Overcoming Jurisdictional Hurdles: A Case Study of the CAS Ad Hoc Division at Paris 2024
James Accadia and Benjamin Batten
I. Introduction
The Court of Arbitration for Sport Ad Hoc Division (‘CAS Ad Hoc Division’) operates at the Olympic Games and allows for the quick and timely resolution of any legal disputes that arise during the Games in accordance with its standard Code of Sports-Related Arbitration.
A recurring issue in the initial disputes heard by the 2024 Paris Olympics Ad Hoc Division was whether the Ad Hoc Division had jurisdiction to hear the dispute.
This piece will explain the jurisdiction of the CAS Ad Hoc division and the hurdles that applicants must mount in order to make out jurisdiction. This will be illustrated through references to the first four decisions of the Paris 2024 Ad Hoc division, namely:
· CAS OG 24/01 Nayoka Clunis v. Jamaica Athletics Administrative Association;
· CAS OG 24/03 Mahmoud Al Hamid v. International Weightlifting Federation; and
· CAS OG 24/04 Israel Football Association & Mr.Roy Revivo v. FIFA
II. Jurisdiction of the Cas Ad-Hoc Division
The jurisdictional authority of the CAS Ad-Hoc Division is defined by Rule 61 of the Olympic Charter and Article 1 of the CAS Arbitration Rules for the Olympic Games (‘CAS Ad Hoc Rules’).
Rule 61, Olympic Charter:
“61 Dispute Resolution
[...]
2. 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 (CAS), in accordance with the Code of Sports-Related Arbitration”.
Article 1, CAS Ad Hoc Rules:
“Article 1. Application of the Present Rules and Jurisdiction of the Court of Arbitration for Sport (CAS)
The purpose of the present Rules is to provide, in the interests of the athletes and of sport, for the resolution by arbitration of any disputes covered by Rule 61 of the Olympic Charter, insofar as they arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games.
In the case of a request for arbitration against a decision pronounced by the IOC, an NOC, an International Federation or an Organising Committee for the Olympic Games, the claimant must, before filing such request, have exhausted all the internal remedies available to him/her pursuant to the statutes or regulations of the sports body concerned, unless the time needed to exhaust the internal remedies would make the appeal to the CAS Ad Hoc Division ineffective.”
These rules establish the four key jurisdictional hurdles that an applicant must overcome in order to have the merits of their claim heard by the CAS Ad Hoc Division:
Did the dispute arise on the occasion of, or in connection with the Olympic Games?
Did the dispute arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games?
Did the Applicant exhaust all internal remedies available under the statutes of the sports body concerned?
If all internal remedies have not been exhausted, would the time needed to do so make the appeal to the CAS Ad Hoc Division ineffective?
The next section of this article explores each hurdle in detail, with reference to the first four decisions of the Paris 2024 CAS Ad Hoc Division.
III. The Jurisdictional Hurdles
Hurdle 1: Did the dispute arise on the occasion of, or in connection with the Olympic Games?
Per Rule 61 of the Olympic Charter, any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the CAS.
This threshold has been easily satisfied in the disputes brought before the 2024 Cas-Ad Hoc Division.
Mahmoud Al Hamid v. International Weightlifting Federation, Nayoka Clunis v. Jamaica Athletics Administrative Association, and Cook Islands Aquatics Federation v. World Aquatics all arose ‘in connection with the Olympic Games’ as they concerned whether an athlete would be eligible to compete at the 2024 Olympics.
The fourth decision, Israel Football Association & Mr. Roy Revivo v. FIFA, centred on the applicability of an existing two-game suspension from a UEFA Euro 2024 Qualifier match. The CAS Ad Hoc Panel determined that this suspension would impact how many matches the athlete would be able to participate in during the Olympic Football Tournament, thus satisfying the ‘connection with the Olympic Games’ requirement.[1]
Hurdle 2: Did the dispute arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games
Per Article 1 of the CAS Ad Hoc division rules, the Ad Hoc division can only hear disputes that arise during the Olympics, or during a period of ten days preceding the Opening Ceremony of the Olympic Games, which in 2024 was 16 July, ten days prior to the Opening Ceremony on 26 July.
When the dispute is deemed to have ‘arisen’, and therefore whether it fell within this relevant ten day window, has been a hotly contested issue in three decisions of the Paris 2024 CAS Ad Hoc Division.
i. Cook Islands Aquatics Federation v World Aquatics:
This dispute centred on whether Wesley Roberts, a swimmer from the Cook Islands, could compete at the Paris 2024 Olympics under a universality placing. World Aquatics had determined that Roberts was ineligible due to his participation in two or more previous Olympic Games.[2] The Cook Islands requested a special exemption, emphasising that Roberts met the age eligibility criteria.
