Simon Grossobel, Partner
The Court of Arbitration for Sport (“CAS”) has recently published the decisions taken by its Ad Hoc Division set up for the Tokyo Olympics, three of which concern the doctrine of ‘field of play’ decisions. It is notoriously difficult to bring a successful challenge to a field of play decision and these cases serve as a good reminder to stakeholders that are assessing whether a potential appeal is meritorious.
The three decisions referred to are:
- CAS OG 20/10 NOC Belgium v. World Athletics & USOPC & NOC Dominican Republic CAS OG 20/11 NOCNSF v. World Athletics & USOPC & NOC Dominican Republic (the “Mixed Relay Case”)
- TAS OG 20/14 Mourad Aliev & Fédération Française de Boxe & Comité National Olympique et Sportif Français c. IOC Boxing Task Force & Frazer Clarke & British Olympic Association (the “Aliev Case”)
- CAS OG 20/15 Yuberjen Martínez & Colombian Olympic Committee & Colombian Boxing Federation v. IOC Boxing Task Force (the “Martínez Case”)
Brief Summary of the Facts
The Mixed Relay Case
In the Mixed Relay Case challenges were brought by the Belgian National Olympic Committee and the Netherlands Olympic Committee following the Mixed 4 x 400m Relay result.
On 30 July 2021, the USA and Dominican Republic finished first and second in the first heat of the Mixed 4 x 400m Relay, with Belgium finishing third. At the end of that race, the USA and Dominican Republic were disqualified from participating in the final. The USA was disqualified for exchanging the baton outside of the designated zone for baton exchange. The Dominican Republic was disqualified for switching lanes from the outside position to the inside lane.
The following day, a World Athletics Jury of Appeal overturned both disqualifications because the athletes had been placed in the incorrect positions by the match officials. The USA and Dominican Republic were therefore both permitted to race in the final, together with the teams with the best 8 valid performances in the heats. This resulted in Germany’s participation since it was within the top 8, so a total of 9 teams as opposed to the traditional 8 were permitted to race in the final. Poland, Dominican Republic and USA won gold, silver and bronze, with Netherlands and Belgium finishing fourth and fifth respectively.
The Aliev Case
The Aliev Case concerned the disqualification of Mourad Aliev, the French boxer, in his Super Heavyweight quarterfinal bout with the British Frazer Clarke. Aliev cut the browbone of Frazer 10 seconds from the end of the second round, after which the referee stopped the clock, warned the French boxer and then disqualified him. Frazer Clarke went on to win the bronze medal.
The Martínez Case
In the Martínez Case, Japan’s Ryomei Tanaka was judged to beat Colombia’s Yuberjen Martínez on a split decision in the Boxing Men’s Fly division. The fight was a close one (which is confirmed by the fact that the decision was split), but the Colombian Olympic Committee felt that the decision taken by the judges on the day was incorrect. Tanaka ended up leaving the arena in a wheelchair, something that the Japanese Olympic Committee put down to dehydration, whereas the Colombian boxer was able to walk out unaided.
The first respondent in both the Aliev Case and the Martínez Case was the Olympic Boxing Task Force (“BTF”) which replaced the International Boxing Association (“AIBA”) at the Olympic Games and is responsible for ensuring high standards of credibility and integrity in the refereeing and judging selection process.
The Ad Hoc Division: jurisdiction and admissibility
The Ad Hoc Division of the CAS is set up to resolve arbitrations brought under Rule 61 of the Olympic Charter, and this is where the CAS derives its jurisdiction to deal with field of play disputes that occur during any Olympic Games:
61(2). Any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport, in accordance with the Code of Sports-Related Arbitration.
61(2) is drafted broadly, and so it follows that any dispute that arises out of a competition and an Olympic Games may ultimately be submitted to the CAS. It is important to remember that any appeal must follow the exhaustion of ‘internal’ or ‘local’ remedies before the CAS will accept jurisdiction (see CAS 2014/A/3775). Thus, where the relevant sports federation or competition organiser provides for an appeal process, this must be the first port of call. This can create an issue for stakeholders that are keen to bring a CAS appeal before a result is confirmed or before a further stage is taken in a competition, which could lead to an appeal prejudicing other competitors who progress to the next stage.
