From Sagen to Henriques: Legal Challenges to Olympic Event Selection Decisions and the Role of the Court of Arbitration for Sport

The interests of athletes are a fundamental aspect of the Olympic Movement. Yet, athletes face jurisdictional barriers when attempting to advance their interests and challenge the International Olympic Committee (IOC)’s exercise of authority over the Olympic Movement, including the IOC’s decisions regarding which sport events are included in the Olympic Games. Previous attempts to challenge the IOC’s selection of sport events for the Olympic Games have been unsuccessful in national courts, as seen in the case of Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (“Sagen”) involving women’s ski jumping. Following the outcome in Sagen, academics theorized that athletes might have better success challenging Olympic event selection decisions at the Court of Arbitration for Sport (CAS), as CAS has several jurisdictional advantages over national courts. A recent CAS decision in Henriques v. IOC (“Henriques”), involving the exclusion of women’s 50 km race walking from the 2020 Olympic Games, casts doubt on this approach as CAS dismissed the application due to the lack of an arbitration agreement between the appellants and the IOC. However, the outcome in Henriques should not deter athletes from using CAS to challenge the IOC’s Olympic event selection decisions in future cases. It is arguable that the CAS panel’s reasoning in Henriques did not properly consider how the arbitration clause in the Olympic Charter could form the basis of an arbitration agreement between the appellants and the IOC under Swiss law. Additionally, the CAS panel’s decision in Henriques can be used to inform legal strategies in subsequent disputes to ensure that CAS is able to hold the IOC accountable for Olympic event selection decisions that are discriminatory or otherwise unlawful.


Introduction
The International Olympic Committee (IOC) exercises monopolistic authority over the Olympic Movement, including its pinnacle event, the Olympic Games. The IOC is neither representative of nor politically accountable to the constituents of the Olympic Movement, especially athletes, even though athletes are the ultimate subjects of the IOC's authority (Freeburn 2018). It is, therefore, unsurprising that, from time to time, athletes have sought to legally challenge the IOC's exercise of authority, including its decisions regarding which sports events are included in the Olympic Games Programme. However, athletes can face jurisdictional barriers when attempting to litigate or arbitrate their dispute with the IOC. In the context of Olympic event selection disputes, these jurisdictional barriers have disproportionately impacted female athletes due to their historical exclusion from many sports, disciplines, and events in the Olympic Games. However, as women's participation in the Olympic Games has increased over time and the number of sport events that exclude women has been reduced, 1 these jurisdictional barriers are likely to impact transgender and intersex athletes who are excluded from male or female Olympic sport events under the eligibility rules of international sport federations (IFs) 2 or Olympic qualification system rules proposed by an IF and approved by the IOC. 3 Should transgender and intersex athletes be unsuccessful in challenging the rules that exclude them from participating in male or female Olympic sport events, then they may decide to advocate for the creation of new Olympic sport events that are not based on a sex binary.
In 2009, several female ski jumpers challenged the IOC's decision not to include women's ski jumping in the 2010 Olympic Games held in Vancouver. The ski jumpers brought a legal action against the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC) in Canadian courts, and ultimately lost at both the trial (Sagen v. VANOC ("Sagen (BCSC)") and appellate levels 1 In 2014, under recommendation 11 of Olympic Agenda 2020, the IOC undertook to work with international sport federations to achieve 50 per cent female participation in the Olympic Games. Subsequently, at the 2020 Olympic Games in Tokyo, there was near gender parity in participation at the Olympic Games with female athletes accounting for 48 per cent of the total: IOC (2019) Women in the Olympic Movement https:// still med. olymp ics. com/ media/ Docum ents/ Olymp ic-Movem ent/ Facts heets/ Women-inthe-Olymp ic-Movem ent. pdf (Accessed 15 October 2022). Despite these improvements, there remains at least one Olympic sport event that is only open to men-Nordic combined skiing: Dunbar G. (2022) Nordic Combined to remain lone Olympic sport without women's event at 2026 Games, CBC News, June 24 https:// www. cbc. ca/ sports/ olymp ics/ winter/ nordic-combi ned/ olymp ics-nordic-combi ned-women-1. 65008 67#: ~: text= Nordic% 20Com bined% 20will% 20rem ain% 20the ,Games% 20in% 20four% 20yea rs'% 20time (Accessed 15 October 2022).

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From Sagen to Henriques: Legal Challenges to Olympic Event… (Sagen v. VANOC ("Sagen (BCCA)"). The trial court found that the exclusion of women's ski jumping from the Olympic Programme was substantively discriminatory; nonetheless, both the trial and appeal courts concluded that there was no basis to intervene under the Canadian constitution's equality rights, upon which the ski jumpers had relied. Following the release of the Canadian court decisions, a question arose as to whether the ski jumpers would have had better success before the Court of Arbitration for Sport (CAS) based on the arbitration clause in the Olympic Charter that ought to give CAS jurisdiction to hear the dispute, and the principle of non-discrimination in the Olympic Charter that ought to give CAS the authority to invalidate the IOC's discriminatory decision (Mazzucco and Findlay 2010, p. 144).
Almost 10 years later, in Henriques et al. v. IOC ("Henriques"), a new claim brought by athletes against the IOC regarding the exclusion of women's 50 km race walking from the 2020 Olympic Games was heard and dismissed by a panel of the CAS Appeals Arbitration Division on the basis that there was no valid arbitration agreement between the parties. The CAS panel held that the arbitration clause in the Olympic Charter, 4 upon which the appellants relied, could not be interpreted as an agreement to arbitrate between the IOC and the athletes. However, it is arguable that the panel did not correctly apply Swiss legal principles to examine how the arbitration clause in the Olympic Charter could form a direct arbitration agreement between the appellants and the IOC or, if there was no direct agreement, how the arbitration clause could be extended to the appellants as third-party non-signatories of the Olympic Charter. 5 The purpose of this paper is threefold: (1) to examine athletes' recourse to challenge the IOC's Olympic event selection decisions using domestic litigation in national courts compared to international arbitration at CAS, (2) to critically review the CAS panel's decision in Henriques based on Swiss law regarding the substantive validity of arbitration agreements, and (3) to propose strategies that might enable athletes to appeal the IOC's Olympic event selection decisions to CAS in future cases.
The paper is organized into several subsequent parts. The "Process for Selecting Olympic Sport Events" section provides an overview of the IOC, the Olympic Charter, and the constituents of the Olympic Movement as necessary background context for Olympic event selection disputes. The "Domestic Litigation in National Courts" section discusses the potential difficulties and limitations of using domestic litigation in national courts to challenge the events programme for the Olympic Games. The "Adjudicative Role of CAS" section discusses the adjudicative role of CAS and highlights its perceived advantages to resolve Olympic event selection 4 As discussed in this paper, the appellants argued that rule 61.2 of the Olympic Charter was an offer from the IOC to arbitrate any dispute arising on the occasion of, or in connection with, the Olympic Games, and that the appellants accepted this offer by filing an appeal with CAS. 5 As noted by Landbrecht and Wehowsky (2017, p. 837;852), the terms "third-parties", "non-signatories" and "extension" are potentially misleading and not to be taken at face value as the analysis of whether an arbitration agreement can be extended to third-parties or non-signatories to a contract still involves an assessment of whether the parties consented to arbitration through the application of certain legal theories or doctrines to their understandings, actions, and relationships. This is discussed in the "Extending Rule 61.2 to Non-Parties" section of this paper. disputes compared to national courts. The "Henriques et al. v. IOC" section critically examines the CAS panel's decision in Henriques to deny jurisdiction over the athletes' appeal and explores how Swiss legal principles could have been used to establish jurisdiction. The "Recommendations" section presents practical considerations for continuing to use CAS to challenge the IOC's decisions regarding the Olympic Programme based on the CAS panel's approach to jurisdiction in Henriques, Swiss law, and the rules in the Olympic Charter. Finally, the "Conclusion" section provides concluding remarks.

Process for Selecting Olympic Sport Events
In order to understand the factual and legal framework in Henriques specifically, and Olympic event selection disputes more generally, it is necessary to begin with a brief introduction regarding the Olympic Charter and the main constituents of the Olympic Movement. For clarity, the focus of this section, and the paper more generally, is on the IOC's decisions regarding which sports, disciplines and events are included in the Olympic Programme, as opposed to decisions regarding which particular athletes can compete in the Olympic Games that are typically made by other constituents of the Olympic Movement, such as IFs and national Olympic committees (NOCs).
The Olympic Charter is a unique legal instrument with constitutional, statutory, and contractual elements. The Olympic Charter is constitutional in nature as it sets out the fundamental principles and essential values of Olympism (International Olympic Committee 2021) ("Olympic Charter"), p. 6). In the context of decisions concerning the selection of Olympic events for specific sexes, the fourth and fifth fundamental principles of the Olympic Charter are relevant and provide as follows: 4. The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity, and fair play.
5. The enjoyment of the rights and freedoms set forth in this Olympic Charter shall be secured without discrimination of any kind, such as race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or status (Olympic Charter,p. 8 The Olympic Charter also serves as the statutes of the IOC and represents a contract between the IOC and its members, 6 and between the IOC and IFs and NOCs. 7 An IOC member's failure to comply with this contract can result in the expulsion of their membership. Similarly, an IF or NOC's failure to comply with the contract can result in the suspension or revocation of its recognition by the IOC as belonging to the Olympic Movement. In accordance with the Olympic Charter, the powers of the IOC are divided between its legislative branch (the Session) and its executive branch (the Executive Board). The Session is comprised of members of the IOC who are natural personsthat is, individuals, not organizations (Rule 16.1.1). The IOC Session has certain exclusive powers under the Olympic Charter, including selecting the sports for the Olympic Programme (Rule 45.2.1), which occurs seven years prior to the Olympics Games or at the Session meeting electing the host city of the Olympic Games, whichever occurs later (Bye-law 1.1 to Rule 45). The IOC Executive Board exercises certain powers delegated to it by the Session, many of which are set out in the Olympic Charter. These powers include selecting events for the Olympic Programme (Rule 45.2.2), 8 granting IOC patronage to multi-sport competitions and events (Bye-law to Rule 2) and selecting the dates of the Olympic Games (Bye-law to Rule 32.3).
Prior to making any decision relating to the events programme for the Olympic Games, the IOC must consult with the relevant IFs (Bye-law 2.1 to Rule 45). The Executive Board must also decide on the events programme no later than three years prior to the start of the Olympic Games (Bye-law 2.2 to Rule 45). However, in exceptional circumstances, the IOC has the power to waive any deadline set out in the Olympic Charter regarding the selection of sports and events for the Olympic Programme, upon consultation with relevant IFs and the Organizing Committee for the Olympic Games (OCOG) (Bye-law 3.4 to Rule 45). IFs have a right to propose to the IOC Executive Board the inclusion of new events to the Olympic Programme (Bye-law 3.1 to Rule 46). An OCOG has a similar right under the Olympic Charter, but only in respect of the Olympic Games that they organize and host (Bye-law 3.1 to Rule 45).
Finally, Rule 61 of the Olympic Charter relates to dispute resolution. Rule 61.1 provides that decisions of the IOC are final, and that any dispute relating to the application or interpretation of an IOC decision may be resolved solely by the IOC Executive Board and, in certain cases, before CAS. Rule 61.2 provides that any 6 The IOC admits new members at a ceremony during which they agree to fulfil their obligations by taking an oath that includes a requirement to respect the Olympic Charter and accept the decisions of the IOC (Olympic Charter, Rule 16.1.3). 7 See reference to "reciprocal rights and obligations of the IOC, IFs, and NOCs in the Olympic Charter, p. 7, para. c; see also CAS 2019A/6225 Inês Henriques, Claire Woods,Paola Pérez,Johana Ordóñez,Magaly Bonilla,Ainhoa Pinedo,paras 69;70;75. Finally, see the "Rule 61.2 as a Direct Agreement" section of this paper for a discussion on how rule 61.2 of the Olympic Charter has been held to be directly binding on IFs and NOCs. 8 An event is a subset of a sport. For example, in the sport of skiing, women's 90-m ski jumping is an event.
dispute arising on the occasion of, or in connection with the Olympic Games, shall be submitted exclusively to CAS, in accordance with CAS's procedural rules.

