Judging the Olympics at the Court of Arbitration for Sport

Catherine Dunn

Corporate Counsel

08-08-2012

Attorney Maidie Oliveau has a big job to do at the London Olympic Games—and so far, it’s involved a French modern pentathlon competitor, an Irish boxer, and the Spanish Canoeing Federation. They’ve all appealed cases to the ad hoc division of the Court of Arbitration for Sport. For the ad hoc division’s 12 arbitrators—of whom Oliveau is the only U.S. representative and the sole woman—their mandate is to resolve legal disputes that arise from 10 days before the Opening Ceremonies through the end of the 2012 Games. The three-person panels hear cases involving qualification for the Games, doping issues, and disputes that come up in the field of play.

A veteran transactional lawyer who specializes in sports at Arent Fox in Los Angeles, Oliveau was first appointed as an arbitrator in 1997 by the U.S.’s International Olympic Committee member. She has since served as an arbitrator for the Games in Sydney, Salt Lake, Athens, and Tourino, and Salt La.

CorpCounsel.com spoke with Oliveau while she was on the ground in London. Below is an edited version of that conversation.

CorpCounsel: What happens at Court of Arbitration for Sport ad hoc division hearings?

Maidie Oliveau: The parties, with the filing of their appeal, will file a brief statement of the facts and the issues. There is normally an adverse party—that would be primarily the entity which made the decision that’s being appealed. We also will add any people or organizations who are considered ‘interested parties.’ That might include other athletes. It could be the International Olympic Committee. It could be the London Organizing Committee

At the hearing, the parties present both their legal position and any witnesses. We arbitrators then deliberate. If the circumstances dictate, we issue the decision without the reasons immediately, and then we follow up with the reasons. Those decisions are published.

CC: What rules do you apply when evaluating appeals?

MO: Under the CAS rules for the Olympic Games, we apply the rules of the applicable international federation—such as the International Canoe Federation, for example. Then we may need to apply the rules of the IOC, which is the Olympic Charter. The seat of the CAS is Lausanne, Switzerland—so we apply Swiss law if those other two sources of law are not elucidating enough.

CC: Why would you need to turn to Swiss law to solve an Olympic dispute?

MO: Well, there may be an element of bad faith. There may be some kind of coercion. There may be a breach of contract. So you never know. We always look to Swiss law to make sure that, if there’s a lacuna in the rules, we are complying with the ultimately applicable national law. The whole purpose of this type of procedure is to make sure there are consistent rulings for all the athletes.

CC: What’s come up in the three qualification cases you’ve reviewed so far at the London Games, involving the pentathlon, boxing, and canoeing events?

MO: In all three cases there was an athlete who sought an interpretation—involving what’s called the ‘qualification system’—that was different than what the federation had made. And in all three cases, we were unfortunately unable to find in favor of the athlete. We read the rules to have been correctly interpreted by the federation.

That has not been the case with all the CAS ad hoc division cases here—just the ones I’ve been involved in. There was a South African equestrian athlete who was determined to be eligible, even though his federation had not picked him. And he was in fact entered in the Games. And there was a Spanish steeplechase runner who did get to compete, even though his federation had not entered him.

CC: Do you make decisions about the athletic events themselves?

MO: During the course of the Games, it is possible that we might get what we’d call a ‘field of play decision.’ That would be something where an athlete appealed a decision made during the competition. We will not stand in the stead of the referee or umpire. But if there’s some sort of legal malfeasance, we will review it. So if there’s bribery, or some sort of coercion, or if there was no rule in the first place, we will review the situation and make sure that everyone got treated fairly.

CC: How do you view the relationship between the arbitration process and the spirit of the Games?

MO: I think it’s actually highly positive and very critical. I’ll quote the outside counsel of the International Olympic Committee, after the games in Athens. He said that the presence of the judges brings wisdom to the federations. And what he meant by that is that the mere existence of a right of appeal to the ad hoc division focuses the mind of the various rulemakers, such that they try to consider very, very carefully what they’re doing. That allows the athletes who are developing their strategies on which competitions they will enter, and how they will qualify, to actually have clear road maps to doing that.

It’s across every level. It’s in the rules of play, because again, the federations know there’s a right of appeal. If you take the badminton example, when the federation disqualified those athletes, I am confident that in that room they said to themselves, ‘Now are we safe? What if this gets appealed to the CAS, what would we argue?’ It’s a filter that they can use. And our decisions, because they’re published, guide the federations for the future.

CC: Do you get to go to any Olympics events while you’re there?

MO: Yes, if I’m not working. I have not had a whole lot of opportunity to go, but I do try to grab the time when I can—I went to the equestrian show jumping, and the beach volleyball.

See also: "Let the (Social) Olympic Games Begin!", CorpCounsel, July 2012.