For 27 days between January and February 2022, the Court of Arbitration for Sport (CAS) operated two temporary offices in China which had the sole focus of providing dispute resolution services immediately before and during the Beijing 2022 Winter Olympics. This has been standard practice at Olympic Games since 1996.
CAS Ad Hoc Division
A panel of nine arbitrators was appointed to the CAS Ad Hoc Division, of which three arbitrators usually hear a matter (unless so urgent in which case the President of the Division can decide alone). The CAS Ad Hoc Division published decisions on six matters it heard in its Beijing period – none of which related to field of play matters.
The matters that came before the Ad Hoc Division included a question of jurisdiction of the CAS Ad Hoc Division to settle a dispute about qualification that had arisen before the strict time period the Ad Hoc Division operates within, qualification and selection appeals and a highly controversial decision by the Russian Anti-Doping Agency to lift a suspension from an athlete who had tested positive to use of the prohibited substance Trimetazidine.
All six cases resulted in disappointment for the applicants, however, it could be suggested that in the sixth case the individual concerned, albeit the respondent, would have been pleased with the outcome as she was able to maintain the benefit of her suspension from competition remaining lifted, thereby being free to compete at Beijing 2022.
Jurisdiction
The case regarding jurisdiction was in relation to a challenge from two Russian mogul skiing athletes and the Russian Olympic Committee against the International Ski Federation and the International Olympic Committee. Because of COVID-19 and the athlete’s use of the Sputnik vaccine, which was not recognised in Canada or the United States, they had not been able to enter Canada or the USA to compete in the final four qualifying events. The applicants were unable to demonstrate that the dispute did not arise until after 25 January 2022, resulting in an absence of jurisdiction for the CAS Ad Hoc Division to hear the matter.
Qualification and Selection
All four qualification and selection cases were dismissed. The facts of the cases included:
- an appeal against an eleventh-hour amendment to the Women’s Skeleton Qualification System;
- a request for an order that ‘unused’ qualification quota places for the 2-man Bobsleigh event be made in favour of an additional National Olympic Committee because individual spots were available;
- a challenge to the composition of the 50 quota places set out in the Skeleton Qualification System and divided equally between male and female athletes on the basis that the women’s quota provided for more one-member teams than the men’s quota allowed for (or alternatively to transfer unused men’s bobsleigh places to men’s skeleton); and
- a challenge against the creation of a ‘fictitious’ eligibility score which may have subverted the Women’s Bobsleigh Qualification System and natural justice.
Doping
Fifteen-year-old Russian figure skater Kamila Valieva became embroiled in a doping scandal at the Beijing Winter Olympics after testing positive for the banned heart drug Trimetazidine in December 2021. The test results did not become available until 7 February 2022 which meant she had been able to compete in the Women’s Free Skating team event. The team finished first.
On 8 February Valieva was provisionally suspended as a result of the doping test results, however, the Russian Anti-Doping Agency (RUSADA) Disciplinary Anti-Doping Committee (DADC) lifted her suspension within 24 hours following a hearing. The lifting of the suspension was based on Article 9.4.3 of the All-Russian Anti-Doping Rules (RADR) which provides an athlete with the opportunity to demonstrate the violation is likely to have involved a contaminated product, not a deliberate action.
This provision would have required Valieva to demonstrate the contamination excuse on the balance of probabilities. However, as a minor and therefore a ‘protected person’ under both RADR and World Anti-Doping Agency (WADA) codes, an even lower standard of proof applied, effectively resulting in Valieva not even having to prove how the substance entered her system, and merely to establish a ‘reasonable possibility’ of contamination.
This resulted in an appeal to the CAS Ad Hoc Division by the WADA, the International Olympic Committee and the International Skating Union. CAS held that Valieva’s argument was sufficiently plausible and that as a protected person, the balance of interests favoured her position.