Rahul Kumar, Saket Wali v. Asian Squash Federation (ASF), Olympic Council of Asia (OCA), World Squash Federation (WSF)

Arbitration CAS ad hoc Division (AG Incheon) 14/001 Rahul Kumar & Saket Wali v. Asian Squash Federation (ASF), Olympic Council of Asia (OCA) & World Squash Federation (WSF), award of 20 September 2014 (operative part of 19 September 2014)

Panel: Mr Bruce Collins QC (Australia), President; Justice Catherine Anne Davani (Papua New Guinea); Ms Thi My Dung Nguyen (Vietnam)

Squash Application brought by two individuals Standing to file an application

According to Art. 10 of the CAS ad hoc Rules, read in conjunction with Art. 1 of the CAS ad hoc Rules and Art. 34 of the Constitution of the Olympic Council of Asia, appeals to the CAS ad hoc Division are limited to athletes and NOCs. If the applicants do not fall within the class of persons entitled to make an application, they do not have standing to bring the application and the CAS lacks jurisdiction to hear it.

1. FACTS AND PROCEDURAL BACKGROUND

1.1. An ad hoc Division of the Court of Arbitration for Sport (“CAS”) has been established for the XVII Asian Games in Incheon. The purpose of this ad hoc division, generally, is to hear any dispute on an urgent and timely basis that falls within the ambit of the CAS Arbitration Rules for the XVII Asian Games in Incheon (“CAS Ad Hoc Rules”).

1.2. On 18 September 2014 at 15:30, an application was filed by Mr Rahul Kumar and Mr Saket Wali against the Asian Squash Federation (“ASF”), Olympic Council of Asia (“OCA) and the World Squash Federation (“WSF”) (collectively, the “Respondents”) at the CAS ad hoc Court Office in accordance with Article 10 of the CAS Ad Hoc Rules (the “Application”).

1.3. The Application states its complaint as follows: “The non-segregation of just two players in the AG on the basis of nationality, in advance converts this tournament into an everyday world ranking tournament and leads to OCA/IOC becoming redundant if the distinction between country representation and individual glory is removed”.

1.4. The relief requested in the Application reads as follows: “The AG men and women’s draw should be redone so that it is in accordance with the rules and principles of major regional games. Whenever only 2 players per country participate they should be put in separate halfs (sic)”.

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1.5. Pursuant to Article 11 of the CAS Ad Hoc Rules, the President of the ad hoc Division, Mr Michael Hwang SC, appointed the following arbitrators to hear this dispute: Mr Bruce Collins QC (Australia), President of the Panel, Justice Catherine Anne Davani (Papua New Guinea) and Mrs Thi My Dung Nguyen (Vietnam).

1.6. After preliminary consultation, the Panel, exercising its powers under Article 15 of the CAS Ad Hoc Rules, decided to schedule a preliminary hearing with the Applicants and the ASF, devoted and limited exclusively to the question of jurisdiction. The Panel directed that the CAS Court Office urgently communicate with the ASF which body, subject to whatever the Application might say, was the appropriate body to respond to the Applicants’ arguments on jurisdiction.

1.7. The next day, on 19 September 2014, the Panel directed the CAS Court Office to invite the Applicants and the ASF to attend a preliminary hearing limited to the question of jurisdiction at 13:30 the same day. Both parties expressed their availability and willingness to participate in such preliminary hearing accordingly.

1.8. At 14:00, a preliminary hearing was convened at the CAS ad hoc Hearing Room. The Panel was joined by Mr. Brent J. Nowicki, CAS Legal Counsel, as well as Mr Kumar (in person, on behalf of the Applicants) and Mr Karl Mak, Assistant Secretary General of the ASF (by telephone, on behalf of the ASF).

1.9. At the outset of the preliminary hearing, the parties were reminded that such hearing would only concentrate on the issue of jurisdiction and a hearing on the merits with all Respondents would not occur unless jurisdiction was confirmed.

1.10. In his application, Mr Kumar named a number of organizations as Respondents. Obviously, as the only relief he seeks is against the ASF, that organization is a proper Respondent. The Panel asked Mr Kumar to confirm that the only complaint he has was against the ASF and that the complaint centered exclusively upon the manner in which that body conducted the squash draw for these Games. Mr Kumar confirmed each of those matters and agreed that he was content to proceed on the basis that the ASF was the only proper Respondent and the hearing proceeded with Mr. Mak representing the ASF. This means that the claims against other persons or bodies should be treated as effectively having been discontinued. Accordingly, there is no need for them to be formally dismissed. In any event, such claims would fail for two reasons. Firstly, Mr Kumar does not have standing and secondly, because those organizations are not proper Respondents.

