Getting to the games: the Olympic selection drama(s) at the court of arbitration for sport

3.1 Ordinary and appeal proceedings

As many readers versed in international sports arbitration will know there are two main procedural routes in front of the CAS: the ordinary procedure and the appeal procedure.²¹ This dichotomy is also relevant in the context of selection disputes.

3.2 CAS ad hoc division

Finally, and this is probably the most important development in CAS arbitration as far as disputes related to the participation to the Olympic Games are concerned, athletes can turn to the CAS ad hoc Division for the Olympic Games to challenge their non-selection.²⁵ This is a relatively new possibility. Indeed, for a while its jurisdiction was derived only from the signing of the entry form to the Olympic Games, thus, athletes who were not selected to participate in the Games, and, hence, had not signed the entry form were deprived from the right to have recourse to the CAS ad hoc Division. This situation has crystallized in two cases submitted to CAS ad hoc panels at the Salt Lake City Winter Olympics.²⁶ The first case involved an Italian/Granadian national who wanted to represent Granada for the Slalom event. However, despite having the right to do so, the Granada Olympic Committee declined to submit an entry form for Ms. Bassani-Antivari, denying her the possibility to join the Games. The panel held that “[i]t would be illogical to confer jurisdiction for a competitor on the CAS Ad hoc Division (as opposed to the regular CAS procedure) to resolve any dispute arising on the occasion of, or in connection with, the Olympic Games only on the basis of Rule 74 without a link to these Games, such as the arbitration clause contained in a validly endorsed entry form”.²⁷ Hence, as the athlete had not signed a valid entry form, she could not rely on the arbitration clause therein to refer her dispute to the CAS. A few days later, an athlete from the Virgin Islands challenged the decision of the International Bobsleigh and Tobogganing Federation to withhold his admission to compete in the Olympic Skeleton Race. The panel referred to the Bassani-Antivari precedent already discussed, and held that “if it is to have jurisdiction to deal with this Application, it must involve a dispute arising under an Entry Form as a competitor for these Winter Games”.²⁸ Yet, “[t]here is no such Entry Form and, therefore, this Panel lacks jurisdiction”.²⁹ Remarkably, the Panel also added that “[t]he construction of Article 1 of the CAS Ad hoc Rules adopted in Gaia Bassani-Antivari, which the Panel has decided to follow, may give rise to unfairness and hardship for athletes claiming the right to be entered as competitors in Olympic Games”³⁰ and recommended “that the contents of Article 1 of the CAS Ad hoc Rules be reconsidered”.³¹

This new legal framework was put to work in the 2006 Winter Olympics in Turin.³⁴ In a case opposing a Swiss Snowboarder, Andrea Schuler, to the Swiss Olympic Association and Ski Federation over the decision not to select her to compete in the half-pipe event, the CAS ad hoc Division was anew confronted with a situation in which an athlete had not signed an entry form to the Olympics. The panel found that “Ms Schuler has not signed an Olympic entry form but under the current CAS Ad hoc Rules this is not required”.³⁵ Instead it had to determine “whether the dispute arose within the period of 10 days preceding 10 February 2006, that is on or after 31 January 2006”.³⁶ Ms Schuler had received a written explanation of her non-selection on 1 February 2006 and decided to appeal the decision to the CAS ad hoc Division on 6 February 2006. In the panel’s view “it would not be possible to say that a dispute had arisen until Ms Schuler had decided to appeal and had filed notice of her appeal”.³⁷ The panel also controlled whether the dispute had “arisen “on the occasion of” or “in connection with” the Olympic Games, as required by Rule 61 of the Olympic Charter”.³⁸ In the Schuler case, this condition was clearly met “as Ms Schuler has not been included in the Swiss Olympic team and is seeking as relief her selection for, and thus her participation in, the half-pipe snowboard competition of the 2006 Olympic Winter Games”.³⁹ One can easily deduce “that all selection and eligibility disputes do arise “in connection with” the Olympic Games”.⁴⁰ Hence, the widening of the scope of jurisdiction of the CAS ad hoc Division opened the door for the submission of selection disputes arising before the Olympics. Commentators at the time of the decision deduced that the jurisdiction of the CAS ad hoc division could theoretically “be expanded to decisions [rendered 31 (or more)] days before the Opening Ceremony of the Olympic Games”.⁴¹

