Oksana Kalashinikova, Ekaterine Gorgodze v. Georgia Tennis Federation, Georgian National Olympic Committee, International Tennis Federation (ITF)

1. Although the practice of sport is a human right and every individual must have the possibility of practising sport without discrimination of any kind, nobody is entitled as of right to participate in the Olympic Games.

2. At national level, a National Olympic Committee (NOC) has the exclusive right to select and to send its competitors to the Olympic Games. No other body or person within a member country has that right.

3. Entry of an athlete to the Olympic Games is a serious matter, as it affects the career of the athlete concerned, allowed or denied the possibility to satisfy one of the highest sporting aspirations. Applications, or recommendations for nomination, in other words, are not made verbally, but in writing.

1. PARTIES

1.1. The Applicants are citizen of Georgia. They are female tennis players, who play as a pair for Women’s Doubles, members of Georgia Tennis Federation (GTF).

1.2. The First Respondent is the International Tennis Federation (ITF), which is the worldwide governing body for tennis.

1.3. The Second Respondent is the Georgian National Olympic Committee (GNOC). Pursuant to the Olympic Charter (OC), Chapter 4, Rule 27.7.2, the GNOC has “the right to send competitors, team officials and other team personnel to the Olympic Games in compliance with the Olympic Charter”.

1.4. The Third Respondent is the GTF, which is the national governing body for tennis in Georgia.

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1.5. The First Interested Party is a pair of tennis players currently entered into the Tokyo 2020 Olympic Games to represent Brazil.

1.6. The Second Interested Party is a pair of tennis players currently entered into the Tokyo 2020 Olympic Games to represent Chinese Taipei.

2. FACTS

2.1. The elements set out below are a summary of the main relevant facts as established by the Panel by way of a chronology on the basis of the submissions of the Parties. Additional facts may be set out, where relevant, in the legal considerations of the present award.

2.2. The Applicants have played for Georgia national team.

2.3. On 1 July 2021, the ITF announced on its website an entry list (the Original Entry List) for the Tokyo Olympic Games 2020 (Tokyo OG). That publication stated that “according to the ITF’s Olympic Qualification System, entries are based on the ATP and WTA rankings of 14 June (…) The entry lists are still subject to change”. The Applicants were not mentioned in the Original Entry List.

2.4. On 16 July 2021, the ITF published a revised entry list in its website (the Revised Entry List: the Appealed Decision). Based on it, five teams (from Belarus, Great Britain, Hungary, Kazakhstan and ROC) mentioned in the Original Entry List were deleted from, and five new teams (from Brazil, Chinese Taipei, Japan, Mexico and Serbia) were added to, the Women’s Doubles competition. The Applicants were not included in the Revised Entry List.

2.5. On 17 July 2021, Ms Kalashinikova sent a communication to the ITF requesting a clarification of the Appealed Decision. The ITF then answered that her team’s entry was not submitted by the GTF or by the GNOC to the ITF.

2.6. The Applicants argue that Ms Kalashinikova had received “confirmation” in the last months by GTF officers that the team’s entry had been duly submitted.

2.7. In that regard, the Applicants refer to the communications exchanged between Ms Kalashinikova and GTF and/or GNOC as follows:

March 2021: Officers of GTF (Vice president Alexandre Metreveli and captain Margalita Chakhnashvili) met with the Applicants and got necessary information for the Tokyo OG and confirmed that GTF would prepare for their entry for Tokyo OG.

22 June 2021: Ms Kalashinikova asked by messenger application (Facebook) Ms Chakhnashvili if GTF had submitted their application. The latter confirmed the submission.

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16 July 2021: ITF issued Revised Entry List which included reallocation.

Once the Applicants were aware of the Revised Entry List, Ms Kalashinikova sent an email to Mr Alex Hughes, an ITF official, asking the reason why the Applicants were not selected for Tokyo OG. Mr Hughes answered by email that ITF had not received their application from GTF/GNOC.

17 July 2021: Ms Kalashinikova sent an email to Mr Giorgi Esakia, Sports Director of GNOC, asking if the email from Mr Hughes was correct or not. The GNOC answered that it had submitted their application to ITF.

