Beginning of April 2014, the Colombian Olympic Swimmer Omar Pinzón was cleared by the Court of Arbitration for Sport (CAS) of an adverse finding of Cocaine detected in a urine sample in 2013. He got lucky. Indeed, in his case the incredible mismanagement and dilettante habits of Bogotá’s anti-doping laboratory saved him from a dire fate: the two-year ban many other athletes have had the bad luck to experience.  

Contrary to a social drug like cannabis, cocaine is not a specified substance under the World Anti-Doping Code (WADC) and therefore does not enjoy a lenient status. The sanctions endured in case of a positive cocaine test under the WADC are severe, i.e. in the absence of any exceptional circumstances a strict two-year ban. But, cocaine is not a normal drug either; its powdered form is widely consumed in a social and festive context, whereas the coca leaves are still used in South America.  

Thus, it is not very surprising that it is also one of the most widely detected stimulants in the framework of the fight against doping. How does one differentiate between an unlucky fellow and an outright cheat? You just don’t! As a principle, the CAS has adopted a strict interpretation of the WADC and shifts a heavy burden of justification on the athlete’s shoulders.  

 In theory, the World Anti-Doping Code 2009 foresees in article 10.5 that an ineligibility could be annulled, in case of  ‘[n]o fault or negligence’ (10.5.1) or reduced in case of  ‘[n]o significant fault or negligence’  (10.5.2). However, in practice the CAS interprets very strictly the scope of these provisions. One of the few exceptions was the Gasquet case. On this occasion, the CAS acknowledged that the athlete was not at fault for having ingested cocaine. This was due mainly to the very specific factual circumstances: Gasquet was found to have been contaminated through a fatal kiss.  

In general, the ‘no (significant) fault or negligence’-standard is quasi impossible to reach. We have found a certain number of examples in the CAS case-law to illustrate this point. In its first award involving cocaine, the CAS considered that an athlete, who was unknowingly given coca tea to drink and coca leaves to chew during a trip in the Andes, had acted negligently and therefore could not see his ineligibility reduced (CAS 2004/A/690). Later on, the CAS refused to consider as probable the fact that a spiked cocaine cigarette could have been given to an athlete, thus triggering the contamination (CAS 2006/A/1130). Moreover, it also rebuffed, the “peer pressure” argument put forward by a young football player (CAS 2007/A/1364).   

So far, CAS panels have refused to consider the fact that the consumption occurred out of competition as a mitigating factor (CAS 2008/A/1479). But arbitrators also rejected more sophisticated arguments, such as the ones advanced by Simon Daubney, an America’s cup sailor, who argued that his contamination was due to a spiked drink prepared by supporters of a rival team. Concretely, the panel considered that “[a]s an experienced athlete, he could not ignore that he should pay attention to what he was drinking and from whom he got the drinks, which he did not” (CAS 2008/A/1515). The consumption of cocaine “in a moment of euphoria but not with the intention to increase his athletic performance capability” was definitely not meeting the ‘[n]o significant fault or negligence’ standard (CAS 2008/A/1516). Smoking a joint of cocaine, at a party, four days before a competition, was likewise considered significantly negligent (CAS 2009/A/2012). Finally, a Brazilian football player arguing that he was addicted to cocaine, did not convince the panel either. The arbitrators doubted that he could not have taken precautions to avoid using cocaine during ‘in-competition’ periods (CAS 2011/A/2307).  

All the above-mentioned athletes have faced a two-year ban. In short, the CAS remained ice-cold when dealing with athletes having ingested, voluntarily or not, cocaine. 

The new WADC entering into force in 2015 will not change much for an athlete who tested positive for cocaine. In fact, he still has to demonstrate that he acted without (significant) fault or negligence to obtain a reduced ban. Thus, unless the CAS shifts its interpretation in this regard, the hurdle will remain very high. But is it fair that an athlete, who has not intentionally taken cocaine and could not profit from it to improve his sporting performance, gets a two-year ban? One can doubt it. Such a strict reading of the WADC by the CAS can only lead to the piling up of judicial vendettas by athletes drawn to the national or European courts seeking revenge and justice. This state of play might, sooner or later, bring the whole anti-doping system to its knees (the edifice has already started to tremble with the recent Pechstein ruling). Hence, for the sake of preserving a global anti-doping regime, it is high time that the CAS adopts a lenient interpretation of the ‘no (significant) fault or negligence’-standard and starts adapting the level of the sanctions to the responsibility of the athletes involved.  

