United States Olympic and Paralympic Committee (USOPC), American Canoe Association (ACA) v. Brazilian Olympic Committee (BOC), International Canoe Federation (ICF), International Olympic Committee (IOC)

I. PARTIES

1. The United States Olympic and Paralympic Committee (the “USOPC” or the “First Appellant”), with its registered seat in Colorado Springs, Colorado, USA, represents the Olympic and Paralympic movements in the United States of America.

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2. The American Canoe Association (the “ACA” or the “Second Appellant”), with its registered seat in Fredericksburg, Virginia, USA, is the American national governing body for canoeing, which is affiliated to the International Canoe Federation (the “ICF”).

3. The International Olympic Committee (the “IOC” or the “First Respondent”) is the supreme authority of the Olympic movement, acting as a catalyst for collaboration between all parties of the Olympic family, notably the National Olympic Committees (the “NOCs”), the International Sports Federations and the athletes. The IOC has its registered office in Lausanne, Switzerland.

4. The ICF (the “Second Respondent”), with its registered office in Lausanne, Switzerland, is the international governing body for canoeing worldwide.

5. The Brazilian Olympic Committee (the “BOC” or the “Third Respondent”), with its registered office in Rio de Janeiro, Brazil, represents the Olympic movement in Brazil.

6. The First and the Second Appellant are together referred to as the “Appellants”. The First, Second and Third Respondent are together referred to as the “Respondents”. The Appellants and Respondents are together referred to as the “Parties”.

II. FACTUAL BACKGROUND

7. Below is a summary of the relevant facts and allegations based on the Parties’ written submissions, pleadings and evidence adduced during these proceedings. Additional facts and allegations found in the Parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, this Award refers only to the submissions and evidence considered necessary to explain its reasoning.

8. The Canoe Sprint discipline is one of the canoeing disciplines regulated by the ICF that is included in the event programme of the 2020 Olympic Games in Tokyo, Japan (the “Tokyo Games”), scheduled to be held between 21 July 2021 and 8 August 2021 due to the COVID- 19 pandemic.

9. The current dispute involves the category of the Men’s Kayak Single (“K1”) 1000m Canoe Sprint event (the “Event”), which is one of the four Men’s Kayak sprint events that will take place at the Tokyo Games.

10. The rules for the allocation of qualification places for participation in each Canoe Sprint event – i.e. “athlete quota places” (“AQPs”) – are governed by a document titled “Qualification System – Games of the XXXII Olympiad – Tokyo 2020 – International Canoe Federation – Canoe Sprint” (the “ICF Qualification Rules”). AQPs for the Tokyo Games are allocated to NOCs and not to the specific athletes who won the qualification places on behalf of their NOC. It is the NOC who then selects the athletes who can represent the NOC at the Tokyo Games.

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11. Under the ICF Qualification Rules, the AQPs for the Tokyo Games will be distributed through several Olympic Qualification Competitions, existing out of (i) Global Qualification Competitions, i.e. the 2019 ICF World Championships in Hungary and the 2021 ICF Canoe Sprint World Cup 2 in Russia, where Global AQPs are distributed and of (ii) Continental Qualification Competitions, i.e. the competitions organised per continent (Pan America, Africa, Europe, Asia and Oceania), where Continental AQPs are distributed.

12. Further under the ICF Qualification Rules, it is established that at least one AQP in the Event at the Tokyo Games is reserved for a country in the Pan America Continental region (the “Pan American Continental AQP”).

13. The Pan American Continental AQP was supposed to have been awarded based on the results of the Pan American Continental Qualification Competition (the “Qualifying Competition”), which was scheduled to be held in Brazil on 9-11 April 2021. However, because of the COVID- 19 pandemic situation in Brazil at that time, the ICF cancelled the Qualifying Competition by announcement on 25 March 2021. As a result, the Pan American Continental AQP for the Event could not be awarded based on the results of the Qualifying Competition.

14. In that instance, Section D.3.3.4 of the ICF Qualification Rules provides, inter alia, as follows: “(…) In the situation that a Continental Qualification Competition cannot be held, then the results of the 2019 ICF Canoe Sprint World Championships for the relevant event will be used to determine the athlete quota places. Athlete quota places will be allocated to the respective Continent, for which the Continental Qualification Competition could not be held in accordance with D.3.3”.

15. The 2019 ICF Canoe Sprint World Championships (the “2019 World Championships”) took place between 21 and 25 August 2019 in Szeged, Hungary. The Men’s K1 1000m competition involved 49 competitors, one from each NOC, and was divided in three phases:

• Heats

• Semi-Finals

• Finals

16. In the Heats, the competitors were divided among six Heats, each with 8 or 9 athletes. The 4 fastest boats in each Heat, plus the 3 fastest 5th-place boats, would advance to the Semi-Finals pursuant to Plan E at page 74 of the ICF Canoe Sprint Competition Rules 2019 (the “ICF Competition Rules”).

17. The USA was represented by Mr Jesse Lishchuk (the “US Athlete”) in Heat V, whilst Brazil was represented by Mr Vagner Junior Souta (the “Brazilian Athlete”) in Heat VI. Both Heats took place in the exact same location, on the same day (22 August 2019) and only 7 minutes apart from each other. The US Athlete ended in 5th place in Heat V, with a time of 3:43:06, and the Brazilian Athlete ended in 6th place in Heat VI, with a time of 3:36:64. The US Athlete was not

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among the 3 fastest 5th-place boats, as a consequence of which neither the US Athlete nor the Brazilian Athlete advanced to the Semi-Finals of the 2019 World Championships.

18. Following the conclusion of the Heats, the ICF published two documents on its official website: (i) the “results” of the individual Heats; and (ii) a “results summary” across all Heats where the Brazilian Athlete was placed 30th and the US Athlete was placed 34th among all competitors, based on their respective times.

19. On 30 April 2021, the ICF issued the Tokyo 2020 Canoe Sprint Qualification Quota Allocation (the “ICF AQP Allocation”). On the basis of Section D.3.3.4 of the ICF Qualification Rules, the ICF allocated the Pan American Continental AQP in the Men K1 1000m to the BOC, as it considered that the Brazilian Athlete had acquired the best result from the Pan American Continental Region among all Heats in the 2019 World Championships. The BOC accepted this AQP allocation on 5 May 2021.

