The CAS Ad Hoc division at the XX olympic winter games in Turin.

Introduction

Almost ten years after the first Ad hoc division (AHD) of the Court of Arbitration for Sport (CAS) was set up for the Games of the XXVI Olympiad in Atlanta (1996), the CAS organised another AHD for the XX Olympic Winter Games in Turin (2006) (1). The mission of this sixth edition of the "Olympic" (2) AHD was to resolve all legal disputes arising "on the occasion of or in connection with the Olympic Games" (3), for a period of ten days preceding the Opening Ceremony (31 January 2006) and until the closing of the Games (26 February 2006) (4).

During the said period the AHD received 10 applications that could be entertained, which led to seven final awards (5) and--for the first time--a consent award (6). Also, a case was closed before the CAS President or a Panel decided on an application for interim measures (7). The number of cases and awards should not be compared with previous AHD for Winter Olympic Games (8) without keeping in mind the fact that the CAS and CAS AHD's consistent jurisprudence on legal issues that gave rise to numerous cases in the past (e.g. judicial control of field of play rules) now practically impedes the filing of applications concerning such disputes.

The purpose of this article is a) to present briefly the cases' factual background and b) to approach a variety of procedural and substantial issues, with which the CAS AHD in Turin has enriched and evolved the jurisprudence delivered to it by previous CAS AHD editions.

1. Summary of cases

1.1 CAS OG 06/001 [WADA v/ USADA, USBSF & Lund] The World Anti-doping Agency filed an application against the decision of the United States Anti-doping Agency to give a public warning to the US skeleton runner Zachary Lund and to disqualify him from the 2005 World Cup event in Calgary, Canada. The WADA requested a two-year suspension be imposed, starting from the CAS ruling, as a consequence of Mr Lund's testing positive to the substance finasteride (masking agent) on 10 November 2005. The CAS AHD Panel partially upheld the appeal and set aside the decision made by USADA. The Panel was satisfied that Mr Lund bore no significant fault or negligence regarding his--admitted--doping violation and therefore sanctioned him with a one-year period of ineligibility, starting on the date of the positive doping test. As a result, Mr Lund, was disallowed from participating in the Olympic Winter Games.

1.2 CAS OG 06/002 [Schuler v/ Swiss Olympic Association] (9)

The Swiss snowboarder Ms Andrea Schuler contested before the CAS AHD the decision made by the Swiss Olympic Association (NOC for Switzerland) not to select her for the Olympic Games (women's half pipe event). The athlete submitted that she had met the criteria set forth by both the Swiss Olympic and the Swiss ski federation; thus, her non-selection was arbitrary. The Panel dismissed Ms Schuler's application considering that the respondent exercised its discretion in a reasonable, fair and non-discriminatory manner and in accordance with the rules.

1.3 CAS JO 06/003 [Azzimani v/ Comite National Olympique Marocain]

The Sole Arbitrator appointed by the CAS AHD President to decide this case dismissed the application filed by the Moroccan ski athlete Mr Samir Azzimani against the decision of his NOC not to enter him in the XX Olympic Winter Games. Since Mr Azzimani and another Moroccan athlete faced health problems, the CNOM decided to withdraw from the Olympics. Mr Azzimani considered his non-selection a breach of the Olympic Charter; according to his submissions, the selection criteria, the principle of non-discrimination and his (human) right to practice sport were violated. The respondent submitted only a series of medical reports regarding the applicants' recent injury, on which the decision appealed from was based. The CAS AHD Sole Arbitrator decided not to hold a hearing and dismissed the application observing that CAS cannot deal with the question if an athlete can or not enforce his NOC to enter him/her in the Olympics (10). The Panel also noted that there was no violation of the Olympic Charter and that the athlete was still in a recovery period after a shoulder dislocation.

1.4 CAS OG 06/004 [Deutscher Skiverband & Sachenbacher-Stehle v/ FIS]

The German Ski Federation and the German cross-country skier Ms Evi Sachenbacher-Stehle filed an application in order to cancel the "Notification of Start Prohibition" issued by the International Ski Federation (FIS). Following a blood screening/testing on 9 February 2006 that showed a level of haemoglobin above the maximum tolerated values, Ms Sachenbacher-Stehle was obliged by the FIS not to start any competitions for five consecutive days. As a result, the athlete would be forced to miss her first Olympic Games event on 12 February 2006. The athlete further asked the Panel to declare that the levels of haemoglobin were naturally elevated and had no connection with any haematological disease. The Panel refused to make a medical expert's judgment and dismissed the application; moreover, it was convinced that the athlete did not have a naturally high level of haemoglobin.

