National Olympic Committee of Belgium, Netherlands Olympic Committee and Netherlands Sports Federation v. National Olympic Committee of Dominican Republic, United States Olympic and Paralympic Committee (USOPC), World Athletics

V. JURISDICTION AND ADMISSIBILITY

33. Article 61.2 of the Olympic Charter relevantly provides:

Any dispute arising on the occasion of, or in conjunction 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.

34. The jurisdiction of the CAS for the Olympic Games is governed by the Olympic Charter with respect to disputes that arise on the occasion, of or in conjunction with, the Olympic Games; there is no question that this condition, has been met. It is apparent that the dispute has arisen during the Tokyo Olympic Games.

35. The Applicants refer to Article 8.11 of the WA Technical Rules, which provides that:

The decision of the Jury of Appeal (or the Referee in the absence of a Jury of Appeal or if no appeal to the Jury is made) shall be final and there shall be no further right of appeal, including to CAS.

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36. However, the Applicants do not rely on Article 8.11 to oust the jurisdiction of the CAS but submit that it is overruled by Article 61.2 of the Olympic Charter. The Applicants submit that Article 8.11 is not applicable.

37. The Panel determines that the fact that the WA Technical Rules provide that there is no appeal to the CAS from a decision of a Jury of Appeal does not derogate from the jurisdiction awarded in the Olympic Charter to the CAS.

38. In CAS 2008/A/1641, the rules under consideration, relevantly of the IAAF, also provided that the decision of the Jury of Appeal shall be final and that there shall be no further right of appeal, including to the CAS. The Sole Arbitrator in that case determined that, nevertheless, the arbitration clause contained the Olympic Charter, which was confirmed in the entry form for, there, the Beijing Olympics, binds the athlete and also the IAAF and the National Olympic Committees. The former is bound by their acceptance on signing the entry form; the IAAF and National Olympic Committees are bound as being deemed to have subscribed to the arbitration clause in the Olympic Charter by reason of their recognition of the IOC.

39. The Sole Arbitrator also observed that jurisdiction is given to the CAS with respect to disputes arising out of or in connection with the Olympic Games by the Olympic Charter and not by the rules of the various International Federations, which cannot, therefore, limit that jurisdiction.

40. WA submits that the CAS does not have jurisdiction by reason of Article 8.11, but when its submission is examined in more detail, it can be seen that WA construes this provision to refer to field of play decisions as not subject to review. That is not a question of jurisdiction.

41. The question whether or not a decision that is classified as a field of play decision may be appealed to the CAS is not an issue of jurisdiction, or of admissibility of the CAS appeal. It is a decision on the merits of the appeal (CAS 2015/A/4208) or on the substantive law, to be dealt with in the context of the examination of the merits (TAS JO 16/027).

42. There is no dispute in the present case that the Applicants have exhausted all internal remedies.

43. The Panel therefore finds that it has jurisdiction over these Applications and that the Applications, which fulfil the requirements of Article 61.2 of the Olympic Charter and the CAS Arbitration Rules for the Olympic Games, are admissible.

VI. APPLICABLE LAW

44. 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”. The Panel considers that the WA Technical Rules, to the extent not in conflict with the Olympic Charter, are also relevant to these proceedings.

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VII. MERITS — A. Field of play

45. The Panel has jurisdiction and the power to overturn a field of play decision. However, it is very well established in CAS jurisprudence that, for a CAS Panel to overturn a field of play decision, there must be direct evidence that establishes, to a ‘high hurdle’, bad faith or bias (CAS OG 00/013; CAS OG 16/028), or, for example, that the decision was made as a consequence of corruption (CAS OG 00/013) or arbitrarily (CAS OG 12/010).

46. CAS Panels have consistently pointed out, in different words but to the same effect, that CAS Arbitrators are not, unlike on-field judges, selected for their expertise in the particular sport and do not review the determinations made on the playing field concerning the “rules of the game” in circumstances where there was no fundamental violation of the Respondent’s own rules (CAS OG 00/013).

47. The discussion in CAS 2015/A/4208 is of assistance in describing why CAS Arbitrators ought not enter into field of play decisions in the absence of the above factors. The Panel there pointed out, (citing an essay by Michael Beloff QC) that the rules of the game define how a game must be played and who should adjudicate upon the rules, such that the referee’s bona fide exercise of judgment or discretion is beyond challenge, otherwise than in so far as the rules of the game themselves provide. The Panel referred to the principles underlying this doctrine, which included the need for finality, to ensure the authority of the referee and match officials, and the fact that, in most cases, “there is no way to know what would have happened if the decision had gone the other way”.

