Horse Sport Ireland (HSI), Cian O’Connor v. Fédération Equestre Internationale (FEI)

I. INTRODUCTION

1. This is an appeal by Horse Sport Ireland (“First Appellant”) and Cian O’Connor (“Second Appellant” or “Mr O’Connor”) against the decision of the Federation Equestre Internationale (“FEI”) Appeal Committee dated 22 August 2015 (“Appealed Decision”), which was issued following an appeal against a decision of the FEI Ground Jury dated 21 August 2015 (“Ground Jury Decision”). The Ground Jury Decision arose from a protest related to the European Jumping Championship Round 2 Team Final and third Individual Competition, held in Aachen on 21 August 2015. Mr O’Connor was a rider in the Irish team. During Mr O’Connor’s round, an arena crew member ran across the path of Mr O’Connor and his horse, and the crowd reacted audibly. As a result, it is claimed the horse and rider were distracted and had to change their planned approach to an obstacle and as a result knocked down the obstacle. The effect of the Ground Jury Decision was to cause Mr O’Connor to finish the event in 21 st place instead of 12 th place, resulting in the Irish team finishing in 7 th place, 0.38 points behind Spain. As a consequence the Spanish team qualified for the 2016 Olympic Games instead of Ireland.

VI. JURISDICTION

31. The Appellants appealed against the Appealed Decision by submitting a notice of appeal to the Respondent dated 2 September 2015, without prejudice to the Appellants’ alternative argument that subject matter may be determined by the CAS, thereby exhausting the internal remedies available to them.

32. By letter dated 9 September 2015, the FEI proposed that the present dispute be submitted to the CAS, pursuant to Article 39.3 of the FEI Statutes. The letter provided, inter alia, as follows:

“The FEI hereby confirms that it will agree to rely on article 39.3 of the FEI Statutes (which stipulates that “Provided both the FEI and the other party or parties agree, any dispute … may bypass the FEI Tribunal and be submitted directly to CAS and settled definitively by the CAS in accordance with the CAS Cod e of Sports-related Arbitration”) in order to bypass the FEI Tribunal and have the matter settled definitively by the CAS”.

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33. This proposal was accepted by the Appellants.

34. In addition to the above acceptance of CAS jurisdiction by the Appellants and Respondent, the Appellants referred the Panel to further provisions in various documents that they believe are relevant to establishing jurisdiction in CAS:

a. Article 39.1 of the FEI Statutes, which provides, “The Court of Arbitration for Sport (CAS) shall judge all Appeals properly submitted to it against Decisions of the FEI Tribunal, as provided in the Statutes and General Regulations”;

b. Article 61 of the Olympic Charter; and

c. FEI Statutes Articles 38.1, 39.2, 159.6, 160.6, and 165.2.

35. The Panel need not address these additional citations in detail.

36. Article R47 of the Code provides that “An appeal against the decision of a federation, association or sports-related body may be filed with the 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 him prior to the appeal, in accordance with the statutes or regulations of that body” .

37. The parties here have reached an agreement to arbitrate before the CAS.

38. The jurisdiction of the CAS is not contested by the Respondent, and is confirmed by the parties’ respective signatures on the Order of Procedure and their conduct and participation in the proceedings without objection.

39. It follows, accordingly, that CAS has jurisdiction to decide on the present dispute.

VII. A DMISSIBILITY

40. Though they agree on the presence of CAS jurisdiction here, the parties differ over the admissibility of this appeal.

41. The Appellants are of the view that this appeal is admissible because it was otherwise timely filed and met all other procedural requirements in accordance with the relevant rules.

42. The FEI is of the view that this appeal is not admissible because it violates the field of play doctrine established in a long line of CAS cases.

43. The Panel will address this issue in its analysis on the merits as the Panel does not consider this issue to be one that is properly characterised as pertaining to admissibility. The relevant rules for filing the appeal have apparently been followed and it is a matter of proof for the parties to establish that the decision appealed from is either a field of play decision or is fraught with the elements required by the relevant cases to overturn a field of play decision, such as bias,

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prejudice, arbitrariness, malice, bad faith, corruption, etc., as more fully discussed below. Accordingly, the Panel determines that this appeal is admissible.