Nevertheless, this jurisdiction of the CAS ad hoc Division in selection cases is not limitless. For example, on one of the many twists to the never-ending Pechstein saga, the CAS ad hoc Division at the Vancouver Winter Olympics had to deal with her request to be allowed to compete in the speed-skating competitions of the Vancouver 2010 Winter Olympic Games. The CAS ad hoc Division declined jurisdiction, as Claudia Pechstein was unable to point at an appealable decision. Indeed, the CAS award confirming her doping ban was final.⁴² In other words, the arbitrators found that “the Applicant [Claudia Pechstein] has not identified any specific decision by the IOC, an NOC, and International Federation or an Organising Committee for the Olympic Games which has arisen during the Vancouver Olympic Games or during a period of ten days preceding the Opening Ceremony of the Games on 12 February 2010 which could be the subject of an appeal to the Ad hoc Division”.⁴³ This is an exceptional case. In normal circumstances the applicants are able to point at an appealable decision to not select them. A more problematic question is whether the relevant dispute arose during the period of 10 days preceding the Games.

The question of the 10 days delay was at issue in the case involving an Irish boxer, Joseph Ward, wanting to participate in the 2012 Summer Olympics in London. The CAS ad hoc panel was to determine whether the dispute arose within the 10 days period, starting on 17 July 2012, preceding the Games. The panel found that “at the latest, the “dispute arose” on 11 July 2012, when the Applicant objected formally, based on receipt of the rationale for the decision”.⁴⁴ To determine the moment at which the dispute arises, “the facts will be examined in each case based on the good faith understanding of the athlete or other aggrieved party and the relevant facts giving rise to when the dispute arose”.⁴⁵ Moreover, “[a]n applicant to the CAS ad hoc Division cannot rely on the Schuler award to mean that s/he, through an exploration designed to learn the rationale for a decision with which s/he disagrees, can extend the time when a “dispute arose” into the period identified in Rule 1 of the Ad Hoc Rules”.⁴⁶ Instead, “the Applicant was well aware that a decision had been made as of 28 June and had the full explanation as of receipt of the 2 July letter”.⁴⁷ Hence, the CAS ad hoc panel refused to consider that the situation was akin to the Schuler precedent and denied its jurisdiction.

Finally, in the Birkner case,⁴⁸ the ad hoc Division at the Sochi Winter Olympics grappled extensively with the question: “did the dispute arise in the required time frame?”⁴⁹ As the panel recognized, this is a “vexing issue”.⁵⁰ To be receivable the dispute had to arise not earlier than the 28 January 2014, 10 days before the opening ceremony in Sochi scheduled for the 7 February 2014. The panel asserted: “the date when the dispute arose cannot, per se, be the date when the Request for Arbitration is filed”.⁵¹ It refused to consider the Schuler precedent to be applicable in the Birkner case for two reasons: the factual situation is different and the reasoning used in Schuler is deemed fundamentally flawed. On the one side, contrary to the Schuler case, the panel finds that “[i]n the present case […] the explanation was not given on a date inside the required period, as it was either on 20 January 2014, which is the date of the letter of explanation, or on 22 January 2014, which is the date on which the Applicant says that she received that letter”.⁵² Both of these dates being well anterior to the 10 days period before the Games, the panel is of the opinion that it lacks jurisdiction. On the other side, the panel is clearly not “convinced by the legal reasoning adopted in the Schuler case”.⁵³ Indeed, it considers that “[s]uch conclusion could extend the jurisdiction of the Ad hoc Division outside the precise and limited framework set by the Rules, which this Panel is required to respect and apply”.⁵⁴ The panel held that “the date when a dispute arises is in general […] the date of the decision with which the Applicant disagrees”.⁵⁵ However, “[s]uch a date can arise later […] if […] the decision is not self-explanatory and requires some explanation in order for the parties to know with certainty that they are in disagreement”.⁵⁶ In summary, by considering that the dispute arises at the time when the (clear) reasoning of the challenged decision is communicated to the party, it sharply narrowed the interpretation of the scope of jurisdiction of the CAS ad hoc division.