Strategic Considerations
Athletes have attempted to bring lawsuits in national courts to challenge the selection of sport events at the Olympic Games. Historically, these challenges have been heard in the national courts of countries hosting the Olympic Games (i.e., the "host state") and have alleged sex-based discrimination in violation of domestic human rights law because a men's event is included in the Olympic Games, but the corresponding women's event is not.
There may be several reasons why athletes have chosen to bring their legal challenges to the courts of a host state and base them on domestic anti-discrimination law. 9 First, although the IOC and many IFs are domiciled in Switzerland 10 (i.e., the "home state") and therefore subject to the jurisdiction of Swiss courts in respect of their activities in Switzerland, it is legally uncertain whether Swiss laws and the jurisdiction of Swiss courts would apply to the staging of the Olympic Games outside of Switzerland due to extraterritorial limits. In recent claims brought against the Federation Internationale de Football Association in respect of ongoing human rights abuses in Qatar relating to the 2022 World Cup, Swiss national courts have demonstrated a general unwillingness to be seized of such matters (West 2019, p. 6), and have rejected jurisdiction over one claim (A., B., C., D. v. E). As Regueiro (2020) notes, international human rights treaties do not require a state party, such as Switzerland, to apply a treaty through its domestic laws outside of its territory, and article 2(7) of the Charter of the United Nations provides that a home state cannot intervene in the domestic affairs of another state, which may trigger the primary responsibility of a host state to protect those within its territory from human rights violations. The Swiss Federal Council (2020) has acknowledged its responsibility to facilitate access to Swiss grievance mechanisms, such as courts, where Swiss business enterprises are involved in human rights abuses abroad and those affected in the host state have no appropriate access to an effective remedy. However, whether Swiss courts have jurisdiction to hear and determine such cases is assessed on a case-by-case basis (Swiss Federal Council, 2020).
Second, Switzerland does not have comprehensive federal anti-discrimination legislation but rather a patchwork of criminal and civil laws that prohibit discrimination in certain sectors, such as sex discrimination in employment or contractual relationships, as well as laws that prohibit violations of personality rights, which 9 The focus of this section is on litigation in national courts based on domestic laws as international human rights laws do not apply to private international sport organizations and there is no international court with the requisite jurisdiction to adjudicate alleged violations of international human rights laws by international sport organizations (West 2019, p. 5;Patel 2021, p. 9). 10 At least 50 IFs are established in Switzerland (Geeraert et al. 2015, p. 475).

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From Sagen to Henriques: Legal Challenges to Olympic Event… have been interpreted to protect against discrimination (OSCE Office for Democratic Institutions and Human Rights 2013). This approach to legislating has been criticized by the international community for permitting gaps in protections against discrimination (OSCE Office for Democratic Institutions and Human Rights 2013, pp. 1-5). Accordingly, there is legal uncertainty in whether Swiss anti-discrimination laws could provide athletes with a legal basis to challenge the Olympic event selection decisions of the IOC. Another factor contributing to this uncertainty is the absence of Swiss court decisions involving the IOC due to the system of mandatory arbitration at CAS that prevents access to domestic judicial remedies 11 and the application of state law in international sport disputes (Schwab 2018, p. 218; Baddeley 2020 pp. 9; 15). 12 Where Swiss courts have reviewed the decisions of a sport organization under article 75 of the Swiss Civil Code, 13 they have exercised restraint and upheld decisions that violate personality rights, if the sport organization can establish a preponderant interest that justifies the violation (Baddeley 2020, p. 8).
Third, while European Union (EU) competition law remains a theoretical option to challenge Olympic event selection decisions in national courts or the Court of Justice of the EU (CJEU), 14 and has the advantage of extraterritorial effect (Szyszczak 2018, p. 264), 15 the success of such litigation is by no means certain due to the current analytical framework for determining whether a sport organization's decision is prohibited under EU competition law. Under this analytical framework, three factors must be taken into account: (1) the objectives of the organization's decision based on the overall context, (2) whether the restrictive effects caused by the decision are inherent in the pursuit of the organization's objectives, and (3) whether the restrictive effects are proportionate in light of the organization's objectives (Van Rompuy 2015, pp. 195;197). 16 In other words, this framework allows the decisions of a sport organization to escape the application of competition law if they are inherent and 11 Athletes' attempts to access judicial remedies in national and supranational courts have been unsuccessful even where they try to challenge the procedural fairness of the arbitration process under domestic law or the European Convention on Human Rights (ECHR). For examples of unsuccessful challenges involving the ECHR and the European Court of Human Rights (ECtHR), see Mutu v. Switzerland, Application no. 40575/10 (ECtHR, 2 October 2018) and Ali Riza and Others v. Turkey, Application nos. 30226/10 and 4 others (ECtHR, 28 June 2020). 12 The application of state law arises from the choice of law rules of CAS, as further explained in the "Adjudicative Role of CAS" section of this paper. 13 This type of legal action is further discussed in the "Athlete Members of the IOC as Appellants" section of this paper. 14 Specifically, the application of articles 101(1) and 102 of the Treaty on the Functioning of the European Union (TFEU), which prohibit restrictions on competition and abuse of a dominant position, respectively. However, in practice, the application of these articles to the decisions of sport organizations by the CJEU, national courts, and national competition authorities has been limited to decisions relating to the transfer of players, the sanctioning of sports events, prohibitions on a member's participation in non-sanctioned events, and individual disciplinary sanctions (see Van Rompuy 2015;Szyszczak 2018). 15 See also Martyniszyn (2021) for a comprehensive discussion on the extraterritoriality application of EU competition law. 16 As Van Rompuy (2015) notes, the European Commission takes the view that this analytical framework applies to article 102 of the TFEU, even though it was established by the CJEU in J.CJ. Wouters and others v. Algemene Raad van de Nederlandse Orde van Advocaten (C-309/99) ("Wouters") for the purpose of assessing compliance with article 101(1) of the TFEU.
proportionate to a legitimate objective in the interest of sport (Van Rompuy 2015, pp. 197-198). 17 Further, the relative paucity of competition litigation involving athletes (as opposed to other sport stakeholders) suggests that there may be practical barriers, such as costs, that prevent athletes from seeking to enforce competition law through litigation (Van Rompuy 2015, p. 208).

Jurisdictional Challenges
Despite the above strategic considerations, previous legal challenges to Olympic event selection decisions in host countries based on domestic anti-discrimination laws have typically been unsuccessful due to jurisdictional limits that prevent national courts from issuing remedies that bind the IOC and other constituents of the Olympic Movement. A court's jurisdiction has two aspects-personal jurisdiction and subject-matter jurisdiction. Personal jurisdiction refers to a court's authority to issue and enforce orders against the parties to a dispute. Subject-matter jurisdiction refers to a court's authority to preside over particular legal claims or causes of action. With respect to personal jurisdiction, the courts of host countries may lack jurisdiction over the IOC and many IFs as they are domiciled in Switzerland. This limitation often forces athletes residing in host countries to bring their lawsuits against domestic organizations, such as an OCOG, instead of the IOC or an IF. However, as illustrated in the cases described below, a court order against an OCOG may provide only a limited remedy as it does not bind the IOC, IFs, or NOCs operating outside of that country. 17 The application of EU competition law to the selection rules of a national sport federation for international competitions was considered by the CJEU in the case of Deliège v Ligue francophone de judo et disciplines associées ("Deliège"). Although Deliège was an athlete selection case, it may provide insight into how a court would approach a challenge to an Olympic event selection decision under competition law. In Deliège, the CJEU found that a high-ranking athlete's participation in an international competition is capable of involving the provision of services that fall within the scope of EU competition law (paras 55-56). However, the CJEU ultimately held that the selection rules at issue did not constitute a restriction on the freedom to provide services that violates EU law (paras 64; 69). The CJEU reasoned that, although selection rules inevitably have the effect of limiting the number of participants in an event, they are an inherent aspect of an international sport event, which necessarily involves certain selection rules or criteria being adopted (para 64). The CJEU also stated that, although a selection system may prove more favourable to one category of athlete than another, this does not provide a basis to conclude that the system is a restriction on the freedom to provide services, and that it naturally falls to sport associations to establish appropriate selection rules (paras 66; 67). A national court or the CJEU could apply a similar analysis when reviewing the objective of an Olympic event selection decision and whether the restrictive effects of the decision are inherent in the pursuit of that objective. As a result, provided that the IOC had a principled basis for an event selection decision that related to the effective staging of the Olympic Games, a court may view the decision as an inherent aspect of international sport that is not subject to EU competition law. In addition, with respect to the proportionality of the restrictive effects of an Olympic event selection decision in relation to its objective, a court is likely to find persuasive that the decision does not prevent an athlete from participating in the event outside of the Olympic Games. In this way, an Olympic event selection decision would be unlike a disciplinary sanction against an athlete or a prohibition on an athlete's ability to participate in events not sanctioned by a sport organization (see e.g., International Skating Union v Commission, case no. T-93/18 (General Court of the EU)), which are arguably more restrictive on an athlete's ability to provide services. That said, an athlete could still argue that the opportunity to participate in the Olympic Games in a particular event would lead to more economic opportunities for them than any other international competition.