20. On 3 May 2021, the ACA submitted a “American Canoe Association (ACA) Petition to International Canoe Federation Board of Directors for Reconsideration of Allocation of Americas Continental Canoe Sprint Quota Places” to the ICF Board of Directors (the “ACA Petition”). In its Petition, the ACA argued that the USOPC should have been allocated the Pan American Continental AQP in the Men K1 1000m, because of all the Pan American countries in contention for that AQP, the USOPC had the best result at the 2019 World Championships, i.e. 5th-place in its Heat, while the BOC, on the other hand, finished on 6th-place in its Heat.

21. On 4 May 2021, the ACA received an email from the ICF’s Secretary General, Mr Simon Toulson, attaching a letter dated 4 May 2021 and signed by the ICF’s President, Mr Jose Perurena (the “ICF Decision”). In the letter, Mr Perurena, on behalf of the ICF, took the position that the ICF allocated the Pan American Continental AQP to the BOC because the BOC’s 6th -place time in its Heat was faster than the USOPC’s 5th -place time in its Heat. The ICF decided thus that time was the appropriate method of deciding which NOC had the better result, rather than place.

22. On 7 May 2021, the USOPC brought this dispute concerning the ICF’s interpretation and execution of the ICF Qualification Rules to the IOC Sport Department, via a “Petition for Reconsideration of ICF Allocation of Quota Spot in Canoe/Kayak” (the “USOPC Petition”). In the USOPC Petition, the USOPC sought to have the Pan American Continental AQP allocated to the USOPC.

23. Between 19-23 May 2021, the final Olympic Qualification Competition for Canoe Sprint took place at the 2021 ICF Canoe Sprint World Cup 2 in Russia, in which the USOPC participated, as it was the USOPC’s final chance to acquire an AQP for the Event at the Tokyo Games. Nevertheless, the USOPC was not able to perform well enough and did not acquire an AQP, following which the USOPC exhausted all its sportive opportunities to qualify for the Event at the Tokyo Games.

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24. On 25 May 2021, the IOC issued a communication in which it denied the USOPC Petition (the “Appealed Decision”), informing it as follows:

“Thank you for your letter dated 7 May. We hope you and your team are staying well.

We have reviewed your request and based on the information provided understand that this does not dispute the Tokyo 2020 Canoe Olympic qualification system as such but rather the determination of the final rankings at the 2019 ICF Canoe Sprint World Championships.

As you know this determination sits with the International Canoe Federation and we would not intervene in such decision making as the IF has autonomy on the governance of their sport and the results at their own World Championships.

As such, it is the responsibility of the ICF to reflect such results in determining Olympic qualification eligibility based on such results, in line with the qualification system as approved by the IOC Executive Board and as per their duties in the Olympic Charter”.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

25. On 14 June 2021, pursuant to Articles R47 and R48 of the 2021 edition of the CAS Code of Sports-related Arbitration (the “CAS Code”), the Appellants filed a Statement of Appeal with the CAS directed against the Respondents with respect to the Appealed Decision. In their Statement of Appeal, the Appellants requested that the case be submitted to a sole arbitrator, and that the proceedings be conducted in an expedited manner pursuant to Article R52 of the CAS Code.

26. On 16 June 2021, the CAS Court Office acknowledged receipt of the Statement of Appeal and informed the Parties that, pursuant to Article S20 of the CAS Code, the present arbitration had been assigned to the CAS Appeals Arbitration Division.

27. On 17 June 2021, the Second Respondent informed the CAS Court Office that it objected to the admissibility of the appeal.

28. On 18 June 2021, the Appellants filed their Appeal Brief with the CAS Court Office further to Article R51 of the CAS Code.

29. Also on 18 June 2021, the Third Respondent informed the CAS Court Office that it agreed that the case be submitted to a sole arbitrator, but that it did not agree to an expedited procedure.

30. On 21 June 2021, the CAS Court Office informed the Parties that, due to the objection of the Third Respondent to an expedited procedure and the lack of response from the First and Second Respondent on this matter, and pursuant to Article R52 of the CAS Code, an expedited procedure would not be implemented for the time being.

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31. On 21 June 2021, the First and the Second Respondent informed and respectively reiterated to the CAS Court Office that they objected to the admissibility of the appeal and therefore requested that (i) the President of the Appeals Arbitration Division terminate these proceedings and that (ii) all procedural deadlines be suspended pending the resolution of the admissibility of the appeal.

32. On 22 June 2021, the CAS Court Office invited the Appellants to comment on the First and Second Respondent’s objections against the admissibility of the appeal, and informed the Parties that, for the time being, all procedural deadlines were suspended until further notice.

33. On 23 June 2021, the Appellants transmitted to the CAS Court Office their request for (i) interim measures pursuant to Article R52 of the CAS Code, on the basis of which the Appellants would be allowed to provisionally submit the US Athlete by name to the Tokyo Organising Committee of the Olympic and Paralympic Games on or before 4 July 2021 and that the Appellants be allowed to continue to make all preparations and submissions necessary to maintain the US Athlete’s eligibility to compete in the Event if the Appellants prevail in this matter, and for (ii) the reinstatement of the Respondents’ procedural deadlines. Furthermore, the Appellants provided the CAS Court Office with their comments on the admissibility of the appeal, submitting that the Respondents’ objections in this respect were to be rejected.

34. On 24 June 2021, the CAS Court Office informed the Parties that the issue of the admissibility of the appeal would be referred to the President of the CAS Appeals Arbitration Division or her Deputy further to Article R49 of the CAS Code, and that further information in this regard would be provided in due course.

35. On 25 June 2021, the CAS Court Office informed the Parties that the Deputy President of the CAS Appeals Arbitration Division had decided that: (i) the issue of the admissibility of the appeal would be decided upon by the Panel or the Sole Arbitrator, once constituted; and (ii) in the meantime, the Respondents’ applicable procedural deadlines resumed, save for the Third Respondent’s deadline to file its Answer, in accordance with Article R55 of the CAS Code, as the Third Respondent had invoked such provision on 21 June 2021.