3. CAS PROCEEDINGS

3.1. On 21 July 2021, at 10:42 pm (time of Tokyo), the Applicants filed an Application with the CAS Ad Hoc Division against the Respondents with respect to the Appealed Decision.

3.2. On 22 July 2021, at 12:43 pm (time of Tokyo), the CAS Ad Hoc Division notified the Application to the Respondents and invited them to file their Answer by 22 July 2021 at 6.00 pm, time of Tokyo. The Interested Parties were also informed of their entitlement to file within the same deadline an amicus curiae brief if they wished to do so. Furthermore, the CAS Ad Hoc Division notified the Parties that the Arbitral Tribunal is composed of: President: Avv. Luigi Fumagalli, Professor and Attorney-at-Law, Milano, Italy; Arbitrators: Prof. Lu Song, Professor, Beijing, China; Mr Juan Pablo Arriagada, Attorney at Law, Santiago, Chile.

3.3. On 22 July 2021, at 5:36 pm (time of Tokyo), the First Respondent filed its Answer with exhibits.

3.4. On 22 July 2021 at 7:00 pm (time of Tokyo), a hearing was held. The Panel was joined at the hearing by Mr Antonio De Quesada, Counsel to the CAS. The following persons also attended the hearing: for the Applicant: Mr Shin-Ichiro Abe, counsel, and Ms Aina Ono, counsel, in person; for the First Respondent: Mr Kelly Fairweather, Mr Kris Dent, Mr Alex Huges and Ms Hannah McLean, by video; for the Third Respondent Mr Alexandre Metreveli and Ms Margalita Chaknashvili, by video.

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3.5. Nobody attended the hearing for the Second Respondent, and for the Interested Parties.

3.6. There were no objections to the constitution of the Panel or to the Parties’ rights to be heard and treated equally in these proceedings.

3.7. On 22 July 2021 at 11:10 pm (time of Tokyo), the First Interested Party submitted an amicus curiae brief. In a correspondence dated 23 July 2021, the Panel informed the First Interested Party that the amicus curiae could not be considered because it was filed after the deadline granted by the Panel.

4. PARTIES’ SUBMISSIONS

4.1. The Parties’ submissions and arguments shall only be referred to in the sections below if and when necessary, even though all such submissions and arguments have been considered. The Panel, however, underlines that no position and/or requests were submitted by the Second Respondent and by the Interested Parties.

a. Applicants’ Requests for Relief and Position

4.2. The Applicants requests the CAS to rule as follows: “(1) declare that the applicants are immediately eligible to compete in the Tokyo Olympic Games in the sport of Women’s Doubles Tennis; and/or (2) render the ITF’s decision regarding reallocation, which is published in the entry list as of 16 July 2021, legally invalid to the extent necessary for (1) above; and/or; (3) award the applicants any further relief that the Panel deems to be just and equitable, such as a recommendation to ITF/IOC that applicants shall be eligible to participate in the Tokyo Olympic Games in the sport of Women’s Doubles Tennis in addition to the others 32 pairs who are already nominated”.

4.3. In essence, the Applicants submit that in accordance with the applicable rules they were eligible for entry into the Women’s Doubles event at the Tokyo OG. The Appealed Decision, which did not list them among the teams admitted to compete, should be set aside and their participation allowed.

4.4. In support of their application, the Applicants describe the applicable rules governing the allocation (and reallocation) of Direct Acceptance Places in accordance with the Qualification System, submit that they are eligible and should be qualified to the Tokyo OG, refer to the communications with the GTF and the ITF, and conclude that, having relied upon the GTF and the GNOC, they should be legally protected, and eventually entered into the Women’s Doubles Olympic event.

4.5. As to the applicable rules for Women’s Doubles, the Applicants note that the Original Entry List of 1 July 2021 was superseded in the Appealed Decision by the Revised Entry List, which replaced five teams (representing Belarus, Great Britain, Hungary, Kazakhstan and ROC) with

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five new teams (representing Brazil, Chinese Taipei, Japan, Mexico and Serbia). However, such reallocation of Direct Acceptance places was not in accordance with the Qualification System, under which the place had to be given "to the next highest ranked team" on the "combined ranking" as of 14 June 2021, since there were only eligible players who were not accepted into the singles event.