The Birkner decision reflects the willingness of the CAS ad hoc Division to narrow its own scope of jurisdiction. If the parties do not agree to the jurisdiction of the CAS (in practice they might not contest the jurisdiction then there is no reason for the panel to raise the question ex officio),⁵⁷ it will render more difficult the referral of a selection dispute to the ad hoc Division. This interpretation given to the scope of jurisdiction ratione temporis of the CAS ad hoc Division at the Olympic Games seems to be in contradiction with the overarching aim of the Division, which is to deal swiftly with the disputes intimately connected to the Games. In this light, the more flexible interpretation suggested in the Schuler case is preferable. Athletes are no legal experts; they (and sometimes their lawyers) need time to find their way through the jungle of sporting regulations and dispute resolution mechanisms potentially available. Moreover, in many instances the national or federal dispute resolution mechanisms will be lacking independence and the due process rights of the athletes might be jeopardized. The crucial importance of the Olympic Games for an athlete’s career calls for an interpretation of the start of the dispute that focuses on the express challenge of the decision. Moreover, any doubts concerning the starting date of the dispute should play in favour of the athlete, unless the time between the date of notification of the motivation of the contentious decision and the submission of an appeal to the CAS ad hoc Division is over the usual 21 days provided by the CAS Code. The attack by the Birkner panel on the reasoning adopted in Schuler is not an anodyne move; in the future it may threaten the access to justice of athletes and their ability to obtain a swift and fair decision in a context where they most urgently need it.

4.1 Reviewing (or rather not) the merit of the selection process

The CAS panels are extremely cautious when they are called to review the selection process to the Olympics. As a single CAS arbitrator put it, he “should be careful not to readily trespass into the selection processes of a professional cycling organization which processes clearly embrace a wealth of experience and expertise that [he] cannot hope to share”.⁵⁹ The aim of the scrutiny by the CAS of the selection process is admittedly not to “set aside the decision simply because it thinks a better one could have been made”.⁶⁰ In short, there is a considerable scope of discretion reserved to the SGBs in selection matters as the CAS confers a “significant degree of deference”⁶¹ to their decisions. Therefore, the standard used to review a selection decision for the Olympics is usually the “abuse of discretion”.⁶² This explains also that in some cases, even where the CAS panel finds that the selection process is procedurally flawed, it prefers to remit the matter to the national federation or Olympic Committee for a new process.⁶³

Hence, there is a limit to the discretion of sporting federations. The key question is then “whether or not these flaws in the procedures amount to circumstances which demonstrate that the Nomination Criteria have not been “properly” followed and/or implemented”.⁶⁸ In the present case, the fact that the official result of a specific regatta was modified by the selection panel “had a relevant operative effect in that it caused the weight given to the performance of the Appellants in the Nomination Regattas to be decreased”.⁶⁹ The sole arbitrator is “satisfied that in the particular circumstances of this case the decision of the AYF Board could have been different if the particular non-compliance had not occurred”.⁷⁰ This led to the annulment of the original selection decision and the re-submission of the matter to the AYF Board to make a novel decision.