36. On 25 June 2021, the Second Respondent informed that CAS Court Office that it did not object to the Appellants’ request for interim measures. The Second Respondent also filed further comments with respect to the alleged inadmissibility of the Appellants’ appeal.

37. On 29 June 2021, the First and the Third Respondent informed the CAS Court Office that they objected to the Appellants’ request for interim measures. The Third Respondent also endorsed the position of the First and Second Respondent with respect to the alleged inadmissibility of the Appellants’ appeal.

38. On 30 June 2021, the CAS Court Office informed the Parties that, pursuant to Articles R37 and R52 of the CAS Code, the President of the CAS Appeals Arbitration Division, or het Deputy, would issue an Order on the Appellants’ Request for Provisional Measures in due course.

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39. On 1 July 2021, the Appellants filed a joint rebuttal on the issues of: (i) the alleged inadmissibility of the appeal; and (ii) their request for provisional measures.

40. On 2 July 2021, the CAS Court Office informed the Parties that, by Order of the President of the CAS Appeals Arbitration Division, the Appellants’ Request for Provisional Measures was denied. The Order contained the following operative part:

“1. The request for provisional measures submitted by the United States Olympic & Paralympic Committee and the American Canoe Association on 23 June 2021 is denied.

2. The costs deriving from this Order will be determined in the final award or in any other final disposition of this arbitration”.

41. On 6 July 2021, the Parties were informed that the nominee for Sole Arbitrator that they had agreed to refer for confirmation to the President of the CAS Appeals Arbitration Division, or her Deputy, further to Article R54 of the CAS Code – Dr Hans Nater, Attorney-at-law in Zurich, Switzerland – was unable to accept his appointment.

42. On 12 July 2021, the CAS Court Office informed the Parties, pursuant to Article R54 of the CAS Code and on behalf of the President of the CAS Appeals Arbitration Division, that Prof. Dr Stephan Breidenbach, Law Professor in Berlin, Germany had been appointed as the Sole Arbitrator to decide on this case. The Parties were also provided with a disclosure made by Prof. Dr Breidenbach further to Article R33 of the CAS Code, which none of the Parties subsequently challenged further to Article R34 of the CAS Code.

43. On 14 July 2021, the Respondents filed their respective Answers with the CAS Court Office further to Article R55 of the CAS Code. The Third Respondent, inter alia, objected to the jurisdiction of CAS.

44. Also on 14 July 2021, the CAS Court Office informed the Parties that the Sole Arbitrator had been constituted on that day and that Mr Dennis Koolaard, Attorney-at-law in Arnhem, the Netherlands, was appointed to act as Ad hoc clerk in the present case.

45. On 16 July 2021, following consultation with the Parties, the CAS Court Office informed the Parties that a hearing would be held by video-conference on 21 July 2021, further to Articles

46. On 19 July 2021, the Appellants filed a joint Reply to the Respondents’ arguments concerning admissibility and to the Third Respondent’s arguments concerning jurisdiction, further to Article R55 of the CAS Code. While this submission was only filed by email and not by courier or via the CAS E-filing Platform, as required by the CAS Code, none of the Respondents objected against the admissibility of the Appellants’ Reply.

47. On 20 July 2021, following an exchange of correspondence, the Appellants, the Second and the Third Respondent agreed on a tentative hearing schedule and the First Respondent did not object thereto.

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48. On 20 July 2021, the CAS Court Office invited the Parties to duly sign and return the Order of Procedure.

49. On 20 July 2021, the Appellants, the First Respondent and the Third Respondent returned duly signed copies of the Order of Procedure to the CAS Court Office.

50. On 21 July 2021, a hearing took place by video conference. Apart from the Sole Arbitrator, Mr Dennis Koolaard, Ad hoc clerk, and Ms Kendra Magraw, CAS Counsel, the following persons attended the hearing:

- For the Appellants:

o Mr Steve B. Smith, Counsel to the Appellants;

o Mr Suzanne Crespo, Counsel to the Appellants;

o Ms Sara Pflipsen, USOPC Senior Legal Counsel;

o Mr Rok Sribar, ACA General Manager of High Performance Programs;

o Mr Charles Luckman, Witness;

o Mr Miroslav Haviar, Witness; and

o Mr Istvan Vaskuti, Witness.

- For the Second Respondent:

o Mr Tom Mountford, Counsel to the Second Respondent;

o Mr Tom Rudkin, Counsel to the Second Respondent;

o Ms Kay Lubwika Bartlett, Counsel to the Second Respondent; and

o Mr Simon Toulson, ICF Secretary General.

- For the Third Respondent:

o Mr Bichara Abidão Neto, Counsel to the Third Respondent;

o Mr Victor Eleuterio, Counsel to the Third Respondent;

o Mr Udo Seckelmann, Counsel to the Third Respondent;

o Mr Pedro Sousa, Counsel to the Third Respondent;

o Mr Luiz Gustavo Awad, Counsel to the Third Respondent;

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o Mr Luciano Hostins, BOC Chief Legal Officer;

o Ms Mariany Nonaka, BOC Legal Counsel; and

o Mr Francisco Camazón, Interpreter.

- The First Respondent choose not to participate in the hearing.

51. The Sole Arbitrator heard evidence from the following persons, in order of appearance:

1) Mr Charles Luckman, Member of the ICF Canoe Sprint Commission;

2) Mr Miroslav Haviar, Member of the ICF Canoe Sprint Commission;

3) Mr Istvan Vaskuti, former First Vice President and Board Member of the ICF; and

4) Mr Simon Toulson, ICF Secretary General.

52. At the outset of the hearing, the Parties declared that they had no objections as to the constitution of the Sole Arbitrator. The Sole Arbitrator heard evidence from the witnesses called by the Appellants and from Mr Toulson as party representative on behalf of the ICF, who were all invited by the Sole Arbitrator to tell the truth subject to the sanctions of perjury under Swiss law. The Parties and the Sole Arbitrator had the opportunity to examine and cross-examine the witnesses and Mr Toulson.

53. While the Appellants and the Third Respondent had requested to hear evidence from several additional witnesses, such requests were voluntarily waived prior to or during the hearing, against which no objections were raised.