4.6. According to the Applicants, among such five new teams, however, two of them were lower than the Applicants in the combined ranking as of 14 June 2021. The Applicants describe such positions as follows: “i) Laura Pigossi and Luisa Stefani (representing Brazil) (Laura Pigossi) Singles Ranking: 788, Doubles Ranking: 23 (Luisa Stefani) Singles Ranking: 314, Doubles Ranking: 90 Combined Ranking: 213 ii) Hsieh Yu-Chieh and Hsu Chieh-Yu (representing Chinese Taipei) (Hsieh Yu-Chieh) Singles Ranking: N/A, Doubles Ranking: 175 (Hsu Chieh-Yu) Singles Ranking: 515, Doubles Ranking: 189 Combined Ranking: 364 iii) Applicants’ ranking are (Attachment G1 and G2): (Oksana Kalashinikova) Singles Ranking: 1394, Doubles Ranking: 75 (Ekaterine Gorgodze) Singles ranking: 206, Doubles Ranking: 114 Combined Ranking: 189”.

4.7. In light of the foregoing, the Applicants submit that they satisfy all the requirements set by the Eligibility System and that they should be given a Direct Acceptance place in the Revised Entry List, because: i. they satisfy and comply with the provisions of the Olympic Charter, including but not limited to its Rule 41 on the nationality of competitors; they are in good standing with their National Association and the ITF in accordance with the ITF Billie Jean King Cup Regulations in force; they have represented the Georgian national team in the Billie Jean King Cup constantly for more than 10 years; they have reached the age of 15 years; ii. they are higher in the combined ranking, as of the cut-off date (14 June 2021), than two of five teams who were additionally nominated by the Revised Entry List.

4.8. With respect to the communication with the GTF, the GNOC and the ITF, the Applicants indicate that, upon realizing that ITF published the Revised Entry List on 16 July 2021, Ms Kalashinikova promptly took action to find out the reason why she and her partner, Ms Gorgodze, were not qualified, while a lower in ranking team had been entered into the Tokyo OG. The Applicants submit that, to her great surprise, Ms Kalashinikova was told by an officer of the ITF that her team’s entry had not been submitted to ITF by GTF and GNOC. However, the answer from the ITF appeared totally inconsistent with GTF’s former statements, including by its vice president and captain, that the Applicants’ entry had been properly sent.

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4.9. The Applicants contend that they acted relying upon their own National Federation and National Olympic Committee, and therefore that they should be legally protected. As a consequence, immediate and just relief should be given them by properly applying the Qualification System, which would result in their eligibility to compete at the Tokyo OG. From a legal point of view, according to the Applicants, GTF and GNOC should keep their words that the Applicants’ entry was sent to the ITF, and the ITF should honour its statements on the basis of the principle of estoppel. In fact, the Applicants were not allowed to submit the application by themselves, while they did everything that they could to confirm their participation to the Tokyo OG, by checking whether the GTF submitted the application properly and waiting for the happy news that they had been entered into the re-allocated list. The Applicants emphasize that there is no negligence or misconduct on their part. As a result, one of three institutions (GTF, GONC and ITF) should be held responsible for the situation, and the relief sought granted.

4.10. At the hearing, the Applicants insisted that their requests for relief be accepted on the basis of the legal principle of estoppel and of natural justice. In addition, according to the Applicants, all requests for clarifications submitted by the GNOC and/or by the GTF to the ITF should be considered as a replacement for their formal nomination for entry at the Tokyo OG. At the same time, the Applicants submit that the request to be admitted at this late stage could be accepted without any detriment to the other players already admitted, since an extra place could be given, as mentioned in some CAS precedents.

b. First Respondent’s Requests for Relief and position

4.11. The First Respondent requested the CAS: “to deny the Applicants’ appeal, and confirm that Ms Laura Pigossi and Luisa Stefani, and Ms Hseih Yu-CHieh and Hsu Chieh-Yu validly hold their quota places and shall be permitted to participate in the Olympic Tennis Event women’s doubles commencing Saturday 24 July”.