A longer version of this post is available on SSRN.

Editor's note: Conor Talbot is a Solicitor at LK Shields Solicitors in Dublin and an Associate Researcher at Trinity College Dublin. He can be contacted at ctalbot@tcd.ie, you can follow him on Twitter at @ConorTalbot and his research is available at www.ssrn.com/author=1369709. This piece was first published on the humanrights.ie blog.

Sport is an integral part of the culture of almost every nation and its ability to shape perceptions and influence public opinion should not be underestimated.  The United Nations has highlighted the potential for using sport in reducing discrimination and inequality, specifically by empowering girls and women.  Research indicates that the benefits of sport include enhancing health and well-being, fostering empowerment, facilitating social inclusion and challenging gender norms.

In spite of the possible benefits, the successful implementation of sport-related initiatives aimed at gender equity involves many challenges and obstacles.  Chief amongst these is the way that existing social constructs of masculinity and femininity — or socially accepted ways of expressing what it means to be a man or woman in a particular socio-cultural context — play a key role in determining access, levels of participation, and benefits from sport.  This contribution explores recent developments in the interaction between transgender and intersex rights and the multi-billion dollar industry that the modern Olympic Games has become.  Recent reports show that transgender people continue to suffer from the glacial pace of change in social attitudes and, while there has been progress as part of a long and difficult journey to afford transgender people full legal recognition through the courts, it seems clear that sport could play an increasingly important role in helping change or better inform social attitudes.

Background

“The practice of sport is a human right.  Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.” - Olympic Charter

While proclaiming the practice of sport to be a human right, the Olympic Charter unequivocally states that the International Olympic Committee (IOC) has “supreme authority” over the staging of the Olympic Games.  Under the IOC’s stewardship, and in line with other major sporting events worldwide, a narrative has been carefully cultivated to the effect that events such as Olympic Games would not be possible without the support and resources of the broadcasters and, ultimately, sponsors.  Therefore, while on the one hand, the use of sports as a development tool and strategy to reduce discrimination generally is growing, there is also a distinct field of commentary which is critical of the approach of the Olympic “industry”  (indeed, the term "industry" is used to  draw attention to the profit-making goals of the Olympics).

Given the top-down nature of sporting governance, research from Wales and Scotland reveals that whilst many lesbian, gay, bisexual and transgender people continue to be put off by negative experiences or the perception that it is an unpleasant and unsafe environment for LGBT people.  This post focuses in particular on the treatment of transgender and intersex athletes under the rules enforced by international sporting federations.  In attempting to get ahead of the curve with transgender issues, with the stated aim of protecting the sporting integrity (and therefore the reputational and commercial value) of competitions by minimising sex-related advantages, the IOC has a long history of insensitive and often unproductive testing protocols for athletes.  As it is probably the most visible of all international sporting federations, the IOC became the standard bearer for such testing policies and, indeed, it has been argued that IOC policies gave impetus (and sometimes political cover) for other groups to follow suit.

Gender/Sex Verification Tests and the Stockholm Consensus

The issue of gender- or sex-verification gained global attention in recent times after South African runner Caster Semenya was ordered to undergo tests after winning the 800m world title in 2009.  She was eventually cleared to compete by the IAAF and won silver in the 800m at the 2012 London Olympics.

