The Olympic Games: Citius, Altius, Fortius and Litigious?

The Games of the XXXII Olympiad will soon begin. They will be played under the Olympic motto of Citius, Altius, Fortius (faster, higher, stronger). But to what extent will the Games also be litigious?  

In this OnPoint, we consider the following five categories of disputes that may arise in relation to major sporting events.

·     Governance disputes – covering allegations of corruption, discrimination and breaches of legal obligations by administrators.

·     Qualification and team selection disputes – including in recent times complex questions regarding gender, diversity and the right to fair competition.  

·     Disciplinary disputes – which encompass anti-doping rule violations and other forms of athlete misconduct.

·     Commercial issues – including breaches of contract and claims to force majeure arising from COVID-19.

·     Intellectual property disputes – covering sponsorship and marketing disputes. 

A. Governance disputes

Sporting bodies, as with other segments of society, are expected to adhere to high standards of governance, including eliminating all forms of corruption. A failure to live up to these standards can lead to significant consequences, which will often then be disputed. For instance, the Russian Federation was excluded from Rio 2016 by the International Association for Athletics Federation (the IAAF) after the World Anti-Doping Agency (WADA) uncovered evidence of state-sponsored mass doping among Russian athletes, leading to a significant number of disputes at the Court of Arbitration for Sport (CAS).¹

The Russian Federation remains excluded from Tokyo 2020 following a CAS ruling in December 2020 that the Russian Anti-Doping Agency had tampered with anti-doping test results handed over to a WADA team investigating institutionalised doping in Russia.² Russian athletes can only participate as ‘authorised neutral athletes’ and are forbidden from using the Russian flag or anthem. Nonetheless, 335 ‘Russian’ athletes will still be competing in Tokyo.³

The IOC has also refused to recognise the election of Viktor Lukashenko as the Belarus National Olympic Committee (NOC) President after allegations of political discrimination towards athletes.⁴ Similarly, the International Boxing Association (AIBA) has been banned from Tokyo 2020, along with all of the adjudicators who judged the boxing in Rio 2016, due to ‘severe concerns with its governance, finances and refereeing and judging.’⁵ They have been replaced by an Olympic Boxing Task Force to ensure that the bouts in Tokyo are fair and the points scoring consistent. 

Closer to home, Dechert’s Singapore international arbitration team recently successfully pursued two appeals at CAS against the Asian Football Confederation (AFC) in relation to its conduct of elections. Specifically, the AFC was found to have held elections in 2019 for executive positions within the AFC and FIFA (the world body for football) which discriminated against women, and which were further compromised by the unlawful interference in the elections by third parties.⁶ In doing so, the CAS Panel confirmed that individual candidates have standing to pursue challenges against sports administrators who fail to uphold their legal and ethical obligations.  

During the build-up to Tokyo 2020, the former Japanese prime minster, Yoshiro Mori, reportedly complained about the involvement of women in meetings of the organising committee for the Tokyo Olympic and Paralympic Games, which led to an outcry, his resignation and replacement (ironically) by a woman. International sports administration remains dominated by men, which may lead to more discrimination claims in the future.⁷

B. Qualification criteria, team selection and diversity

Qualification and selection disputes have probably occurred in every Olympics since they were first staged in ancient Greece 3,000 years ago. Of greatest import in recent times have been disputes regarding gender, diversity and nationality.

This includes the well-publicised case of Caster Semenya, who, after winning gold in the 800m in London 2012⁸ and Rio 2016, is now excluded from Olympic competition unless she takes medication to suppress her naturally elevated testosterone level.⁹ Ms. Semenya is currently pursuing a challenge before the European Court of Human Rights.¹⁰ Two Namibian athletes have also recently been banned from the Tokyo Olympics on similar grounds.¹¹ These are complex issues affecting people’s livelihoods to which there are no easy answers. Ultimately, a balance needs to be struck between respect for the rights (and the welfare) of each potential competitor and the desire to ensure fair competition. 

