PART I – An Overview of the CAS Ad Hoc Division Decisions from the 2022 Beijing Olympics

PART I – An Overview of the CAS Ad Hoc Division Decisions from the 2022 Beijing Olympics

(Editor’s note: What follows is an excerpt from an extensive article that appeared last night in Sports Litigation Alert, the nation’s leading sports law periodical. The excerpt includes one of several decisions highlighted in the article. Hackney Publications offers student, professor, library and law firm subscription rates.)

By Jared P. Vasiliauskas & Michael V. Viverito, Power & Cronin, Ltd.

With the 2022 Beijing Winter Olympic Games having concluded on February 20, 2022, the Court of Arbitration of Sport (“CAS”) Ad Hoc Division released its decisions relative to the cases it heard pursuant to Article 1 of the CAS Arbitration Rules for the Olympic Games.  This article will provide a summary of each decision, so as to highlight the issues raised and the reasoning behind the CAS Ad Hoc Division panelists’ decision.  This article is not offered as a critique of the decision, nor does it strive to take a position in support of or against the decisions rendered.  This article simply provides a means to convey to readers the facts behind each decision, and does not represent the opinions of the authors.

Makhnev & Shuldiakov v. International Ski Federation & Russian Olympic Committee CAS OG 22/2

On May 23, 2021, the International Ski Federation (“FSI”) published its Qualification System for the XXIV Olympic Winter Games, Beijing 2022 – Freestyle Skiing.  The ongoing COVID-19 pandemic caused the cancellation of several World Cup events, leading to only ten qualifying events from December 2020 until January 14, 2022, in addition to the 2021 FIS Freestyle Ski World Championships.

Russian mogul skiers Andrei Makhnev (“Makhnev”) and Artem Shuldiakov (“Shuldiakov”) participated in the first six qualifying events.  The final four events were set to take place in Quebec, Canada, and Utah, United States of America (“USA”) from January 7-8, 2022, and January 12-14, 2022, respectively.  In November 2021, COVID-19 entry requirements for the USA and Canada were amended to limit entry to individuals who had received a COVID-19 vaccination authorized for use in their respective countries.  Makhnev and Suldiakov were both administered the Sputnik V vaccination, the vaccine authorized for use in Russia.  However, this specific vaccine was not on the list of authorized vaccines for the USA or Canada.

Despite efforts from the Russian Olympic Committee (“ROC”) and the Russian Freestyle Federation, the United States Ski & Snowboard Federation provided notice via email to the ROC, United States Olympic Planning Committee, the FIS and the International Olympic Committee (“IOC”) on December 4, 2021, that no exceptions would be granted by the United States government to allow Makhnev and Shuldiakov to travel to the USA.

After several back-and-forth correspondences, the matter reached conclusion on January 17, 2022, with the publication of the Freestyle Quotas List for Olympic Winter Games 2022 (“Quota List”) by FIS, which did not include any additional athlete quotas, as requested by the ROC president.  On January 25, 2022, Makhnev and Shuldiakov petitioned the FIS requesting confirmation that two additional quotas would be granted to the ROC in male ski moguls in their favor.  The following day, FIS responded that a request for such an increase in quotas was not within its purview, and invited Makhnev and Shuldiakov to raise the issue with the IOC.  An application was filed with the CAS Ad Hoc Division on January 27, 2022.

At hearing, FIS raised the argument that this issue was outside the jurisdiction of the CAS Ad Hoc Division, as the issue identified by Makhnev and Shuldiakov was outside the 10-day period preceding the 2022 Winter Olympic Games Opening Ceremony on February 4, 2022.  The purpose behind Article 1 of the CAS Arbitration Rules for the Olympic Games, adopted October 14, 2003 and amended July 8, 2021 (the “CAS Ad Hoc Rules”) is to provide a channel for swift resolution of disputes covered by Rule 61 of the Olympic Charter in force as of July 17, 2020, “insofar as they arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games.”  For an understanding of the word “arise”, the Panel looked to the plain English definition, “to come into existence or begin to be noticed; happen”.

Guided by this definition, the Panel determined that the dispute arose as early as December 31, 2021, when the ROC sent its letter to FIS into the possibility of additional athlete quotas to allow for Makhnev and Shuldiakov to compete, despite missing the final four World Cup events.  Makhnev, Shuldiakov and the ROC argued that no dispute arose until after January 17, 2022 because the Quota List was not final and there were further communications regarding the additional quota request through January 26, 2022, when FIS advised the ROC that any issues regarding quotas would need to be raised with the IOC.  The Panel disagreed.  The CAS Ad Hoc Rules require that the dispute must arise within the requisite time period.  A new request on the same matter does not create a new basis for CAS Ad Hoc Division jurisdiction.  The Panel held that the dispute clearly arose outside the requisite time period and that it lacked jurisdiction.