This year’s Olympic Games will begin on July 26 in London. Behind the scenes will be Maidie Oliveau, counsel at Arent Fox in Los Angeles, who is the U.S. representative on the ad hoc division of the Court of Arbitration for Sport for the Olympic Games. In that role, Oliveau joins 11 additional arbitrators who will handle legal disputes in the days leading up to and during the Games.
Oliveau, who served on the same panel during four previous Olympic events, spoke to The National Law Journal about how the arbitration process works and the types of disputes that crop up.
The remarks below have been edited for length and clarity.
The National Law Journal: Exactly what is the ad hoc division of the Court of Arbitration for Sport for the Olympic Games in London?
Maidie Oliveau: An arbitral institution that has jurisdiction over disciplinary disputes of all the sports on the Olympic Games program. The ad hoc division was set up for the first time in 1996 for the Atlanta Games, to hear and resolve disputes that arise on the occasion of the Olympic Games promptly and with a special set of procedures.
There are nine arbitrators who are designated by the International Council of Arbitration for Sport to be on site for the Olympic Games, and there are 12 from throughout the world for the Olympic Games. The concept is that all of the athletes from whichever country will receive the same justice and the same principles, the same decisions, the same set of laws. The Court of Arbitration for Sport is the final appeal for the disciplinary procedure for all the sports.
NLJ: How exactly does it work?
M.O.: There has to be a decision, and then the decision is appealed by the injured party to the Court of Arbitration for Sport by filing a form that the court makes available.
Let’s say an athlete was attempting, or a team was attempting, to be in the Olympic Games — to qualify for whatever that sport’s set of rules are — and that athlete or team was not selected. That is a decision. Then that party obtains a form of appeal from the court office, which will be on site in London starting on July 16, the day the Olympic Village opens. Sometimes, the party could be a team manager, not a lawyer; it could be an athlete, not a lawyer. The president will then select either one or, more likely, a panel of three arbitrators there on site, who are available and do not have a conflict.
During the Olympic Games, because the parties are not involved in selecting the arbitrators as they are under ordinary circumstances, the standard that the president will use in selecting arbitrators is to have a different nationality than the appellant and the other affected parties. For example, if a German athlete is filing the appeal, and the American athlete would be displaced if the German athlete were to prevail, I would not be eligible to serve on that panel, nor would a German arbitrator.
So we establish a time of the hearing, and the parties may or may not have time to prepare briefs. A hearing is held, and if there are translators required, the hearing is translated. The languages are French and English. I speak both, so I can do a hearing in either language. And then there’s a written decision, and that decision includes the reasoning for the decision.
NLJ: How long does all this take?
M.O.: Our rules dictate it takes place within 24 hours or less if the circumstances are such that a decision is mandated before then. But frequently, there is a little bit more time. We’ve pulled all-nighters to arrive at a decision. Sometimes, if a decision is required immediately, the arbitration panel will issue an oral decision and follow up with a written reason.
NLJ: You’ve served on the Court of Arbitration for Sport in four previous Olympics events. What are the most common issues you’ve arbitrated?
M.O.: There are three types of issues we tend to run across. If you’re reading a newspaper, you’ll be convinced all we’re doing is doping cases. That is not the case. The doping cases are highly technical, require a lot of science and are not resolvable as far as the parties are concerned within that 24-hour time frame. Just to get the actual documentation for positive doping results takes that time frame. And, usually, the athlete needs a little bit more wherewithal to contest it.
So what we tend to get are selection cases. We call them eligibility cases. It’s the example I gave — the German athlete thought he should have been selected but was not. Or some sort of change happened during the lead-up to the Olympic Games, the 10 days prior to the Olympic Games once the Village opens — somebody got sick or disqualified due to a doping result and there’s an opening.
NLJ: What are the other types?
M.O.: A second type, which is common, is what we call field-of-play disputes. So what that means is that a ruling was made during the action of the sport itself and the competitor wants to appeal that ruling. Arbitrators are not referees or umpires. We are not on site; we do not know the intricacies of the rules of the different sports. What has evolved over the course of these appeals is a standard when we will review that sort of decision. And the standard is that there has to be some form of legal wrong that was done, such as bad faith or bribery.
A famous American one happened during the 2004 Olympic Games. Paul Hamm was a gymnast granted the all-around gold medal. The South Korean felt his starting score had been incorrectly posted and therefore, if you did the math, with his correct starting score he should have won the gold medal. So the South Korean appealed this. And the panel found that was true — that the starting score was incorrectly posted, but there were procedures internal to the sport that the South Korean athlete could have, should have and did not follow. And that is the way the sport works. It’s not up to some arbitration tribunal to overrule what happened according to the sport’s rules.
The third category is what I would call miscellaneous, random, uncategorizable disputes. We had one in Sydney where the gymnast was wearing a uniform for his team and the logo on his body was larger than the rules allowed. And the team came to us and said, “Look, but when it’s not on his body it complies. It’s just stretchy material and when he puts it on, it stretches and the logo becomes bigger.” But we complied with the rules. Another example would be an athlete for a small Caribbean country who thought he should be the flag carrier for his country and appealed the decision that another person carried a flag.
NLJ: What do you anticipate to be any new legal issues facing the panel this year in London?
M.O.: One of the new types of cases we’re seeing a lot of involve gambling — an athlete is paid off to throw the match. There is a potential for massive financial gains over the Internet. What would be possible, although we’ve never had it before, is that an athlete would be suspended because he is accused of throwing a match and so he would appeal that decision to the panel.
NLJ: You will be the only woman from among 12 arbitrators on the panel. Is this typical?
M.O.: Other than in Sydney, there has always been one woman arbitrator on the ad hoc panel. In Sydney, there were two — myself and an Australian judge. Yes, that is normal. Because of the challenges that the Court of Arbitration for Sport has in finding people from throughout the world who are available to come on a volunteer basis for at least three weeks and who can work in French or English, it’s challenging to populate the panel with more women. There will be in these Olympic Games a ratio of close to 50 percent female athletes, probably 45 percent — that’s a reasonable estimate. One hopes that the panel ultimately can be more representative of the users — who are the athletes, in essence.
NLJ: You’ve been in sports law since 1979. Which of the sports in the Olympics are you most excited to watch this year?
M.O.: At every Olympic Games, I end up — due to either my workload or the opportunities or the organization of the sport — finding different sports that grab my attention. In Athens, the last summer Games I attended, I got totally attached to cycling — indoor cycling in the velodrome — for the first time ever. I always enjoy the beach volleyball — I’m from Los Angeles, so beach volleyball is in my blood. This summer, I want to go to weightlifting. And I love, love, love, watching the rowers. They give absolutely everything and have nothing left. It’s very moving.