4.12. The First Respondent’s position is summarized as follows: i. the nomination procedure was set out clearly in the Olympic Tennis Event Tokyo 2020 Regulations (the OTE Regulations) and in the Qualification System. On that basis, the rule is that the National Olympic Committee and the National Tennis Federation of the concerned country must submit nominations. This was notified to all National Tennis Associations, and National Olympic Committees not only on 16 June 2021, but also on numerous occasions to National Tennis Associations before that date; ii. the GNOC and the GTF followed that process in submitting an entry for Nikoloz Basilashvili for the Men’s Singles event; iii. no application was received for the Applicants; iv. the ITF subsequently followed the processes set out within the OTE Regulations and the Qualification System and issued quota places to successful athletes, including that Ms Laura Pigossi and Luisa Stefani (BRA), and Ms Hseih Yu-Chieh and Hsu Chieh-Yu (TPE);

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v. the ITF cannot be held responsible for the failure of the GNOC and/or GTF to follow the administrative nomination process; vi. it would be contrary to the Olympic Charter for the ITF to grant entry to athletes who had not been nominated by the NOC thereby confirming NOC support; and vii. the players who have received quota places and are present in Tokyo ready to compete should not be prejudiced by the error of the GNOC and/or GTF.

4.13. The position of the First Respondent relies on the evidence filed with its answer, as follows: i. on 16 June 2021, the ITF informed all National Associations and National Olympic Committees of the names of players eligible for Direct Acceptance and Final Qualification Places for singles and top 10 doubles (based on world ranking as at 14 June 2021); ii. on the same day, the ITF wrote to the President of the GTF, with the GNOC in copy, an email setting out the process for players’ nominations for each of men’s and women’s singles and doubles singles included the nomination form. That stated: “If you have not received an email for singles, and you wish to submit nominations for the doubles events, please complete the attached form and return it to me and Jo (cc’d) by the deadline of 22 June (23:59 UK time)”. iii. on 21 June 2021, in addition, the ITF wrote again to all its National Associations and to the National Olympic Committees reminding the above-mentioned deadline; iv. on 21 June 2021, the GNOC submitted to the ITF a Men’s Nomination Form for Georgian player Nikoloz Basilashvili for nomination in the Men’s Singles Event. However, it did not submit a Women’s Nomination Form; v. on 17 July 2021, the GTF’s Vice President wrote to the ITF asking why no Georgian tennis players were included in the Women’s Doubles event. On the same day the ITF answered him indicating that the ITF only received a nomination form for Nikoloz Basilashvili, and that it did not receive any nomination for Georgian women’s players to compete in Tokyo OG; vi. on 20 July 2021, the President of GNOC wrote to the ITF requesting “clarification on the criteria ITF used to take a decision and what is the reason for the Georgian players not becoming eligible to compete in women double events during Tokyo 2020”, letter which was duly answered by the First Respondent in the same day.

c. Third Respondent’s Position

4.14. The Third Respondent expressed at the hearing its full support for the Applicants position. In more details, the Third Respondent submits that the events are clear and that a misunderstanding by the GNOC must have occurred. In fact, in several occasions the GNOC (namely its technical director) was approached and requests were made as to the nomination of the Applicants for the Tokyo OG. In all such circumstances the GNOC confirmed that all the

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GNOC had to do had been done. According to the Third Respondent, the Applicants should not suffer from adverse consequences because of the GNOC actions.

5. JURISDICTION AND ADMISSIBILITY

5.1. Article 61.2 [Dispute Resolution] 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 (CAS), in accordance with the Code of Sports-Related Arbitration”.

5.2. In view of the above, the Panel considers that the CAS Ad Hoc Division has jurisdiction to hear the present matter. The jurisdiction of the CAS Ad Hoc Division was not contested in the written submissions and/or at the hearing.

5.3. Article 1 [Application of the Present Rules and Jurisdiction of the Court of Arbitration for Sport (CAS)] of the CAS Arbitration Rules for the Olympic Games (hereinafter: the “CAS Ad Hoc Rules”) provides as follows: “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”.