54. Following the witnesses’ examinations, the Parties were given a full opportunity to present their case, submit their arguments and submissions, and answer the questions posed by the Sole Arbitrator. At the end of the hearing, the Parties confirmed that they were satisfied with the hearing and that their right to be heard was provided and fully respected.

55. On 23 July 2021, the Second Respondent returned a duly signed copy of the Order of Procedure to the CAS Court Office.

56. On 23 July 2021, following a request from the Appellants to issue the operative part of the Arbitral Award by 25 July 2021 at the latest, and with the Respondents’ consent, the CAS Court Office provided the Parties with the Operative Part of this Arbitral Award.

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IV. SUBMISSIONS OF THE PARTIES — A. The Appellants

57. The Appellants’ submissions, in essence, may be summarised as follows:

- The appeal is admissible pursuant to Article R47 of the CAS Code, which requires the Appellants to exhaust all available legal remedies prior to filing the appeal. The ICF Decision of 4 May 2021 is subject to the IOC Olympic Games Tokyo 2020 – Qualification System Principles (the “IOC Qualification Principles”), which require that any dispute involving the interpretation or execution of a qualification system should be resolved through direct consultation with the IOC Sports Department, before appealing to CAS. Therefore, the 21-day time limit to file an appeal to CAS against the ICF Decision did not begin to run until the IOC Sports Department issued the Appealed Decision, i.e. on 25 May 2021.

- The Parties agree that, because the Pan American Continental Qualification Competition was not held, Section D.3.3.4 of the ICF Qualification Rules provides that, in that case, the results of the 2019 World Championships will be used to determine the allocation of the AQPs. On this basis, it should be decided whether the US Athlete or the Brazilian Athlete finished higher in the results from the 2019 World Championships at the Men’s K1 1000m event. As the US Athlete finished 5th in his Heat, and the Brazilian Athlete only finished 6th in his Heat, the USOPC should have been award the Pan American Continental AQP rather than the BOC.

- It is a basic and universal principle in Canoe Sprint that competitors progress based on their place in the race, and not on their time in the race. Time is only used secondarily to distinguish between competitors finishing in the same place in different heats.

- Mr Charles Luckman, an ICF Canoe Sprint Committee member and ICF Canoe Sprint Official, confirms that throughout the ICF Qualification Rules, the expression “the next highest ranked” is used regarding default distribution of AQPs and that time is rarely used to determine a boat’s progression in a competition and is never used over place.

- The ICF Qualification Rules make no reference at all to time in connection with either ranking or results, and, contrarily, reference is always made to place. In this regard, for the reallocation of AQPs in Continental Qualifying Competitions, Section D.3.3.9 juncto Section H.1.2 (ii) of the ICF Qualification Rules provide that the next highest ranked NOC from that continent in the same event at the 2019 World Championships, not yet qualified, will be allocated the AQP.

- The principle of progression by place is also consistently used throughout the ICF Competition Rules.

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- The ICF’s decision to award the Pan American Continental AQP to the BOC based on time is wrong and violates the basic principle of progression by place. As the Brazilian Athlete and the US Athlete did not finish on the same place, the question of their respective times is irrelevant. Moreover, Canoe Sprint is a sport in which weather is a factor and conditions can vary between heats like the wind. Accordingly, the times of the Brazilian Athlete and the US Athlete cannot and should not be measured against each other as that would not be considered to be a fair or level playing field.

- The ICF’s allocation was based on a standard that did not exist in the applicable documents, violated the ICF’s own rules, and was unfair to the competitors involved by applying an unwritten and unexpected standard.

- The Appealed Decision was in error when it claimed that the USOPC Petition was addressed to rankings at the 2019 World Championships and not the ICF Qualification Rules. To the contrary, the USOPC Petition was clearly addressed to the ICF’s “interpretation and execution” of the ICF Qualification Rules, which falls explicitly under the IOC’s purview under its own Issue Resolution clause in the IOC Qualification Principles.

58. The Appellants submitted in their Appeal Brief the following prayers for relief:

“1. CAS has jurisdiction in this matter and the appeal is admissible.

2. The matter shall proceed on an expedited basis under Article R52 pursuant to appropriate directions issued by CAS.

3. In the event that the matter does not proceed on an expedited basis under Article R52, that interim measure(s) be granted such that the award may grant effective relief to Appellants should they prevail in the operative award.

4. The IOC and ICF Decisions are annulled.

5. The Sole Arbitrator (or Panel), pursuant to Article R57, conduct a de novo review and issue a new decision that:

a) The United States be allocated the Americas Continental quota slot in the Men’s K1 1000m event at the Tokyo Olympics and that the athlete selected by Appellants to fill the quota slot be confirmed for entry in the Tokyo Olympics; or

b) In the alternative, that a recommendation be made to the IOC that an additional competitor be added to the Men’s K1 1000m event at the Tokyo Olympics and that the athlete selected by Appellants be granted entry to fill the additional slot.

6. The operative award be issued in Appellants’ favor by such date that effective relief can be ensured, with the reasoned award to follow in due course.

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7. The Appellants shall be awarded their arbitration costs and an appropriate contribution towards their legal fees and expenses incurred in connection with the proceedings”.

B. The Respondents

59. The First Respondent’s submissions, in essence, may be summarised as follows:

- The appeal should be considered inadmissible, as the appeal was not filed within 21 days from the real appealable decision, which is the ICF AQP Allocation on 30 April 2021. Moreover, the Appealed Decision cannot be considered as a decision, but is a mere letter from the IOC Sports Department, in which it only stated that it lacks decision power over the matter. The Issue Resolution clause in the IOC Qualification Principles merely refers to a “consultation” of the IOC Sports Department, and at no point was the IOC Sports Department meant to make any final ruling. The language of the clause (“should”) makes it also clear that the consultation is not mandatory. The present matter does not relate to the interpretation or execution of the ICF Qualification Rules, but it rather relates to the determination of the final rankings at the 2019 World Championships, which is the sole responsibility of the ICF. Therefore, the Issue Resolution clause of the IOC Qualification Principles is of no avail to the Appellants. The appeal is therefore clearly inadmissible.