1.5 CAS OG 06/005 & 06/007 [Abernathy v/ FIL]

Ms Anne Abernathy, a 52 year old athlete also known as "Grandma Luge", was heading to a unique record of participating in the Winter Olympics for a sixth time. Ms Abernathy, the only athlete to represent the Virgin Islands in the Turin 2006 Winter Olympics, suffered an injury (wrist fracture) during an official training on 12 February 2006 and was transferred to the hospital. Subsequently and after having missed the official weigh-in, the International Luge Federation (FIL) applied its rules and did not include her in the race list. "Grandma Luge" and Virgin Islands were thereby not to be considered as participants in the XX Olympic Winter Games. The athlete challenged this decision by filing two applications with the CAS, the second following unsuccessful deliberations with the FIL.

The CAS AHD Panel appointed to hear the case invited the parties during the hearing to reach an amicable solution. After a one-hour break, the terms of the final settlement were supported by the Panel and included in a consent award, by which the FIL was directed to write to the IOC in order to request that the name of Ms Abernathy be included in the results list of the women's luge event without a start number but with the notation DNS (did not start). The parties also agreed that the--challenged--decisions of the Race Director and the Jury during the Women's luge event were correct.

1.6 CAS OG 06/006 [Canadian Olympic Committee v/ ISU]

The Canadian Olympic Committee (COC) filed an application with the CAS AHD on 16 February 2006, the day after the A-Final of the ladies' short track speed skating. The COC requested the CAS to order the International Skating Union (ISU) to instruct its referee to review the race's videotape. The COC was seeking determination of whether a "kicking out" infraction was committed by the winner of the race, Ms Evgenia Radanova, a Bulgarian skater. Possible disqualification of Ms Radanova would result in Canadian athletes advancing to the second (Ms Anouk Leblanc-Noucher) and third (Ms Kalyna Roberge) place respectively. For this reason the COC accompanied its application with a request for extremely urgent preliminary relief, i.e. the postponement of the medal ceremony. In addition, the applicant requested a declaratory judgment on the issue of a suggested conflict between provisions contained in the ISU rules, while it submitted that the head referee (although he did not refuse to receive a protest) "discouraged" the Canadian team leader to file a protest against his own discretional decision not to view the instant digital replay. The President of the CAS AHD within a very short time-limit (11) and without hearing the respondent's views dismissed the application for preliminary relief, because the celebration of the medal ceremony would not irreparably harm (12) the Applicant's interests. The Panel denied the application since a) the applicants never filed a written protest according to the ISU rules or alleged the referee for exercising his discretion in bad faith, and b) there was no reviewable decision for the Panel to consider.

1.7 CAS OG 06/008 [Dal Balcon v/ CONI & Federazione Italiana Sport Invernali]

The Italian snowboarder Ms Isabella Dal Balcon challenged the decision made by the Italian Olympic Committee (Comitato Olimpico Nazionale Italiano--CONI), not to select her for the women's parallel giant slalom event of the Turin 2006 Winter Olympics. Ms Dal Balcon's submission was that she had met the criteria orally announced to her by the Italian team coach, that no written selection criteria were ever provided to her and that a late change in the criteria had led to her non-selection. She asked the Panel to set aside the decision and to include her in the Italian snowboard team to take part in the Winter Olympics' parallel giant slalom event. The respondents, CONI and the Italian Winter Sports Federation (Federazione Italiana Sport Invernali--FISI) put forward that FISI and CONI accepted per se the proposal by FISI's Technical Direction (DA Snowboard) and that the rules were amended two days before the end of the selection period in order to avoid unfair application of the original criteria due to--inter alia--athletes' injuries.

The CAS AHD Panel upheld the appeal considering the late amendment of the criteria to be arbitrary and annulled the challenged decision. Given the fact that the Panel was provided by the respondents with detailed scoreboards showing the selection standings after applying the original and the amended criteria respectively and, since the Olympic Games' tight schedule made a referral of the case to

CONI and FISI practically impossible, the Panel ordered the respondents a) to place Ms Dal Balcon in the Olympic Team of Italy, b) to determine the other members of the female snowboard team.

1.8 CAS OG 06/009 [B. v/ IOC]

As explained above, the present case did not lead to a final award. In fact, the procedure before the CAS AHD was brought to an end at a very early stage, even before a CAS AHD Panel was constituted, since the main purpose of the application, i.e. the stay of execution of a disciplinary sanction, was voluntarily accepted by the IOC upon notification by the CAS. In view of the fact that an appeal based on the same factual background is pending today before the regular CAS procedure (Appeals Division), the writer would preferably not enter into details. From a scientific point of view also, the evaluation of this case should better await the outcome of the appeal.

1.9 CAS OG 06/010 [Australian Olympic Committee v/ FIBT] The FIBT Rules provided the North American Challenge Cup (22 January 2006) to be a qualification criterion for the Olympic Winter Games: the first two teams would qualify for the Olympics. The Brazilian team ranked first whereas the Australian third. Almost two weeks after the race, on 14 February 2006, the Brazilian Olympic Committee announced that Mr Dos Santos, a member of its 4-man bobsleigh team, had tested positive in an out-of-competition control that took place on 9 January 2006. The athlete, although not provisionally suspended, was sent back to Brazil by his own NOC and was replaced. He also exercised his right to have the B sample opened and tested.