After back and forth communication between the Cook Islands Aquatics Federation and World Aquatics from 5 May 2024 onwards, World Aquatics responded on 19 July 2024 to the Applicants “appeal to the Bureau seeking reconsideration of the World Aquatics application of the Qualification system” made on 18 July 2024. In this communication, it confirmed that they deemed Mr Roberts not eligible for a universality quota place, a decision which it said was "final and subject to appeal to CAS”.[3]
When did the dispute arise?
The initial decision from World Aquatics to determine that Mr Roberts was ineligible for universality occurred on 5 May. However, correspondence continued into July, with the applicants submitting an appeal for reconsideration to World Aquatics on 18 July, which was denied by World Aquatics on 19 July.
The Sole Arbitrator emphasised that even if the appeal submitted by the Applicants was merely a “request for reconsideration,” this distinction was ultimately irrelevant because World Aquatics chose to entertain it.[4] The Arbitrator emphasised that instead of dismissing the 18 July 2024 appeal and directing the Applicants back to the decision made on 4 July 2024, World Aquatics took the appeal seriously and referred the matter back to its Bureau.[5] The Arbitrator said that this action by World Aquatics reasonably led the Applicants to believe that there was a possibility of a different outcome which meant it would have been unreasonable to expect the Applicants to abandon their efforts with World Aquatics and immediately seek recourse with the Court of Arbitration for Sport (CAS) at that time.[6]
As a result, the Sole Arbitrator concluded that the dispute only arose on 19 July 2024, when World Aquatics’ Bureau explicitly rejected the appeal and clearly informed the applicants that no further dialogue with World Aquatics would be entertained. The Arbitrator explained that a reasonable interpretation of this statement suggests that World Aquatics’ earlier responses, including the initial rejection by its Bureau, were not intended as final decisions. [6]
Therefore, as the dispute arose on 19 July, this was within the ten day window, and the CAS Ad Hoc Division assumed jurisdiction over this dispute.
ii. Nayoka Clunis v Jamaica Athletica Administrative Association
This dispute revolved around Nayoka Clunis, a Jamaican hammer thrower, who was inadvertently left off the pre-entry list for the Paris Olympic Games due to an administrative error caused by disruptions in electricity and internet access in Jamaica following Hurricane Beryl. Despite having qualified, Ms Clunis' name was not submitted by the Jamaica Athletics Administrative Association (‘JAAA’) to World Athletics (‘WA’) by the required deadline of July 4. As a result, WA reallocated her spot to a Ukrainian athlete on July 5. On July 8, WA informed the JAAA that all places in the hammer throw event had been allocated and that they could not accommodate the JAAA's subsequent request to include Ms. Clunis.[7]
When did the dispute arise?
A dispute does not ‘arise’ from repeating a request to resolve a problem
The Applicant argued that the dispute had arisen on 15 July 2024, when the President of the JAAA wrote to WA ‘to remind WA” that the omission was due to Hurricane Beryl and asked again for the athlete to be included. However, the Panel disagreed, finding that the dispute arose earlier when there was an omission of her name, "and that “jurisdiction cannot be invoked, and a dispute said to have arisen, by repeating a request to resolve a problem”.[8]
A dispute does not arise when all steps to resolve the dispute have failed
The Applicant also argued that the dispute had only arisen on 19 July, the date when she received WA’s submissions to the CAS Ad Hoc Panel, as this was when she became aware that “the matter was over” and argued that the dispute had only ‘crystallised’ on this date. However, the Panel confirmed that the relevant date the dispute arose was when the dispute between the Athlete and the JAAA arose, not when it ‘crystallised’ on the receipt of submissions from WA as an interested party. In doing so the Panel emphasised that “a dispute does not arise when all steps to resolve the dispute have failed”.[9]
The Panel’s finding
The Panel found that the dispute could be said to have ‘arisen’:
· On 4 July 2024 when the Athlete’s name was omitted from the list sent to WA, or;
· On 7 July 2024 when the Athlete was informed by the JAAA that her name was not on the list sent to WA by the JAAA; or
· On 8 July 2024 when WA informed the JAAA that the Athlete’s name could not be added to the list of competitors. [10]
As all three of these dates fell outside the ten day window, the CAS Ad Hoc Division determined that it did not have jurisdiction.
iii. Mahmoud Al Hamid v. International Weightlifting Federation
The Athlete, a Saudi Arabian Weightlifter had been provisionally suspended between November 2023 and March 2024 following a positive doping test which indicated the presence of EPO as a banned substance. When the B sample was analysed, it returned a negative result and the provisional suspension was lifted on 29 March 2024.