- Should the Sole Arbitrator nonetheless decide that the appeal is admissible, the IOC defers to the Sole Arbitrator on the merits of the case, as this matter only relates to issues which lie solely with the ICF.

60. The First Respondent submitted in its Answer the following prayers for relief:

“I. The appeal filed by the USOPC and ACA on 14 June 2021 is inadmissible, or in the alternative is dismissed;

II. The arbitration costs are borne by USOPC and ACA jointly and severally;

III. USOPC and ACA are ordered to jointly and severally contribute to the IOC’s legal and other costs”.

61. The Second Respondent’s submissions, in essence, may be summarised as follows:

- The appeal is inadmissible as it was filed late. The decision to appeal was the ICF AQP Allocation of 30 April 2021, or, alternatively, the ICF Decision of 4 May 2021, following which the time limit to appeal already ran out on 21 or 25 May 2021 the latest. As the appeal was only filed on 14 June 2021, it should be declared late and inadmissible.

- The IOC letter of 25 May 2021 cannot be considered as a decision within the meaning of Article R47 of the CAS Code.

(operative part of 23 July 2021)

- The obligation to exhaust all legal remedies before initiating an appeal only relates to ordinary remedies, whilst both the ACA Petition and the USOPC Petition by which a request for reconsideration or intervention was filed were mere attempts to invoke extraordinary remedies which do not have the effect of suspending the time limit to appeal. The Issue Resolution clause in the IOC Qualification Principles (“direct consultation with the IOC Sports Department”) does not provide a timeframe or formalities, so it is clear that this is a mere informal and non-mandatory mechanism to identify whether any differences between a NOC and the ICF can be resolved by intermediation of the IOC.

- The ICF AQP Allocation of 30 April 2021 by which the AQP in the Men’s K1 1000m Canoe Sprint was awarded to the BOC on account of the Brazilian Athlete’s performance at the 2019 World Championships was the correct application of the ICF Qualification Rules. Alternatively (if the Sole Arbitrator concludes there is any ambiguity in the ICF Qualification Rules), it reflects a reasonable and appropriate decision in the exercise of the ICF’s discretion, expertise and obligation to interpret and apply the rules, and there is no basis to disturb the decision on appeal. The ICF refers in this regard to Article 31 (d) and (g) of the ICF Statutes that identifies the “key duties” of its Executive Committee members being, “(d) To ensure the observation of the Statutes, Competition Rules and Regulations of the ICF and whenever necessary to interpret these Statutes, Competition Rules and Regulations […] (g) To take any decisions appropriate to the circumstances in the interest of the sport of canoeing”.

- Of the remainder of the Pan American continental competitors at the 2019 World Championships, all were eliminated from the competition at the same stage of the Heats. In those circumstances, the ICF correctly determined that the performance of the competitors should be compared on the only common metric: time. This produced a clear best “result”, namely that of the Brazilian Athlete who secured a time of 3:36:64. This was a time over 6.5 seconds quicker than the next fastest competitor, the US Athlete.

- The ICF was not in any event applying the progression plan of the 2019 World Championships, but seeking to identify the best result so as to award the AQP to the best performance on results. The very fact that the progression plan for the 2019 World Championships looked to identify the three fastest 5th place finishes across all Heats showed that it was in any event appropriate at the 2019 World Championships to compare performance by time across heats, and all competitors at the 2019 World Championships knew that their ability to progress could be a product of either their place or their time, and were therefore all competing to achieve the best time possible.

- The Appellants’ argument that it is not appropriate to compare heats because of a speculative possibility of different race conditions is therefore an inherently bad argument. The small possibility of a material difference in race conditions is a much smaller variable than the luck of which competitors are placed in which heats.

62. The Second Respondent submitted in its Answer the following prayers for relief:

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“The ICF accordingly respectfully invites the sole arbitrator to dismiss the appeal on grounds of jurisdiction/admissibility for time bar or alternatively on substantive grounds, for the reasons set out above, and to order the Appellants to pay the costs of the arbitration and to make a significant contribution towards the ICF’s legal fees”.

63. The Third Respondent’s submissions, in essence, may be summarised as follows:

- CAS has no jurisdiction on the matter, as both the ICF letter of 4 May 2021 and the IOC letter of 25 May 2021 are mere letters and cannot be considered as appealable decisions under Article R47 of the CAS Code. Moreover, CAS has no jurisdiction to review the final ranking of the 2019 World Championships, as this could only be protested before the ICF Competition Committee at the time with a possible appeal before a jury composed by the ICF Board of Directors for a final and binding decision in accordance with the ICF Competition Regulations. Accordingly, the CAS also has no jurisdiction because the Appellants did not exhaust all internal legal remedies.

- The Third Respondent reaffirms the First and Second Respondents’ positions in relation to the inadmissibility of the appeal.

- The Appellants clearly misinterpret the applicable regulations in the sense that the place criterion should prevail over the time criterion and fail to prove that this prevalence is an established practice in Canoe Sprint. The progression system contained in Plan E of the ICF Competition Regulations provides that the top-4 fastest competitors in each heat (by time) and the three best 5th-place among all heats (by time) would qualify to the Semi- Finals of the 2019 World Championships. Time is therefore clearly the most crucial factor for the progression system adopted, either within the same heat or among different ones.

- The Appellants were not able to produce any evidence that the interpretation given by the ICF to the AQP allocation as provided for in Section D.3.3.4. of the ICF Qualification Rules was wrong or not in line with its objectives when drafting it. To the contrary, the ICF letter of 4 May 2021 presents very convincing and objective arguments to explain why the allocation of the Pan American Continental AQP to the BOC was fair and adequate. There is well-established jurisprudence of CAS concerning the interpretation of the rules of a sports governing body. Although the Sole Arbitrator enjoys significant powers to review the facts and the law under Article R47 of the CAS Code, in the present case a certain degree of deference shall be given to the ICF as the governing body. In casu, the interpretation applied by the ICF to determine the final ranking of the 2019 World Championships is not unreasonable or contrary to sporting logic.