Following these incidents, the Australian Olympic Committee (AOC) filed an application to the CAS AHD asking for an order to declare the Brazilian 4-man team ineligible to compete in the Olympic Winter Games and to declare instead the Australian 4-man bobsleigh team eligible to compete in the same Games. The Panel held that the process following an adverse analytical finding had not been yet completed and therefore no anti-doping violation had been found at that time. Consequently, there was no need to address the issue of a suggested lacuna in the respondent's (International Bobsleigh and Skeleton Federation--FIBT) rules and the appeal was denied.

2. Analysis

2.1 Procedure

The procedures before the CAS AHD in Turin were not as common as one could have expected before the CAS Court Office opened its doors in late January. The sense that, as a result of previous CAS AHD awards, the Federations and the IOC had become more careful in drafting their rules, respecting the principle of due process and decision-making (13), together with the consistent CAS jurisprudence on results cases (14) did not seem to leave so much space for novelties. Nonetheless, the CAS AHD division set up a number of records in the AHD's history, namely the first case to be decided by a Sole Arbitrator, the first case to be decided without holding a hearing, and the first appeal filed by WADA.

A look at the most interesting points of this CAS AHD's jurisprudence, following the steps of a--more or less--usual procedure before the CAS AHD:

a) Application: "The application shall include a copy of the decision being challenged, where applicable" (15). The Panel in OG 06/010 having to deal with an appeal against the decision of FIBT not to act to disqualify the Brazilian Bobsleigh team held that "4.1 [...] the application is admissible as the CAS Ad hoc Rules specify the decision is to be attached, if applicable, which was not the case here.". Of course, this does not mean that a first instance decision is not at all necessary. The CAS AHD in fact exercises only one of the four functions (16) of the Court of Arbitration for Sport: the appeals arbitration procedure (17). Therefore, the CAS AHD cannot operate in any other way but as a second-instance body, as the Panel implied in the case OG 06/006: "43. [...] the Referee's decision was not protested in accordance with the [ISU] Regulations. It follows there is no reviewable decision for the Panel to consider."

b) Sole Arbitrator: "In the event that it appears appropriate under the circumstances, the President of the ad hoc Division may, in his discretion, appoint a sole arbitrator" (18). The President of the CAS AHD exercised such discretion upon constituting the Panel to hear the case OG 06/003. The Ad hoc Rules do not specify which "circumstances" are to be taken into consideration by the President when deciding to appoint one or three arbitrators. Article 50 para.1 of the Code of Sports-related Arbitration (CAS Code) indicates that a sole arbitrator is to be appointed when "the President of the [Appeals] Division considers that the matter is an emergency". Given that the case OG 06/003 was decided only few hours before the opening ceremony of the Winter Olympics and that the dispute was of a rather uncomplicated character, it is apparent that the CAS AHD President did not deviate from the criteria of the CAS Code.

c) Hearing: The award in the case OG 06/003 will be referred to in the future as the first not to follow a hearing. Applying a newly inserted amendment to the Ad hoc Rules ("If it considers to be sufficiently informed, the Panel may decide not to hold a hearing and to render an award immediately" (19) the sole arbitrator issued his decision (20) without calling the parties to a hearing. The parties had produced all relevant documentation, while the sole arbitrator informed them of his decision to apply the said provision. The fact that applicant and respondent resided far from Turin (in France and Morocco, respectively) should also be taken into account. Like in previous CAS AHDs the cases in Turin involved other persons than the applicant(s) and the respondent(s). The notions of "interested party" and "observer" where once more utilized, albeit always with the approval of the initial parties to the dispute. The "interested parties" are usually persons likely to be affected by the outcome of the proceedings e.g. in a selection case, the athletes already selected that may be removed from the Olympic team if the appeal is upheld. The participation or representation of these interested parties to the proceedings is invaluable for the purposes of the CAS AHD, since they have the chance to be heard and are subsequently bound by the award. In cases like the OG 06/008, decided only some hours before the official training sessions or the race itself would commence, no real supporter of either justice or sport (or both) would like to experience a new Perez (21) story, i.e. a sequence of arbitration proceedings on the basis of the same facts. Apart from the "interested parties" (22), the status of "observer" was awarded in several cases (23) of general interest to the IOC, i.e. the institution responsible for the organisation of the Olympics, and in one case to WADA (24) that was co-responsible for the limits of haemoglobin prescribed in FIS Rules. No applicant or respondent in any of the above cases did contest the presence and participation of interested parties and observers.

d) Award: The CAS AHD awards usually uphold, modify or set aside a decision rendered by an IF, an NOC, an OCOG or the IOC. In the case OG 06/005 & 06/007 the Panel took the initiative to invite the parties to reach an amicable settlement. The parties, that had already failed to reach an agreement before the CAS AHD hearing, this time determined the terms of their settlement in less than an hour. This precedent, apart from underlining the efficiency of the CAS AHD as a body that successfully applies alternative dispute resolution in sport, can prove to be more than useful in the future, when applied--like in Turin--adequately (25).

