Andrei Makhnev, Artem Shuldiakov, Russian Olympic Committee (ROC) v. International Ski Federation (FIS)

2. To dismiss the Application in its entirety to the extent that it is admissible;

3. To order the Applicants to pay a fair contribution towards the Respondent’s legal costs to be determined by the Panel”.

C. The Interested Party

a. Interested Party’s Submissions

4.18 The 17 January 2022 publication of the FIS list was the latest date that the dispute arose, and this is outside the window of the CAS Ad Hoc Division’s jurisdiction.

4.19 The travel ban was not discriminatory. It was the result of actions taken by the governments of the USA and Canada and there is no evidence it was directed to anyone of any particular nationality. The athletes here were not discriminated against.

4.20 The Applicants’ rationale for requesting additional spots would create a dangerous precedent. There are many situations where circumstances arise that give rise to athletes being

CAS ad hoc Division OG 22/002 9 (operative part of 28 January 2022)

disadvantaged for some reason, whether COVID-related or otherwise. This cannot be a basis, without more, for an athlete to be granted qualification retroactively.

4.21 “[T]o give the ROC the additional quotas that would allow the participation of the Athletes without giving them an undue advantage compared to the other “next best ranked athletes”, this would require the allocation of 7 additional quotas. That would result in an increase of 25 % of the quota for a single discipline!”.

4.22 “Finally, the suggestion that the addition of two quotas for the ROC could be compensated by ROC’s unused quotas from another disciplines is at odds with the principle of reallocation as it would imply that two quotas in that other discipline would not be reallocated despite the clear rules set out in the [Qualifying System]”.

b. Interested Party’s Requests for Relief

4.23 That the Panel rejects the Applicants’ requests for relief, in particular, the request that “Andrei Makhnev and Artem Shuldiakov are declared eligible and are qualified to take part in the moguls competitions at the Winter Olympic Games Beijing 2022”.

5 JURISDICTION AND ADMISSIBILITY

5.1 Rule 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”.

5.2 Article 1 of the CAS Arbitration Rules for the Olympic Games, adopted 14 October 2003 and amended 8 July 2021 (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 NOC, 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” (emphasis added).

CAS ad hoc Division OG 22/002 10 (operative part of 28 January 2022)

5.3 Jurisdiction was asserted on the basis stated by the Applicants above.

5.4 Jurisdiction was disputed by the Respondent and the Interested Party as stated above.

5.5 The Panel is of the view that the Respondent and the Interested Party have the better of the arguments given the broad language of Article 1 of the CAS Ad Hoc Rules.

5.6 The CAS Ad Hoc Rules are not unbounded in their jurisdictional grant; the CAS Ad Hoc Division is a tribunal of limited jurisdiction. By its own terms, Article 1 of the CAS Ad Hoc Rules requires that certain conditions be met for the CAS Ad Hoc Rules to confer jurisdiction on an applicant. As emphasised in the quote above, given that there was no challenge to jurisdiction based on lack of exhaustion of internal remedies, the dispute must be:

a. Covered by Rule 61 of the Olympic Charter; and

b. Either arise (i) during the Olympic Games or (ii) during a period of ten days preceding the Opening Ceremony of the Olympic Games.

5.7 For this Panel to find jurisdiction under the CAS Ad Hoc Rules, we must find both enumerated conditions to be present.

5.8 The Panel accepts that the dispute here satisfies the first condition, namely that it arise under Rule 61 of the Olympic Charter. Plainly, this dispute is one regarding qualifying spots and athletes for the 2022 Olympic Winter Games in freestyle skiing arising in connection with the Olympic Games. No party disputed this.

5.9 The problem for the Applicants is the second enumerated prong. The Panel must inquire whether the dispute arose during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games. As the Applicants do not contend that this dispute arose during the Olympic Games, the Panel focuses on the latter point.