- With the purpose of undermining the ICF qualification method based on the comparison of time achieved by the competitors across different heats, the Appellants argued that weather conditions may vary between heats and affect the level-playing field and the fairness of such method. As such, since the Appellants insinuate that either the US Athlete’s performance was harmed or the Brazilian Athlete benefitted from weather or other climate conditions, and pursuant to Article 8 of the Swiss Civil Code, they shall bear

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the burden of proving the existence of such factors and how they would have effectively changed the time achieved by each competitor. By failing to do so, the argument shall be fully dismissed.

64. The Third Respondent submitted in its Answer the following prayers for relief:

“a) Dismiss or otherwise reject the appeal filed by USOPC and ACA on any of the grounds above;

b) Subsidiarily, in the event the appeal is upheld, determine that one additional athlete quota place to Men’s K1 1000m event in the Tokyo 2020 OG be allocated in favour of the USOPC and/or the ACA, thus preserving the athlete quota place currently allocated to the Third Respondent;

c) Order the Appellants to bear any and all costs and/or expenses of the arbitration;

d) Order the Appellants to pay the Third Respondent a contribution towards legal fees and other expenses incurred in connection with the proceedings, pursuant to article 64.5 of the CAS Code, in an amount to be fixed by the Panel at its own discretion, but in no event lower than CHF12,000 (twelve thousand Swiss Francs)”.

V. JURISDICTION

65. Article R47 of the CAS Code provides the following:

“An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body. An appeal may be filed with CAS against an award rendered by CAS acting as a first instance tribunal if such appeal has been expressly provided by the rules of the federation or sports-body concerned”.

66. According to the Appellants, the jurisdiction of CAS follows from the Issue Resolution clause in the IOC Qualification Principles, which stipulate as follows: “Any dispute arising between an IF and a NOC in connection with the interpretation or execution of a qualification system should be resolved through direct consultation with the IOC Sports Department. The Court of Arbitration for Sport (CAS) in Lausanne (Switzerland) shall be the last step for the resolution of such disputes”. In addition, Article 61.2 of the IOC Olympic Charter provides that “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, in accordance with the Code of Sports-Related Arbitration”.

67. The Third Respondent, however, argues that CAS does not have jurisdiction (i) as both the ICF letter of 4 May 2021 and the IOC letter of 25 May 2021 are mere letters and cannot be considered as appealable decisions under Article R47 of the CAS Code, (ii) as CAS has no power to review the final ranking of the 2019 World Championships, as this could only be protested before the ICF Competition Committee at the time with a possible appeal before a jury composed by the ICF Board of Directors for a final and binding decision in accordance with

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the ICF Competition Regulations, and (iii) as the Appellants did not exhaust all internal legal remedies.

68. The Sole Arbitrator firstly observes that the ICF Statutes stipulate, inter alia, as follows:

- Article 44: “(…) The ICF would only recognise and accept the decisions of the Court of Arbitration for Sport (CAS) in Lausanne (Switzerland) should the necessity of an appeal against an ICF decision arise”;

- Article 47: “(…) Any appeal to a body outside the ICF shall be made exclusively and only to the Court of Arbitration for Sport (CAS) in Lausanne (Switzerland)”.

69. In relation to the arguments of the Third Respondent, the Sole Arbitrator notes that the case at hand concerns a dispute between a NOC and the ICF in relation to the interpretation of the qualification system used by the ICF in order for a NOC to qualify for the Tokyo Games, and not a dispute about the 2019 World Championships ranking itself, as the Third Respondent wrongly argues. Therefore, the appeal procedure as set out in the ICF Competition Regulations does not apply in the present case.

70. Furthermore, both the issues of, on the one hand, the ICF Decision and the Appealed Decision being appealable decisions or not, and, on the other hand, the Appellants having exhausted all internal legal remedies or not, are not issues in relation to jurisdiction, but rather in relation to the admissibility of the case (see MAVROMATI/REEB, The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials, Kluwer Law International, 2015, Article R47 CAS Code, para. 8, p. 382; see also CAS 2019/A/6677, paras 44-56).

71. On the basis of the foregoing, the Sole Arbitrator finds that following the ICF Statutes and following the Issue Resolution clause in the IOC Qualification Principles as well as Article 61.2 of the Olympic Charter, the CAS is competent to decide on the present case.

72. It follows that CAS has jurisdiction to decide the present case.

VI. ADMISSIBILITY

73. The Appellants filed their Statement of Appeal with the CAS Court Office on 14 June 2020, within 21 days of receipt of the Appealed Decision, pursuant to Article R49 of the CAS Code. The Statement of Appeal complied with all other requirements of Article R48 of the CAS Code, including the payment of the CAS Court Office fee of CHF 1,000.

74. The Respondents argue, however, that the appeal should be declared inadmissible for the following reasons:

- The appeal was not filed within 21 days from the actual appealable decision, which is the ICF AQP Allocation on 30 April 2021, or, subsidiarily, the ICF Decision of 4 May 2021, and is therefore filed late.

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- The Appealed Decision cannot be considered as a decision pursuant to Article R47 of the CAS Code. The letter from the IOC of 25 May 2021 is not a formal decision but a mere letter from the IOC in which the IOC only stated that it lacks decision power over the matter. The Issue Resolution clause in the IOC Qualification Principles also only refers to a “consultation” of the IOC Sports Department, and at no point was the IOC Sports Department meant to make any final ruling. The language of the Issue Resolution clause (“should”) makes it also clear that the consultation is not mandatory.

- The present matter does not relate to the interpretation or execution of the ICF Qualification Rules, but it rather relates to the determination of the final rankings at the 2019 World Championships, which is the sole responsibility of the ICF. Therefore, the Issue Resolution clause of the IOC Qualification Principles is of no avail to the Appellants.

- The obligation to exhaust all internal legal remedies before initiating an appeal to CAS only relates to ordinary remedies, whilst both the ACA Petition and the USOPC Petition by which a mere request for reconsideration or intervention was filed, were attempts to invoke extraordinary remedies which do not have effect of suspending time to appeal. The Issue Resolution clause in the IOC Qualification Principles (“direct consultation with the IOC Sports Department”) does not provide for a timeframe or formalities, so it is clear that this is a mere informal and non-mandatory mechanism to identify whether any differences between a NOC and the ICF can be resolved by intermediation of the IOC.