IOC had maintained a practice of conducting gender verification tests at the Olympic Games, with the testing of Dora Ratjen in 1938 and Foekje Dillema in 1950 being early cases to gain attention.  The initial testing protocols amounted to rather crude and undoubtedly humiliating physical examinations.  These techniques later gave way to the method of determining ‘sex’ chromatin through buccal smear examination, introduced at the Mexico City Olympic Games in 1968. Chromosome-based screenings were criticised for being unscientific and unfairly excluding many athletes, in particular since only the chromosomal (genetic) sex is analysed by sex chromatin testing, not the anatomical or psychosocial status.  These techniques were abandoned by the IAAF in 1991 and the IOC since Sydney 2000.

Under the so-called Stockholm Consensus, the IOC granted permission for men and women who had undergone gender reassignment surgery to participate in competitive sport.  The Consensus recommended that individuals undergoing sex reassignment from male to female after puberty (and the converse) be eligible for participation in female or male competitions, respectively, once surgical anatomical changes had been completed (gonadectomy), legal recognition of their assigned sex had been conferred; and verifiable hormonal therapy had been administered for a sufficient length of time to minimise gender-related advantages. Under the Consensus, eligibility for competition could begin no sooner than two years after the athlete’s gonadectomy.

Regulation of Hyperandrogenism in Female Athletes

Hyperandrogenism is a term used to describe the excessive production of androgens (testosterone).  Given its influence on endurance and recovery, controversies have arisen in the past surrounding cisgender women athletes with high levels of testosterone.  An Indian sprinter, Dutee Chand, was suspended by the IAAF in 2014 due to her elevated testosterone levels.  However, the Court of Arbitration for Sport (CAS) suspended the IAAF rule in July 2015, on the grounds that the IAAF had failed to prove that women with naturally high levels of testosterone had a competitive edge.  The CAS ordered the IAAF to present new scientific evidence regarding the degree of competitive advantage enjoyed by hyperandrogenic females by July 2017, otherwise its 2011 Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition would be declared void. 

While Chand was cleared to compete following her high profile appeal, a study published in April 2013 in the Journal of Clinical Endocrinology & Metabolism, a US peer-reviewed journal for endocrine clinical research, recounts the rather less fortunate fate of four anonymous young athletes who, it appears, were effectively forced to undergo surgery to allow them to compete in women’s sports ahead of the 2012 Olympics.  When the story emerged in June 2013, the IAAF reportedly denied that it had taken place.

The young women, who were 18, 20, 21, and 20 years of age at the time of the study, came from rural or mountainous regions of developing countries.  Clinical inspection of the women revealed varying degrees of intersexuality: they had never menstruated and had male bone characteristics, no breast development and partial or complete labial fusion.  Consanguinity was confirmed for three of them (first cousins in two cases and siblings in another) and was suspected in the fourth case with her parents originating from neighbouring villages.  The authors of the report opine that the gender abnormalities of the athletes may not have been formally diagnosed or given medical attention because they had been born in rural regions of countries with poor care.  In all cases, they were tall, slim, muscular women and had manifested strong motivation and high tolerance to intensive daily training, which had made them good candidates for elite sports competition. 

Rather than requesting gender change, the study reports that the athletes wished to maintain their female identity in order to continue elite sport in the female category.  Although leaving male gonads carried no health risk, and despite the negative effect that a gonadectomy would have on their performance levels and general health, the athletes underwent the feminising surgical procedures.  The study concludes that the sports authorities then allowed them to continue competing in the female category one year after their procedures.  The radical nature of the surgery required, as well as the unknown future impact on the athletes’ health, highlight the dangers of such policies for inclusion in women's sporting events.

New IOC Guidelines

Under new IOC Transgender Guidelines, which were reported as stemming from an unpublicised Consensus Meeting on Sex Reassignment and Hyperandrogenism, surgery such as that described above will no longer be required.  Female-to-male transgender athletes are now eligible to take part in men’s competitions “without restriction”, while male-to-female transgender athletes will need to demonstrate that their testosterone level has been below 10 nanomols per litre for at least one year before their first competition.  That said, the IOC document does contain a provision allowing for a the imposition of a period of longer than one year, based on a confidential case-by-case evaluation, considering whether or not 12 months is a sufficient length of time to minimize any advantage in women’s competition.  No further detail is provided on the nature of these case by case evaluations so it is unclear just how much progress these guidelines actually represent compared to the crude sex verification tests used in the past.  Again, the IOC justifies these regulations as being necessary to avoid accusations of an unfair competitive advantage. 