From Sagen to Henriques: Legal Challenges to Olympic Event…
With respect to the second aspect of jurisdiction, the national court of a host country may lack subject-matter jurisdiction where the cause of action for an athlete's lawsuit is based on domestic anti-discrimination laws that apply only to government actors, and not to the activities of private actors, such as the IOC (Patel 2021, p. 10;Patel 2015, p. 179). 18 Further, even where the non-discrimination laws of a country apply to private actors, such as the IOC or other constituents of the Olympic Movement, the laws may be limited in scope and unable to address the discrimination at issue. For example, the non-discrimination laws in some countries only prohibit direct or indirect discrimination that is intentional, as opposed to indirect discrimination that is unintentional but still harmful and in need of redress due to the systemic or historical context in which it occurs. 19 Finally, a national court may decline subject-matter jurisdiction over a case on the basis that the sport-specific nature of the matter is not justiciable-that is, not appropriate for the court to decide. 20 The following subsections describe three court cases that illustrate the jurisdictional challenges faced by athletes when challenging the selection of sport events at the Olympic Games in the national courts of host countries using domestic antidiscrimination legislation.

Sagen v. VANOC
Previously, ski jumping had the distinction of being the only Winter Olympic sport that was not open to men and women (Findlay 2013, p. 355). In May 2006, pursuant to its right under the Olympic Charter to make such proposals, the international ski federation recommended to the IOC that women's ski jumping be included in the 2010 Olympic Games. Six months later, the OCOG for the 2010 Olympic and Paralympic Games (VANOC) sent a letter to the IOC also recommending the inclusion of women's ski jumping in the 2010 Olympic Games, in accordance with its corresponding right to do so under the Olympic Charter. Days later, however, the IOC Executive Board voted not to include women's ski jumping in the Games. The Executive Board's view was that women's ski jumping lacked the international spread of 18 As Patel (2015) notes, some non-discrimination laws in Europe only apply vertically to prohibit discrimination by the state, as opposed to applying horizontally to prohibit discrimination between private actors. 19 According to CAS, under Swiss law, there is no legal concept of unintentional discrimination. Instead, the law only recognizes direct and indirect discrimination that is intentional: para 7.5. 20 For example, the principle of non-justiciability is applied when courts decline to review technical decisions made by sporting officials during a game, race, or match, unless there is some fundamental breach of the rules or some other equally significant impropriety such as bad faith or bias (West Toronto United Football Club v. Ontario Soccer Association, 2014 ONSC 5881, paras 1;17;32). As discussed in the "Martin v. IOC" section of this paper, the appeal court in Martin also questioned whether an allegation of discrimination involving the 1984 Olympic Games was justiciable under U.S. anti-discrimination laws. participation and technical standard, and therefore did not meet one of the criteria for selecting events for the Olympic Programme. The ski jumpers requested a reconsideration of this decision, and, in response, the IOC Executive Board affirmed its original decision on the basis that women's ski jumping did not meet the applicable selection criteria. 21 Subsequently, the ski jumpers brought a Canadian court application against VANOC alleging that VANOC's organizing and hosting of a ski jumping event for men, but not women, violated section 15(1) of the Canadian Charter of Rights and Freedoms ("Canadian Charter"). 22 The Canadian Charter only applies to government action. As a result, in order to succeed in their application, the ski jumpers had to prove that VANOC was subject to the Canadian Charter-either as an extension of government or because it was carrying out a government activity-and that VANOC's decision not to host a women's ski jumping event was a form of discrimination that violated section 15(1) of the Canadian Charter. Section 15(1) provides that every person is entitled to equal protection and benefit of the law without discrimination on the basis of age, sex, race, and other protected grounds.
The ski jumpers' application was heard at first instance by the British Columbia Supreme Court (the "trial court"). The trial court held that, although the Canadian Charter applied to VANOC (specifically, to its staging of the Games) (Sagen (BCSC), para 64), and although the decision not to include women's ski jumping was discriminatory (Sagen (BCSC), para 103), 23 VANOC did not breach section 15(1) of the Canadian Charter (Sagen (BCSC), para 129). This latter conclusion was based on the trial court's finding of law that an entity could not be in breach of the Canadian Charter in respect of a decision that it had no control over (Sagen (BCSC), paras 123-128). In this case, control over which events were included in the Olympic Programme rested with the IOC (Olympic Charter, Rule 45.2.2), not VANOC. VANOC (as the relevant OCOG) had only a right under the Olympic Charter to propose to the IOC Executive Board that an event be added to the Olympic Programme (Olympic Charter, Bye-law 3.1 to Rule 45).

From Sagen to Henriques: Legal Challenges to Olympic Event…
The ski jumpers appealed the trial court's decision to the British Columbia Court of Appeal (the "appeal court"). The appeal court dismissed the appeal and rejected aspects of the trial court's decision. The appeal court held that the alleged violation of the Canadian Charter involved not the staging of the Olympic Games as a whole, but rather the selection of events for the 2010 Olympic Games (Sagen (BCCA), para 49). The appeal court noted that the selection of events is wholly within the authority of the IOC, not VANOC, and that the Canadian Charter did not apply to the IOC (Sagen (BCCA), para 49). Further, the appeal court held that, even if the Canadian Charter did apply, the failure to include women's ski jumping event would not constitute a violation of section 15(1) of the Canadian Charter as it is not a decision based on a Canadian law to which individuals are entitled equal protection and benefit (Sagen (BCCA), paras 56; 66-67).
The ski jumpers were denied leave to appeal the appeal court's decision to the Supreme Court of Canada (Sagen (SCC)). The 2010 Olympic Games took place without a ski jumping event for women, but women's ski jumping was included in the event programme for the 2014 Olympic Games in Sochi, Russia.
In summary, the ski jumpers' lack of success in Canadian courts can be attributed to their use of the Canadian Charter to challenge the exclusion of women's ski jumping from the Olympic Programme. The Canadian Charter does not apply to the actions of private entities carrying out non-government activities, including such entities as VANOC. However, as the trial court noted, even if the ski jumpers had been successful in using the Canadian Charter to force VANOC to stage a women's event, this would not have been an effective remedy since the court's order would have only applied to VANOC, and not to the IOC, NOCs, or IFs: Further, if VANOC tried to hold a women's ski jumping event without the IOC's permission, VANOC could not make that event happen. The actual staging of Olympic events requires not only the local organizing committees' efforts, but also participation by international sports federations and the national Olympic committees, all of whom are part of the Olympic movement and are under the authority of the IOC. It is the international sports federations that actually oversee the events at Olympic Games, and provide the officials and judging for the events. The FIS, the international federation responsible for ski jumping, has specifically stated that it has accepted the IOC's decision with respect to women's ski jumping; it has reiterated in the context of this litigation that the FIS is under the authority and instructions of the IOC; it says that the IOC determines the Olympic Programme and that it will not take instructions from VANOC in this regard. (Sagen (BCSC), para 117).
In other words, in order for the ski jumpers to have an effective remedy, the court's order would need to be legally binding on the IOC. The IOC was not named as a defendant in the lawsuit and, in any event, would not have been subject to the Canadian Charter. 24

Martin v. IOC
An attempt at making the IOC subject to the jurisdiction of the national court of a host country was seen in the 1984 case of Martin v. IOC ("Martin"). In Martin, two runners' organizations and eighty-two women from twenty-seven counties brought a motion for a preliminary injunction against the IOC 25 that would require the organizers of the 1984 Los Angeles Olympics to include 5 km and 10 km track events for women. The plaintiffs argued that, because the 5 km and 10 km events had been scheduled for men, the failure to include these events for women constituted sexbased discrimination that violated their equality rights under the Fifth and Fourteenth Amendments of the U.S. Constitution (which only applies to state action), as well as California human rights legislation (which applies to private actors). The district court denied the motion and the plaintiffs appealed this decision to the Ninth Circuit Court of Appeals.
The appeal court in Martin reached conclusions on the application of the U.S. Constitution and the existence of discrimination that differed from the courts in Sagen. In Martin, the appeal court affirmed the district court's finding that the U.S. Constitution applied to the selection of events at the 1984 Olympic Games due to the sufficient connection between the Games and the government, even though the Games were being staged by a private entity-the Los Angeles Olympic Committee. However, the appeal court found that the IOC's decision to exclude the women's events was not discriminatory under the U.S. Constitution or California law based on existing precedent (Martin, pp. 677; 679). 26 Additionally, the appeal court noted that, even if the outcome of the discrimination analysis had been different, the court would be reluctant to use national laws to intervene in an international event: [W]e find persuasive the argument that a court should be wary of applying a state statute to alter the content of the Olympic Games. The Olympic Games are organized and conducted under the terms of an international agreementthe Olympic Charter. We are extremely hesitant to undertake the application of one state's statute to alter an event that is staged with competitors from the entire world under the terms of that agreement (Martin, p. 677).
Human Rights Act against the Government of Canada.
Footnote 24 (Continued) From Sagen to Henriques: Legal Challenges to Olympic Event… Martin, when compared to Sagen, illustrates the challenges with relying on domestic anti-discrimination laws to challenge rules made by international sport organizations. Non-discrimination laws can differ between countries and even where domestic human rights laws prohibit discrimination by a private entity, a court may be reluctant, on policy grounds, to apply its nation's laws to a rule made by a foreign, international entity, such as the IOC, that governs an international event, such as the Olympic Games. 27