VIII. A PPLICABLE LAW

44. Pursuant to Article R58 of the Code, in an appeal arbitration procedure before the CAS, the “Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision” .

45. The FEI is domiciled in Switzerland and the applicable law under which the Panel decides the present dispute is Swiss law.

IX. MERITS

46. The CAS jurisprudence is clear that the rules of game define how a game must be played, and who should adjudicate upon the rules, and 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. … This is a fundamental element in sports law, most fully elucidated in the jurisprudence of the CAS”.

BELOFF/BELOFF, “The Field of Play”, Halsbury Laws of England, Centenary Essays, page 148, citing CAS cases.

47. There are strong sporting-based principles underlying this doctrine, including the need for finality and to ensure the authority of the referee and match officials. Moreover, it is widely recognised that such decisions are “best left to field officials, who are specifically trained to officiate the particular sport and are best placed, being on-site, to settle any question relating to it”, and that in most cases there is no way to know what would have happened if the decision had gone another way. Other factors that support such an approach include the arbitrators’ lack of technical expertise, the inevitable element of subjectivity, the need to avoid constant interruption of competitions, the opening of floodgates, and the difficulties of rewriting records and results after the fact. See, e.g., CAS 2004/A/704, paras 3.13, 4.8, 4.10; CAS 2008/A/1641, at para 25 (where the Panel stated that it was “not prepared to interfere with the application of the rules governing the play of the particular game, which is best left to field officials, who are specifically trained to officiate the particular sport and are best placed, being on-site, to settle any question relating to it”); CAS 2010/A/2090, at para 44 (stating, “It is not for the CAS with its limited role … to question decisions of fact (e.g. what was the nature of the obstruction caused, or judgement, what was unsportsmanlike behaviour) …”).

48. In fact, this principle of respecting field of play decisions is one of the defining characteristics of the lex sportiva, as a sport specific rule that guides much of sports competition at a fundamental level. Applying this principle is important and disturbing it risks an undermining

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of the fundamental fabric of the law of sport, opening the door to a more general review by adjudicators of matters that have long been considered as relating to the field of play.

49. For example, in CAS 2004/A/704, the CAS panel held that the participants are entitled to have referees make honest decisions, but not necessarily correct ones. The CAS panel noted that this was partly because no one could predict how the event would have played out if the referee had not made that decision. The panel stated: “In short Courts may interfere only if an official’s field of play decision is tainted by fraud or arbitrariness or corruption; otherwise although a Court may have jurisdiction it will abstain as a matter of policy from exercising it” (CAS 2004/A/704, para 3.17; See also, CAS 2008/A/1641, at para 37; CAS OG 02/007, at para 16). The panel therefore declined to interfere in a “field of play” decision, even though the judges later admitted the decision was wrong. It was clear: “… there is no evidence of prejudice against the Appellant or preference for the athlete who was awarded the gold medal. There are therefore no grounds permitting the Panel to review the decision of the Jury of Appeal. The Appellant has not established that the decision of the Jury of Appeal was tainted by bad faith or arbitrariness”.

50. In this case, assuming arguendo that the Appellants are correct that the Ground Jury member should have rung the bell and stopped the ride before the Second Appellant and his horse tried to jump obstacle 11, thereby stopping the clock, requiring the Second Appellant and the horse to stop, and then restarting the round and jumping obstacle 11, it is not possible to know with any degree of certainty how the round would have been completed. The horse and rider might have jumped a clear round – as the evidence before us appears to indicate would have been the most likely outcome – but it cannot be excluded that, disturbed by the interruption, they may have knocked over any one or even all of the remaining obstacles, or completed the course in a much slower time. In such circumstances, arbitrators find themselves in a situation of manifest difficulty and uncertainty.

51. Moreover, as noted above, the established field of play doctrine permits review of “field of play” decisions “in so far as the rules of the game themselves provide”. If the rules 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. In CPC v IPC, the CAS panel held that, where the rules of the game make the starter the sole judge of whether a race should be stopped for collision, whether he stops the race is entirely a matter for him, and cannot be reviewed by anyone else, regardless of the merits of that decision (CAS 2000/A/305, at para 5).