Since the procedure before the CAS AHD is free, the awards are rendered without costs (26). Free access to the Court's jurisdiction was encouraged not only by supplying any interested individual through the website or the Court Office (27) with standard application forms, but also through organising a special list of pro bono lawyers, in cooperation with local bar associations. Like in Sydney, a number of local (Italian) attorneys were willing to offer their legal services--without receiving any remuneration--to parties involved in at least three arbitration proceedings before the CAS AHD.

Finally, CAS Panels in Turin made also extensive (28) use of the discretion provided to them by the Ad hoc Rules (29) to communicate the operative part of the award prior to the reasons. This alternative appeared to be the only choice in cases where the hearing ended after midnight and the circumstances obliged a decision by the morning after, like in case OG 06/002. There is no doubt that the said provision allows a Panel to render well reasoned and detailed decisions that have nothing to envy of regular CAS awards. Therefore, although the procedure before the CAS AHD remains fast and flexible, almost tailor-made, the quality of the awards delivered from highly experienced CAS arbitrators contributes not only to CAS AHD jurisprudence, but also to regular CAS jurisprudence, as will be shown below.

2.2 Legal Issues

2.2.1 Jurisdiction

A number of CAS AHD Panels had dealt with the issue of the jurisdiction of the CAS AHD before the beginning of the Turin 2006 Winter Olympics (30). The jurisdiction of the CAS AHD over an NOC (31), an IF (32) or even an NF (33) is mainly based on their participation in the Olympic Games and their obligation to apply the Olympic Charter, as associations recognized by the IOC. Another necessary requirement for every last instance body, i.e. the exhaustion of internal legal remedies, had also been in the spotlight in a couple of cases (34): the respondent has the right not to raise (or to raise it and subsequently to abandon (35)) such question, obviously in favour of a faster solution of the dispute which is already brought before the CAS AHD. Also, the question whether the earlier text of article 1 of the Ad hoc Rules (36) required in any case a validly enclosed entry form by the applicant, had been answered in the affirmative (37), restricting temporarily (38) the selection cases to reach the CAS AHD.

The CAS AHD in Turin very early faced a new challenge: to interpret the time-limit set in article 1 of the Ad hoc Rules: "[...] for the resolution by arbitration of any disputes [...] insofar as they arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games"(emphasis added). The question was the following: In case a decision is issued before the CAS AHD jurisdiction starts but the appeal challenging such decision is filed (within the time limit of the appeal and) after the period of CAS AHD jurisdiction has started, does the CAS AHD have jurisdiction to hear the case? When exactly does a dispute arise? In the case OG 06/001 the Panel said:

"[2.6] The Panel, therefore, has to decide whether the dispute arose within the period of 10 days preceding 10 February 200639. WADA received the FIBT files sometime after 23 January 200640. Then it considered the file, and having done so, made this appeal on 2 February 2006. The appeal was well within the period permitted for appeal by the USADA Protocol, and the 21 days permitted by Art. 13.5 of the FIBT Doping Control Regulations.

[2.7] It was open to WADA to decide not to appeal, if it so wished. However, in the Panel's opinion, it would not be possible to say that, on the facts of the present case, a dispute had arisen until WADA had decided to appeal and notified its decision to do so. That notification was given within the 10 days preceding the Opening Ceremony".

The same opinion was followed also by the Panel in the case OG 06/002: "[3.13] It was open to Ms Schuler to accept the Swiss Olympic's determination or decide to appeal. Accordingly, in the Panel's opinion, it would not be possible to say that a dispute had arisen until Ms Schuler had decided to appeal and had filed notice of her appeal. That notice was given within the 10 days preceding the Opening Ceremony, and, also, well within the 21 days permitted for a regular appeal to the CAS Appeals Division."

Obviously, a dispute arises when the party affected by a decision chooses to challenge it. And the Panels in both the above cases had no other indication of the applicant's choice to challenge the first instance decision than the application/appeal itself, filed well within the CAS AHD period of jurisdiction. From a clearly theoretical point of view, the CAS AHD jurisdiction could now be expanded to decisions (41) rendered 31 (or more) (42) days before the Opening Ceremony of the Olympic Games.