Rippington v. LOCOG
In 2012, British canoeist, Samantha Rippington brought an application for judicial review in London's High Court against the London Organizing Committee for the 2012 Olympic and Paralympic Games (LOCOG) related to the staging of five men's canoeing events at the 2012 Olympic Games, but no canoeing events for women (Patel 2015, p. 66). Rippington argued that LOCOG failed to conduct an equity impact assessment regarding the events programme and therefore violated the public sector equality duty in section 149 of the United Kingdom's Equality Act, 2010 (Patel 2015, p. 66). Section 149 requires a public authority, when exercising its public functions, to have due regard for the elimination of discrimination, the advancement of equality of opportunity, and the fostering of good relations between persons who share a relevant protected characteristic and persons who do not share it (in this case, men and women). LOCOG argued that it was not a public entity whose decisions were subject to judicial review or the Equality Act, 2010 (Patel 2015, p. 66).
Importantly, Rippington conceded that her application was not intended to modify the 2012 Olympic Games Programme as only the IOC had this authority, and the IOC was not a respondent in the lawsuit. Instead, Rippington sought to have the LOCOG conduct an equity impact assessment regarding the exclusion of women's canoeing events in order to highlight the need to improve women's participation in the Olympic Movement. 28 Rippington's application for judicial review was dismissed for lack of jurisdiction, and women's canoeing was not included in the Olympic Games until the 2020 Olympic Games in Tokyo.

Adjudicative Role of CAS
As an arbitration tribunal, CAS provides the jurisdictional clarity that may not exist in domestic litigation due to limits on a national court's personal jurisdiction over foreign entities and the limits of domestic laws that may not provide a court with the subject-matter jurisdiction to intervene in a human rights dispute involving a private sport organization. Unlike litigation, arbitration is a consent-based form of dispute resolution where disputing parties have agreed to resolve their dispute using a private third-party adjudicator. The consent of the parties is documented in an arbitration agreement entered into before or after a dispute has arisen. In sport, predispute arbitration agreements are common and usually take the form of an arbitration clause embedded in an entry agreement for a competition or in the regulations of a sport organization.
In theory, arbitration ought to remedy the jurisdictional limits associated with litigation in national courts as the arbitration agreement provides CAS with the necessary authority over the parties and the subject-matter to provide an effective legal remedy. With respect to subject-matter jurisdiction, in particular, CAS's procedural rules favour the application of applicable sport regulations to resolve a dispute. 29 This allows CAS to apply the fundamental principles of non-discrimination in the Olympic Charter to invalidate the discriminatory rules or decisions of the IOC or a constituent of the Olympic Movement, such as an IF or NOC (to extent that they have incorporated the Olympic Charter in their rules), 30 even though international and domestic human rights laws do not apply to prohibit discrimination by a private entity. 31 CAS also fills an accountability gap that would otherwise exist in the international sport system, as it provides a mechanism for athletes to challenge the rules and decisions of international sport organizations that operate without democratic legitimacy in relation to athletes. With some limited exceptions, 32 athletes are not members of the IOC's or an IF's legislative and executive branches, and do not select the members of those branches to represent them through free and fair elections (Freeburn 2018). As a result, despite being the ultimate subjects of an international sport organization's regulatory authority, athletes do not directly or indirectly 29 For a discussion on the negative consequences of relying on a sport organization's rules to resolve a dispute, instead of state law, see Baddeley (2020, pp. 14;15);and Freeburn (2018, p. 145). 30 If the rule or decision of an IF or NOC violated the Olympic Charter, then that would only provide the IOC with a right to impose a sanction against the IF or NOC, such as suspending or revoking the IOC's recognition of the IF or NOC in the Olympic Movement. However, if an IF or NOC has included an obligation to comply with the Olympic Charter in its own statutes, then that would provide for the direct application of the Olympic Charter against the IF or NOC and could form the basis of a legal challenge against the IF or NOC by a member organization or athlete (Lindholm 2019, p. 192). It is likely that most IFs and NOCs would include in their statutes a requirement to comply with the Olympic Charter based on the rules in the Olympic Charter. For example, as per Bye-law 1.3 to Rules 27 and 28 of the Olympic Charter, the statutes of a NOC shall, at all times, comply with the Olympic Charter to which they must expressly refer. 31 See Schwab (2018, p. 229) for a discussion on the importance of CAS's application of equality rights set out in sport rules in CAS 2014/A/3759 Dutee Chand v. Athletics Federation of India (AFI) & International Association of Athletics Federations (IAAF). However, as Mazzucco (2022) notes, CAS panels do not always strictly apply applicable sport rules to resolve a dispute and may resort to applying external legal rules and norms, such as those that comprise Swiss public policy, including human rights. A CAS panel's reliance on such external legal rules and norms is based, in part, on the fact that its decision may be appealed to the Swiss Federal Tribunal under the Swiss Private International Law Act (Mazzucco 2022). 32 In 2000, the IOC's Athletes' Commission was reconstituted, which resulted in the Commission's members becoming members of the IOC Session and gaining representation on the IOC's Executive Board (Naidoo and Grevemberg 2021, p. 2).

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From Sagen to Henriques: Legal Challenges to Olympic Event… participate in the organization's rule-or decision-making processes. CAS does, however, provide athletes with certain participatory rights to hold international sport organizations accountable for their regulations and decisions.
Indeed, analyses of CAS's jurisprudence demonstrate that CAS has exercised a supervisory jurisdiction over the decisions of international sport organizations, similar to an administrative law court (Mazzucco and Findlay 2010;Lindholm 2019;Casini 2011). Intervention by CAS in this regard has forced sport organizations to adopt decision-making practices that are more respectful of athletes' procedural rights (Mazzucco andFindlay 2010, p. 143. Baddeley 2020, p. 8). CAS also acts similar to a constitutional court to ensure that constituents of the Olympic Movement are complying with the fundamental principles in the Olympic Charter, provided that the constituent's own statutes include an obligation to comply with the Olympic Charter. 33 Unfortunately, the perceived benefits of using arbitration at CAS to challenge the IOC's Olympic event selection decisions were not realized in Henriques.

Facts
The dispute in Henriques concerned the exclusion of the women's 50 km race walk event from the 2020 Olympic Games. The men's 50 km race walk event was first included at the Olympic Games in 1932 and most recently at the 2020 Olympic Games. 34 The men's event has also been offered at other multi-sport international competitions, such as the Commonwealth Games, the Pan American Games, and the Asian Games. With the exception of the 2019 Pan American Games, all of these competitions have excluded a women's 50 km race walk event.
In June 2017, the IOC Executive Board adopted the events programme for the 2020 Olympic Games, and the IOC's Director General notified the International Association of Athletics Federations (IAAF, as it was then known) of the programme (Henriques, para 5). Subsequently, in December 2018, the IAAF submitted an official request to the IOC to add women's 50 km race walking to the 2020 Olympic Games Programme (Henriques, para 7). However, in February 2019, the IOC issued a decision rejecting the IAAF's request because the Executive Board had previously finalized the event programme in 2017 (Henriques, para 10  34 The 50 km race walk event will not be included in the 2024 Olympic Games in Paris, France and, instead, it will be replaced with a mixed gender relay event: Gallagher C. (2021) Athletics-Walkers slam decision to scrap 50 km race, Reuters, 6 August https:// www. reute rs. com/ lifes tyle/ sports/ athle tics-walke rs-slam-decis ion-scrap-50km-race-2021-08-06/ (Accessed 15 March 2022).
In March 2019, Henriques and seven other race walkers (the "appellants") filed an appeal with CAS's Appeals Arbitration Division naming the IOC and IAAF 35 as respondents. 36 The appellants argued that the IOC's decision not to include women's 50 km race walking in the Olympic Programme was discriminatory and violated the constitutional equality protection of the fundamental principles in the Olympic Charter (Henriques, para 64). 37 The IOC challenged the CAS's jurisdiction to hear the appeal on the basis that there was no valid arbitration agreement between the IOC and the appellants (Henriques, para 66). 38

CAS Decision
Based on prior jurisprudence and its own procedural rules, 39 the CAS panel held that, in order to have jurisdiction over an appeal, three conditions must exist: (1) the parties must have agreed to arbitration before CAS, (2) there must be a "decision" from a federation, association or other sports-related body, and (3) any internal legal remedies must have been exhausted prior to appealing to CAS (Henriques, para 83). With respect to this first requirement, the panel held that the arbitration agreement must relate to the parties (personal jurisdiction or ratione personae) and the subjectmatter of the dispute (subject-matter jurisdiction or ratione materiae) (Henriques, para 88).
The appellants argued that such an arbitration agreement existed between them and the IOC. More specifically, the appellants asserted that rule 61.2 in the Olympic Charter is an offer from the IOC to arbitrate any dispute covered by the rule and that the appellants accepted the IOC's offer to arbitrate by filing an appeal with CAS (Henriques, para 76). In contrast, the IOC argued that only parties to the Olympic Charter, such as NOCs and IFs, can invoke the arbitration clause, and that athletes 35 CAS also dismissed the appeal against the IAAF. CAS agreed with the IOC and the IAAF that the IAAF was not a proper respondent as it lacked control over the event programme for the 2020 Olympic Games. The IAAF explained that it has authority to organize, direct and control the athletics programme at the Olympic Games, but such authority only arises after the IOC has determined which athletics events will be included in the programme. The IAAF claimed that it was bound by the IOC's decision on the events programme, which could not be changed without the agreement of the IOC, the IAAF and the OCOG (Henriques, paras 104-109). 36 Specifically, Henriques. The appellants also filed a separate appeal with CAS in May 2019 against a decision purported to be made by the IOC Sports Director in February 2019: CAS 2019/A/6274 Inês Henriques, Claire Woods, Paola Pérez, Johana Ordóňez, Magaly Bonilla, Ainhoa Pinedo, Erin Taylor-Talcott & Quentin Rewv. IOC. Both appeals were consolidated and heard together, but separate arbitral awards were issued. Because the outcomes of both appeals were the same in relation to the IOC, only the arbitral award for the first appeal is discussed in this paper. 37 The appellants also argued that the United Nations Convention on the Elimination of All Forms of Discrimination against Women should also apply on a subsidiary basis, to the extent that the Convention had been ratified by Switzerland. However, this substantive argument was not addressed by CAS as the appeal was dismissed on procedural grounds. 38 The IOC also argued that the athletes had no legal standing because the decision of the Executive Board is one of a general constitutional nature that concerns all athletes, and thus there is no individual right to appeal the Executive Board's decision. 39 See Rules 27 and 47. Rule 47 states, among other things, that an appeal lies to CAS if a sport governing body's rules provide so (Court of Arbitration for Sport (2021) Code: Procedural Rules).

