A veteran of four such ad hoc panels of the Court of Arbitration for Sport (CAS) – Atlanta (the first ever), Sydney, Athens and Beijing – I shall not on this occasion be among their number. My role as London Organising Committee of the Olympic Games’ (LOCOG) ethics commissioner – appointed by Barbara Cassani and renewed by Sebastian Coe, with the original role of ensuring that no aspect of the International Olympic Committee’s (IOC’s) complex bidding rules were violated by our national bid – was thought to make me ineligible for consideration. I have in any event, as president of the British Association for Sport and Law, been involved in the process of selecting lawyers to act pro bono if and when cases come before a panel in front of which I could not myself be briefed because since 2010 no member of CAS can act as an advocate before CAS in case this gives rise to the appearance of bias. So I content myself with the reflection that even after this summer, if not the Steve Redgrave of Olympic Sports Arbitration, I remain its Matt Pinsent, as no other lawyer from anywhere in the world will have clocked up more than three such appearances.
What will the CAS panel have to do?
The assumption that it will all be about doping cases, pitting lawyers against laboratories, is likely to be false. Any such cases will be the product of tests carried out before, not at the Olympics; their procedural complexities mean that no contested case from the Games themselves could be heard before the closing ceremony. Nor can results of competitions be appealed. Most sports have their internal mechanism for correction of officials’ error; CAS’s field of play rule means that pitch, pool, track are, to adapt Lord Justice Atkin’s famous phrase, Alsatias where its writ does not run. Eligibility issues – usually concerning persons who have switched nationalities, some, but not all of whom, are sporting mercenaries – are an established source of dispute. Cuba in particular adheres to the philosophy, once a Cuban, always a Cuban, even if a refugee from Castro’s island. The so-called plastic Brits are Brits for the purposes of the British Olympic Association (BOA), if not of the Daily Mail.
But more eccentric cases can surface. In Atlanta, a hurdler in the smallest delegation at the Games (from Cap Verde) seized the national flag from the designated official just as he was about to enter the stadium for the opening ceremony parade, and was promptly banned from the village by his team manager. This prompted two cases over which I presided. In the first we held that it was the IOC which alone had vires to expel someone from the village; in the second when the IOC duly did so, we held that it should have (which it had not) given him a hearing. There was no happy ending. Carrying a serious leg injury, the athlete took only two steps out of the blocks in the first round before being stretchered off.
In Sydney the International Weight Lifting Federation sought to prevent the participation of a South Seas islander who had been accused of sex with a minor during an away match. (He had presumably never read Margaret Mead’s anthropological classic, Coming of age in Samoa). Since the Supreme Court of Samoa had lifted his suspension by the national body, we considered that comity tied our hands, but I added a pious note to our award that “it should not be taken as confirming that an athlete may participate in the Olympic Games where he or she is guilty of serious sexual or other offences’’. Towards the end of the same Games a controversy arose about the application of the IOC’s rules about the size of logos to be displayed on an athlete’s singlet. If the measurement was on singlets as sold there would have been no breach; but if as worn given the elasticity of modern fabric and the size of breast (or chest) there would. We decided that purposive considerations trumped legal certainty, and upheld the official decision.
In Athens, in the men’s all-round gymnastics final, the Korean was admittedly mis-marked for his performance on the penultimate apparatus. A correction would have given him the gold medal over his American opponent. Our instinctive reaction that this was a no-brainer – give the Korean the marks and the medal – was overtaken by concerns about rewriting the outcome of a competition after it had concluded; how could one tell how he would have performed if he had gone into the last round in the lead? Our application of the field of play rule kept him in second place. As a consequence I would be given a hero’s welcome in Seattle, but would not wish to walk unaccompanied down the streets of Seoul.
At Beijing a trio of cases (none mine) bulked out the docket. All involved the Azerbaijani women’s hockey team who claimed that they should have been in the draw in place of the Spaniards, two members of whose team should have been disqualified for doping offences in a qualifying competition, so making the whole team ineligible. (The counter-allegation was that the Azerbaijanis had sought to sabotage the Spaniards by contriving a passive smoking scenario.) These intriguing factual issues never fell to be reinvestigated because the indefatigable Azerbaijanis faced a succession of insuperable procedural obstacles.
So the panel’s diet will assuredly be varied; but of how many courses it is hard to predict. It will enjoy free access to the next best seats in every stadium on condition that any member must obey a summons by mobile to return promptly to the arbitration rooms in its Park Lane Hotel.
The law it will apply to disputes will be the Olympic Charter, the relevant regulations of the sport in question, general principles of law and the rules of law deemed appropriate – a veritable legal a la carté menu. Although in London, it will be deemed to be sitting in Lausanne so that the lex fori is consistent, and the Swiss Federal Tribunal alone has power to review their decisions (no appeal has ever been successful).
The Grosvenor House Hotel will have rooms made suitable for hearings, including witness evidence, and tribunals of three will have to reach decisions within 24 hours of an application made on carefully devised standard forms (20/20 rather than Test Match timing). They will be supported by a team of legally qualified clerks and diligent secretaries, and have as their non-sitting president, an eminent Puerto Rican judge and the highly experienced Swiss Secretary-General.
The panel’s jurisdiction, referred to in the Olympic Charter, is derived from contract, the entry form that every participant in the Games has to sign. A moot question is whether a clause excluding resort to courts of law could itself stand scrutiny.
I have been appointed by ICAS, the high-powered executive body (composed of a rich blend of IOC members and senior jurists) which is responsible for CAS, as its official liaison officer for the London Games (a social and diplomatic role) and, in that capacity, must, amongst other things, arrange a courtesy meeting between ICAS members and senior English judges so that CAS’ s 0lympic role is understood.
The desirability of sport regulating itself is something of which the English judiciary is well aware. As Megarry VC famously said in McInnes v Onslow-Fane  3 ALL ER 211(pitting the juvenile Beloff against the infant Moses):
“Courts must be slow to allow any implied obligation to be fair to be used as a means of bringing before the courts for review honest decisions of bodies exercising jurisdiction over sporting, activities which those bodies are far better fitted to judge than the courts.”
In short, please no interim injunctions half-way through the men’s 100 metres final. But for me, transformed from arbitrator to facilitator, good luck London, but roll on Rio...
Michael Beloff QC, www.blackstonechambers.com