2.2.2 Doping

Like in the previous edition of CAS AHD in Athens, disputes following an adverse analytical finding were not the majority (43). Despite that, each one of the three doping cases raised and interesting issue.

a) Rare as it may be after the introduction of the WADA Code in 200344, the Panel in case OG 06/001 considered that the athlete bears no significant fault or negligence and imposed a reduced (one-year) period of ineligibility. The Panel said: "[4.11] The burden on the athlete to establish No Fault or Negligence is placed extremely high... [4.14] In these circumstances, the Panel concludes that Mr Lund, on his own admission which was contained on the Doping Control Form, committed an anti-doping violation and cannot escape a period of ineligibility. The Panel arrives at this decision with a heavy heart as it means that Mr Lund will miss the XX Olympic Winter Games. The Panel found Mr Lund to be an honest athlete, who was open and frank about his failures. WADA did not suggest otherwise. For a number of years he did what any responsible athlete should do and regularly checked the Prohibited List. But in 2005, he made a mistake and failed to do so. However, even then he continued to include on the Doping Control Form the information that he was taking medication which was known to the anti-doping organisations to contain a Prohibited Substance, and yet this was not picked up by any anti-doping organization until his positive test in late 2005.

4.16 The Panel finds this failure both surprising and disturbing, and is left with the uneasy feeling that Mr Lund was badly served by the antidoping organisations.

4.17 However, for the reasons already given, he cannot escape all liability. Art. 10.2 of the FIBT Doping Control Regulations and the WADA Code enable a Panel to take the "totality of the circumstances" into account in deciding whether there has been No Significant Fault or Negligence. The Panel finds that Mr Lund has satisfied it that in all of the circumstances he bears No Significant Fault or Negligence, and, therefore, reduces the period of ineligibility from two years to one year."

b) Furthermore, in two awards rendered by the CAS AHD in Turin the Court denied to enter into examining and deciding purely medical issues. In case OG 06/004 the Panel said: "[4.11] The relief requested presupposes that we find the Athlete to have a high naturally elevated level of Hb. [...] Far be it for this Panel to substitute its views to those of the experts who have declined to grant the dispensation to this Athlete for a naturally high elevated level of Hb over the past 3 years. We are being asked to make a medical expert's judgement through the guise of canceling a Notification of Start Prohibition. It is not for this Panel to perform an evaluation similar to that contemplated by the FIS B.4.8, which would apply for the duration of the Olympic Games."

Also, regarding the matter if a substance should be--or not--on the prohibited list, the Panel in the case OG 06/001 followed the (regular) CAS jurisprudence (45): "[4.7] It was submitted on behalf of Mr Lund that the Panel should decide whether Finasteride should have been on the Prohibited List at all. The Panel declined to enter into that debate. [4.8] If International Federations or antidoping organisations are unhappy with the contents of the Prohibited List, they must persuade WADA to change the list. It is not within the jurisdiction of this CAS Panel to make that decision."

c) Finally, the Panel in case OG 06/010 distinguished between an adverse analytical finding and a doping offence. Only the second could possibly give rise to a selection dispute, forcing the Panel to interpret the FIBT Rules and conclude on the consequences of a personal doping offence on the team's results. The Panel said: "An adverse analytical finding is simply a report by the Anti-Doping laboratory that a sample is positive for a prohibited substance. Thereafter, the applicable Anti-Doping regulations (FIBT Regulations in this case) provide for an extensive process, including the athlete's rights: to ask for a B sample test, be present at the testing of the B sample, and to have a hearing to contest the adverse analytical finding. Only after that process has been completed and the adverse analytical finding is confirmed is an anti-doping rule violation found. [...] No decision that Dos Santos committed an antidoping rule violation has been rendered by any authority. The adverse analytical finding announced by the BOC in apparent disregard for Rule 14.14 of the FIBT Regulations that prohibit such public disclosure is not a decision pursuant to Article 13 of the FIBT Regulations which may be appealed to CAS. [...] The Application fails at the outset and therefore there is no need to interpret the meaning of Article 11 of the FIBT Regulations with respect to the effect that his doping infraction would have had on the "team" of which Dos Santos was a part at the Challenge Cup."

2.2.3 Selection and Qualification

While the main sources of disputes for regular CAS are now doping and football, the CAS AHD usually deals with doping and selection cases. This second pillar of CAS AHD jurisprudence attracted most attention than any other during the Turin Winter Olympics. This is due to the simple fact that the CAS AHD--inter alia--entertained the (eventually successful) appeal of Ms Isabella Dal Balcon, an Italian snowboarder who contested her non selection to the Italian Olympic team (case OG 06/008). The legal impact of the award in the said case may not prove to be equivalent to its social impact (46), caused by the fact that the Italian snowboard team had to be reconstituted one day before the official training sessions would start. But again, this is a question that cannot be safely answered before the next edition of CAS AHD in Beijing.