52. But even if the rules do provide for the possibility of review of the decision “immediately after, or even proximate to the competition” after the match, the CAS has been clear that “prima facie the same doctrine applies” (CAS 2010/A/2090, at paras 35(6) and 38). In CAS 2010/A/2090 the CAS determined that: “The Competition Jury makes what are quintessentially field of play decisions. If there were no internal mechanism for appeal, but an appeal was direct to CAS, CAS would not interfere other than if bias or other equivalent mischief or error of law were identified. The Appeals Commission (again on the same hypothesis that an appeal from its decision was direct to CAS) would enjoy the same qualified immunity from CAS review. Appeals to the Commission are at large: it determines appeals proximately to the competition. Its decisions could therefore be classified as field of play decisions”. That has to be right, or else the postmatch review provided for in the rules would lead to a complete end run around the ‘field of

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play’ doctrine, frustrating all of the public interest and other objectives that underlie it. It would have the most undesirable result that sports bodies would be forced to write out of their rule books any mechanism for post-match review of the original match official’s decision, to ensure that the “qualified immunity” his or her decision enjoys was maintained.

53. So, for example, in CAS 2004/A/727, a spectator ran out onto the course of the marathon at the Athens 2004 Olympic Games and attacked and pushed the leader into spectators. The leader resumed racing but was later overtaken and only won bronze. After the race, he filed an appeal with the referee, stating that the spectator’s interference had cost him the gold medal and that therefore he should be awarded gold. The referee referred the appeal to the Jury of Appeal. They reviewed the video and the times of the finishers. While they expressed sympathy, their decision was that the result could not be changed. The CAS panel was clear that it was the decision of the Jury of Appeal that it was reviewing, and was also clear that that was a “field of play” decision for purposes of application of the doctrine. It further stated: “Before a CAS Panel will review a field of play decision, there must be evidence of bad faith or arbitrariness. In other words, the Appellant must demonstrate evidence of preference for, or prejudice against, a particular team or individual”. Since there was no such allegation in that case, there was no basis to interfere (CAS 2004/A/727, at paras 10 and 11).

54. This decision is of obvious relevance to this case. Immediately after Mr O’Connor’s round the full Ground Jury heard the Appellants’ Protest against the failure to ring the bell and interrupt the ride before the 11 th obstacle, and (when the Ground Jury decided not to uphold the Protest) the Appeal Committee, which was also present at the venue, immediately heard an appeal against that decision. The FIS Competition Jury is equivalent to the FEI Ground Jury, and the FIS Appeals Commission is equivalent to the FEI Appeal Committee, the bodies discussed in CAS 2010/A/2090. For the reasons set out above, it is clear that their decisions too “enjoy the same qualified immunity from CAS review” as the original decision of the Ground Jury member not to ring the bell when the incident occurred; in other words, they can be reviewed where it is proven, for example, that a decision was made in bad faith, prejudice or corruption, or some other analogous situation, rather than on the merits of the decision itself, made in exercise of a judgment not tainted by such considerations.

55. The CAS has also been clear that the references in its awards to permitting a challenge to a ‘field of play’ decision on grounds of ‘arbitrariness’ does not allow a review on the merits.

56. To the contrary, in CAS OG 02/007, the Panel stated: “The jurisprudence of CAS in regard to the issue raised by this application is clear, although the language used to explain that jurisprudence is not always consistent and can be confusing. Thus, different phrases, such as “arbitrary”, “bad faith”, “breach of d uty”, “malicious intent”, “committed a wrong” and “other actionable wrongs” are used, apparently interchangeably, to express the same test (M. v/AIBA, CAS OG 96/006 and Segura v/IAAF, CAS OG 00/013). In the Panel’s view, each of those phrases means more than the decision is wrong or one that no sensible person could have reached. If it were otherwise, every field of play decision would be open to review on its merits. Before a CAS Panel will review a field of play decision, there must be evidence, which generally must be direct evidence of bad faith. If viewed in this light, each of those phrases mean there must be some evidence of preference for, or prejudice against, a particular team or individual”.

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57. This ruling was followed in CAS 2004/A/704, CAS 2004/A/727 and CAS 2008/A/1641, where the CAS panel confirmed that whether the accusation is one of bad faith or arbitrariness, “the Appellant must demonstrate evidence of preference for, or prejudice against, a particular team or individual” before an official’s “field of play” decision can be disturbed.

