Though the 2012 London Summer Olympics are in full swing, elite sports can never quite seem to escape the skeleton in its closet–performance enhancing drugs.  The Court of Arbitration for Sport (the “CAS”), empowered by the authority of the International Olympic Committee (the “IOC”), upheld the appeal of the International Federation (“IF”) for track and field–the IAAF–to suspend Hungarian discus thrower Zoltan Kovago from Olympic competition for failure to submit to doping tests.  The National Olympic Committee (an “NOC”) for Hungary previously determined that Kovago would be eligible to compete, despite the IAAF issuing a two-year suspension.

This will likely be one of many eligibility appeals both before and during the Olympic Games this summer.  Why?  To start, every sport is governed by its own IF which is further divided into a National Federation (an “NF”) in each country.  Additionally, each country has its own NOC that selects its competitors which it will submit to the IOC for competition at the Olympics.  In order to be recognized by the IOC, and thus participate in the Olympics, each of these organizations must agree to the terms of the Olympic Charter (the “OC”).  The OC states that all disputes arising in conjunction with the Olympic Games may only be appealed to the CAS for final and binding arbitration.

Had enough alphabet soup?

It’s tough to swallow, but all of these organizations, taken together, compose the complex machine known as the Olympic Movement.  Naturally, each organization within the Movement has its own interests in mind.  For example, NOCs will want to select the athletes who have the best chance of winning, while an IF may want to err on the side of caution in order to preserve the legitimacy of its sport.  As in the case of Kovago, sometimes these interests conflict.  And there are the athletes, of course, who have their own interests.  But they are not forgotten–athletes must sign an arbitration agreement as part of their participation waiver.

Fortunately, arbitration has thus far proven to be a palatable solution for these Olympic disputes.  Traditional routes of dispute resolution face serious jurisdictional issues: what court has the authority to hear and enforce an eligibility appeal from the Chinese NOC against the Brazilian NF of beach volleyball for an eligibility dispute arising in London?  And then there is issue of time: How can traditional courts make a decision and hear appeals in time for the athletes to compete in the Games?

To handle this logistical and jurisdictional nightmare, the CAS–headquartered in Switzerland–convenes a special division on site at the Games, known as the Olympic Division.  This arbitral panel is charged with reviewing any Olympic dispute and issuing a final and binding decision within a mere 24 hours.  Since it was established at the 1996 Atlanta Games, the Olympic Division hears fewer than 20 disputes for each Games, and rarely misses the 24-hour deadline.  Disputes are handled swiftly, and international courts–bound by the New York Convention–have largely dismissed appeals of Olympic Division decisions.

As a result, the IOC has used binding arbitration to overcome unparalleled jurisdictional and temporal problems.  So what’s the price of this system?  There are arguments to be made that athletes who are often underpaid and spend their entire life training for this single competition may be unfairly disqualified without sufficient due process at the hands of a 24-hour tribunal.  And often times Olympic success means financial endorsements when an athlete returns home with some hardware around her neck.  However, due to the binding arbitration clauses, these athletes would be prohibited from seeking damages in court.

Nevertheless, in the face of other dispute resolution alternatives, such as extended international litigation and jurisdictional battles, this cost seems acceptable.  So, sorry Zoltan, but the Games must go on.

-Sam Beutler

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