The IOC document also refers directly to CAS decision in relation to Dutee Chand.  Specifically, the IOC encourages the IAAF, with support from other International Federations, National Olympic Committees and other sports organisations, to revert to CAS with arguments and evidence to support the reinstatement of its hyperandrogenism rules.  Therefore, the IOC’s appears to contest the validity of the CAS award and seems determined to provide scientific grounds for upholding its ban on female athletes with elevated levels of testosterone, even where it is naturally occurring and the athletes’ bodies are partially unable to process it.

Taken together, the net result of these regulations is that if a female transgender or intersex athlete’s natural testosterone levels are considered too high, she is expected to undergo treatment to reduce her testosterone to levels considered to be within the normal range for women before being allowed to compete in women’s sports.  This has come to be the subject of severe criticism because it is argued that such athletes are being medically harmed by sport under these regulations.  Testosterone is essential for the development of male growth and masculine characteristics, and is vital for any athlete in aiding recovery times from physical exertion.  Although the health effects of the presence of high levels of testosterone in women’s bodies is still the subject of research, testosterone occurs naturally in both males and females and would appear to be vital for the body’s all-round health.

Kristen Worley Litigation

The potential for these testosterone limits to lead to harm to the athletes involved is the focus of a major case being brought by a Canadian cyclist, Kirsten Worley, a female athlete who has transitioned from male to female by undergoing sex reassignment surgery with the result that she no longer produces either testosterone or estrogen.  She alleges that the Ontario Cycling Association and Cycling Canada Cyclisme gender verification and anti-doping rules discriminate against her on grounds of sex, contrary to the Canadian Human Rights Code.  The rules in question are based on the Union Cycliste Internationale (UCI) directives which are, in turn, based on IOC policies.  Worley claims that these policies have damaged not only her ability to continue taking part in competitive cycling, but also her health. 

Interestingly, Worley effectively bypassed international sport's usual dispute-settlement procedures by bringing her claim through the mainstream human rights judicial instances.  After the preliminary issue of whether the respondents received effective legal notice, a further dealy was caused when the IOC requested that the Tribunal defer consideration of Worley’s application pending the completion of a judicial review application commenced by the IOC.  The IOC also argued  that the Human Rights Tribunal of Ontario was not competent to hear the case, since it concerns sporting rules.  Likewise, the UCI objected to the Tribunal’s ability to adjudicate and argued that the UCI Arbitral Board and/or the Canadian Center for Ethics in Sport are the competent authorities to address the allegations contained in Worley’s application. 

Next Steps

Importantly, the court hearing the preliminary proceedings in the Worley application held that it is established law that parties cannot contract out of the Canadian Human Rights Code’s protections.  Therefore, the court rejected the proposition that the Human Rights Tribunal lacked jurisdiction purely because there are alternate mechanisms to which Worley could have, but did not, file a claim.  As such, the Worley litigation is extremely interesting as it will be a rare instance of the sheltered world of international sporting organisations being subjected to the full rigours of human rights principles.

It will be very interesting to follow how this claim is dealt with by the Canadian courts, and received by the international sporting community generally, in the months and years to come.  Worley herself has pursued this campaign for over a decade and, given the publicity garnered by the latest steps in her litigation, it now appears to have the potential to inspire other athletes to avail of human rights avenues to open up sports-based disputes to courts of law rather than courts of arbitration.  From the IOC’s perspective, it is clear that it has a legitimate interest in acting to preserve fair competition but this agenda cannot be pursued irrespective of the repercussions.  The most recent changes to its Transgender Guidelines are expressly stated to have been introduced in recognition of how requiring surgical anatomical changes as a pre-condition to participation may be inconsistent with “notions of human rights”.