48. In this case, the final of the relay has been run.

49. In the Applications, the Applicants set out the merits of their case and the factual matters on which they rely. They cite the WA Technical Rules with respect to the positioning of athletes during an event. These concern the exchange of baton outside the designated takeover zone by Team USA and the switching of lanes in the last moment by Team Dominican Republic in the same event. In each case, the Jury Decision was based on the review of video and discussion with officials. The determination was as to the correct positioning in response to an incorrect original placement (Team Dominican Republic) and the fact that the athlete was not properly placed in the correct position (Team USA).

50. The Applicants do not assert any bad faith in the making of these decisions, or any other similar failure such as malicious intent or arbitrariness. Rather, they point to matters of positioning as set out in the WA Technical Rules and the actions taken by the athletes in question in response to directions from officials.

51. The decisions were clearly, in the Panel’s view, field of play decisions as to which the Panel will not interfere.

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B. The relief sought in the Applications

52. In CAS 2015/A/4208 it was also observed that the established field of play doctrine, as described by Beloff and adopted by that Panel, means that where the rules of the game in question “do not provide for any review after the event or match has finished, then the CAS is directed to respect such a silence and draw the necessary consequences”.

53. In the present case, Article 8.9 of the WA Technical Rules provides that the Jury of Appeal may reconsider a decision if new conclusive evidence is presented, “provided the new decision is still applicable. Normally, such re-consideration may be undertaken only prior to the Victory Ceremony for the applicable event, unless the relevant governing body determines that circumstances justify otherwise”. That is, the rules of the game themselves provide for no further review after the victory ceremony which, in the present case, has already taken place. It is in this context that Article 8.11 provides that there shall be no further right of appeal to the CAS.

54. Apart from the fact that the WA Technical Rules which govern field of play preclude an appeal after the Medal Ceremony unless the circumstances justify it, as WA points out it is too late to grant the relief sought, that Team USA and Team Dominican Republic be excluded from the final of race, or to amend the start list for that final. That is, the relief sought is basically moot.

C. The order in which the decisions concerning Team USA were issued

55. The Applicants raise a further point concerning the timing of the Jury of Appeal decisions. In essence, the submission is that the final issued Jury decision which was issued last was that the best 8 valid performances will participate in the final, plus Team USA and including the German Team. The Applicants assert that this amounts to an affirmation that the Team USA performance was not valid. As this decision was made after the Jury decision to reinstate Team USA, the Applicants submit that it overrules the earlier reinstatement decision. Thus, the Applicants contend, Team USA could not qualify for participation in the final based on an invalid performance and should be excluded.

56. The Panel does not accept this submission. First, the decisions were, together, an outcome of the field of play decision concerning Team USA and, as such, the Panel will not interfere with those decisions or enter into the merits of them. Secondly, the decisions, for various reasons including pressure of time and being authored by the Jury of Appeal, should not be construed as if they were statutes or regulations. It is clear that the Jury of Appeal decided, as a consequence of its field of play decision, to reinstate Team USA but not preclude the German Team which otherwise had won a place in the final. It is apparent that the issued decisions, to reinstate Team USA and to extend the field for the final to 9 teams, were in effect a single consequence of, and part of, the field of play decision.

VIII. CONCLUSION

57. It follows that the Panel concludes that it has jurisdiction to determine the Applications. The decisions under challenge are each field of play decisions and the Panel will not engage with the

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merits of those decisions in the absence of any allegation of a fundamental violation such as bad faith, bias or arbitrariness. Further, the race in question, the final of the 4 x 400m Relay Mixed Athletics has already been run and the medals awarded. Accordingly, the relief sought is moot or not appropriate.

IX. COSTS

58. Article 22 of the CAS Ad Hoc Rules provides that the facilities and services of the CAS Ad Hoc Division, including the provision of arbitrators to the Parties to a dispute, are free of charge. It further provides that the Parties shall pay their own costs of legal representation, experts, witnesses and interpreters.

59. The Parties in the present dispute do not seek an award for costs.

60. The Parties will bear their own legal costs.

DECISION

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

1. The Ad Hoc Division of the Court of Arbitration for Sport has jurisdiction to hear the applications filed by the National Olympic Committee of Belgium and the Netherlands Olympic Committee and Netherlands Sports Federation on 31 July 2021.

2. The applications filed by the National Olympic Committee of Belgium and the Netherlands Olympic Committee and Netherlands Sports Federation on 31 July 2021 are admissible.

3. The applications filed by the National Olympic Committee of Belgium and the Netherlands Olympic Committee and Netherlands Sports Federation on 31 July 2021 are rejected.

4. Each Party shall bear its own legal costs and other expenses incurred by this procedure.