75. The Appellants objected to the Respondents’ claim that the appeal was to be declared inadmissible as follows:

- The appeal is admissible, pursuant to Article R47 of the CAS Code, which requires the Appellants to exhaust all available legal remedies prior to filing the appeal. The ICF Decision of 4 May 2021 is subject to the IOC Qualification Principles, which require that any dispute involving the interpretation or execution of a qualification system should be resolved through direct consultation with the IOC Sports Department, before appealing to CAS. The Appellants submit that the 21-day time limit to file an appeal to CAS against the ICF Decision did not begin to run until the IOC Sports Department issued the Appealed Decision, i.e. on 25 May 2021.

- The appeal against the Appealed Decision of the IOC dated 25 May 2021 was filed within the 21-day time-limit to file an appeal with CAS, as a consequence of which this appeal is admissible.

- The Appealed Decision’s stated basis for declining to intervene was simply wrong on its face. But, in any event, by indicating that the IOC declined to intervene, the Appealed Decision was a decision that affected the rights of the parties and concluded a required step in the exhaustion process. The IOC cannot make it a mandatory requirement to take disputes to the IOC Sports Department and then say that the IOC’s declining to intervene is not a decision for purposes of appeal.

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- If the requirement to go to the IOC Sports Department were not a required, ordinary procedure, then it would make no sense to specify CAS as the last step for a dispute brought to the IOC Sports Department. The Appellants were required to submit their dispute to the IOC Sports Department and obtain a decision from the IOC Sports Department in order to appeal to CAS, and it was the receipt of the Appealed Decision that started the Appellants’ 21-day time period to appeal. If the ICF Decision were to be considered as the only relevant decision for purposes of the time to appeal, this would set a harmful precedent of penalizing the Appellants for engaging in required dispute resolution proceedings before appealing to CAS.

76. Bearing in mind the above, firstly, the Sole Arbitrator reiterates that the current dispute between the Parties concerns a dispute between an international federation (i.e. the ICF) and a NOC (i.e. the USOPC) in connection with the interpretation or execution of a qualification system (i.e. the ICF Qualification Rules), and in particular, in relation to the interpretation of Section D.3.3.4 of the ICF Qualification Rules, which stipulates, inter alia, as follows: “(…) In the situation that a Continental Qualification Competition cannot be held, then the results of the 2019 ICF Canoe Sprint World Championships for the relevant event will be used to determine the athlete quota places (…)” (Sole Arbitrator’s emphasis).

77. Contrary to what the Respondents argue, the current dispute does not involve the determination of the final ranking of the 2019 World Championships itself, as the Appellants never contested this final ranking, not at the time and not by the present appeal. The Appellants, however, clearly only dispute the ICF’s interpretation of Section D.3.3.4 of the ICF Qualification Rules, and more in particular, the ICF’s interpretation of the “best result” of the 2019 World Championships, which according to the ICF was based on the best final time ranking (where the Brazilian Athlete was faster than the US Athlete), rather than on the best final place ranking per heat (where the US Athlete finished 5th in his heat, while the Brazilian Athlete finished 6th in his heat) on the basis of which the ICF decided to allocate the Pan American Continental AQP to the BOC.

78. Therefore, any inadmissibility claims on the basis of the ICF Competition Regulations in relation to the final rankings of the 2019 World Championships, e.g. that the appeal is late as it should have been filed within 21 days of the final rankings or that not all internal remedies were exhausted as an appeal should have been filed before a jury of the ICF Board of Directors or before the ICF Court of Arbitration, cannot be upheld.

79. Secondly, having established the above, it is clear for the Sole Arbitrator that the applicable dispute resolution clause to the present dispute is the Issue Resolution clause of the IOC Qualification Principles, which provides that “Any dispute arising between an IF and a NOC in connection with the interpretation or execution of a qualification system should be resolved through direct consultation with the IOC Sports Department. The Court of Arbitration for Sport (CAS) in Lausanne (Switzerland) shall be the last step for the resolution of such disputes” (Sole Arbitrator’s emphasis). It is after all the sole reference in the IOC Qualification Principles or the ICF Qualification Rules providing for some kind of recourse against a decision of the ICF in relation to the allocation of AQPs for the Tokyo Games, for which recourse is also not explicitly excluded.

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80. In this regard, the Sole Arbitrator notes that the decision in dispute is in fact the ICF AQP Allocation of 30 April 2021, when the ICF decided to allocate the Pan American Continental AQP to the BOC and not to the USOPC.

81. The Sole Arbitrator observes that neither the IOC Qualification Principles, the ICF Qualification Rules nor the other ICF Statutes or Regulations provide any provision in relation to a possible appeal by a NOC against this ICF AQP Allocation decision with the ICF Board of Directors as an obligated internal legal remedy that needs to be exhausted before an appeal can be filed with CAS.

82. Therefore, the Sole Arbitrator finds that the ACA Petition of 3 May 2021 directed to the ICF Board of Directors and the subsequent ICF Decision of 4 May 2021 cannot be taken into account as an exhaustion of an internal legal remedy that suspends the 21-day time limit for an appeal to CAS under Article R49 of the CAS Code. The mere fact that the ICF Decision provided an explanation for the unreasoned ICF AQP Allocation decision of 30 April 2021 does not make this any different.

83. The Sole Arbitrator also observes that Section G of the ICF Qualification Rules stipulates that the NOCs have ten working days from the notification of the ICF in relation to the AQP allocated to it to confirm to the ICF whether the NOC wishes to accept this AQP, or whether the NOC wants to decline or return the AQP, which will then be reallocated by the ICF to the next best ranked NOC.

84. This means that the ICF AQP Allocation of 30 April 2021 became final and binding at the ICF level on 14 May 2021 the latest, except if the BOC accepted or declined its AQP on an earlier date.

85. The BOC formally accepted its AQP on 5 May 2021, making the allocation of the Pan American Continental AQP final and binding on the ICF level for the NOCs as of this date.

