The Paris Olympics: Navigating the legal hurdles off the track

The long-awaited Paris Olympics finally got underway on Friday 26 July and for the next month the world's attention will be once more focused on the athletes' quest for glory. However, the battles will not only be fought on the track, field, or pool. Behind the scenes, a myriad of legal disputes and risks are expected to arise, requiring swift and effective resolution to ensure the smooth running of the Games.

In a packed competition schedule, with athletes from around the world fiercely competing for medals and the public eye firmly turned to the events in Paris, various potential legal conflicts such as in-game disputes, anti-doping, and commercial disputes will need speedy and effective dispute resolution in order to minimise the disruption to the sporting events. This is all the while amidst a tense geo-political backdrop where athletes have been banned by the International Olympic Committee (IOC) from competing under some nation's flags (Russia and Belarus), and there have been calls for the same to apply to other nations due to wars waged around the world. 

This post provides an overview of the key disputes and dispute resolution mechanisms which will play a role in resolving legal conflicts during the Paris Olympics over the next month. 

CAS authority and dispute resolution in the Games 

The Court of Arbitration for Sport (CAS) was established in 1984 by the IOC to deal with legal problems athletes can face, and has operated since then out of Lausanne, Switzerland. The CAS has since been transferred to the governance of the International Council of Arbitration for Sport and is now an independent institution which provides services for the settlement of sports related disputes through arbitration or mediation. The CAS is known for its speedy and flexible dispute resolution service which goes to the nature of sporting competition and the need to have disputes resolved quickly so that there is confidence in the result of the competitions, and athletes can retain their right to compete fairly. 

The jurisdiction of the CAS to settle legal disputes arising from the Olympics arises from Article 61.2 of the Olympic Charter¹ which gives the CAS exclusive jurisdiction over these matters. Like with any arbitral body, agreement from the parties is required in order to participate in the arbitration. Athletes and organisations can of course resort to normal civil routes to justice as well, however it is unlikely to give quick remedies as is needed during the competition, and in their entry forms or employment contracts often a CAS arbitration clause will be included. 

During the Olympics, CAS establishes bespoke ad hoc tribunals which aim to deal with disputes arising specifically from the competition and aim to provide rapid justice so as to cause minimal disruption to the sporting events and competition schedules. Provided the dispute arises during the Games or within 10 days of the opening ceremony the ad hoc tribunal will deal with cases of athlete eligibility, in game decisions and disciplinary action. Decisions can be issued within 24 hours in urgent cases, and often this is required due to the nature of the daily competition. 15 cases of Olympic-related disputes were accepted by the ad hoc division of the CAS in Tokyo in 2021², and already in Paris there have been referrals and appeals to the CAS for example by Canada Soccer (football federation) against FIFA's point deduction for spying on an opponent's training session prior to an Olympic match³. 

Since the Rio Olympics in 2016, the CAS has also established a bespoke ad hoc tribunal specifically handling potential anti-doping cases referred to it by the International Testing Agency (ITA) in accordance with the IOC Anti-doping Rules, and this tribunal will likely also play a role in dispute resolution over the coming month. 

The typical process for filing a complaint with CAS is as follows:

1. Aggrieved party must submit a detailed complaint to CAS, specifying what relief is sought. 
2. A preliminary hearing may be held to determine admissibility of the case. 
3. Both parties will have the opportunity to prevent evidence.
4. A formal hearing is held where selected arbitrators will give a decision. 

The CAS will aim to get through all of these steps within 24 hours of a dispute arising. The categories of disputes which arise during the Olympics, and which the CAS will have to consider often fall into one of the areas detailed below.

Disciplinary disputes and Qualification 

Rule 44 of the Olympic Charter outlines the criteria that athletes must satisfy to participate in the Games. Disputes over qualification and selection (including disputes against athlete's own country's selection policies) can persist up to and even during the Games. These challenges will only be successful if the decision is shown to be arbitrary, unfair or unreasonable. 

The CAS also has jurisdiction over disciplinary matters arising during the Olympics. Common disciplinary disputes include violations of conduct code and breaches of competition rules. These can have serious consequences if referred to CAS and lead to disqualifications or suspensions.  

Field of play disputes

Field of play decisions are typically considered final in order to maintain the integrity of events. The CAS can only intervene in extraordinary circumstances where there is evidence of arbitrariness, bias, or procedural violations. CAS jurisprudence has established that it will only overturn field of play decisions where there is direct evidence of bad faith, bias or the decision was made as a result of corruption⁴. In Tokyo 2021, this high bar was demonstrated by CAS's rejection of National Olympic Committee (NOC) Belgium's application seeking the annulment of the reinstatement of the USA and Dominican Republic relay teams to the 4 x 400 mixed relay finals. They had initially been disqualified for exchanging their batons outside the designated takeover zone, and switching lanes, both acts which gave advantages to the respective teams, and were illegal under the rules of the race. Nonetheless, the challenge against reinstating the teams was rejected with CAS also citing the fact the race had already been run as a reason for not intervening⁵.