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From Sagen to Henriques: Legal Challenges to Olympic Event… only have this right when they sign an entry form 40 to compete in the Olympic Games (Henriques, para 77). Rule 61.2 of the Olympic Charter provides as follows: Any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport, in accordance with the Code of Sports-Related Arbitration.
The CAS panel agreed with the appellants that rule 61.2 in the Olympic Charter covered the subject-matter of the dispute as the inclusion of women's 50 km race walking was in connection with the Olympic Games (Henriques, para 90). However, the panel disagreed with the appellants that rule 61.2 provided the necessary personal jurisdiction over the parties to the dispute and, instead, held that the rule should be interpreted as providing exclusive jurisdiction to CAS (Henriques, para 103). More specifically, the panel held that parties covered by the rule are not only entitled, but are compelled, to bring disputes covered by the rule to CAS (Henriques, para 92). 41 The panel went on to discuss who is bound by, and who can invoke, the arbitration clause in the Olympic Charter. More specifically, the panel considered when athletes can rely on (and have the obligation to observe) rule 61.2 of the Olympic Charter. The panel referred to rule 1.4 of the Olympic Charter, which provides that "any person or organization belonging in any capacity whatsoever to the Olympic Movement is bound by the rules in the Olympic Charter and shall abide by the decisions of the IOC" (Henriques, para 95). The panel also noted that athletes are not one of the three main constituents of the Olympic Movement, which are the IOC, IFs, and NOCs (Henriques, para 96). However, the panel observed that, as per rule 1.1 of the Olympic Charter, "the Olympic Movement encompasses organizations, athletes and other persons who agree to be guided by the Olympic Charter" and that, as per rule 1.3, "the Olympic Movement also encompasses […] persons belonging to IFs, in particular the athletes, whose interests constitute a fundamental element of the Olympic Movement's action" (Henriques, para 96). Based on these rules, the panel concluded that athletes are part of the Olympic Movement, but was careful to note that this does not mean that athletes are members of the IOC or direct parties to the Olympic Charter as a contract (Henriques, para 97).
Citing previous CAS awards, the panel held that it is not enough to be part of the Olympic Movement to benefit from the arbitration clause in rule 61.2 of the 40 The entry form is required by Bye-law 6 to Rule 44 of the Olympic Charter, which provides that all participants in the Olympic Games, in whatever capacity, must comply with the entry process as prescribed by the IOC Executive Board, including the signing of an entry form. 41 The CAS panel reasoned that the concept of mandatory arbitration before CAS that excludes the jurisdiction of a court was inconsistent with the appellants' argument that rule 61.2 is an offer to any person to arbitrate. The panel held that such a broad interpretation would mean that someone can refuse the offer to arbitrate and decide to bring their claim in a domestic court. However, by framing the argument this way, the panel seems to conflate the concepts of exclusivity and personal jurisdiction. The fact that rule 61.2 of the Olympic Charter was described by the appellants as an offer to arbitrate, does not mean that the offer can be rejected and that someone can then bring a claim in a domestic court. Earlier in its decision, the panel held that rule 61.2 provides exclusive jurisdiction to CAS, which compels the persons to whom the offer to arbitrate is made to bring their dispute to CAS, instead of a domestic court. Thus, the key question is to whom the offer to arbitrate is provided, and most of the panel's reasoning correctly focuses on this question. Olympic Charter (Henriques, para 98). The panel distinguished between "athletes duly accredited by the IOC" and "athletes with only an interest in taking part in the Olympic Games," (Henriques, para 99) with the latter not being able to rely on the arbitration clause. The panel held that none of the appellants were "Olympic" athletes, and, at this stage, they only had a "sporting interest" in participating in a specific event at the Olympic Games, which does not give them an enforceable right. Further, the panel noted that none of the appellants had signed an agreement with the IOC (such as an entry form for the Olympic Games) that could provide the basis for an arbitration agreement (Henriques, para 100).
The panel also distinguished the present dispute from the case of a person who is denied membership in an organization and seeks to challenge that decision by arbitration. Under Swiss law, a person who is denied membership in an organization is entitled to rely on the arbitration clause in the rules of the organization, based on the person's formal commitment to abide by those rules as part of the application process (Henriques, para 101). The panel held that this line of reasoning did not apply to the appellants as they were not seeking membership in the IOC and had not entered into any other legal relationship with the IOC upon which consent to arbitration under the Olympic Charter could be based (Henriques, para 102).
Ultimately, the panel held that it did not have jurisdiction under rule 61.2 of the Olympic Charter to hear the appellants' appeal (Henriques, para 103). Without an agreement to arbitrate, the panel did not go on to consider whether the other two preconditions for jurisdiction (an appealable decision and the exhaustion of internal legal remedies) were met, and also did not consider whether the exclusion of the women's 50 km race walk event from the 2020 Olympic Games Programme was discriminatory in violation of the Olympic Charter.
The applicants did not appeal the CAS panel's decision to the Swiss Federal Tribunal under the Swiss Federal Act on Private International Law (PILA) 42 and the 2020 Olympic Games took place without a 50 km race walking event for women.

Analysis of CAS Decision
The CAS panel correctly noted that its interpretation of the arbitration clause in rule 61.2 of the Olympic Charter was subject to article 178(2) of the PILA, 43 which relates to the substantive validity of an arbitration agreement. 44 An assessment of the substantive validity of an arbitration agreement focuses on the consent of the parties-that is, whether the parties have expressly or tacitly agreed to arbitrate (Bärtsch 2015, p. 105). This consent to arbitrate must relate to the parties themselves (ratione personae) and the subject-matter of the dispute (ratione materiae). Because the CAS panel concluded that a dispute concerning an Olympic event selection decision fell within the scope of rule 61.2 of the Olympic Charter (as it was in connection with the Olympic Games), the remaining question was whether rule 61.2 represented an agreement to arbitrate between the appellants and the IOC. However, it is arguable that the panel did not apply Swiss legal principles to examine how rule 61.2 could form a direct arbitration agreement between the appellants and the IOC or, if there was no direct agreement, how the arbitration clause could be extended to the appellants as third-party non-signatories of the Olympic Charter. The following sections critically review the CAS panel's decision from these two perspectives.