5.4. The Appealed Decision was issued on 16 July 2021.

5.5. In view of the above, and taking into account that the Applicants filed her request on 21 July 2021, the Panel considers the application admissible. In any case, the Panel notes that the admissibility was not challenged.

6. APPLICABLE LAW

6.1. Under Article 17 of the CAS Ad Hoc Rules, the Panel must decide the dispute “pursuant to the Olympic Charter, the applicable regulations, general principles of law and the rules of law, the application of which it deems appropriate”.

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7. DISCUSSION

a. Legal framework

7.1. These proceedings are governed by the CAS Ad Hoc Rules enacted by the International Council of Arbitration for Sport (hereinafter: the “ICAS”) on 14 October 2003, amended on 8 July 2021. They are further governed by Chapter 12 of the Swiss Private International Law Act of 18 December 1987 (hereinafter: the “PIL Act”). The PIL Act applies to this arbitration as a result of the express choice of law contained in Article 17 of the CAS Ad Hoc Rules and as the result of the choice of Lausanne, Switzerland as the seat of the Ad Hoc Division and of its panels of arbitrators, pursuant to Article 7 of the CAS Ad Hoc Rules.

7.2. According to Article 16 of the CAS Ad Hoc Rules, the Panel has “full power to establish the facts on which the application is based”.

b. Merits

7.3. The dispute submitted to this Panel concerns the entry of the Applicants into the Tokyo OG as participants in the Women’s Doubles Tennis event. The Applicants, in fact, not mentioned in the Original Entry List, were not included in the Revised Entry List published by the First Respondent in the Appealed Decision. The Applicants submit that the Appealed Decision is not consistent with the Qualification System: therefore, the Appealed Decision is to be set aside and the Applicants should be entered into the Tokyo OG. The First Respondent concedes that the Applicants, if nominated by the GNOC, could be admitted to compete at the Tokyo OG. However, they were not nominated: therefore, they could not be (and were not) admitted. The Appealed Decision, according to the First Respondent, should therefore be maintained.

7.4. On the basis of the Parties’ submissions, there are only two issues to be addressed by the Panel in this arbitration: i. were the Applicants properly nominated by the GNOC to the ITF for entry into the Tokyo OG? ii. what are the consequences of any finding in such respect?

7.5. As to the first point, the Panel notes that, even though “[t]he practice of sport is a human right” and “[e]very individual must have the possibility of practising sport, without discrimination of any kind” (OC, Fundamental Principles of Olympism, 4), “[n]obody is entitled as of right to participate in the Olympic Games” (Rule 44.3 of the OC).

7.6. Indeed, Rule 44.4 of the OC provides that: “[a]n NOC shall only enter competitors upon the recommendations for entries given by national federations. If the NOC approves thereof, it shall transmit such entries to the OCOG. The OCOG must acknowledge their receipt. NOCs must investigate the validity of the entries proposed by the national federations and ensure that no one has been excluded for racial, religious or political reasons or by reason of other forms of discrimination”.

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7.7. At the national level, a National Olympic Committee (NOC) has the exclusive right to “send competitors, team officials and other team personnel to the Olympic Games in compliance with the Olympic Charter” (Rule 27.7.2 of the OC). According to CAS jurisprudence, “[i]t is not in issue that it is for a NOC to select its competitors for the Olympics. No other body or person within a member country has that right” (CAS OG 08/003).

7.8. In the case at stake, the Panel notes that the Applicants brought no evidence that they were nominated by the GNOC for entry into the Tokyo OG. The receipt of the nomination is denied by the First Respondent, and is confirmed by the correspondence exchanged by the Parties prior to this arbitration, which makes clear that no designation of the Applicants was put forward by the GNOC. In addition, at the hearing, the GTF declared that it did not even submit to the GNOC any written recommendation for entry of the Applicants to the Tokyo OG.