58. This principle is important to this case, since the Appellants suggest that the decisions under challenge in this case were arbitrary. They do not, however, allege or demonstrate bad faith, or a “preference for, or prejudice against, a particular team or individual”. As a result, their challenge faces an insurmountable obstacle, having regard to the principles identified above, and the practice of the CAS.

59. The FEI maintains that the decision of the Ground Jury member manning the bell not to ring the bell to stop the ride when the incident occurred was entirely correct (though it is explained below why this contention is irrelevant to the Panel’s decision anyway).

60. Under Article 233.1 of the JRs, he or she should ring the bell “in the event of an Athlete not being able to continue his round for any reason or unforeseen circumstance” (for example, if the wind had blown down an obstacle (or part of an obstacle) further down the course without there being sufficient time to rebuild it before a rider reached the obstacle). Here, however, the Ground Jury member noted that “it was some way before the next jump and the horse was not committed to a jump yet” . The Ground Jury member’s decision not to invoke Article 233.1 of the JRs to ring the bell in those circumstances was a matter within his discretion, and there is no evidence before the Panel to show that it was made in bad faith or prejudice, or that it was arbitrary.

61. The Appeal Committee noted: “As the athlete continued his round the GJ saw no reason to stop him by ringing the bell”. Under Article 233.3 of the JRs, in the absence of a signal on the part of the Second Appellant that he was unable to continue his round under normal circumstances, the Ground Jury member in question was entitled to decide not to ring the bell, even if another individual might, faced with a similar situation, have taken a different decision. Such is the essence of a ‘field of play’ decision.

62. The fact that the Ground Jury later said that they would not have penalised the Second Appellant if he had chosen to stop the round – a right he could have exercised but decided against, for reasons that were entirely plausible - does not make wrong and reviewable the decision not to ring the bell and direct him to stop. In the judgment of the Ground Jury member ringing the bell, the Second Appellant appeared to be able to continue, and this was why the bell was not rung. The rules allow the rider to stop if he thinks otherwise, and the Ground Jury can respect that if they think he genuinely and reasonably believed he could not continue, but that does not make the Ground Jury member’s contrary view arbitrary or wrong for a reason that is reviewable having regard to the applicable principles and rules. Indeed, if the Ground Jury member had rung and stopped the round and then, when the Second Appellant started again, he had knocked down obstacle 11, he might well have complained that the Ground Jury member had caused him to do so by stopping him midway through.

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63. But all of these arguments about whether the Ground Jury member’s decision not to ring the bell and stop the round was correct are irrelevant, because that decision was a “field of play” decision. That means the Appellants’ arguments that the decision was wrong, or even that it was irrational (i.e., a decision that no reasonable person could have reached), are irrelevant. Instead, the only basis on which that decision could be interfered with would be if there was “evidence, which generally must be direct evidence, of bad faith. … [T]here must be some evidence of preference for, or prejudice against, a particular team or individual”, as established in the CAS cases cited above. That is not even alleged here, let alone proven. Accordingly, the challenge to that decision must be rejected, even if the circumstances of this unhappy episode evoke a strong sympathy on the part of the Panel for Mr O’Connor and for Horse Sport Ireland.

64. The suggestion that the Ground Jury Decision was ultra vires because it “purported to rule on the legitimacy of its own omission to act in accordance with Article 233” (i.e., by ringing the bell to stop the round) is incorrect both as a matter of fact and law.

65. As a matter of fact, the Appellants’ assertion that, “The people hearing the appeal were the same people who were charged with ringing the bell during the round” is wrong. The decision to ring the bell is not a joint decision made at the relevant point in time by all members of the Ground Jury. Rather, the JRs make it clear that only one member of the Ground Jury is charged with the responsibility for ringing the bell. Given that a decision on whether or not to ring the bell must be made in a very short space of time, no more than a few seconds, it makes sense that the decision is left to one person as it would simply not be practical for all Ground Jury members to consult among themselves each time that the requirement to take such a decision arose. Therefore, there were now four other Ground Jury members reviewing that decision afresh. In this regard, see CAS 2010/A/2090, at para 41 (“it is the nature of sports competitions that decisions have to be made quickly. In particular, the jury on site is under high time pressure. It can be expected the jury works as carefully as possible and that hearings are conducted seriously. On the other hand, the requirement regarding the right to be heard cannot be set too high. The Court cannot expect perfection from the Jury. If a party cannot bring in the relevant arguments, an appeal to the Appeals’ Commission may bring relief”).