The world swimming body, FINA, is currently reviewing its ban on swimmers wearing a ‘Soul Cap’ designed for voluminous hair typical of people of African descent in response to a public backlash.¹² Criticism has also been voiced regarding the selection of Laurel Hubbard, a transgender athlete, who will represent New Zealand in female weightlifting in Tokyo (although no legal proceedings have been brought).¹³ 

Double amputee, Blake Leeper from the USA unsuccessfully challenged a 2019 CAS award which confirmed he was ineligible to compete in the Olympics on the basis that the height of his prosthetic legs give him an unfair advantage.¹⁴ Mr. Leeper argued before the Swiss Federal Tribunal (the SFT) that the CAS ruling was racially discriminatory as the limits for the height of prosthetics were derived from body proportions of white and Asian athletes.¹⁵ Earlier this year, CAS dismissed another appeal filed by Mr. Leeper.¹⁶ 

While the sports world continues to work through these complex issues, it is clear that a one-size-fits-all binary approach will no longer suffice, reflecting evolving attitudes in broader society. Thus, CAS recently ruled that the qualification criteria set by the Tokyo Olympics Boxing Task Force (which is the temporary replacement of the AIBA as mentioned above) was discriminatory for failing to make allowance for women who were pregnant or postpartum during the qualifying period.¹⁷

As noted, Dechert lawyers recently successfully established that the AFC’s election procedures discriminated against women because only five of the 25 seats on the AFC Executive Committee were made available for women. Similarly, while Asia is entitled to have six representatives on the FIFA Council, only one of these could be contested by women in the AFC’s 2019 elections. A CAS Panel found that, rather than setting a floor on the minimum participation of women in the administration of Asian football, the AFC had through its rules, practices and procedures imposed a ceiling on their participation, which is discriminatory.¹⁸

Disputes can also arise over which country an athlete is entitled to represent. A dual-national athlete was barred from competing at Rio 2016 after failing to produce the correct passport of the country he was representing (Kenya) upon his arrival at the Olympic Village. A subsequent appeal to CAS was dismissed.¹⁹ The general rule is that an athlete must be a national of the country they seek to represent and cannot have represented a different country within the previous three years.²⁰ Exceptionally, CAS ruled that Angel Perez, a kayaker, was eligible to represent the United States at Sydney 2000 despite having just acquired U.S. citizenship after previously being stateless following his defection from Cuba in 1993.²¹

C. Disciplinary disputes

Under the terms of the WADA Code, an athlete is presumed to have committed an anti-doping rule violation if a prohibited substance is found in their test sample.²² This has given rise to a plethora of disputes, with athletes often challenging the validity of the anti-doping tests, the severity of the penalties handed down, or the legal basis of the disciplinary proceedings.²³ Indeed, there has been a flurry of appeals to CAS against doping-related bans in recent weeks in the lead up to Tokyo 2020.²⁴

Doping offences can also affect an athlete’s eligibility to compete in future Olympic Games. The IOC’s so-called Osaka Rule (introduced in 2008) prohibits an athlete from competing in the Olympic Games if they had served a suspension of six months or more during the preceding four-year Olympic cycle. While the rule was struck down by CAS twice in 2011 and 2012, it has been argued by Dechert lawyers that those cases may have been wrongly decided.²⁵ In any event, the rule was reinstated by the IOC in 2016 to help ensure the integrity of Olympic sport. It was then relied upon to exclude a decorated Asian athlete from Rio 2016, who appealed to CAS in a case in which Dechert defended the Osaka Rule but which was ultimately withdrawn before a decision was made by CAS on its legality.²⁶ 

Athletes can also be banned for a range of other disciplinary offences, including for racism,²⁷ being drunk and disorderly,²⁸ and cheating.²⁹

Decisions made in the field of play, however, usually cannot be challenged through arbitration. By way of exception, the CAS Ad Hoc Division (AHD) established for the Olympic Games³⁰ has the power to review field of play decisions to the extent that they are arbitrary or made in bad faith.³¹ This is a high bar to meet.³²

Dechert’s Mark Mangan has been engaged in over ten doping disputes, including those arising from Athens 2004, Turin Winter Olympics 2006, Beijing 2008, London 2012 and Rio 2016.   