7.9. The Applicants and the GTF refer indeed to the fact that in conversations with the GNOC it confirmed verbally that it had done everything necessary to enter the Applicants. However, no written documents were provided to (nor apparently requested by) the Applicants and the Third Respondent in that respect. Entry of an athlete to the Olympics is a serious matter, as it affects the career of the athlete concerned, allowed or denied the possibility to satisfy one of the highest sporting aspirations. Applications, or recommendations for nomination, in other words, are not made verbally. The GNOC and the Third Respondent are aware of such important aspect. Indeed, another Georgian tennis player was correctly entered into the Tokyo OG. No reasons prevented the GNOC from doing the same with respect to the Applicants, and the Applicants and the Third Respondent from requesting copy of the same application as to the Women’s Doubles.

7.10. The Panel finds it highly unfortunate, to say the least, that the GNOC did not appear at the hearing, without giving any justification, and transmitted no submission in this arbitration, notwithstanding the invitation sent by CAS. Not only is such attitude disrespectful of the Georgian athletes, but it also appears contrary to the Olympic spirit, which should guide any activity of a National Olympic Committee. In concrete, the absence of the GNOC at the hearing made it impossible for the Panel and the Parties to ask questions and obtain explanations regarding the failure of the GNOC to enter the Applicants to the Tokyo OG. It is assumed that the GTF and the GNOC will investigate this matter further internally, outside the scope of this procedure, to avoid that a similar situation happens again in the future.

7.11. In light of the foregoing, the Panel concludes that the Applicants were not nominated by the GNOC to the ITF for entry into the Tokyo OG. The requests for information submitted by the GNOC to the ITF after the deadlines had expired are no substitute for such nomination.

7.12. As a result, the Panel finds it necessary to determine the consequences of the GNOC’s failure to nominate the Applicants.

7.13. Contrary to the Applicants’ requests, such consequences cannot consist in an order that the ITF enters now the Applicants into the Tokyo OG, by replacing another team or by adding an extra place. The consequence, however unfortunate for the Applicants, can only be the dismissal of their petition.

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7.14. Indeed, in the Panel’s opinion, an essential condition for the Applicants’ entry is missing. In the absence of a nomination, the ITF did nothing wrong in adopting the Revised Entry List: indeed, the ITF cannot be held responsible for the failures of National Olympic Committees. In addition, the admission of the Applicants could go to the detriment of other players, already properly admitted to the Tokyo OG, who would have to be excluded, and would create an inequality with respect to players of other nationalities, who might meet the qualifications criteria, but were not entered into by their National Olympic Committee.

7.15. Balancing the positions of the Applicants, and those of other players, regularly admitted, the Panel sees no reason to prefer the former to the latter, considering that in the event the present condition of the Applicants is determined by an omission of their National Olympic Committee.

7.16. In the same vein, the Panel finds it impossible, at this later stage, to order the ITF to add an extra place to the Women’s Doubles event. Such step in fact (in addition to facing major practical obstacles two days before the start of the competition) would involve also the IOC, which holds a discretion in this respect and is not a party to this arbitration.

7.17. Finally, the Panel sees no merit in the Applicant’s reference to the principle of estoppel or to natural justice. With respect to the former, the Panel finds no declaration or action by the ITF on which the Applicants relied to their detriment. With respect to the latter, the Panel refers to the necessity to take into account the expectations of all other participants, already admitted to the Tokyo OG: fairness commands that also their expectations should be respected.

7.18. Based on the foregoing, the Panel concludes that the Applicants claims have to be dismissed.

8. CONCLUSION

8.1. In view of the above considerations, the Applicants’ application filed on 21 July 2021 shall be dismissed.

9. COSTS

9.1. According to Article 22 para. 1 of the CAS Ad Hoc Rules, the services of the CAS ad hoc Division “are free of charge”.

9.2. According to Article 22 para. 2 of the CAS Ad Hoc Rules, parties to CAS ad hoc proceedings “shall pay their own costs of legal representation, experts, witnesses and interpreters”. In casu, the Panel does not see any reason to deviate from such rule.

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DECISION

The Ad Hoc Division of the Court of Arbitration for Sport renders the following decision:

1. The application filed by Oksana Kalashinikova and Ekaterine Gorgodze on 21 July 2021 is dismissed.

2. The revised entry list for the Women’s Doubles event at the Tokyo 2020 Olympic Games published by the International Tennis Federation in its website on 16 July 2021 is confirmed.

3. All other requests for relief are dismissed.