FEI”).[13] Gundel challenged the case in the CAS, where the suspension was upheld.[14] Gundel then appealed his case to the Swiss Federal Tribunal, arguing that the CAS decision was not decided by impartial arbitrators, and was unenforceable because of the close relationship between the IOC and FEI.[15] While the Swiss Supreme Court ultimately held that the CAS acted as an impartial and independent tribunal, the Court criticized the institutional proximity between the CAS and the IOC.[16] The Court also expressed concern over the substantial economic ties that existed between the organizations, including that the IOC funded the operating costs of the CAS and played a role in appointing its arbiters.[17] Due to this decision, and the controversy surrounding it, the CAS would go on to establish the International Council of Arbitration for Sport (“ICAS”), which now operates the main governing body of the CAS and oversees the appointment of arbitrators and the finances of the body.[18] The creation of the ICAS has helped boost the CAS’s position as an independent and legitimate arbitration body in the international sports community.[19]
In the case filed by the FRG, the Ad hoc Division was employed because the complaint related directly to an incident at the Olympic games.[20] In its decision, the CAS ruled in favor of Bărbosu and the FRG, finding the officials had erred in allowing the review of the scoring for the event.[21] Specifically, the evidence at the arbitration indicated the USAG’s request for review was at sixty-four seconds – outside of the one minute time frame allowed for this type of challenge.[22] Thus, the CAS indicated that Bărbosu was the correct third place finisher, and left the allocation of medals to be decided by the IOC; the Committee went on to decide that Bărbosu would receive the bronze and Chiles would be stripped of the position.[23] This decision was not met without controversy; the USAG has since appealed to the Swiss Federal Tribunal.[24] The appeal was based on alleged errors including the CAS’s refusal to consider new evidence that the request for review was indeed submitted within the one minute time frame, and that the USAG did not have proper notice of the arbitration, nor the opportunity to prepare.[25]
The case between the USAG and FRG is not the only controversy that the CAS has faced in recent years.[26] Similarly, Claudia Pechstein v. International Skating Union has been an ongoing case since 2009, raising concerns over CAS arbitration.[27] In this case, Pechstein, a German speed skater who was suspended for doping based on blood test abnormalities, wanted to appeal the decision reached by the International Skating Union (“ISU)”.[28] Because of the arbitration clause she signed, her only option was to go before the CAS, who ultimately dismissed the case.[29] Pechstein then appealed the case decision to the Swiss Federal Tribunal, stating that the CAS’s primary interests “[were] those of the [IOC] and the international sporting associations in general, which consider the economic value of the Olympic Games and their sporting events to be at risk as the result of doping issues.”[30] The case is still ongoing, and has been heard at the European Human Right Council and other legal bodies since.[31]
Ultimately, the CAS has made significant progress as an independent body in sports arbitration. Organizational decisions, like that which created the ICAS, have helped create independence from the IOC and establish its legitimacy. However, the current USAG controversy, along with past controversies such as Pechstein and Gundel, illuminate the fact that reforms are necessary to reinforce public confidence in the CAS.[32]
[1] Emily Giambalvo, Jordan Chiles appeals in Swiss court to reclaim Olympic medal, WASHINGTON POST (Sept. 16, 2024)https://www.washingtonpost.com/sports/olympics/2024/09/16/jordan-chiles-medal-appeal/.
[2] Federation Romanian Gymnastics and Ana Maria Bărbosu v. Donatella Sacchi and Fédération Internationale de Gymnastique, CAS OG 24-15, at 3 (Aug. 14, 2024) https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_OG_15-16__for_publication_.pdf.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Louise Reilly, Introduction to the Court of Arbitration for Sport (CAS) & the Role of National Courts in International Sports Disputes, An Symposium, 1 J. of INT”L DISP. RESOL. 63, 63 (2012).
[8] Id.
[9] Id. at 64.
[10] Id. at 64-65.
[11] Id.
[12] Gundel v. Federation Equestre Internationale, CAS 92/A/62 (Sept. 1992).
[13] Jennifer Bondulich, Rescuing The “Supreme Court” of Sports: Reforming The Court of Arbitration for Sport Arbitration Member Selection Procedure, 42 BROOKLYN J. OF INT’L LAW, 275, 290 (2016).
[14] Id. at 291.
[15] Id.
[16] Id.
[17] Id.
[18] Code: ICAS Statutes, https://www.tas-cas.org/en/icas/code-icas-statutes.html.
[19] Id.
[20] Federation Romanian Gymnastics and Ana Maria Bărbosu v. Donatella Sacchi and Fédération Internationale de Gymnastique, supra at 1.
[21] Id.
[22] Id.
[23] Giambalvo, supra note 1.
[24] Id.
[25] Id.
[26] Bondulich, supra note 10 at 297.
[27] Id.
[28] Id.
[29] Id.
[30] Id. at 298.
[31] Id.
[32] Id.