However, when the rules applicable to the selection procedure indicate a clear subjective scope of evaluation, the CAS panels have been reluctant to intervene. This is clear from the Schuler case, which was instrumental in opening up the jurisdiction of the CAS Ad hoc Division in Turin.⁷¹ Indeed, the panel found that Ms. Schuler “does not claim that the Respondent acted in bad faith or in a discriminatory manner, so any arbitrariness is excluded” and “did not provide any evidence that the selection process was unfair and that the Decision was unreasonable under the circumstances”.⁷² Thus, it concluded that the Swiss ski federation “exercised its discretion in a reasonable, fair and non-discriminatory manner and in accordance with the rules in deciding not to select the Applicant”.⁷³ It is solely in case of an unfair, discriminatory or arbitrary exercise of its discretion by an NF or an NOC that the CAS will intervene and annul a decision. This approach was espoused two years later in a case involving an Australian swimmer, Andrew Mewing, challenging his non-selection for the Beijing Olympics. The swimmer was in the eyes of the sole arbitrator “really attacking the merits of the nomination or selection decision by Mr Thompson [the Australian National Head Coach”,⁷⁴ this was deemed “impermissible in such an appeal”.⁷⁵ Especially that “[i]n the absence of bad faith, dishonest or perversity, this appeal could only succeed if it could be shown that Mr Thompson, in nominating the relay team, did not give “proper, genuine and realistic” consideration to the “overall needs of the team””.⁷⁶ On the contrary, the CAS considered that “[t]he fact that someone else, similarly considering the matter, may have arrived at a different result, or even the fact that his decision is wrong, is insufficient to enable the appeal to be successful as such matters go to the merits of the decision not whether or not the decision-maker gave proper consideration to such matters”.⁷⁷ Nevertheless, to be successfully invoked by an NF, this scope of discretion must be seen as being exercised. For example, in the dispute opposing Isabella dal Balcon to the Italian winter sport federation [FISI] and NOC in 2006, there was no indication that the federation exercised its discretion. As the panel noted, “the process was made by the DA Snowboard applying the 2-best rule and FISI accepting the recommendation from the DA Snowboard without resort to the use of its discretion”.⁷⁸ In fact, it found that the “FISI accepted the direction of the DA Snowboard albeit on the changed criteria that this Panel has found to be arbitrary and unfair and therefore to be disregarded”.⁷⁹ Instead of relying on a potential discretion the FISI’s selection decision relied on arbitrary objective criteria. This contrasts with the Schuler decision, which “was made using discretion that had been properly preserved to the Swiss National Federation”.⁸⁰

This reluctance to intrude in the SGBs decision-making in selection cases extends to the interpretation of the qualification criteria. In a dispute concerning the qualification to the Pentathlon event at the Beijing 2008 Olympic, the Greek Pentathlon Federation was challenging the qualification of an Australian athlete which obtained its qualifying results at a competition that the federation refused to see as an official competition complying with the competition rules set up by the International federation.⁸¹ The panel relied on the official report of the technical observer mandated by the international federation to dismiss the complaint. Thus, highlighting that it “is extremely reluctant to put the (factual) findings of an experienced Technical Observer into question and to completely disregard the First Respondent’s recognition of the 2007 Open Australia Championships as a relevant event for eligibility purposes”.⁸² Here again despite solid evidence otherwise the panel refused to intervene, unless the Appellant would have “demonstrated that the Technical Observer did not provide an accurate report or that the results of the competition have been achieved by undue means or even fraud”.⁸³

Finally, the CAS found that if the minimum eligibility requirements set by an IF are met, it is not for it to exercise discretion in the selection of athletes for the Olympics. This can be drawn from the Schuettler case. Rainer Schuettler, a German tennis player, was selected by the German NF and NOC to take part in the Beijing Olympics. Nevertheless, the International Tennis Federation blocked his selection on the ground that there were better ranked German players to be selected first. The question was “whether the ITF Rules oblige NOCs to nominate players strictly in accordance with the List [the ITF ranking]”.⁸⁴ Yet, the CAS panel disagreed and recognized that “no ITF Rule has been identified to us that subordinates the NOCs power of selection in that way either expressly or by necessary implication”.⁸⁵ The discretion in the selection process, once the objective criteria set by the international federations are met, lies with the NOCs.⁸⁶ This means also that the NOCs can decide not to select an athlete even though he or she has met the minimum criteria set up by the IF. In fact depending on each IF’s eligibility system, NOCs may have more or less discretion in distributing the quotas they have obtained amongst their national athletes. As pointed out by a panel in the Mewing case, “being entitled to consideration for nomination and being eligible for nomination is not the same as having a right to nomination”.⁸⁷ Another panel, in a case opposing two Australian snowboarders to their NF in the context of the Sochi Olympics, highlighted that “the allocation process allocates quota places to the NOCs, and not to individual athletes”.⁸⁸

NFs and NOCs often dispose jointly of a wide discretion insofar as the selection of their Olympic team is concerned. This discretion is deemed necessary due to the subjective nature of the evaluation of the ability of an athlete. Nonetheless, it is not without limits, if formal criteria have been devised and publicized, they must be taken seriously by the SGBs. In particular, they might give way to legitimate expectations on which athletes may be able to rely to claim a right to be selected for the Olympic Games.