In the Mixed Relay Case, World Athletics relied upon Article 8.11 of the World Athletics Technical Rules, which provides that the findings of the Jury of Appeal are final, with “no further right of appeal, including to CAS.” World Athletics argued that the CAS did not therefore have jurisdiction to review the field of play decision. The Panel found that it did in fact have jurisdiction, by reference to 61(2) of the Olympic Charter, and that any restriction on reviewing field of play decisions was “not an issue of jurisdiction, or of admissibility […]” but rather “a decision on the merits of the appeal or on the substantive law”.
On the Merits
The bar set for challenging a field of play decision is extremely high. In order to bring a successful challenge, an appellant must show bad faith, bias or demonstrate that the decision was made arbitrarily:
“The Panel has jurisdiction and the power to overturn a field of play decision. However, it is very well established in CAS jurisprudence that, for a CAS Panel to overturn a field of play decision, there must be direct evidence that establishes, to a ‘high hurdle’, bad faith or bias (CAS OG 00/103; CAS OG 16/028), or, for example, that the decision was made as a consequence of corruption (CAS OG 00/013) or arbitrarily (CAS OG 12/010).”
The Panel in each case also referred to the expertise of the ‘on field judges’, who, unlike CAS arbitrators, are chosen for their expertise in any particular sport or discipline. Finally, the doctrine that protects field of play decisions is also one that satisfies the need for finality in sporting competitions.
All three cases were brought on different grounds, but crucially no appellant was able to produce substantive evidence of bad faith or corruption, or that a decision was taken arbitrarily. In the Mixed Relay Case bad faith was not even alleged, and in the Martínez Case the appellants sought to rely on the opinions of news outlets and boxing coaches. In relation to the latter, the subjective opinions of third parties were not enough, despite the Latin American press organisation Al Día News referring to the decision to award the Japanese boxer the victory as “one of the biggest discontents in Latin America”.
In the Aliev Case an interesting argument was raised concerning the purported arbitrariness of the decision taken to disqualify the French boxer. It was submitted that there were several technical refereeing faults which involved decisions over which the referee had no margin of appreciation i.e. the adjudicator was not able to exercise discretion.
The appellants referred to Rule 23.1 of the Event Regulations for the Olympic Boxing Qualifying Events and the Boxing Tournament at the Olympic Games Tokyo 2020 (IOC Boxing Task Force Amendments to the AIBA Technical & Competition Rules) which provides that competitors who break the rules may be “warned, cautioned or disqualified.” The appellants specifically relied upon the use of the word “or” to argue that that the referee may only take one action, however in this case, the referee appeared to warn the French boxer and then subsequently disqualify him.
Having reviewed the video evidence, the Panel did not find that that the disqualification of the French boxer was caused by “fraud, bad faith or corruption” nor did it find that the “rules were applied arbitrarily”.
However, the Panel did raise concerns about the decision taken by the match day adjudicator and “did not exclude the possibility of significant refereeing errors.” Further, the Panel “stressed the importance of the [BTF] in ensuring that such errors, if they really took place, cannot reoccur.” Despite the Panel’s apparent criticism, this was not enough to uphold the appeal.
These cases show that absent tangible evidence of bad faith or corruption, it is highly unlikely that a CAS appeal challenging a field of play decision will be successful. Even where stakeholders can point to errors made in relation to the applicable rules or regulations, that is not likely to be enough to overcome the high bar set in relation to the CAS’ field of play doctrine.
If you require any advice on sporting regulation or disputes, please get in touch with Simon Grossobel or Robert Kay, Partners in our Litigation Team.
Please note – this article does not constitute legal advice.
 CAS OG 20/10 NOC Belgium v. World Athletics & USOPC & NOC Dominican Republic CAS OG 20/11 NOCNSF v. World Athletics & USOPC & NOC Dominican Republic
 The decision referred to the provision in French as ““prévenu, averti ou disqualifié”