If nothing else, the new IOC Transgender Guidelines proves that international sport does not operate in a vacuum and is capable, to some extent at least, of reflecting social progress.  However, it remains to be seen whether the most visible sporting governance body is prepared to play a true leadership role in utilising all the benefits of sports in helping to change perceptions of transgender and intersex athletes.  In that sense, the Kirsten Worley litigation represents a crystallisation of a struggle to apply human rights principles in a new area and, as such, will be worthy of our attention going forward.

The FIFA World Cup 2022 in Qatar is now well under way, yet the relentless public debates around Qatar’s human rights record, be it regarding the rights of LGBTQ+ or the rights of migrant workers who built the infrastructure that underpin the competition, is not dying down. In fact, the whole build-up towards the event has been defined by an intense public scrutiny of Qatar, with civil society organizations and international labor unions engaging in continuous advocacy to report on and improve the living and working conditions of migrant workers active on Qatar’s many building sites. This issue also attracted attention and critique from both the international media and public authorities all around the globe. In fact, the question of Qatar’s (lack of) compliance with internationally recognized human rights and core labor standards caused so much negative publicity and external pressure that a number of legislative and institutional reforms were initiated, officially aimed at improving the rights and standing of migrant workers in Qatar. While it is highly disputed whether these reforms have led to actual changes on the ground or should be seen only as window-dressing, it remains clear that the global public attention brought to Qatar by its hosting of the FIFA World Cup 2022 has forced the Qatari authorities to engage legislative reforms and pay at least lip service to the concerns raised.

In spite of the fact that this issue continues to play a major role in the transnational public discourse, it received until now relatively scant attention in the academic literature, specifically in the international/transnational legal field. Yet, the debates around the Qatar 2022 World Cup are in practice mobilizing a range of legal arguments connected to the interpretation and application of international human rights law and international labor law, as well as activating international (at the ILO) or transnational (at the Swiss OECD National Contact Point) legal processes. Furthermore, they raise well-known questions regarding the compliance of states with international legal commitments and connect with debates on the universality of human rights and their translation in particular social contexts. In short, we believe there is room for a multi-disciplinary engagement with the legal processes and social mobilizations triggered by Qatar’s successful bid to host the FIFA World Cup 2022 and their impacts on local social and legal rules and institutions. Hence, Qatar’s journey towards the FIFA World Cup 2022 constitutes an interesting case study to investigate more generally the transnational social and legal mechanisms which underpin the concretization of international (human rights/labor) law in a particular context and give it a specific reality.

We invite paper submissions from different methodological backgrounds (e.g. law, anthropology, sociology, history, public policy) which engage with the many entanglements of Qatar with international (human rights and labor) law in the context of the organizing and hosting of the FIFA World Cup 2022. The papers will be first discussed in a digital workshop that will take place on 15 and 16 February 2023. Please note that we have an agreement with the German Law Journal (Open access journal on comparative, European and international law published by Cambridge University Press) to publish a selection of the papers.

If you wish to participate in the workshop and the ensuing publications, please send an abstract of max. 300 words and a CV to a.duval@asser.nl by 6 January 2023. The selected participants will be informed by 9 January 2023. Extended abstracts (2000 words) will be due on 6 February 2023.

Supported by

Editor’s note: Guido graduated cum laude from the Vrije Universiteit Amsterdam. He teaches law at the Erasmus Universiteit Rotterdam. He specializes in sports law and provides legal advice for the professional sports sector.

Introduction

This blog is a commentary on a recent case that hit like a bombshell in the Netherlands (and beyond) during the recent Olympic Games in Rio. The case concerns a Dutch athlete, Yuri van Gelder, who reached the Olympic finals in his sport, got sent home by ‘his’ NOC (NOC*NSF) after a night out in Rio and launched legal proceedings in front of a Dutch court to claim back his place in the finals. This commentary will attempt to explain the Dutch ruling and evaluate whether a different legal route would have been possible and preferable.