1.11. After hearing detailed submissions from Mr Kumar, the Panel inquired whether Mr Kumar had put all of the submissions to the Panel and provided the Panel with all of the documents he wished to draw to the Panel’s attention. After considering the Panel’s question, Mr Kumar informed the Panel that he had made all the submissions he wished to make and that the Panel had been provided with all of the necessary documentation. Mr Mak stated that he had no comments or submissions to make with respect to Mr Kumar’s claim and deferred to the Panel accordingly. Both parties confirmed that their right to be heard had been respected and that

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they were content with the way in which the hearing was conducted. The Panel adjourned at 15:10.

1.12. Understanding the necessity for the Panel to adequately deliberate on Mr Kumar’s claim, and in accordance with Article 18 of the CAS Ad Hoc Rules, the President of the CAS ad hoc Division extended the time limit for the Panel to give a decision until 16:30 on 19 September 2014.

1.13. On 19 September 2014 at 16:30, the operative part of this Award was notified to the parties by email.

2. JURISDICTION

2.1. Mr Kumar and Mr Wali are former ranked squash players from India. Neither of them is a participating athlete at the XVII Asian Games nor is either man a team official. Both Applicants have retained a close interest in the sport of squash for some years and have been pursuing a range of issues with various squash governing bodies, including the ASF, the WSF and the Squash Rackets Federation of India. There is no need for us to go into all of these issues or the manner in which they have been ventilated. The Panel confines itself to the complaint now before us in the Application and to the question of jurisdiction to hear the complaint.

2.2. The provisions of the CAS Ad Hoc Rules concerning the jurisdiction of the Panel work in this way:

- “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 Article 34 of the Constitution of the Olympic Council of Asia, insofar as they arise in the host country of the Asian Games (the “Asiad”) between 15 September 2014 and 4 October 2014.

- Article. 2: Ad hoc Division For the period fixed in Article 1, the ICAS shall establish an ad hoc Division of the CAS (hereinafter the “ad hoc Division”), the function of which is to provide for the resolution by arbitration of the disputes covered by Article 1 by means of Panels set up in accordance with the present Rules. The ad hoc Division consists of arbitrators appearing on a special list, a President and a Court Office”.

2.3. Article 1 refers to Article 34 of the Constitution of the Olympic Council of Asia, which reads:

“Settlement of Disputes / Complaints

1- Every NOCs Member shall be deemed to hold its membership of the OCA on the specific condition that it voluntarily surrenders its right of seeking redress against the OCA in any Court of Law;

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2- There shall be a “Court of Arbitration” appointed by the OCA President for all unresolved disputes, including relating to validity of a NOC and any other sports organisation recognized by or to the OCA including the Host and Bidding Cities of any Asian Games.

3- The OCA President at his discretion shall nominate either a sole arbitrator or an Arbitration Panel more for the resolution or decision of any unresolved dispute. The decision of the Arbitration Panel will be reported to the OCA Executive Board and can be appealed to the Court of Arbitration for Sports (CAS) in Lausanne.

4- The Terms and Conditions as well as the time frame for the proceedings to be completed will be specified by the OCA President;

5- The “Court of Arbitration”, appointed by the OCA President will be responsible for investigating complaints raised in relation to the disrespect of ethical principles laid down in the OCAS Constitution or Olympic Charter including but not limited to the breach of the code of ethics and conduct. If necessary proposed sanctions will be submitted to the EB for approval.

Bye-Law [sic] to Article 34

The Court of Arbitration for Sports (CAS) in association with the OCA will set up a small working group from CAS that will be present and working alongside the OCA in the Asian Games period only, on the same lines as done during the Olympic Games. The participating athletes can address any issues that they may have directly with CAS, during the Asian Games”.

2.4. The key to the question of jurisdiction raised in the present case is the by-law to Article 34 and in particular the last sentence, which reads: “The participating athletes can address any issues that they may have directly with CAS, during the Asian Games”.

2.5. As it initially seemed to the Panel, based on the documents filed with the Application, Mr Kumar and Mr Wali are not participating athletes. It was therefore, considered appropriate to convene an urgent preliminary hearing to determine whether the Panel had jurisdiction, failing which the case would be dismissed without a hearing on the merits of the claim. Mr Kumar was given full opportunity to provide details on the basis of which the Panel was said to be seized of jurisdiction. The Panel is empowered by Article 15 of the CAS Ad Hoc Rules to organise its own procedure. Article 15 (b) also requires questions of jurisdiction to be raised and resolved at the outset.