Although two prima facie similar selection cases (OG 06/002 and OG 06/008) did not have the same result (Ms Schuler failed in her appeal while Ms Dal Balcon succeeded) the CAS AHD in Turin maintained a consistent approach to this type of disputes. Firstly, both Panels recognized their authority to control the application of purely objective selection criteria. Secondly, given the fact that the selection process may in some cases involve subjective criteria as well, like the trend of performance (47), the Panel in the Schuler case declined to control such subjective evaluation, unless it was made in bad faith or in a discriminatory manner: "As said, given that Ms Schuler had to be compared with some male snowboarders, internal trials would have been of no avail. [...] The Panel is of the opinion that the language of the Snowboard Selection Guidelines [...] requires the assessment of the World Cup results not simply as objective criteria but assessed in relation to the performance trend towards the end of the selection period. This indicates a clear subjective evaluation. [...] In the Panel's view, unless selection rules set forth completely objective criteria (e.g., ranking or points in a given competition), a selection process must always rely in some fashion or other on the subjective judgment of the persons who select the athletes. [...] The Applicant does not claim that the Respondent acted in bad faith or in a discriminatory manner, so any arbitrariness is excluded."

Adopting the same point of view, the Panel in the case OG 06/003 dismissed the appeal of the Moroccan athlete Mr Samir Assimani against the decision of his NF and NOC not to inscribe him (or any other athlete) to the Olympic Games. The Panel said: "[14.] Selon la jurisprudence constante de la Chambre ad hoc du Tribunal Arbitral du Sport (TAS), il n'appartient pas au TAS de trancher la question de savoir si un/une athlete a le droit de forcer son CNO a l'inscrire aux Jeux Olympiques (voir CAS OG 02/003 Bassani-Antivari v/IOC). [15.] Sans entrer dans les details, le Panel constate que le Demandeur n'a pas soumis des faits ni des indices demontrant que le Comite National Olympique Marocain avait viole la Charte Olympique. Tout au contraire, le Defendeur a explique de facon convaincante qu'il y avait des raisons de sante valables pour fonder sa decision de refus d'inscrire le Demandeur pour les XXemes Jeux Olympiques d'Hiver de Turin 2006 [...] 16. Ainsi, il apparait que la decision du Comite National Olympique Marocain du 6 fevrier 2006 n'est point frappee d'arbitraire".

On the other hand, arbitrariness was not excluded in the Dal Balcon case, where the (initial) criteria set forth by the competent federation and national Olympic committee were completely objective: results obtained as from 14 October 2005 in World Cup competitions, an escalating coefficient to be applied to the three races prior to the Games and also any podium result obtained to be taken into account (the October 2005 criteria). Since there were no podium results for any athlete, the results in all five World Cup competitions would be of crucial importance for the athletes. Albeit that, a new criterion created by CONI and FISI was communicated orally to the team members the day prior to the final competition: the two best results obtained by each athlete in the Parallel Giant Slalom races in the World Cup would be used for the final classification and the selection of the Olympic team (the 2-best rule). The Panel said: "The October 2005 criteria clearly state that the selection criteria should be as objective as possible. A statement of principle this Panel agrees with as did the Panel in the Schuler v/Swiss Olympic Association CAS OG 06/002 [...] The October 2005 criteria have no provisions regarding how to use the selection criteria when an athlete is injured or does not race because the coach substitutes another athlete. To resolve this dilemma the 2-best rule was announced the day prior to the final race to all present at the meeting of athletes. That rule was not communicated to the Applicant who was not present at the meeting. It was, of course, unknown to all the athletes until it was formulated two days before the competition and announced to all present the day prior to the final competition."

And the Panel concluded: "The 2-best rule is a radical alteration to the original criteria. It came too late in the selection process to be fair particularly as it was not announced in a complete fashion and communicated to the Applicant. Therefore, the Panel finds the 2-best rule to be arbitrary and it would be unfair and unreasonable in all the circumstances to apply it."

As already mentioned, the Panel stressed that, contrary to the Schuler case, the competent Italian NF (FISI) used no discretion in the final selection: "FISI accepted the direction of DA Snowboard albeit on the changed criteria that this Panel has found to be arbitrary and unfair and therefore to be disregarded [...] The Panel in Schuler declined to intervene in the legitimate exercise of discretion by the national federation. There was no discretion used in this case."

Conclusion

The experience of three Summer Olympics and another three Winter Olympics of the CAS AHD has rewarded the Court with priceless know-how. In addition, the average of almost nine cases per Olympiad shows that the CAS AHD is now a conditio sine qua non for the successful organisation of the major sporting event in the world. Every two years the CAS attempts to succeed in its own "triathlon" (fair--fast--free), which, above all, requires a unique balance between the speed of the procedures (24h) and the quality of the justice served (fairness in sport). The CAS AHD in Turin was another example of flexible procedures, always at the disposal of the Olympic Movement, and consistent jurisprudence. The road to Beijing is now open for legal debates (48) on how the role of the CAS AHD can evolve in its second decade of life. In the author's opinion, given the high stakes that the participation in the Olympics entails, the selection/qualification disputes will be the nucleus of the CAS AHD jurisprudence in the near future.

* Attorney at Law in Athens, Greece. The author served as volunteer legal assistant to the ad hoc divisions of CAS for the Olympic Games in Athens (2004) and Turin (2006). This article reflects only the author's personal views.