Rule 61.2 as a Direct Agreement
As mentioned above, the substantive validity of an arbitration agreement focuses on the parties' intent to arbitrate, which can be express or tacit. The consent of the appellants in Henriques was evidenced by their decision to file an appeal with CAS. As a result, the question that remains is whether rule 61.2 of the Olympic Charter represents the IOC's intent to arbitrate with the appellants disputes arising in connection with the Olympic Games.
Under Swiss law, arbitration clauses are to be interpreted based on rules relating to the construction of contracts (Urso & Casadei v. IOC,para 47). The Swiss Federal Court has ruled that, in accordance with article 18 of the Swiss Code of Obligations, a contract should be constructed so as to find the real intent which is mutually agreed upon by the parties even though the meaning of the contract might at first seem obvious (Urso & Casadei v. IOC,para 49). When an adjudicator is unable to 1 3 find a common intent between the parties, the meaning of the contractual provisions that are the result of a dissent will have to be interpreted according to the principle of good faith or trust (Urso & Casadei v. IOC,para 47;X. v. Y.,para 3.3.1). This requires the adjudicator to move to an objective interpretation and consider how a reasonable person in the position of the recipient of an alleged offer to arbitrate would have understood the contractual terms in question based on their wording, the wording of the broader agreement, the historical context of the terms, and the overall circumstances (Urso & Casadei v. IOC, para 52; X. v. Y., para 3.3.1). If the recipient interpreted the contractual terms according to the principle of good faith, their interpretation will be deemed to be the relevant one and will bind the offeror (Urso & Casadei v. IOC, para 51; X. v. Y., para 3.3.1).
This analytical framework can be used to determine what the intent of the IOC was when offering to submit to CAS "disputes in connection with the Olympic Games." As the IOC and appellants disagreed on the interpretation of rule 61.2, it is necessary to conduct an objective analysis and determine whether the appellants had a good faith understanding of the ratione personae scope of rule 61.2 based on its wording, the wording of the Olympic Charter, the historical context of rule 61.2, and the overall circumstances.
The wording of rule 61.2 does not limit its application to any specific parties, but only its subject-matter ("disputes arising on the occasion of or in connection with the Olympic Games"). As a result, it could be argued that the requirement to arbitrate extends to any party who has a valid legal claim in connection with the Olympic Games. However, such an interpretation may be overly broad as it is difficult to imagine that the IOC would have intended to arbitrate a dispute in connection with the Olympic Games with any person, regardless of their connection to the Olympic Movement or legal relationship with the IOC. The panel in Henriques reached a similar conclusion when considering the appellants' argument that rule 61.2 was an offer to any person that could be accepted by filing an appeal with CAS.
With respect to the broader textual context of the Olympic Charter, it could be argued that "disputes arising on the occasion of or in connection with the Olympic Games" relate to the carrying out of duties or responsibilities imposed by the Olympic Charter. This reasoning has been used in other CAS awards to conclude that rule 61.2 of the Olympic Charter is directly binding on NOCs and IFs due to their respective obligations in the Olympic Charter (Samoa NOC & Sports Federation Inc. v IWF; Baumann v. IOC; NOC of Germany & IAAF). Further, in one award, a CAS panel held that a national federation was also bound by the arbitration clause due to its membership in an IF that was obligated to comply with the Olympic Charter (Fédération Française de Gymnastique v. Sydney Organizing Committee for the Olympic Games). However, the panel in Henriques reviewed several rules in the Olympic Charter and concluded that athletes were unlike IFs and NOCs, even though the Olympic Charter describes the interests of athletes as a fundamental aspect of the Olympic Movement and imposes obligations on athletes. Arguably, the panel's reasoning was too focused on whether any athlete was subject to rule 61.2 of the Olympic Charter and did not consider the unique status of internationallevel athletes. International-level athletes are similar to IFs and NOCs in terms of their significant role in the Olympic Movement and their specific obligations under 1 3 From Sagen to Henriques: Legal Challenges to Olympic Event… the Olympic Charter that they must meet in order to be eligible for selection to the Olympic Games. They are also similar to national federations due to their close connection with IFs when they compete in international events hosted by an IF or are entered into an IF's registered testing pool for anti-doping purposes. The following obligations in the Olympic Charter would apply to international-level athletes seeking to be eligible for selection to the Olympic Games: • Rule 1.4-any person or organisation belonging in any capacity whatsoever to the Olympic Movement is bound by the provisions of the Olympic Charter and shall abide by the decisions of the IOC. • Rule 40-in order to participate in the Olympic Games, athletes must respect and comply with the Olympic Charter, the World Anti-Doping Code, the Olympic Code on the Prevention of the Manipulation of Competitions, and the rules of their IF. • Bye-law 4 to Rule 40-athletes cannot accept any financial consideration as a condition of entry or participation in the Olympic Games. • Rule 41 and its Bye-laws-athletes must comply with certain nationality rules in order to participate in the Olympic Games. • Bye-law 4 to Rule 44-as a condition precedent to participation in the Olympic Games, every competitor shall comply with all the provisions of the Olympic Charter.
It is arguable that the wording of the Olympic Charter as a whole supports an interpretation that international-level athletes who have competed in the Olympic Games or are likely to compete in the Olympic Games (based on their international performance) would reasonably interpret rule 61.2 of the Olympic Charter as an offer to arbitrate due to their connection to the Olympic Games and their obligations under the Olympic Charter. In the case of the appellants in Henriques, all but two of them are former Olympians in the 20 km event and one of them had qualified to compete at the 2020 Olympic Games in the 20 km race walk event. 45 Further, it is reasonable to assume that the female appellants could have qualified for the 50 km event had it been added to the Olympic Programme as they were all highly ranked in the event internationally. In other words, in the context of this dispute, the appellants could only have had a closer connection to the Olympic Games if the 50 km event had been included in the Olympic Programme. With respect to the historical context of rule 61.2, the panel in Henriques relied on several CAS awards to conclude that the IOC's offer to arbitrate in rule 61.2 of the Olympic Charter is directed at "athletes duly accredited by the IOC", and that this did not include the appellants who were "athletes with only an interest in taking part in the Olympic Games" (Henriques, para 99). However, the panel did not consider the historical context of these CAS awards or how the scope of CAS's jurisdiction over disputes relating to the Olympic Games has evolved over time. 46 As explained below, the focus on "athletes duly accredited by the IOC" may originate from the procedural rules of the CAS Ad Hoc Division that previously required an athlete to have an Olympic Games entry form containing an arbitration clause in order request arbitration at the Ad Hoc Division. However, this procedural requirement has since been removed and, in any event, was never applicable to CAS's Appeals or Ordinary Arbitration Divisions. As a result, it may not be objectively reasonable to interpret rule 61.2 as being limited to athletes who are accredited to compete in the Olympic Games.
The earliest CAS award relied upon by the panel in Henriques was issued by the CAS Ad Hoc Division operating at the 1998 Olympic Games in Nagano (Puerto Rico Ski Federation & Steele. v IOC ("Steele")). The case involved a skier (Steele) who had been recommended by his national federation to represent Puerto Rico at the Olympic Games. This recommendation was not supported by the NOC because the national federation was not recognized by the NOC and another athlete had already been selected by the NOC to represent Puerto Rico in skiing. Steele sought to challenge his non-selection by filing a request for arbitration with CAS's Ordinary Arbitration Division wherein he named the IOC as a respondent. The request alleged that the selection criteria for skiing approved by the IOC violated the Olympic Charter and sought interim relief against the IOC. Importantly, the Deputy President of the Ordinary Arbitration Division held that CAS had jurisdiction in the case, 47 but dismissed the request for interim relief. The parties subsequently agreed to close the ordinary procedure and resolve the remainder of the dispute under the procedural rules of the CAS Ad Hoc Division. At the time, the procedural rules for the Ad Hoc Division provided for the resolution of disputes covered by rule 74 of the Olympic Charter (the predecessor of rule 61.2) and by the arbitration clause inserted in the entry form for the Olympic Games. 48 The CAS Ad Hoc Division panel dismissed the application and held that Steele had "no standing" 49 to assert that he had a dispute arising in connection with the Olympic Games as he was not an "accredited athlete" at the Olympic Games, but rather a member of the public with an interest in skiing (Steele, para 6). At first glance, the panel's decision in Steele seems like a firm 46 Although CAS panels are not bound by the principles of precedent or stare decisis, they do follow the decisions of past panels in practice out of mutual respect for their fellow arbitrators and to ensure consistency in CAS awards (see Lindholm 2019). Further, in the case of Henriques, the CAS panel did rely on the decisions of past CAS panels to interpret the ratione personae scope of rule 61.2 of the Olympic Charter. For both of these reasons, it is appropriate to review the panel's decision in Henriques in light of other CAS awards. 47 It is unclear on what basis the Deputy President declared that CAS had jurisdiction over the dispute. However, it is likely that this assessment of jurisdiction involved the arbitration clause in the Olympic Charter, as Steele did not provide any other basis for CAS's jurisdiction in the subsequent arbitral proceeding. The Deputy President's decision (Ref. CAS 98/187) is not published. 48 Rules for the resolution of disputes arising during the Olympic Winter Games in Nagano (edition of April 9, 1997, valid for OG in Nagano) in Reeb (1998, p. 653). 49 The panel's use of the term "standing" is curious as it typically relates to the admissibility of a claim, not the jurisdiction of an arbitration tribunal. As Paulsson (2005, p. 603) notes, the distinction between admissibility and jurisdiction matters because an arbitral tribunal's findings on admissibility cannot be appealed to the Swiss Federal Tribunal under the PILA.

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From Sagen to Henriques: Legal Challenges to Olympic Event… pronouncement on the ratione personae scope of the arbitration clause in the Olympic Charter. However, it is possible (and more likely) that the panel's conclusion was based on the Ad Hoc Division's procedural rules that required athletes bringing a dispute to CAS to have signed an entry form for the Olympic Games. Athletes are only "accredited" by the IOC for the Olympic Games after they complete an entry form that is submitted by their NOC (Bassani-Antivari v. IOC ("Bassani-Antivari")) and accepted by the IOC (Olympic Charter, Rules 44.3 & 52.2). This may also explain the different conclusions regarding jurisdiction reached by the panel of the Ad Hoc Division and the Deputy President of the Ordinary Arbitration Decision-the former was bound by the rules of the Ad Hoc Division that required an entry form, whereas the latter was not.
The panel's reasoning in Steele was subsequently relied upon by two panels of the Appeals Arbitration Division in 2000 (R. v, IOC;T. v. Comité National Olympique et Sportif Français). However, neither panel considered whether the requirement to be "duly accredited" by the IOC to bring an athlete within the scope of CAS's jurisdiction was unique to the Ad Hoc Division due to the entry form requirement in the Ad Hoc Division's procedural rules. Both of these CAS awards were also relied upon by the panel in Henriques to support the interpretation that rule 61.2 of the Olympic Charter is only an offer to arbitrate for athletes duly accredited by the IOC that have signed an entry form.
The requirement for an athlete to have signed an entry form to call upon the jurisdiction of the CAS Ad Hoc Division arose again during the 2002 Olympic Games in Salt Lake City and was at the centre of two disputes ("Bassani-Antivari" and Billington v. Fédération internationale de Bobsleigh et de Tobogganing ( "Billington")). However, in these cases, the CAS panels attributed the requirement for an entry form to the Ad Hoc Division's procedural rules, and not the arbitration clause in the Olympic Charter. Interestingly, in both cases, the athletes (who were not duly accredited by the IOC as they had not signed entry forms), expressed concern that the jurisdiction of CAS would be too narrow if the entry form requirement was strictly adhered to as it would preclude athletes from bringing selection disputes to CAS. The CAS panels responded to these concerns in different ways. In Bassani-Antivari, the panel noted that the requirement for an entry form was unique to the Ad Hoc Division which, unlike other CAS divisions, was purposely established to hear disputes arising immediately prior to or during the Olympic Games, and therefore required athletes to have a close connection to the Olympic Games (Bassani-Antivari, para 23). Implicit in this reasoning is that the requirement for an entry form (and by extension being duly accredited by the IOC) is only a condition precedent for the ratione personae jurisdiction of the Ad Hoc Division, and not necessarily other CAS divisions. In Billington, the panel took a different view and commented on the unfairness of making an entry form a precondition to the CAS Ad Hoc Division's jurisdiction where an athlete is challenging a selection decision that prevents the athlete from having a valid entry form (and by extension being duly accredited by the IOC) in the first place (Billington, para 24). The panel noted that there could be other instances where this unfairness would arise, such as where an athlete is discriminated against by their NOC contrary to the Olympic Charter and for this reason alone is not entered in the Olympic Games (Billington, para 25). Due to these concerns, the panel in Billington recommended that the procedural rules of the CAS Ad Hoc Division be reconsidered in future Olympic Games (Billington, para 25).
The panel's recommendation in Billington was implemented in 2003 (Duval 2016, p. 56) when the procedural rules for the Ad Hoc Division were revised to remove the requirement for an entry form (Reeb 2004, p. 758). Following this change, CAS Ad Hoc Division panels have accepted jurisdiction over disputes involving athletes who were not selected for the Olympic Games by referencing the arbitration clause in the Olympic Charter as the basis for the panel's jurisdiction, 50 largely without any reference to the existence of a separate arbitration agreement. 51 These cases may be of limited value when interpreting the scope ratione personae of the arbitration clause in the Olympic Charter because CAS's jurisdiction may have been implied from the parties' participation in the arbitration process without having raised the defence of lack of jurisdiction. 52 Nevertheless, these more recent CAS awards, and the historical context that led to them, does raise the question of whether the scope ratione personae of rule 61.2 of the Olympic Charter is restricted to athletes duly accredited to compete in the Olympic Games. As Rigozzi notes, the adoption of a specific arbitration clause in the entry form avoids doubt as to whether an athlete is bound by an arbitration agreement (Rigozzi 2006, p. 465); however, the need for legal certainty does not lead to a definitive conclusion regarding the scope of rule 61.2 of the Olympic Charter and whether it could represent an offer by the IOC to arbitrate with an athlete who has a legal claim in connection with the Olympic Games. As noted above, the appellants in Henriques could only have had a closer connection to the Olympic Games if the 50 km event had been included in the Olympic Programme; however, that closer connection was prevented due to the IOC's decision not to include women's 50 km race walking in the Olympic Programme. This exposed the appellants to hardship and unfairness, similar to that described by the panel in Billington-they sought to challenge an IOC event selection decision that not only deprived them of the opportunity to participate in the 50 km event at the Olympic Games, but also denied them the opportunity to arbitrate their dispute before CAS, if their selection and accreditation in the event was necessary to establish CAS's jurisdiction. As explained in the "Adjudicative Role of 50 Olympic Association & Swiss-Ski, where it was noted that the CAS panel's jurisdiction arose from an arbitration clause in a "selection agreement" between the athlete and her national federation. 52 Article 186(2) of the PILA provides that any objection to an arbitral tribunal's jurisdiction must be raised prior to any defense on the merits. As a result, a party that is not included in a valid arbitration agreement can be deemed to have tacitly agreed to be bound by the arbitration agreement if it entered into the merits of a dispute without having raised the defence of lack of jurisdiction (Mavromati 2011, p. 32).