86. Therefore, pursuant to Article R49 of the CAS Code, the 21-day time limit for a NOC to appeal the ICF AQP Allocation to CAS started running as of 30 April 2021 or as of 5 May 2021 the latest, and the time limit was not suspended by the ACA Petition.

87. Thirdly, the Sole Arbitrator needs to establish (i) whether or not the consultation of the IOC Sports Department was a mandatory step for the Appellants to follow, before filing their appeal to CAS, and, if so, (ii) whether or not the consultation and decision of the IOC Sports Department should be considered as a mandatory exhaustion of the legal remedies under Article R47 of the CAS Code, which suspends the 21-day time limit of the appeal under Article R49 of the CAS Code, and, if so, (iii) whether or not the decision of the IOC Sports Department of 25 May 2021 can be seen as an appealable decision under Article R47 of the CAS Code.

88. After careful review of the Issue Resolution clause in the IOC Qualification Principles, the Sole Arbitrator finds that the provision of “direct consultation with the IOC Sports Department” was correctly considered by the Appellants as a mandatory step before being able to file an appeal

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to CAS. The Sole Arbitrator comes to this conclusion on the basis that the Issue Resolution clause further provides that CAS “shall be the last step” for the resolution of such disputes, which assumes that the consultation of the ICF Sports Department should be considered as a mandatory first step in trying to resolve the dispute, before an appeal with CAS could be filed. The Sole Arbitrator does not agree with the Respondents in this regard that the word “should” in the Issue Resolution clause is to be considered as optional language assuming that the remedy provided is not mandatory.

89. Having established that the consultation of the IOC Sports Department was a mandatory step for the Appellants to follow before filing their appeal to CAS, the Sole Arbitrator has to establish whether or not the consultation and decision of the IOC Sports Department should be considered as a mandatory exhaustion of the legal remedies under Article R47 of the CAS Code, which suspends the 21-day time limit of the appeal under Article R49 of the CAS Code.

90. The obligation to exhaust internal remedies according to Article R47 of the CAS Code only concerns the prior judicial instances foreseen by the applicable regulations (see CAS 2013/A/3272, para. 64; CAS 2003/A/443, para. 8.5). Therefore, it is not necessary to exhaust all legal remedies but only the legal remedies available to the Appellants under the regulations prior to the CAS appeal. The wording of Article R47 of the CAS Code has been interpreted as encompassing ordinary remedies only and not extraordinary remedies (CAS 2002/A/409, para. 17; CAS 2011/A/2670, paras 4.6 ff). Also the Swiss Federal Tribunal has confirmed the view that the obligation to exhaust internal legal remedies applies only to ordinary – and not to extraordinary or incomplete legal remedies, e.g. a request for revision (ATF 4A_682/2012 at 4.4.3.2). An internal remedy should be effectively available to the aggrieved party and must grant access to a specific and well-defined procedure.

91. This longstanding CAS jurisprudence distinguishes between specified rights of appeal, on the one hand, and requests for reconsideration and informal or other extra-ordinary and non-legal routes to seek to disturb the original decision, on the other hand. The CAS panel in CAS 2010/A/2315, as relied upon by the Appellants, stated that a request for reconsideration does not amount to an appeal and cannot extend a time limit. Likewise, refusal to reconsider cannot restart the limitation clock running. The Appellants’ reliance on the subsequent part of this judgement (“The Panel recognizes, as indeed does Article R47, that where the regulations of the decision maker specify a process of reconsideration by a first instance body or appeal to a second instance one, it is necessary for an aggrieved person to exhaust those domestic remedies; and it follows that time does not run against him until he has done so”) is misconceived, as this passage makes clear that it is only a specified route of reconsideration or appeal, which will be accompanied by the necessary indicia of such a procedure such as time limits, which will have the effect of stopping time.

92. The Sole Arbitrator observes that the Issue Resolution clause does not establish any timeframe or process for consultation discussions with the IOC Sports Department, nor does it provide that the IOC Sports Department can make a final decision on the dispute, which can then be appealed to CAS, nor does it explicitly state that consulting the IOC Sports Department would suspend the deadline to appeal. However, the Issue Resolution clause does provide that consultation must be undertaken. It is therefore clear that the Appellants were obliged to

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consult the IOC Sports Department prior to filing an appeal with CAS, i.e. within 21 days of the ICF Quota Allocation of 30 April 2021, or of the BOC’s acceptance of 5 May 2021, which they timely did on 7 May 2021.

93. On the other hand, it is also clear to the Sole Arbitrator that this consultation with the IOC Sports Department should be considered as a mere informal mechanism to identify whether any differences between a NOC and an IF could be resolved by the intermediation of the IOC Sports Department. Any response from the IOC Sports Department to such request for reconsideration or attempt to seek intermediation cannot be construed as a decision and cannot reasonably be considered as an ordinary legal remedy which prevents the 21-day time limit to appeal to CAS to start running.

94. On the basis of the foregoing, it is the Sole Arbitrator’s opinion that the Appellants should have indeed consulted the IOC Sports Department as a mandatory condition before being able to appeal to CAS; however, as this consultation could not be considered as an ordinary legal remedy which needed to be exhausted (i.e. waiting for a final decision), the Appellants should still, simultaneously, have filed an appeal with CAS within the 21-day time limit as from the ICF Quota Allocation of 30 April 2021 or the BOC’s acceptance of 5 May 2021. In other words, the Appellants had to submit their consultation to the IOC before filing their appeal, but did not have to wait to receive a response from the IOC before proceeding to file their appeal before CAS.

95. This means that not only was the appeal filed by the Appellants on 14 June 2021 late, but also that the Appealed Decision cannot be considered as an appealable decision under Article R47 of the CAS Code.

96. It follows that the appeal filed by the Appellants against the Appealed Decision is inadmissible.

97. Accordingly, the Sole Arbitrator does not have to consider the Parties’ remaining requests for relief.

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ON THESE GROUNDS

The Court of Arbitration for Sport rules that:

1. The appeal filed on 14 June 2021 by the United States Olympic and Paralympic Committee and the American Canoe Association against the communication issued by the Sports Department of the International Olympic Committee on 25 May 2021 is inadmissible.

2. (…).

3. (…).

4. All other and further motions or prayers for relief are dismissed.