(1) The Tribunal was presided over by Judge R.S. Pathak (India) and Mr Robert Briner (Switzerland); it was composed of nine arbitrators selected by the ICAS from the CAS list of arbitrators: Mr Massimo Coccia (Italy), Mr Kaj Hober (Sweden), Mr Malcolm Holmes (Australia), Prof. Akira Kotera (Japan), Mr Peter Leaver (United Kingdom), Mr Dirk-Reiner Martens (Germany), Prof. Richard McLaren (Canada), Mr Hans Nater (Switzerland), Mrs Maidie Oliveau (USA). The CAS Office was headed by its Secretary General, Mr Matthieu Reeb. For a detailed comment on the structure of the CAS AHD and especially on the "closed" list of arbitrators selected by the ICAS Board, see Rigozzi A., L'arbitrage international en matiere de sport, Helbing & Lichtenhahn, Basle 2005, pp.301-308.

(2) The ICAS has also created Ad hoc divisions that were either seated at the city of the sporting event (e.g. Commonwealth Games: Kuala Lumpur-1998, Manchester-2002, Melbourne-2006) or on-demand (European Football Championships-2000 & 2004, FIFA World Cup-2006, Paralympics -2000 & 2004).

(3) Olympic Charter (ed. 2004), Rule 61.

(4) CAS Arbitration Rules for the Olympic Games ("the Ad hoc Rules").

(5) CAS OG 06/001, 06/002, 06/003, 06/004, 06/006, 06/008, 06/010.

(6) Settling the dispute arising out of two applications: CAS OG 06/005 & 06/007.

(7) The respondent (IOC) accepted the applicant's request for a stay of execution of its decision.

(8) Nagano 1998: 6 awards; Salt Lake City 2002: 7 awards.

(9) See also in: CaS 2/2006, p.215 et seq.

(10) See also CAS OG 02/003 [Bassani-Antivari v/ IOC], CAS Awards--Salt Lake City 2002 & Athens 2004, p.29 et seq.

(11) The application was filed at 2:26pm. In view of the medal ceremony scheduled to take place later that afternoon, it was not possible for the President of the CAS AHD to constitute a Panel immediately. Therefore, the President issued a Procedural Order on an application for extremely urgent preliminary relief at 5:30pm.

(12) See article 14 para.2 of the Ad hoc Rules.

(13) This may be considered the most valuable contribution of a Tribunal within the society (in this case: sporting event) in which it was created and operates. The same could be seen as a consequence of CAS's "corrective jurisprudence" (Nafziger J., 'Lex Sportiva", ISLJ 2004/1-2, p.4) over IF's decisions, or in other words be described as "la crainte du juge est le commencement de la sageusse" (see the relevant--anonymous-quote in Martens D.-R./Oschutz F., "Die Entscheidungen des TAS in Athen", SpuRt 2005/2, p.59).

(14) See Beloff M., "The CAS Ad hoc division at the games of the XXVIII Olympiad in Athens", ISLR 2005, p.9. Also, Vieweg K., "Fairness and sports rules: a contribution to the problem of "field of play" rules", in: Panagiotopoulos D. (ed.), Sports Law: Implementation and the Olympic Games (10th IASL Congress--Athens 25-27.11.2004), p.208 et seq.

(15) Article 10 para.2 of the Ad hoc Rules.

(16) See Reeb M., "The role and functions of the Court of Arbitration for Sport (CAS)", ISLJ 2002/2, p.24.

(17) Limited as well by Rule 61 of the Olympic Charter (Olympic-related cases) and Article 1 of the Ad hoc Rules (timeframe).

(18) Article 11 para.2 of the Ad hoc Rules.

(19) Article 15 (c) para.3 of the Ad hoc Rules.

(20) In French; only the third award in French out of a total number of 51 awards rendered by six editions of CAS AHD for the Olympic Games. See also CAS OG 96/006, Mendy v/ AIBA, Digest of CAS Awards I, p.409; CAS OG 2000/004, COC & Kibunde v/ AIBA, Digest of CAS Awards II, p.617 et seq. It should also be noted that both procedures that have-until now--involved a French federation [CAS OG 2000/014 (FFG v/ SOCOG)] and the French NOC [CAS OG 04/008 (CNOSF v/ ISF & IOC)] were conducted in English, language used to draft the respective awards as well.

(21) The question whether Mr Angel Perez, a former Cuban citizen, could participate for the United States in the kayak competition of the Sydney 2000 Olympic Games gave rise to three different arbitrations and respective awards delivered by the CAS AHD. See CAS OG 2000/001, 2000/005 and 2000/009 in: Digest of CAS Awards II, pp.595, 625 and 651.

(22) Case (Interested Party): OG 06/001 (FIBT), OG 06/002 (Swiss-Ski), OG 06/006 (IOC, Bulgarian O.C.), OG 06/008 (Posch, Ranigler, Boccaccini, Trettel), OG 06/010 (Brazilian Bobsleigh Association, Brazilian O.C.)