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From Sagen to Henriques: Legal Challenges to Olympic Event… CAS" section of this paper, there are legitimate reasons why an athlete would prefer to bring their Olympic Games dispute to CAS, rather than a national court.
Finally, with respect to the overall circumstances in Henriques, the conduct of the parties becomes relevant when assessing whether the appellants had a good faith understanding that rule 61.2 represented the IOC's offer to arbitrate. Before Henriques and her co-appellants filed their appeal with CAS on March 30, 2019, their counsel wrote a letter to the IOC in December 2018 advocating for the inclusion of the women's 50 km race walking event in the Olympic Programme. 53 Subsequently, in early March 2019, counsel for the appellants followed up with the IOC about their December 2018 correspondence. In response, the IOC's Media Relations Team indicated that the topic would be included in the reports given to the Executive Board during its upcoming meeting of March 26-28, 2019. In April 2019, the IOC Media Relations Team replied to the appellants' counsel confirming that the events programme was finalized by the Executive Board in June 2017 and would not be revised. It is arguable that the Executive Board's confirmation that the events programme would not be revised constituted an internal appeal decision under rule 61.1 of the Olympic Charter. Rule 61.1 provides that decisions of the IOC are final, and that any dispute relating to the application or interpretation of an IOC decision may be resolved solely by the IOC Executive Board.
The IOC's engagement with the appellants in Henriques is reminiscent of the Sagen dispute involving the exclusion of women's ski jumping from the 2010 Olympic Games. After the IOC Executive Board voted not to include women's ski jumping in the Games, the ski jumpers requested a reconsideration of this decision, and, in response, the IOC Executive Board affirmed its original decision. By considering the ski jumpers request for reconsideration, the Executive Board may have implied that it was considering an appeal under rule 61.1 of the Olympic Charter. Although the ski jumpers did not attempt to appeal the Executive Board's decision to CAS under rule 61.2, the IOC's actions could have led to a good faith understanding that such an appeal was available.
Unfortunately, the panel in Henriques did not consider whether the IOC's actions leading up to the filing of the appellants' appeal to CAS informed how the appellants could have reasonably interpreted the offer to arbitrate in rule 61.2.

Extending Rule 61.2 to Non-Parties
Even if the panel in Henriques is correct that rule 61.2 of the Olympic Charter did not constitute a direct offer from the IOC to the appellants to arbitrate, this is not necessarily fatal to the panel's acceptance of jurisdiction ratione personae. Under Swiss law, 54 several legal theories or doctrines have been established to extend an arbitration clause in a contract to a third-party non-signatory. 55 The common feature of these theories is that it is fair to imply, presume or attribute an intention of the signatories to extend the arbitration clause to a non-signatory based on the parties' actions, understandings, and relationships (Zuberbühler 2008, p. 18;Landbrecht and Wehowsky 2017, pp. 839-841).
In the context of international sport arbitration, the theories of incorporation by reference and interlocking agreements have been used to justify the supervisory rights of appeal exercised by IFs and the World Anti-Doping Agency (WADA) over the anti-doping decisions of national sport federations and national anti-doping organizations (Freeburn 2018, pp. 131-136). 56 The appeal rights of WADA and IFs are set out in the World Anti-Doping Code (WADC) and the anti-doping rules of IFs. These appeal rights are subsequently incorporated by reference in agreements between athletes and lower-level sport organizations, such as local clubs, regional sport organizations, or national sport federations. When WADA or an IF seeks to exercise these appeal rights by filing an appeal with CAS there is a lack of a direct arbitration agreement between WADA or the IF and the athlete. Instead, there are two separate agreements that incorporate directly or by reference the appeal rights of WADA and an IF: one agreement between an athlete and a lower-level sport organization, and one agreement between WADA or the IF and a higher-level organization. 57 Typically, there is no direct arbitration agreement between the athlete and WADA or the IF.
An example of these incorporation by reference and interlocking contracts theories was seen in an anti-doping dispute involving Brazilian footballer Ricardo Dodô (FIFA v. Dodô). Dodô was accused of an anti-doping rule violation following an in-competition doping control test. The Brazilian sport prosecutor brought disciplinary proceedings against Dodô and a 120-day suspension was issued by the relevant disciplinary commission. Dodô appealed this decision to Brazil's highest sport court for football, which granted the appeal and set aside the suspension. WADA and the IF appealed the court's decision to CAS, in accordance with their appeal rights in the IF's rules. Dodô disputed CAS's jurisdiction due to the absence of an agreement between himself and WADA or the IF. CAS rejected Dodô's argument and accepted jurisdiction on the basis that Dodô's employment contract with his local club required compliance with the rules of the Brazilian football association and those rules included a requirement to abide by the IF's rules that contained the appeal rights for WADA and the IF. As a result, CAS 54 As noted by Landbrecht and Wehowesky (2017, p. 851;852), article 178(2) of the PILA would apply to assessments of whether the ratione personae scope of an arbitration agreement can be extended to non-parties. 55 For example, the group of companies doctrine, piercing the corporate veil, intervention theory, and agency: see Zuberbühler (2008); Landbrecht and Wehowesky (2017); Magnarelli and Ziegler (2020). 56 See also the Swiss Federal Tribunal's decision in 4A_460/2008, Dodo v. FIFA and WADA. 57 For the agreement with WADA, the higher-level sport organization would be a signatory of the WADC (e.g., national anti-doping organization), and for the agreement with the IF, the higher-level organization would be a national federation member of the IF.

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From Sagen to Henriques: Legal Challenges to Olympic Event… accepted jurisdiction despite no direct arbitration agreement existing between Dodô and either WADA or the IF.
The appeal rights exercised by WADA and IFs in doping matters are often justified based on the need to ensure consistency in the resolution of disputes across and within international sport (Freeburn 2018, pp. 130-131). Without such appeal rights, decisions of national or regional bodies may not be decided impartially and may instead favour local interests, which would lead to inconsistencies in anti-doping decisions globally (Freeburn 2018, pp. 130-131). This reasoning was displayed in WADA v. Gertenbach ("Gertenbach"). In this case, a South African horse rider committed an anti-doping rule violation by failing to submit to a doping control test carried out on behalf of the national sport federation (Gertenbach, p. 3). The national sport federation's judicial committee issued a 4-month period of ineligibility for the violation, and WADA and the IF attempted to appeal this decision to CAS in accordance with the IF's regulations (Gertenbach, p. 4). The IF's regulations were incorporated by reference into the regulations of the national federation and the local club, and it was the local club that had a contractual relationship with the athlete (Gertenbach, para 16). However, the IF's regulations only granted the IF and WADA rights to appeal to CAS a decision of the national federation's appeal body, and no such body existed (the federation's judicial committee was a first-instance tribunal) (Gertenbach, para 21). Despite this contractual flaw, CAS accepted jurisdiction on the basis that it was necessary to allow the IF and WADA to perform a supervisory role in domestic anti-doping cases by appealing decisions to CAS (Gertenbach, para 23).
However, CAS is not always consistent in tracing the contractual authority to support WADA's or an IF's assertion of CAS's jurisdiction (Freeburn 2018, p. 80). For example, in the case of International Rugby Board v. Troy and ARU , the athlete, Troy, committed an anti-doping rule violation involving the possession of a prohibited substance purchased online. The national rugby association issued a discipline decision that was appealed by the IF to CAS. CAS accepted jurisdiction over the appeal. CAS found that Troy had a contract with the national rugby association that required compliance with national anti-doping rules. The national rugby association presumably had a contractual relationship with the IF, but CAS's decision made no reference to this or to the existence of any direct arbitration agreement between the IF and the athlete (IRB v. Luke Troy & ARU ). Freeburn (2018, pp. 131-136) is critical of the incorporation by reference and interlocking contract theories relied upon by CAS and Swiss courts. He notes that, under general contract law principles, it is not enough that two independent contracts between different parties, such as the contract between an athlete and a national sport federation, and a contract between a national federation and an IF, make common reference to the rules of the IF containing the arbitration clause (Freeburn 2018, p. 135). The legal rights and obligations established by the two contracts are separate and independent; as a result, there is no chain of contractual obligations between the athlete and the IF, as in the typical incorporation by reference case where the scope of an arbitration clause between two signatory parties is extended to a non-signatory through a series of related contracts or transactions or through the pursuit of a common project (Freeburn 2018, p. 135-136).
In Henriques, CAS did not undertake an analysis to determine whether the appellants had a contractual right to arbitrate under rule 61.2 of the Olympic Charter, even though the Olympic Charter was likely incorporated by reference into the appellants' various contracts with their local clubs, national sport federations, and NOCs. It is reasonable to assume that such agreements existed as NOCs must ensure observance of the Olympic Charter in their countries and will do this by including a requirement in their statutes requiring members (i.e., national federations) to ensure compliance with Olympic Charter, 58 and by entering into direct agreements with athletes seeking selection for an international competition under the patronage of the IOC. 59 In Canada, for example, national team athletes have direct contractual relationships with their national sport federations that require the athletes to, among other things, comply with the Olympic Charter and the rules of the relevant IF. 60 Athletes are required to enter into these agreements in order to receive government funding, train at a national high-performance centre, or represent Canada at an international competition. Where the international competition is recognized by the IOC, such as the Pan American Games or the Youth Olympic Games, Canada's NOC may also be a party to the national team agreement. Such an agreement arguably extends the application of the Olympic Charter to the national team athlete and should provide them with the benefit of the arbitration clause should they become engaged in a dispute involving a rule or decision of the IOC that impacts their ability to compete at the international level. Further, because these direct agreements between an athlete and their national federation and/or NOC emanate from requirements in the Olympic Charter, there is justification to link the separate agreements and presume or attribute to the IOC an intent to extend rule 61.2 to the athlete who is a non-signatory of the Olympic Charter.