4.2 Protecting the legitimate expectations of the athletes

As no proper justification was provided, Ms. Watt was re-instated in Australia’s Olympic team for the Orlando Games instead of Ms. Tyler Sharman.

As the Australian Olympic Committee was one of the first to introduce a CAS arbitration clause in its rules applying to the selection process for the Olympics, it is not very surprising that many of the cases discussed concern Australian athletes, as illustrated by a well-known case involving two Australian judokas competing for a spot at the Sydney Summer Olympics.⁹⁸ Ms. Sullivan, the appellant, was challenging the nomination of Ms. Raguz, the defendant alongside the national federation and Olympic Committee, and claiming that she should have been selected to represent Australia. Here, the legitimate expectation to be selected did not arise from a previous announcement of the selection to participate in the Games, instead the CAS finds that it stems from the selection criteria communicated beforehand by the Australian federation. The arbitrators “conclude that Athletes vying for selection in the 2000 Olympic Games Team in the sport of Judo have and at all times from 27 September 1999 have had a legitimate expectation that the provisions of the Agreement [containing the selection criteria] would be complied with”.⁹⁹ In its submission, the Australian federation argued that it had modified the criteria included in the Agreement. But the panel was of the view “that whatever may have been the subjective intention of the First Respondent [Australian Judo Federation] in pursuing a change to the relevant points table the proposed change was not effective until after the three selection events had taken place”.¹⁰⁰ Additionally, “[a]ny power to amend must be subject to a limitation that it could not be exercised retrospectively once that “allocation” had been made and once it had been scrutinised and confirmed”, and “no indication in writing had been given by the First Respondent [Australian Judo Federation] to any of the potential Olympic nominees for selection that the points table was proposed to be changed prior to the change occurring”.¹⁰¹ Thus, “all Athletes had a legitimate expectation that the issue of the nomination to the AOC would be governed by the documentation existing on 27 September 1999 which had not been amended prior to the selection decision by the Oceania Judo Union”.¹⁰² Henceforth, “the Court upholds the Appeal of the Applicant and orders that First Respondent [Australian Judo Federation] nominate to the AOC the Applicant [Ms. Sullivan] in substitution for the Third Party [Ms. Raguz]”.¹⁰³ As often, the legitimate expectations of one athlete clash with those of another. The CAS noted this unhappy state of affairs and labelled it “a matter of grave concern”.¹⁰⁴ Nonetheless, Raguz was de-selected from the Sydney Olympics, she tried to challenge the CAS ad hoc award in front of the Australian courts but to no avail.¹⁰⁵

The idea of ensuring that legitimate expectations of athletes are protected is analogous to the notion of estoppel, which a CAS ad hoc panel referred to in a case opposing the New Zealand Olympic Committee and the Salt lake Organizing Committee for the Olympic Winter Games of 2002 (SLOC). In this instance, the SLOC had wrongfully accepted the misleading entry form of two New Zealand skiers. The panel held that “[b]y accepting the entries for the two athletes for both Slalom and Giant Slalom, SLOC induced them to prepare and train for both disciplines for which they were properly entered”.¹⁰⁶ Thus, “[t]o exclude them from competing in these two disciplines at this late stage would be unfair and contrary to the […] doctrine of estoppel”.¹⁰⁷ Indeed, “[g]iven the interaction of the International and National Federations with the Organizing Committees of Olympic Games (SLOC in this case), both the athletes and the Applicant are entitled to rely on the acts and omissions of SLOC as if they were acts or omissions of FIS [Fédération Internationale de Ski]”.¹⁰⁸ Here by accepting the entry forms to the Olympics submitted by the National Olympic Committee and by giving the appearance that they had fulfilled the selection criteria imposed by the FIS, the SLOC had induced legitimate expectations for the athletes and was estopped from blocking the participation of the two skiers to the Salt Lake City Winter Olympics.