(23) Cases OG 06/004, OG 06/005 & 06/007, OG 06/010.

(24) Independent Observer Program of WADA, in the case OG 06/004.

(25) Although the CAS AHD resolves disputes through arbitration, where the parties are in principio the ones to determine the course of their case, two main arguments may be raised concerning settlements before the CAS AHD: a) the CAS code does not provide for conciliation in the appeals arbitration procedure, but only in the "Special provisions applicable to the ordinary arbitration procedure" (Art. R42); b) the disciplinary (particularly doping) cases are excluded from the cases that may be submitted to CAS mediation (Art. 1 of mediation rules). See Cane Ou., "The CAS Mediation Rules" in: Blackshaw I./Siekmann R./Soek J. (eds.), The Court of Arbitration for Sport 1984-2004, TMC Asser Press, The Hague 2006, p.195:"[...] The CAS submits such disputes to the appeals arbitration procedure, given the need to have a position of principle rather than a negotiated solution for these issues".

(26) Article 22 of the Ad hoc Rules.

(27) See OG 06/009.

(28) In cases OG 06/002, 06/004, 06/006, 06/008, 06/010. Reasons followed usually later the same day or the day after.

(29) Article 19 para.2.

(30) See McLaren R., "Introducing the Court of Arbitration for Sport: the Ad hoc division for the Olympic Games", Marquette S.L.R. 12/1 (Fall 2001), p.524 et seq. A landmark decision on this topic was issued by the New South Wales Court of Appeal on 1 September 2000 [Raguz v/ Sullivan & ORS]; see the judgement as well as the memorandum drafted by the President of the Ad hoc Division in Sydney in: Kaufmahn--Kohler G., Arbitration at the Olympics, Kluwer Law International, The Hague 2001, pp.41-78.

(31) CAS OG 2000/002 [Samoa NOC v/ IWF], Digest of CAS Awards II, p.604.

(32) CAS OG 2000/006 [Baumann v/ IOC, German O.C. & IAAF], Digest of CAS Awards II, p.637.

(33) CAS OG 2000/014 [FFG v/ SOCOG], Digest of CAS Awards II, p.685. NFs accept CAS AHD jurisdiction through their membership to an IF which itself is subject to CAS AHD jurisdiction. 34 CAS OG 02/004 [Canadian O.A. v/ ISU], CAS Awards--Salt Lake City 2002 & Athens 2004, p.41.

(35) CAS OG 2000/012 [Neykova v/ FISA & IOC], Digest of CAS Awards II, p.676.

(36) "[...] for the resolution by arbitration of any disputes covered by Rule 74 of the Olympic Charter and by the arbitration clause inserted in the entry form for the Olympic Games, insofar as [...]" (emphasis added)

(37) CAS OG 02/003 [Bassani-Antivari v/ IOC] and CAS OG 02/005 [Billington v/ ISU], CAS Awards--Salt Lake City 2002 & Athens 2004, pp.34-35 and pp.50-52 respectively. See Leaver P., "The CAS Ad hoc division at the Salt Lake City Winter Olympic Games 2002", ISLR 2002, pp.48-49.

(38) Article 1 of the Ad hoc Rules, as adopted by the ICAS in New Delhi, on 14 October 2003, now reads: "[...] for the resolution by arbitration of any disputes covered by Rule 61 of the Olympic Charter, insofar as [...]".

(39) The date that the Opening Ceremony of the XX Olympic Winter Games in Turin took place.

(40) The decision was made on 22 January 2006.

(41) Especially concerning selection disputes.

(42) 10 days (article 1 of the Ad hoc Rules) plus the 21-days (or more, depending to each NOC's/IF's etc. rules) time limit for a regular appeal to the CAS appeals division.

(43) See Di Pietro D., "The Ad hoc division of the Court of Arbitration for Sport at the Athens 2004 Olympic Games", ISLJ 2005/3-4, p.23.

(44) See Niggli O./Sieveking J., "Elements choisis de jurisprudence rendue en application du Code mondial antidopage", Jusletter 20. Februar 2006, http://www.weblaw.ch/jusletter/Artikel.as p?ArticleNr=4573&Language=1&Print=1>

(45) CAS 2005/A/921 [FINA v/ Kreuzmann & German Swimming Federation].

(46) If the participation to the Olympics is every athlete's dream, then the participation to the Olympics that take place in the athlete's own country is an once-ina-lifetime experience.

(47) In German: "Formkurve", see OG 06/002, p.8 [5.9].

(48) See Tucker G./Rigozzi A./Wenying W./Morgan R., "Sports Arbitration for the 2008 Beijing Olympic Games", in: Blackshaw I./Siekmann R./Soek J. (eds.), The Court of Arbitration for Sport 1984-2004, op.cit, pp.160-179.