Mangar Makur Chuot Chep, South Sudan Athletics Federation (SSAF) v. South Sudan National Olympic Committee (SSNOC)

V. JURISDICTION AND A DMISSIBILITY

28 Article 61.2 of the Olympic Charter provides as follows: “61 Dispute Resolution […]

2. Any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport (CAS), in accordance with the Code of Sports-Related Arbitration”.

29 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 was expressly confirmed by all parties at the hearing.

30 Article 1 of the CAS Arbitration Rules for the Olympic Games (hereinafter, the “CAS Ad Hoc Rules”) provides as follows: “Article 1. Application of the Present Rules and Jurisdiction of the Court of Arbitration for Sport (CAS) The purpose of the present Rules is to provide, in the interests of the athletes and of sport, for the resolution by arbitration of any disputes covered by Rule 61 of the Olympic Charter, insofar as they arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games. In the case of a request for arbitration against a decision pronounced by the IOC, an N OC, 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”.

CAS ad hoc Division OG 16/005 & 16/007 6 (operative part of 3 August 2016)

31 The Applicant became aware of the Challenged Decision on 28 July 2016 and filed his appeal on 31 July 2016. Consequently, the dispute arose “during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games” and the appeal is admissible.

VI. A PPLICABLE LAW

32 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”.

33 The parties have not made any submissions as to the applicable regulations. In the hearing, however, SSOC submitted an extract from the IAAF Qualification System for the Olympic Games Rio 2016 containing the Universality Provision. The parties present at the hearing both referred to this Universality Provision. Consequently, the Panel finds that the Universality Principle is part of the applicable regulations in the case at hand.

VII. D ISCUSSION

a. Legal framework

34 These proceedings are governed by the CAS Ad Hoc Rules enacted by the International Council of Arbitration for Sport (“ICAS”) on 14 October 2003. They are further governed by Chapter 12 of the Swiss Private International Law Act of 18 December 1987 (“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.

35 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

36 The scope of review of this Panel is limited. The Applicants say that the SSOC unlawfully excluded the Athlete from the Rio Olympics. They also say that the SSOC led the Athlete to legitimately expect that he would be representing his country in Rio Olympic Games.

aa) Was SSOC’s decision not to register Mr. Chuot for the Rio Olympics unlawful?

37 The Applicants say that SSOC’s decision to register Ms. Hassan rather than the Athlete was in contravention of Section 44 of the Olympic Charter.

38 Section 44 of the Olympic Charter provides:

CAS ad hoc Division OG 16/005 & 16/007 7 (operative part of 3 August 2016)

44 Invitations and Entries

1….

2. Only NOCs recognised by the IOC may submit entries for competitors in the Olympic Games.

…

4. An 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. … 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.

39 In the Panel’s view, the procedure governing registration of unqualified athletes is set out by the IAAF Qualification System. That procedure provides for the registration of one male and one female athlete from each country. In this case, the SSOC put forward two names, one male and one female, in accordance with the Qualification System. The Panel finds that the challenge to Ms. Hassan’s nomination to the team is misplaced. There is no evidence that the Athlete was replaced by Ms. Hassan. The Athlete’s allegation that Mr. Tong chose Ms. Hassan because of her advertising contract with Samsung, even if it is accurate, is not relevant to the issue before us. If the Athlete was displaced from the Olympic team, it was by Mr. Kenyi, as only one male athlete could be selected.

40 Whether Mr. Kenyi or the first Applicant is the “best male athlete” within the meaning of the Universality Provision, is difficult to answer. Both athletes compete in very different disciplines. In the letter by the SSAF to IAAF dated 29 July 2016, in which the SSAF protested against the nomination of – inter alia – Ms Hassan, it was not suggested that the first Applicant was the better (male) athlete to represent South Sudan. Furthermore, Mr. Lugga testified that, in choosing Mr. Kenyi over the First Applicant, the SSOC considered the fact that Mr. Kenyi represented South Sudan at the Youth Games and had demonstrated future potential. In addition, Mr. Lugga submitted, that in the African Championship in Durban in July 2016, Mr. Kenyi – unlike the first Applicant – proceeded to the final round. Furthermore, The Panel notes that Mr. Kenyi was also one of the athletes nominated by the SSAF to represent South Sudan. The Panel also notes that the first Applicant has not submitted that he would be better qualified than Mr. Kenyi to represent his country. Consequently, the Panel considers that Mr. Kenji is equally qualified to represent South Sudan at the Olympics.

41 The Panel observed that on 21 July 2016 the IOC advised Mr Lugga that the Rio delegation for South Sudan will be exceptionally composed of three athletes, including a second male athlete (Mr. Guor Marial). On what grounds this additional spot has been allocated to SSOC is unknown. The first Applicant, however, did not submit that the inclusion of Mr. Guor Marial was contrary to the rules or that Mr. Guor Marial should be substituted with the first Applicant.

CAS ad hoc Division OG 16/005 & 16/007 8 (operative part of 3 August 2016)

42 The Panel is unable to find that the SSOC’s decision to select Mr. Kenyi and Mr. Guor Marial as the two male athletes to represent South Sudan at the 2016 Olympics to be contrary to the Olympic Charter or to the IAAF Qualifications System.

bb) No breach of procedural fairness

43 The Panel finds that the Athlete was misled by Dr. Tong, as Dr. Tong led Mr. Chuot to believe, as recently as 20 July, 2016 that he would be representing South Sudan at the Olympics. The Panel accepts that the Athlete legitimately expected he would be competing at the Rio 2016 Olympics.

44 The doctrine of legitimate expectations provides a procedural and, in some jurisdictions, a substantive right, where representations have been made to a person by someone in authority. It is designed to protect individuals from an abuse of process.

45 A procedural legitimate expectation is based on the presumption that a person in authority will follow a certain process in making decision, while a substantive legitimate expectation arises where a person in authority makes a lawful representation that an individual will receive a substantive benefit.

46 The Panel was provided with no evidence regarding the selection criteria. In the absence of any information about how athletes were to be selected, the Panel has basis to conclude that the Athlete’s reliance on Dr. Tong’s representations were well founded. Given that the IAAF Qualification System provided for only one male athlete from South Sudan to be chosen and the SSAF nominated two male athletes, it appears that the Athlete could not re ly on the representations. Further, the Panel has no information on any representations that might also have been made to Mr. Kenyi, who was not identified as an interested party.

47 The Panel finds that Mr. Tong’s actions, while unfair to the First Applicant, do not create a substantive right such that the Athlete should now be selected.

VIII. CONCLUSION

48 The Panel had great difficulty in coming to this conclusion. First, the relevant rules were only partially submitted. Second, the Panel acknowledges the Athlete’s determination to compete for South Sudan in honour of his late father who died in the civil war. The Panel respects his determination and passion and understands that this result must be disappointing for him. However, in view of the evidence before the Panel and the fact that the places to represent South Sudan in athletics are limited, the Panel had no other option – from a legal point of view – to uphold the SSOC’s decision. In view of all of the above, the Challenged Decision must be upheld and the Applicants’ applications, filed on 31 July 2016, shall be dismissed.

CAS ad hoc Division OG 16/005 & 16/007 9 (operative part of 3 August 2016)

The ad hoc Division of the Court of Arbitration for Sport rules that:

1. The applications filed by Mr Mangar Makur Chuot Chep and South Sudan Athletics Federation are dismissed.