Can every athlete that has been informed that he is selected for the Olympic Games rely on his legitimate expectation to take part in the Games to fend off any challenge against his or her participation? Not really, there might be a strong presumption that this is so, but it remains possible to de-select an athlete in exceptional cases. This possibility was tested by CAS panels in cases involving two different Australian athletes on their way to the Beijing 2008 Summer Olympics. These instances involved misbehaviour of the two athletes in their private life. Nicholas D’Arcy, a swimmer, started a brawl in a Sydney Bar and severely injured someone. This led the Australian Olympic Committee to de-select him. At first the decision was taken unilaterally by the President of the AOC, which led to its annulment by the CAS as it did not conform to the procedure enshrined in the AOC’s internal rules.¹⁰⁹ Yet, it remitted the matter to the AOC, which in a procedurally adequate way took the decision to remove D’Arcy from the Australian Olympic squad. Asked again to review this second decision, the CAS found that “[t]he conduct of the Appellant [Mr. D’Arcy] on the night in question, putting to one side the allegations of criminal misbehaviour, was serious misconduct”.¹¹⁰ Indeed, “[t]he grossly excessive consumption of alcohol resulting in intoxication, culminating in his involvement in a fracas, was conduct that could form an ample basis for the exercise of discretion to terminate the Appellant’s membership of the team”.¹¹¹ Furthermore, “[t]he extent of the disrepute that the Appellant’s behaviour has brought himself is highlighted by the voluminous number of media reports that have accompanied his misconduct”.¹¹² Hence, it cannot be said “that the decision of the AOC Executive was perverse or irrational, or aberrant in the “Wednesbury” sense.¹¹³ In other words, “[t]he sanction was not disproportionate, nor manifestly excessive so as to give rise to a finding of “irrationality”.¹¹⁴ This decision points at the clear limits to the legitimate expectations athletes can rely on to participate in the Olympic Games. A similar question was at the heart of the award in a case opposing another Australian athlete, Chris Jongewaard, to the AOC. The athlete, a cyclist, had caused a car accident and injured another cyclist while driving drunk. The CAS panel found that the athlete “had a contractual obligation to not engage in (publicly known) conduct which, in the absolute discretion of the President of the AOC, brought or would be likely to bring him into disrepute”.¹¹⁵ Instead, “[a]n athlete nominated for the Australian Olympic Team is presumed to be a person of good repute”, as he/she “is perceived as both a leader and a role model within the Australian community”.¹¹⁶ Thus, knowing that the athlete had to answer two serious criminal charges, the panel could not “accept that the Decision of the AOC Selection Committee (and the President) that the Appellant has brought himself into disrepute and therefore should not be selected as a member of the Australian Olympic Team can be held to be so unreasonable or perverse as to be “irrational””.¹¹⁷ On the contrary, it found “the Decision of the AOC (and the President) to be a reasonable Decision”.¹¹⁸ However, these cases are special because the AOC has introduced a specific rule providing for the opportunity to remove an athlete from the Olympic team in case of misbehaviour. On the contrary, if an NF or an NOC does not provide for the possibility to exclude an athlete in case of a doping suspicion, he or she can rely on his legitimate expectation to defend his or her selection for the Olympics.¹¹⁹