Recommendations
Based on the CAS panel's decision in Henriques, the following strategies are recommended should athletes seek to challenge the IOC's Olympic event selection decisions before CAS in the future. 58 See Bye-law 1.3 to Rules 27 and 28 of the Olympic Charter, which provides that the statutes of a NOC shall, at all times, comply with the Olympic Charter to which they must expressly refer, and Rule 29, which provides that a NOC can only recognize a national federation that is governed by and complies with all aspects of the Olympic Charter. 59 See Bye-law 2.1 to Rules 27 and 28 and Bye-law 4 to Rule 44 of the Olympic Charter, which provide that an NOC must ensure that the entries proposed by a national federation for the Olympic Games comply in all respects with the provisions of the Olympic Charter, and that a NOC is responsible for ensuring that such competitors are fully aware of and comply with the Olympic Charter. 60 See clauses D and 19(a) in Model Athlete/National Sport Organization (NSO) Agreement, https:// www. canada. ca/ conte nt/ dam/ pch/ docum ents/ servi ces/ sport-polic ies-acts-regul ations/ appen dixc-nsoagree ment-en. pdf (Accessed 26 February 2022).

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From Sagen to Henriques: Legal Challenges to Olympic Event…

Athletes as Appellants
Athletes should continue to challenge decisions of the IOC regarding the selection of the events for the Olympic Games if there are reasonable grounds to believe that such decisions are discriminatory and violate the fundamental principles of the Olympic Charter or are otherwise unlawful. Prior to bringing an appeal to CAS, athletes should first exhaust any available internal remedy, such as the right of appeal to the IOC's Executive Board in rule 61.1 of the Olympic Charter. To avoid any doubt about whether athletes are relying on rule 61.1, they should explicitly frame their first-instance challenge to the event selection decision as an internal appeal to the Executive Board. If the IOC Executive Board hears the appeal and dismisses it, then this may provide athletes with an argument that rule 61.2 of the Olympic Charter also applies to them. In other words, if athletes have internal appeal rights under rule 61.1 of the Olympic Charter, then they should also have the right to externally appeal an IOC decision to CAS under rule 61.2.
If athletes file an appeal with CAS, then the athletes should provide evidence of their connection to the Olympic Games and the sport event in particular-as past Olympians, currently selected Olympians, or likely future Olympians-in order to assert their status as direct recipients of the offer to arbitrate in rule 61.2 of the Olympic Charter and distinguish themselves from members of the general public with only a "sporting interest". Athletes should also raise the unfairness of being required to have a closer connection to the Olympic Charter when they are already bound by its obligations as participants in the Olympic Movement and where it is the IOC's event selection decision that prevents them from being in the same position as athletes challenging their non-selection to compete in a specific event at the Olympic Games.
In the alternative, athletes should argue that the Olympic Charter, including the arbitration clause in rule 61.2, is already incorporated by reference in their national team agreements with their respective national sport federation, NOC, or both, and that this ought to extend rule 61.2 to the athletes as non-signatories of the Olympic Charter, similar to the analysis used to justify the supervisory appeal rights exercised by WADA or IFs in doping matters where they have no direct arbitration agreement with athletes.

Athlete Members of the IOC as Appellants
Another option for athletes is to petition the athlete members of the IOC to bring a legal challenge under article 75 of the Swiss Civil Code. Article 75 is a mandatory provision of Swiss law that entitles the members of an association to challenge decisions of the association that violate the rules of the association or mandatory state law. Although the typical judicial forum for such challenges is a Swiss court, CAS is considered an alternative forum that has jurisdiction to hear such challenges (Federación Panameña de Judo (FPJ) & Federación Venezolana de Judo (FVJ) v.
International Judo Federation (IJF)). 61 Athlete members of the IOC could be persuaded to commence such a legal challenge in light of their duty to represent the interests of the athletes who nominated them to be members of the IOC Athletes' Commission. 62 However, the athlete IOC members could also be reluctant to commence the legal challenge due to their oath as IOC members to accept the decisions of the IOC and a desire to avoid jeopardizing their IOC membership. 63

IFs and OCOGs as Appellants
If the above strategies are unsuccessful, then it may be necessary to leverage the roles of the other constituents of the Olympic Movement that CAS has held are more closely connected to the Olympic Charter-namely, IFs and possibly OCOGs.
With respect to IFs, athletes should consider what options exist to persuade or require IFs to submit proposals to the IOC regarding the addition of events to the Olympic Programme on equity grounds. For example, in Henriques, the IAAF's Council agreed to submit a proposal to the IOC to include the women's 50 km race walk event in the 2020 Olympic Games. Through a resolution, the Council could have agreed to appeal the IOC's rejection of their proposal (first to the IOC Executive Board, and then to CAS), in accordance with rule 61 of the Olympic Charter. In Urso & Casadei v. IOC, CAS has held that rule 61.2 of the Olympic Charter permits an IF to file an appeal relating to their specific rights and duties under the Olympic Charter (Urso & Casadei v. IOC, para 137), which would include their right to propose to the IOC the inclusion of additional events in the Olympic Programme (and the IOC's corresponding duty to consider such a proposal).
Athletes could advocate for such an IF resolution through their national federations that are members of the IF, or through an athletes' commission that provides recommendations to an IF or has voting rights within the legislative or executive branches of the IF. 64 Indeed, this would be consistent with the emerging role that some athletes' commissions are undertaking to address human rights issues in their sport (Naidoo and Grevemberg 2022).
Similar to IFs, OCOGs can also propose additional events for the Olympic Programme, but only for the edition of the Olympic Games that they are hosting 61 See also de La Rochefoucauld (2011, pp. 14-15). 62 In accordance with Bye-law 2.3 to Rule 16 of the Olympic Charter, athlete members of the IOC must be members of the IOC's Athletes' Commission. As per Bye-law 1 to Rule 21, the IOC Athletes' Commission is comprised of athletes elected by athletes participating in the Olympic Games. 63 Betraying this oath or knowingly jeopardizing the interests of the IOC or acting in a way which is unworthy of the IOC can result in expulsion of a member by the IOC Session: Rule 16.3.8.1, Olympic Charter. However, as Baddeley (2020, p. 5) notes, article 75 of the Swiss Civil Code cannot be overridden by an association's own rules. As a result, to the extent that these rules in the Olympic Charter prevent an athlete member of the IOC from commencing litigation or arbitration to challenge an IOC decision, they are arguably invalid.
(Olympic Charter, Bye-law 3.1 to Rule 45). Athletes could advocate for an OCOG to submit such a proposal to the IOC and to appeal any IOC rejection of the proposal to CAS. Where the OCOG proposal is necessary to ensure equity in the Olympic Programme, the OCOG arguably has a legal obligation to submit the proposal, in accordance with its duty under the Olympic Charter to ensure that sports included in the Programme are treated and integrated equitably (Olympic Charter, Rule 46.3). 65 If advocacy efforts fail, then athletes could consider pursuing a legal action against the OCOG using the domestic courts and laws of their country. 66 The remedy sought by the athletes could involve the OCOG submitting an event proposal to the IOC and appealing the IOC's rejection of that proposal to CAS under rule 61.2 of the Olympic Charter.

Conclusion
Athletes are, in many ways, the ultimate subjects of the IOC's regulatory authority and those subject to the obligations in the Olympic Charter-either directly as parties to the Olympic Charter or indirectly through separate but related contractual relationships with NOCs and national sport federations-should have the ability to challenge the decisions of the IOC that impact their ability to participate in the Olympic Games using the arbitration clause in rule 61.2 of the Olympic Charter. Without such appeal rights, athletes will be limited to bringing their legal actions against the IOC in national courts, which may be based on the anti-discrimination laws of the country hosting the Olympic Games. However, such litigation will raise jurisdictional challenges, such as the court's possible lack of personal jurisdiction over the IOC or, as seen in Sagen, Martin and Rippington, the court's lack of subject-matter jurisdiction to intervene using domestic anti-discrimination laws. As a result, it may be necessary for athletes to continue to use CAS to challenge Olympic event selection decisions. The strategies discussed in this paper involving CAS may be considered in the future with the hope that they lead to more successful outcomes than that seen in Henriques. Such strategies will be important if the IOC adds new sports, disciplines and events to the Olympic Programme that exclude women, or if transgender or intersex athletes who are ineligible to participate in men's or women's Olympic events seek the creation of new sport events that are not based on a sex binary.