2.6. As set forth in detail below, while the Panel understands Mr Kumar’s and Mr Wali’s concerns, which no doubt arise out of a love for the sport of squash, they are not the proper persons to bring an application to the CAS ad hoc Division.

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2.7. The liberal approach to public interest litigation in India, which was relied upon by Mr Kumar at the hearing, is quite a different process to the procedure established for this Panel. As is always the case, the Panel is confined to follow the proper rules governed by the CAS Ad Hoc Rules enacted by the International Council of Arbitration for Sport ("ICAS") on 3 June 2014. 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 the result of the location of the seat of the CAS ad hoc Division in Lausanne Switzerland, pursuant to Article 7 of the CAS Ad Hoc Rules.

2.8. The jurisdiction of the CAS ad hoc Division arises out of Article 34 of the Constitution of the Olympic Council of Asia. The Panel is empowered to decide the question of its own jurisdiction.

2.9. Under Article 17 of the CAS Ad Hoc Rules, the Panel must decide a dispute “pursuant to the Constitution of the Olympic Council of Asia, the applicable regulations, the general principles of law and the rules of law whose application the Panel deems appropriate”.

2.10. 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”.

Merits of the Application

2.11. It is apparent to the Panel after listening to the parties that Mr Kumar’s reasons for bringing the application himself, rather than a participant in the Asian Games making the application, is based directly on the wording of Article 10 of the CAS Ad Hoc Rules and particularly the opening words of Article 1 which read:

“Any individual or legal entity wishing to bring before the ad hoc Division of the CAS a dispute within the meaning of Article 1 of the present Rules shall file a written application with the Court Office” (emphasis added).

2.12. Mr Kumar submits that he is an individual and therefore, he has standing to make an application.

2.13. Before commenting on those submissions, the Panel states the following factual findings, each of which was also agreed to by Mr Kumar during his submissions:

i. Mr Kumar and Mr Wali are both passionate about the game of squash. They have maintained an intimate interest and connection with the sport long after their passing from the top echelons of the sport. They are now veteran squash players who have been pursuing a number of issues with world, regional and Indian squash authorities.

ii. Neither of them is an athlete participating in the XVII Asian Games.

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iii. Neither of them is an official at the XVII Asian Games.

iv. The present dispute arose no later than 6 September 2014, when the method of making the draw became obvious to Mr Kumar.

2.14. The Panel now reverts to examine Article 10 of the CAS Ad Hoc Rules to set out briefly why that provision does not authorise Mr Kumar and Mr Wali to bring the present application and why the Panel has no jurisdiction to hear it.

2.15. Article 10 does not exist in isolation and only deals with disputes within the meaning of Article 1.

2.16. When the Panel turns to Article 1, it finds that the article provides for the “resolution by arbitration of any disputes covered by Article 34 of the Constitution of the Olympic Council of Asia”.

2.17. When the Panel then turns to Article 34, the important part is the by-law to Article 34, more particularly the last sentence which the Panel sets out again to reemphasize the point: “The participating athletes can address any issues that they may have directly with CAS, during the Asian Games”.

2.18. As Mr Kumar conceded, neither he nor Mr Wali are participating athletes at these Games.

2.19. These conclusions have the result that the Application should be dismissed because Mr Kumar and Mr Wali do not have standing to bring this application.

2.20. There are also other anomalies in relation to the Application. Firstly, it does not fall within the temporal ambit of disputes referred to in Article 1 which deals with disputes “as they arise in the host country between 15 September 2014 and 4 October 2014”.

2.21. The Panel has also examined all of the documents provided by Mr Kumar and in addition, examined the ASF Championship Regulations (“ACR”). The Panel does not read those regulations as providing an independent basis for jurisdiction in this case.

2.22. In addition, the handbook referred by Mr Kumar, which he described as the Asian Games Sports Technical Handbook, also does not provide any independent basis for the jurisdiction of the Panel to hear this claim. In the Panel’s opinion, appeals to the CAS ad hoc Division are limited to athletes and NOCs. Mr Kumar and Mr Wali are not in either category. The Panel should also point out that it expressed refrain in this Application from considering whether the right also extends to officials at these Games.

2.23. For all those reasons, the Panel is clearly of the view that it lacks jurisdiction to hear the Application and that Mr Kumar and Mr Wali do not fall within the class of persons entitled to make the Application.

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2.24. Therefore, the Application is dismissed.

The ad hoc Division of the Court of Arbitration for Sport renders the following decision:

1. The application filed by Mr Rahul Kumar and Mr Saket Wali on 18 September 2014 is dismissed.