66. As a matter of law, there is no general requirement that there be a mechanism for review of a match official’s field of play decision after a sporting event. In the present case, however, the rules expressly provided for the review to be done by the Ground Jury, and did not exclude any member from being involved in that review. We have not been directed to any compelling arguments as to why, if such a review takes place, the relevant individual match official may not be a member of the reviewing body where that is what the rules provide.

67. The Appellants’ allegation that the Ground Jury ignored their request to review the video evidence prior to giving its decision is factually incorrect. Under Article 200.5 of the JRs, it was at the Ground Jury’s discretion whether or not to grant that request, but the fact is that, although their preliminary view was that there was no basis for the Protest, they did review the video evidence before coming to a final decision. As the Protest requested that the Ground Jury view the video, the President of the Ground Jury agreed to do so, together with the other members of the Ground Jury, prior to giving a final decision. Their final decision makes it clear that they considered the video footage, and that having viewed it they “did not see anything to alter the result”.

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The Appellants are correct that the video was viewed by the Ground Jury without sound and so they did not hear the crowd reaction to the incident, but the Ground Jury members witnessed the relevant incident “live” and percipiently, and so could take the crowd reaction into account from their own experience and memory, to the extent they considered it relevant (and in any case, with or without sound it would have been obvious that horse and rider had been distracted and no sound was needed to judge their reaction from the video).

68. These arguments, however, are all moot, because the Ground Jury Decision on the Protest is itself a field of play decision that “enjoy[s] the same qualified immunity from CAS review” as the original decision by the Ground Jury member not to stop the round.

69. The Appellants also argue that the Appeal Committee Decision was “tainted with the same errors committed by the Ground Jury in that it failed to take proper account of Article 233.1”. To the contrary, the Appeal Committee specifically noted that the Ground Jury member decided not to invoke Article 233.1 to ring the bell because “the incident occurred quite a distance from obstacle 11” and that “the Athlete himself had the possibility to stop”. Therefore, it is clear that the Appeal Committee did take into account Article 233 of the JRs. And we have already noted above that it was applied correctly in this case.

70. Whether or not the Appeal Committee’s decision was correct is moot because that decision, made at the venue on the night of the incident in question, immediately after the Ground Jury had rejected the Protest, “enjoy[s] the same qualified immunity from CAS review” as the original decision by the Ground Jury member not to ring the bell. And therefore, in the absence of any allegation, or evidence of bad faith or corruption on the part of the Appeal Committee, the challenge to the Appeal Committee’s decision must fail.

71. Accordingly, the Panel finds that the field of play doctrine is applicable to the facts before it, that it prevails, and that accordingly the Appellants’ appeal is to be dismissed in its entirety. The Panel does not make this determination lightly. It is acutely conscious of the impact this decision will have on the career of Mr O’Connor and on the Irish team in depriving them of participation in the 2016 Olympic Games, in circumstances in which it appears that the event organisers may have been at fault in allowing a crew member to enter the course at such an inopportune and unfortunate moment. It is more than an understatement to record that the Panel is highly sympathetic to the circumstances in which Mr O’Connor found himself, faced with the unfortunate situation in which a crew member put himself in a place he should not have been. Nevertheless, as highly professional sportsman Mr O’Connor acknowledged that he was conscious at the moment of the incident of the rule allowing him to raise his hand to signal to stop the round where there was a disturbance just like this one. He told the Panel that he had been trained from a young age not to stop but always to carry on with the round, a sporting instinct that the Panel considers to be both highly professional and admirable. That was his decision and not the fault of the FEI here, and the FEI Ground Jury member charged with ringing the bell had discretion under the rules to make the call to not ring the bell based on what he observed. Under well-established legal principles governing field of play cases as set forth more fully above, the Panel finds itself in circumstances in which it cannot disturb that decision,

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having regard to the law it is to apply. Whatever high degree of sympathy felt by the Panel cannot displace the obligation to act in accordance with relevant legal principles.