On 10 May 2024, the applicant filed an application for exemption to Compete in Paris 2024 on the basis that during the provisional suspension period, he was excluded from the World Cup and Asian Championship, but on 24 May 2024, IWF informed the athlete that his application was unsuccessful.
When did the dispute arise?
The athlete argued that although the appealed decision date (24 May 2024) predated the ten day period, the ongoing impact and the timing of the negative sample B test result place this dispute within the spirit and intent of the said rule, which is why the CAS AD Hoc Division has jurisdiction in the dispute at issue.[11]
The applicant argued that such an ongoing impact came from the fact that missing the Olympics was a significant setback for the athlete’s career and that the Olympic Charter emphasises fair play and integrity, which principles support that the Athlete should be allowed to compete since the suspension was caused by the erroneous test result for an innocent Athlete.[12]
However, the Sole Arbitrator did not entertain this argument, finding that “a dispute does not arise on any subsequent day of a given decision regardless of whether the consequence of such a decision still have an impact on the recipient or not on any given day”.[13] Instead, the Arbitrator confirmed a strict application of the ten day period and when a dispute would be deemed to ‘arise’, by finding the dispute had arisen on 24 May, when the Athlete was informed that their application for an exemption had been denied.
As this date fell outside the ten day window, the CAS Ad Hoc Division found it did not have jurisdiction to hear this matter.
Hurdle 3: Did the Applicant exhaust all internal remedies available under the statutes of the sports body concerned?
Article 1 of the Ad-Hoc Division Rules states that “the claimant must, before filing such request, have exhausted all the internal remedies available to her/him pursuant to the statutes or regulations of the sports body concerned”. This hurdle was relevant in the following decisions:
i. Cook Islands Aquatics Federation v World Aquatics:
As part of considering when the dispute arose, the Applicants argued that they had only exhausted their internal remedies on their 18 July 18 appeal to World Aquatics. Interestingly, the Sole Arbitrator held that because World Athletics did not have any formal internal appeal processes, there were no internal remedies which the applicant needed to satisfy.[14]
ii. Israel Football Association & Mr.Roy Revivo v. FIFA
The dispute revolves around Israel Football Association (IFA) player Roy Revivo, who was handed a two-match suspension by UEFA for a red card offense during a UEFA Euro 2024 Qualifier. This suspension was not appealed to FIFA's Appeal Committee under Articles 60-61 of the FIFA Disciplinary Code. Subsequently, the IFA lodged a protest against the suspension with the FIFA Disciplinary Committee, citing Article 10.3 of the Olympic Football Tournament (OFT) Regulations. However, the protest was deemed inadmissible by the FIFA Disciplinary Committee because it was filed after the five-day deadline stipulated for the Olympic Tournament.
Did the Applicant exhaust all internal remedies?
The Panel emphasised the need for “strict compliance with Article 1”,[15] noting that the applicants should have initially appealed to FIFA's Appeal Committee under Articles 60-61 of the FIFA Disciplinary Code, which are the statutes of the Sports Body concerned.[16] The Panel confirmed that CAS Ad Hoc Division jurisdiction is contingent on exhausting all available internal remedies, and in this instance, they deemed that such remedies had not been exhausted.
However, the panel did find jurisdiction within the Article 1 exception (Hurdle 4) which will be discussed below.
Hurdle 4: If all internal remedies have not been exhausted, would the time needed to do so make the appeal to the CAS Ad Hoc Division ineffective?
Due to the time constraints and the fast-paced environment of the Olympic Games, Article 1 of the Ad Hoc Rules provides an exception to the "exhausted all internal remedies" where the Panel is satisfied that “the time needed to exhaust the internal remedies would make the appeal to the CAS Ad Hoc Division ineffective”.
i. Israel Football Association & Mr.Roy Revivo v. FIFA
After concluding that the IFA and Roy Revivo failed to exhaust all internal remedies available through FIFA, the Panel then considered whether the time required to pursue the remedy through FIFA's Appeal Committee would render an appeal to the CAS Ad Hoc Division ineffective.[17]
Would the time to pursue internal remedies, render an appeal ineffective?