Yuri van Gelder is a Dutch gymnast, who is specialized in the rings. He became internationally known as ‘The Lord of the Rings’ after winning the gold medal at the World Championship in Melbourne in November 2005. After some setbacks in his career, he was not able to qualify for the 2008 Beijing Olympics. In 2009, during the Dutch Championships he was tested positive on the use of cocaine. He admitted that he had a drug problem and had been using cocaine for some years. He was suspended for a year by the Dutch Gymnastics Federation (KNGU), excluded from the 2012 London Olympics under the regulations of the IOC and even lost his job in the military. After winning the gold medal at a World league game in Gent on his comeback in 2010, he was taken off the team for the World Championships by the KNGU, claiming that he had used cocaine again.

In October 2011 the CAS found the IOC-rule that excluded athletes, who had been suspended for six months or longer, from future Olympic Games to be invalid and unenforceable. Van Gelder was therefore allowed to participate at the 2012 London Olympics, but again was not able to qualify, after failing to meet the required score at the World Championship in Tokyo at the end of 2011. From that moment on, the athlete decided to fully focus on the 2016 Rio Olympics, for which he eventually qualified. Like all other Dutch athletes who qualified and had been selected for the 2016 Rio Olympics, Van Gelder had to sign a so called ‘Athlete Agreement’ with NOC*NSF, which encapsulates the period of preparation before as well as the duration of the Games. At 33 years of age, these Olympics were his last chance to finally win that Olympic medal he so anxiously craved for.

Sent home from the Olympics

On Saturday 6 August in Rio, Van Gelder qualified for the individual finals on the rings, which were to take place nine days later, on 15 August. That same Saturday night he left the Olympic village and came back somewhere around 5 am. On Sunday he stayed in bed until approximately 3 pm, thereby missing a scheduled training session with the team. On Monday 8 August, the NOC*NSF, after hearing Van Gelder, disqualified him from further participation in the Games. That same day, an NOC*NSF employee was sent with the athlete to escort him to the airport from where he was flown back to the Netherlands. The NOC*NSF then removed Van Gelder from the finals through the International Gymnastics Federation (FIG), which appointed a replacement. A short press release by NOC*NSF stated that, in consultation with the KNGU, Van Gelder was sent home after the Federation had informed the NOC that he had come back to the village early in the morning, in spite of the team rules. It further stated that the athlete had admitted to the use of alcohol. This fueled speculation in the media, considering Van Gelder’s past. However, there was also criticism regarding the NOC*NSF’s decision, as many felt that it was disproportionate to disqualify an athlete, who had worked so hard to reach the finals, for celebrating one night out with still more than a week to go to those finals.

Van Gelder, now back in the Netherlands, took a lawyer and decided to start proceedings in front of the Dutch interlocutory judge of the Court of Gelderland (the Van Gelder Case). The oral proceedings, broadcasted live on Dutch television, took place on Friday 12 August, three days before the Olympic finals.

The ruling of the interlocutory Judge of Gelderland

Van Gelder’s lawyer requested from the court to order NOC*NSF to do everything in its power to make sure Van Gelder could participate in the individual finals on the rings on 15 August, including starting proceedings before the CAS Ad Hoc Division in Rio, or that NOC*NSF assist Van Gelder in starting proceedings for the CAS Ad Hoc Division and grant him a fee in advance for the costs.[1]

The court had to determine on which grounds the decision(s) to disqualify Van Gelder from participating in the Games had been taken and whether the severity of the measure(s) was proportionate in relation to the noncompliance with the obligations laid down in the Athlete Agreement. In doing so, the interlocutory judge applies a ‘marginal test’, which means he will keep certain deference towards the challenged decision and will consider only whether the decision ‘could reasonably have been made’.