Finally, the question when a legitimate expectation arises is also key before the CAS. In a recent case, the CAS ad hoc Division had to deal with an athlete claiming that he could rely on the legitimate expectation to be selected for the Sochi Winter Olympics as he had been erroneously informed by an email sent by his national federation of his participation in the Games. However, later the same day, after the athlete confirmed his interest in the spot, the federation received a second email from the FIS stating that the Argentine Federation “does not have an athlete that is eligible to participate in the Aerials men event”¹²⁰ and, therefore, cannot get the spot misleadingly offered. Hence, the panel was of the opinion that “FIS never made during the qualification period a representation that Mr Getty was eligible”.¹²¹ Moreover, “there is no evidence that during the qualification period Mr Getty received from FIS an individual assurance that he was eligible”.¹²² Rather, “the fact that COA [Argentinean Olympic Committee] might ultimately obtain a quota place did (and could) not suggest that FIS would waive the minimum individual qualification requirement for any athlete assigned to that quota place”.¹²³ Hence, “no legitimate expectation could be drawn by the email the Applicant received on 24 January 2014 from FASA (not FIS, which did not communicate directly with Mr Getty), as the indication that he might compete at the Sochi OWG was withdrawn only a few hours later”.¹²⁴ Indeed, “while this Panel would be ready to subscribe to the doctrine of “estoppel” set out in the CAS jurisprudence, the position of the Applicant finds no support in the CAS precedents he invokes, which clearly refer to situations that differ from his case in vital point: in CAS OG 02/06 and in CAS OG 08/02, the athlete had been given specific and individual assurances about his eligibility, which were withdrawn at a very late stage; in CAS 2008/O/1455, the international federation changed its rules with retroactive effects, depriving an athlete of the eligibility that could be assumed on the basis of prior rules”.¹²⁵

In any event the CAS “stressed the importance of the principle that an international federation would not abandon at will Olympic qualification criteria upon which athletes had relied”.¹²⁶ It is willing to secure the right of athletes to participate in the Olympics when they can rely on a legitimate expectation to being selected. In general, this principle fits within a broader concern for good governance and procedural fairness in selection processes.

4.3 Good Governance and selection disputes

One broader concern that runs through the CAS’s jurisprudence on selection disputes for the Olympic Games is the idea that selection procedures should live up to the ideal of good governance. In practice, this concern for good governance is embraced in both selection cases and eligibility disputes. CAS panels or single arbitrators have the tendency to deplore the procedural flaws they identify in the various selection processes they are reviewing. Basically, CAS panels have “[…]to determine whether the decision was arrived at fairly […]”.¹²⁷ This is so, because the right to select the athletes “shall be exercised in good faith and in accordance with the applicable rules and, in particular, with the principles of the Olympic Charter”.¹²⁸ Ensuring procedural fairness is an overall goal guiding the review of the CAS.