5.10 For the Applicants to succeed on the latter point, the dispute must have arisen during the ten days preceding the Opening Ceremony for the 2022 Beijing Olympic Winter Games, currently scheduled for 4 February 2022. This means that the dispute must have arisen no sooner than 25 January 2022.

5.11 What does “arise” mean? The Panel is guided by a plain English definition: “to come into existence or begin to be noticed; happen” (https://dictionary.cambridge.org/us/dictionary/english/arise, accessed 28 January 2022). Of note, is that under this definition, the use of the word “arise” in the CAS Ad Hoc Rules indicates that it refers to the start of a dispute, not its conclusion or end.

5.12 When did the dispute come into existence or begin to be noticed? While there was evidence that the dispute may have arisen earlier in December, the Panel is comfortably of the view that the dispute arose at probably as early as 31 December 2021, when the ROC sent its letter to the FIS on the subject, and at least as late as 17 January 2022, when the FIS published its Allocation

CAS ad hoc Division OG 22/002 11 (operative part of 28 January 2022)

List, which by itself reflected the fact that the FIS had not made the adjustments for the Applicants which were requested by the ROC. There were numerous communications between the FIS and the ROC between these dates, including a 9 January 2022 letter from the ROC requesting the FIS to take steps with respect to stripping the Copper Mountain USA event of its Olympic qualifying event status given the US government restrictions. There can be no doubt that this dispute was in full array by the time of the 17 January 2022 FIS Allocation List publication. There was nothing left to be determined by that date and there was nothing indeterminate about the FIS determination embodied in its published list.

5.13 It is plain to see from the record that the dispute “arose” long before 25 January 2022, the effective date of jurisdiction under the CAS Ad Hoc Rules given the timing of the Opening Ceremony for the 2022 Olympic Winter Games.

5.14 The Applicants argued that there was no dispute until well after the 17 January 2022 publication date of the FIS because the FIS Allocation List was not final and the Applicants had further communications with FIS concerning allocations and quotas through 26 January 2022 when the FIS wrote to the ROC to advise that these issues needed to be addressed by the IOC, on the basis that this was a final decision that triggered jurisdiction under the CAS Ad Hoc Rules. The Panel is unpersuaded by these arguments.

5.15 The CAS Ad Hoc Rules require that the dispute must arise within the requisite time period and that the internal legal remedies have been exhausted (it may happen that the last internal appeals body does not issue a formal decision within a reasonable time, which would constitute a denial of justice). In any event, a new request on the same matter does not trigger a new basis for jurisdiction, whether the analysis is under the “arising” language of the CAS Ad Hoc Rules or the CAS Code of Sports-related Arbitration. Here, the dispute clearly arose outside the relevant time period and the Panel finds it lacks jurisdiction.

6 CONCLUSION/COSTS

6.1 These are challenging and difficult times to be an elite athlete endeavouring to compete at a high level in the COVID era. Not only are sport qualification rules changing in response, but so too, and perhaps most significantly as shown this case, are changes to domestic legal rules as countries endeavour to protect their citizens from the pandemic. The Panel is mindful of the Athletes difficulties, but, in the present case, the Panel will not express its view as it did not find jurisdiction.

6.2 In view of the above considerations, the CAS Ad Hoc Division does not have jurisdiction to hear the Applicants’ application.

6.3 The Applicants sought a contribution toward their costs but none of the other parties sought costs. According to Article 22 para. 1 of the CAS Ad Hoc Rules, the services of the CAS ad hoc Division “are free of charge”. According to Article 22 para. 2 of the CAS Ad Hoc Rules, parties to

CAS ad hoc Division OG 22/002 12 (operative part of 28 January 2022)

CAS ad hoc proceedings “shall pay their own costs of legal representation, experts, witnesses and interpreters”. Accordingly, each party shall bear its own costs.

DECISION

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

1. The CAS Ad Hoc Division does not have jurisdiction to hear the Application filed by Andrei Makhnev, Artem Shuldiakov and the Russian Olympic Committee.

2. All parties shall bear their own costs.