The exception to the requirement of exhaustion of all internal remedies should only be applied in cases of extreme, evident urgency
The Panel addressed the "extraordinary character of the specific exception in Article 1 of the CAS Ad Hoc Rules" by referencing a previous CAS Ad Hoc decision during the 2022 Beijing Winter Olympics. In that decision, the Panel established that the exception should apply "only in particular circumstances of, e.g., extreme, evidenced urgency," and emphasised that "the burden to prove the existence of exceptional circumstances justifying a departure from the principle of exhaustion lies on the applicant, who must prove the 'illusory character' of the internal legal remedies”.[18]
Applying this to the present dispute, the Panel found that the Applicants had successfully demonstrated that, because the CAS Ad Hoc hearing was scheduled for 9:00 a.m. on 24 July, it was impossible to appeal the suspension to FIFA's Appeal Committee under Articles 60-61 of the FIFA Disciplinary Code in a timely manner. This created a situation where the CAS Ad Hoc Division might hear the matter but be unable to render an effective decision before Israel’s first match against Mali, scheduled for the same day at 9:00 p.m. Given the imminent nature of the Olympic match, the Panel recognised that it was unreasonable to expect the Applicants to complete FIFA’s internal appeals process in time for an effective application to the CAS Ad Hoc Division. [19]
Therefore, due to the urgency of the situation, the Panel concluded that the circumstances justified invoking the exception under Article 1 to assert jurisdiction.
IV. Conclusion
The decisions on jurisdiction from the CAS Ad Hoc Division at Paris 2024 underscore a consistently strict interpretation of the hurdles that stem from Article 61 of the Olympic Charter and Article 1 of the Ad-Hoc Division rules.
In particular, the need for a dispute to have ‘arisen’ in the ten days before the Opening Ceremony meant Nayoka Clunis and Mahmoud Al Hamid could not have their cases heard, despite the particularly unfortunate impacts of Hurricane Beryl and an incorrect doping suspension respectively. Although the Panels’ recognised the “unfairness and regrettable circumstances that deprived these athletes of the opportunity to compete in the Olympic Games”, [20] these decisions reaffirm that the jurisdiction of the CAS Ad Hoc Division is defined by strict and technical criteria, rather than an open question to be guided by the choice of the CAS Panel and what they deem to be the most just solution.
A similarly strict interpretation of the internal remedies hurdle was applied in the Revivo v. FIFA decision. However, this decision also confirmed that the CAS Ad Hoc Division is at least able to take into account the extreme urgency of a situation to give operative effect to the exception provided in Article 1 of the Ad Hoc rules, in situations where the internal remedies hurdle would otherwise be a barrier to jurisdiction.
References
[1] Israel Football Association & Mr. Roy Revivo v FIFA (Award, Court of Arbitration for Sport, Case No CAS OG 24/04, 26 July 2024) [46].
[2] Cook Islands Aquatics Federation and Cook Islands Sports and National Olympic Committee v. World Aquatics (Award, Court of Arbitration for Sport, Case No CAS OG 24/02, 24 July 2024) (‘Cook Islands Aquatics Federation v. World Aquatics’) [9].
[3] Ibid [46].
[4] Ibid [45].
[5] Ibid [45].
[6] Ibid [45].
[7] Nayoka Clunis v. Jamaica Athletics Administrative Association (Award, Court of Arbitration for Sport, Case No CAS OG 24/01, 23 July 2024) [32]-[48] (‘Nayoka Clunis v. Jamaica Athletics Administrative Association’).
[8] Ibid [54]-[55]
[9] Ibid [53].
[10] Ibid [50].
[11] Mahmoud Al Hamid v. International Weightlifting Federation (Award, Court of Arbitration for Sport, Case No CAS OG 24/03, 27 July 2024) [21].
[12] Ibid.
[13] Ibid [34].
[14] [48]
[15] Ibid [39].
[16] Ibid [38].
[17] Ibid [39].
[18] Ibid [40] citing Adam Edelman & Bobsleigh Skeleton Israel (BSI) v. International Bobsleigh and Skeleton Federation (IBSF) Award, Court of Arbitration for Sport, Case No CAS OG 22/004, 4 February 2022) [64].
[19] Ibid [41].
[20] Nayoka Clunis v. Jamaica Athletics Administrative Association [58]; Mahmoud Al Hamid v. International Weightlifting Federation [37].