A main concern is the ideal of transparency and publicity of the eligibility criteria and the selection rules. Though, in the latter case it seems inclined to exercise a more restrained control. The CAS is, for example, very critical of the way SGBs miscommunicate (or simply do not communicate) the eligibility criteria applicable for an athlete to get to the Olympics.¹²⁹ It has held that “[t]he oral discussion of such criteria are an imperfect method of explaining to athletes what the precise criteria are in order for all athletes to know what they must do and achieve in order to be selected”.¹³⁰ Furthermore, as pointed out by a single arbitrator, he “would not hesitate to quash the decision, had the selection criteria been established before the selection, but not been communicated to the athletes”.¹³¹ Indeed, “a professional athlete, such as the Appellant, has the right to know the criteria established by its National Federation or National Olympic Committee, which he or she must meet in order to qualify for the Olympic Games”.¹³² Furthermore, “[t]aking into consideration that the decision on the selection of an athlete may constitute the opportunity of a lifetime for an athlete, the Federation and the National Olympic Committee should pursue a policy of transparency and open information”.¹³³ Transparency of the selection and eligibility criteria used is a must. This implies also that an IF cannot depart from the eligibility criteria it has enacted without following the proper legislative procedure enshrined in its statutes.¹³⁴ Moreover, “even if the [SGB] had properly and formally enacted a resolution adopting a new qualification system, the Panel is of the opinion that an attempt to alter the Olympic qualification process with retrospective effect at such a late stage—a few months before the Olympic Games—would violate the principle of procedural fairness and the prohibition of venire contra factum proprium”.¹³⁵ Overall, “crucial considerations of procedural fairness towards its members require international federations to announce at a reasonably early stage the Olympic qualification process and not to alter it when the national federations and their athletes have already started the sporting season leading to the Olympic Games”.¹³⁶ Additionally, “[p]aramount considerations of legal certainty require that an international federation exercises its normative discretion by adopting resolutions or regulations in proper compliance with the formal procedures set out by its own statutes”.¹³⁷ A federation willing to change the selection process “should have enacted and publicized such provision at a reasonably early stage and, at any rate, prior to the beginning of the sporting season leading to the Olympic Games”.¹³⁸ In short, “the policy choices of an international federation must necessarily be translated into rules and regulations, correctly adopted—as to both form and substance—and properly and timeously publicized”.¹³⁹ Similarly, when a federation imposes “new deadlines for qualification on such short notice that the Appellant could have no hope of being selected to represent his country”,¹⁴⁰ it amounts to “an arbitrary and manifestly unfair”¹⁴¹ way to select an athlete (and in that case his horse). Instead, “applicable deadlines should have been notified publicly and clearly so that any potential nominee had the opportunity to make appropriate arrangements, which may have included selecting alternative qualifying events and/or seeking an extension of the time limit for qualification”.¹⁴² The timely publicity and continuous transparency of the eligibility and selection requirements is a fundamental tenet of the CAS when reviewing the selection process to the Olympics. However, one can only regret that this concern for transparency does not seem to be taken as seriously in selection cases stricto sensu. Indeed, more recently in Sochi, two separate panels have condoned vague and slightly misleading selection criteria and refused to revoke a non-selection decision on the basis of the discretion enjoyed by the national federations in selecting their athletes.¹⁴³ One ad hoc panel even held “that it does not condone [the] lack of published qualification criteria that misled the Applicant by failing to provide clear and timely notice of the performance standards she was required to meet in order to be recommended by the ASF for the nomination by the AOC to the Austrian Olympic team”.¹⁴⁴ In fact both panels strongly recommended “that the [NFs] establish, identify, and publish clear criteria to enable athletes to determine in a timely manner the Olympic Games qualification standards they are required to meet”,¹⁴⁵ but were reluctant to overturn the non-selection decisions.

The selection criteria must also be applied in a non-discriminatory fashion. In the Chiba case, a CAS arbitrator reminded that Rule 6 of the Olympic Charter “expresses the idea that sport must be practised without discrimination of any kind”.¹⁴⁶ Moreover, “the principles of fair play and non-discrimination are valid for athletes and sports organizations and must be followed in the process of selecting athletes for the Olympic Games”.¹⁴⁷ Consequently, “the fairness test requires that the selection criteria be applied equally to all athletes”.¹⁴⁸ CAS panels have also regretted the lack of due process in the way selection disputes have been handled by SGBs. The Fédération internationale d’équitation was reprimanded by a CAS panel for unduly delaying its decision.¹⁴⁹ This was worsened by the fact that the final decision adopted did not include a proper motivation. In another instance, the CAS considered that remitting a selection dispute to the same panel that has been deemed biased in a first instance “necessarily infected the second process with bias”.¹⁵⁰ Instead, “the question of renomination to the AOC by AC [Australian Canoeing] for selection in the 2008 Australian Olympic Team in the Men’s Kayak Flatwater Category should be referred back to a newly constituted AC Selection Panel”.¹⁵¹ The CAS is also unyielding that for an NOC (in that case the South African Olympic Committee) to withdraw from an event to prevent an athlete from being selected to participate in the Olympics “is hardly within the Olympic spirit or the promotion of ethics and good governance in sport”.¹⁵² Consequently, the panel did not hesitate to consider “that the decision of SASCOC not to select the Applicant because SASCOC did not receive an explicit recommendation by SAEF is wrong, and shall be annulled”¹⁵³ and “finds that the Applicant shall be declared selected to represent South Africa in the Equestrian Eventing discipline at the XXX Olympic Games in London”.¹⁵⁴

Though the CAS panels’ concern for good governance translates in a specific attention to the procedural qualities of the selection process, in practice it leads only to a relatively light-touch intervention. Even when they identified clear procedural failures, the arbitrators remained often, though not always, reluctant to strike down a (non-)selection decision mainly because the procedural failure might have as a consequence the de-selection of another athlete who would then be equally harmed.