D. Commercial disputes

International sport today is of course big business. Rio 2016 was reportedly watched on television by over half of the world’s population and received some 7.2 billion views of online video content.³³ NBC, the main broadcaster for Rio, raked in US$1.2 billion in marketing revenues.³⁴ In anticipation of similar audience figures, more than 60 Japanese companies have paid a record ¥361 billion (US$3.3 billion) in sponsorship money, the most for any Games.³⁵ The cost of holding Tokyo 2020 is US$15.4 billion according to the organisers or US$25 billion according to Japanese government audits.³⁶

There are vast swathes of contracts needed to stage the Olympic Games. Some will give rise to disputes to be determined in accordance with the parties’ agreement, which could include the referral of disputes to the CAS Ordinary Division or some other arbitral institution such as the ICC, SCC or SIAC.

The COVID-19 pandemic poses unique challenges for the staging of the Olympic and Paralympic Games, with the events themselves having been delayed by 12 months. Unfortunately, a state of emergency has recently been declared in Tokyo and all spectators have been banned from Olympic events due to be held in the capital, with limited spectators permitted at events in outlying prefectures.³⁷ This could give rise to requests for refunds or claims for compensation from spectators, sponsors, broadcasters and service providers. Indeed, much of the investment will have been premised on the ability to reach a broad spectator base in Tokyo and images beamed around the world reflecting the unique cacophony of noise and colours generated by an excited audience at Olympic venues. The rights of the contracting parties in these circumstances will be determined by the terms of the contract, including any protections for force majeure events,³⁸ and the applicable law.

For the athletes themselves, COVID-19 could lead to last-minute timing and competition changes, quarantine restrictions and even mandatory withdrawals. Several athletes have already been excluded due to positive COVID tests – including two members of the South African soccer team who had already entered the Olympic Village.³⁹ Others have complained about stricter regulations being imposed against athletes originating from certain countries.⁴⁰ CAS, for its part, confirmed last year that COVID restrictions and penalties such as enforced forfeitures (where a team’s members tested positive and had to quarantine) are justified.⁴¹

E. Intellectual property

Finally, major sporting events can lead to significant intellectual property disputes including conflicts between the sponsors of an athlete or team and those sponsoring the event itself. Cristiano Ronaldo recently snubbed Coca Cola during a Euro 2020 press conference, allegedly causing a US$4 billion drop in the company’s market value.⁴² Dechert’s Mark Mangan advised the International Cricket Council (ICC) in relation to disputes arising out of the 2003 ICC Cricket World Cup after certain players sponsored by Coca Cola refused to wear team shirts depicting the tournament sponsor, Pepsi; while others refused to wear shirts with an LG Electronics logo while being sponsored by a competitor.

This should be less of a problem at Tokyo 2020 following the removal of the controversial ‘blackout’ period of previous years, which prevented athletes from endorsing non-official sponsors during the Games.⁴³ The National Olympic Committees are responsible for the interpretation and implementation of the newly relaxed rules. Germany has eased most restrictions; Australia will allow athletes to run campaigns during the Olympic period but without any reference to the Olympics; and American athletes are allowed to post a maximum of seven ‘thank you’ advertising messages during the Games. British athletes, however, have already brought a claim against the British Olympic Association’s allegedly restrictive approach and other disputes may arise if athletes fail to follow national guidelines.⁴⁴

Ambush marketing may also be a cause of frustration and potential litigation. Non-sponsors sometimes seek to associate themselves with an event through creative advertising tactics,⁴⁵ with teams of lawyers on standby to issue injunctions to quickly put a stop to it. This should be less of a problem at the Olympic Games, which is an all-of-government activity, extending to the introduction of legislation protecting the intellectual property associated with the Olympics and the tight control of cities hosting events. Further, the fact that athletes can associate themselves with non-event sponsors during Tokyo 2020 may discourage ambush marketers from being more aggressive in seeking to associate themselves with the event itself. 

F. Conclusion

Major sporting events can have a significant impact on the lives and fortunes of the athletes, those hosting the event and the companies that seek to associate themselves with the virtues of elite sport. It is inevitable that there will be disputes when the stakes are so high. For Tokyo 2020, it is hoped that it will provide welcome relief from the challenges, and for some the misery, caused by COVID-19; with the headlines over the coming weeks dominated by athletic achievement rather than a worsening pandemic.