The Athlete Agreement states that the athlete is expected to make every effort to ensure that he is capable of the maximum athletic performance, in preparation for and during the Olympics, and thereto devotes himself to the ‘Program’ completely and with optimal athletic effort.[2] Furthermore, the athlete is expected to behave as a good member of ‘TeamNL Rio 2016’ both during competition and elsewhere, having in mind the rules of the IOC Code of Ethics but not only.[3] If the athlete is not complying with the obligations as laid down in the Agreement, the NOC*NSF can decide to exclude the athlete from participating in the Games and/or impose a loss of (the right to) a medal bonus.[4] Before taking such a decision the athlete always needs to be heard/questioned.[5]

The court held for a fact that Van Gelder was told by his trainer through ‘WhatsApp’ not to stay out too late, that he should not drink and that he had to train the next day with the team.[6] However, the court was not convinced of Van Gelder’s noncompliance with the ‘behavioral rules’ enshrined in article 6, paragraph 4 of the Athlete Agreement. The Athlete Agreement or the IOC Code of Ethics do not define or specify clearly what these ‘behavioral rules’ stand for, even though the measures the NOC can take can severely affect the athlete. The court considers that these kind of behavioral rules should be drafted more precisely and should be communicated more clearly to the athletes. Thus, merely leaving the Olympic village without permission, drinking, and coming back early in the morning cannot be seen as violating article 6, paragraph 4 of the Agreement with the NOC.[7]

However, the fact that Van Gelder was warned and still went out drinking, came home early in the morning and missed a scheduled training, is undoubtedly coming short of the obligation laid down in article 6, paragraph 3 of the Athlete Agreement. This behavior is contrary to his duty to commit to the training and competition schedule.[8] Furthermore, the court continued, the athlete’s behavior undermined the team’s efforts and, considering Van Gelder’s past, this has resulted in a breach of trust with his trainer and with the NOC*NSF. Although it is possible that, based on this behavior, another NOC would have taken a different decision than kicking the athlete out of the Olympics, the court considers this irrelevant as it only applies a marginal test.[9] In addition, Van Gelder was questioned and heard twice before the decision was made. The decision therefore cannot be considered to have been made in haste or without proper deliberation.[10] In the end, the court determined that the NOC*NSF could reasonably decide that Van Gelder has committed a serious breach of his contractual duties under the Athlete Agreement. The same applied to the decision to disqualify Van Gelder from further participation in the Games.

A different legal route: The CAS Ad Hoc Division in Rio

Could Van Gelder, instead of going to the Dutch court, have taken a different strategic approach in this case? In the author’s opinion this would have been possible, as the CAS has (since the 1996 Atlanta Olympics) set up an Ad Hoc Division with the purpose of providing for arbitration of disputes, insofar as they arise during the Games, within 24 hours.[11] In the case of a request for arbitration against a decision by an NOC, the claimant must, before filing such a request, have exhausted all the internal remedies available to him pursuant to the statutes or regulations of the sports body concerned, unless the time needed to exhaust the internal remedies would make the appeal to the CAS Ad Hoc Division ineffective.[12] In this case, the internal remedy can be found in the Athlete Agreement, which states that when a dispute arises between the parties during the Games concerning or related to the compliance of the Agreement, the concerned party informs the so-called ‘Chef de Mission’. If the Chef de Mission is incapable of resolving the dispute, it will be send to a committee of binding advisors.[13] This committee has jurisdiction in case of urgency and where the athlete and NOC*NSF both choose an advisor, both advisors in turn choose an independent chairman, after which the committee gives a binding decision to end the dispute.[14]

Why Van Gelder had not chosen to apply the internal dispute resolution procedure of article 22, paragraph 3 and 4 of the Athlete Agreement is not clear from the facts of the case. In that regard, the events of 8 August, when Van Gelder was questioned or heard, become (even more) important. The Dutch courts stated that Van Gelder was questioned twice by the NOC*NSF, but did not clarify what was discussed. The only sure thing is that directly after the decision by the NOC*NSF, Van Gelder was escorted to the airport and flew back to the Netherlands. Would he still have left the country if he had been informed that the Agreement provided for an internal procedure within NOC*NSF, aimed at resolving disputes during the Games, in which he had the right to appoint one of the binding advisors? If such a procedure would have taken place and Van Gelder would have lost, an appeal in front of CAS would still have been possible. Furthermore, would he have chosen to fly back, if he had been advised that the CAS Ad Hoc Division had jurisdiction in cases of urgency or if the NOC was unwilling or unable to trigger its internal procedure? Would he have made the same choices had he known that it would help his case before the CAS Ad Hoc Division if he had attended any hearing in person?

What is clear is that Van Gelder got legal representation when he was back in the Netherlands. At that point a flight back to Rio was rather costly for the athlete. An internal procedure with the NOC*NSF might have been impractical to carry out with eight days remaining to the final, but informing the NOC*NSF in writing that there was a dispute and requesting an internal procedure could have (regardless of the NOC’s reaction) helped to establish the jurisdiction of the CAS Ad Hoc Division if needed. This CAS Ad Hoc Division procedure could also have been started from the Netherlands.

Conclusion

The remaining unknown is whether the CAS Ad Hoc Division would have ruled in favor of Van Gelder and/or have granted him access to the finals. As the Dutch court stated, the Athlete Agreement is rather unclear with respect to the obligation of an athlete to act as a good team member. The CAS Ad Hoc Division might have taken this vagueness into consideration. Furthermore, the CAS Ad Hoc Division would not have applied the same level of deference as the Dutch court. It could have also taken into account the fact that the consequences of the decision of the NOC*NSF were very severe for the athlete, especially since this would be his last Games. Against all this, the fact would have remained that the behavior of the athlete did breach article 6, paragraph 3 of the Athlete Agreement and that a replacement for Van Gelder in the finals was already appointed. Yet, even if the CAS had invalidated the decision by the NOC without granting Van Gelder a place in the finals, he would have been in a good position to claim damages.

The conclusion that can be drawn from this episode is that Van Gelder could have followed a different legal route. This might have provided the athlete a better chance at winning his legal challenge and get back into the Olympics. The Dutch court has made it clear that it wants the ‘behavioral rules’ drafted by the NOC*NSF, or other sports bodies for that matter, to be more precise and better communicated to the athletes, especially when the measures at the disposal of the NOC can severely affect the rights of an athlete. Besides not drinking, going to bed on time, and never missing training a week before the most important finals of your life, there is another lesson to be learned from the case. As an athlete, when facing sanctions from a Federation, NOC or other SGBs, it is wise to get legal representation immediately. This might increase your chances of successfully challenging the decision and taking part in the Olympic Games or any other competition.

[1] Van Gelder Case, point 3.1.

[2] Article 6, paragraph 3, Athlete agreement. The Program is defined in the agreement as: The training and competition schedule for the Athlete, approved by the Federation after consultation with NOC*NSF, with the goal of qualifying for and participating in the Olympic Games.

[3] Article 6, paragraph 4, Athlete agreement. TeamNL Rio 2016 is defined in the agreement as: The group of both athletes and their trainers/coaches, that is participating in the Olympic Games (and with whom NOC*NSF has a written agreement for the Olympic Games Rio 2016) and that has asked for accreditation by OCOG through NOC*NSF.

[4] Article 20, paragraph 1, sub a and b, Athlete Agreement.

[5] Article 20, paragraph 2, Athlete Agreement.

[6] Van Gelder Case, point 4.3.

[7] Ibid, point 4.6.

[8] Ibid, point 4.7.

[9] Ibid, point 4.9.

[10] Ibid, point 4.10.

[11] See on the CAS Ad Hoc Division for example: C. Keidel and A. Engelhard,’The Legal Framework of the CAS Ad Hoc Division at the Rio Olympic Games’, LawInSport August 4 2016, via: http://www.lawinsport.com/articles/item/the-legal-framework-of-the-cas-ad-hoc-division-at-the-rio-olympic-games, viewed on the 24th of August 2016. And from the same authors: ‘Key Ad Hoc Division Cases handed down at the Olympic Games, LawInSport August 4 2016, via: http://www.lawinsport.com/articles/item/key-cas-ad-hoc-division-cases-handed-down-at-the-olympic-games, viewed on the 24th of August 2016.

[12] See Article 1 of the Arbitration Rules applicable to the CAS ad hoc division for the Olympic Games.

[13] Athlete agreement, Article 22, paragraph 4.

[14] Ibid, Article 22, paragraph 3.