Due to the high threshold, narrow timelines, and requirement for evidence of bias, procedural violation or arbitrariness, field of play challenges are rare. When there is a challenge this can bring the attention of the media and public due to the direct impact it will have on the result of the competition. This also increases the importance of a speedy resolution. 

Anti-doping

The issue of anti-doping is one of the most critical and most considered by the CAS, which has established an ad hoc tribunal during the Olympics exclusively dealing with anti-doping cases. Its primary function is to ensure athletes compete cleanly and fairly which in turn allows for public confidence in the sport and in the result. Athletes will undergo rigorous testing under global anti-doping governance, however should a positive test come back during the Olympics, they will have the right to appeal to the CAS anti-doping ad hoc division. 

Global anti-doping organisations will also use the CAS mechanism to challenge athletes who they believe have been doping⁶ as the CAS can rule on banning the athlete from the Olympics and future competitions. Anti-doping cases bring significant challenges to the CAS arbitrators, and to representatives due to the often high profile nature of the disputes, the need to balance speed and fairness, and the scientific and technical evidence required to consider cases. 

Marketing and commercial disputes

With viewing figures in the billions, sponsors pay significant sums to the IOC to sponsor the Olympics. The IOC has stringent advertising regulations based on Rule 40 of the Olympic Charter, which states that the IOC Executive Board guidelines must be followed in advertising during the Games. Alongside Rule 40, the IOC has also released illustrative guidance for commercial opportunities for non-Olympic partners, and a key principles document for athletes. Conduct which is detrimental to sponsors will draw the attention of the IOC and this will lead to disputes both with participants in the Games and third-parties. 

Detrimental conduct for sponsors can range from inappropriate behaviour such as criminal activity or doping, to more commercial contractual violations of sponsorship agreements such as wearing non-approved sportswear or failure to meet performance expectation clauses. Athletes making politically charged statements will also draw the attention of sponsors and can lead to disputes due to conflicting with the IOC's rules on political neutrality⁷ and often a sponsor's desire to avoid controversy which can be reputationally damaging. Prior to the start of the Paris Olympics the IOC released a statement reaffirming its position against the politicisation of sport⁸.

Four types of marketing disputes that are therefore likely to arise include:

1. Athlete vs. IOC – athletes will have personal sponsorships and there may be disputes relating to scope and interpretation of Rule 40, especially as the Olympics is a time where athletes will be looking to capitalise on their peak visibility. 
2. Athlete vs. NOC – athletes may also have disputes against their own Olympic committees due to differing interpretations of Rule 40.
3. Sponsor vs. IOC – official sponsors may exceed the scope of their commercial rights or infringe on the IOC's marketing rules, resulting in claims by the IOC. 
4. IOC vs third party non-sponsors – as set out above, the IOC will be carefully monitoring marketing activities of non-sponsors to ensure that there is no ambush marketing (where no sponsors seek to capitalise on Olympics-related marketing without permission or official association with the IOC). This is discussed further below in the context of possible IP disputes.

IP disputes 

Related to commercial disputes are Intellectual Property (IP) disputes which are likely to arise due to the IOC's desire to protect its IP against unauthorised including by non-sponsors, illegal broadcasters and counterfeit product manufacturers. 

These disputes can arise from ambush marketing, unauthorised merchandising and the infringement of exclusive broadcasting rights. IOC can be anticipated to take a robust position on this given the need to protect the high price which legitimate sponsors pay to licence the IP. The IOC has already been issuing statements regarding its actions to clamp down on counterfeit goods⁹ and, in the context of the London 2012 Olympics, the IOC brought proceedings (which were settled) against Paddy Power  for an ambush marketing campaign referring to being the "official sponsor of the largest athletics event in London". You can learn more about the legal issues arising from ambush marketing by reading our Practical Law practice note on the issue: here.

Talent disputes 

The individual athletes and teams participating in the Olympics will have the eyes of the world on them for July through August. In modern games this is exacerbated by the constant feed of social media content streaming. With cameras rolling almost on 24 hour basis, we are likely to see employment and commercial disputes between broadcasters and commentators/presenters as well as potential reputation issues. For example, during the Paris Olympics, we have already witnessed a sports commentator being dismissed from his Olympic role for making sexist remarks during the Australian 4x100 freestyle relay¹⁰. 

Stadium Security

Stadium security issues will also be a key consideration during the Paris Olympics, and organisers will want to avoid scenarios such as the football Euros final in Wembley in 2021.

The usual worries of organising big events will be at the forefront of the co-ordinators minds, and this will be heightened by the two ongoing armed conflicts around the world (Russia-Ukraine; and Israel-Gaza). Heightened fears of terrorism will also lead to stronger security presence. 

Legal disputes surrounding stadium security at big sporting events are likely arise from issues related to the safety and protection of athletes, staff and spectators. Due to the amount of people congregated in one stadium or arena, legal disputes may quickly become expensive class actions.

Liability over who is responsible should any security breaches occur will be key in any legal disputes that may arise, and will likely involve various parties including, the organisers, individuals or groups around the arena, local authorities, the police and often there will be an insurance element to such claims. 

Conclusion

As outlined above, with the Olympics in full swing, the boxing ring will not be the only place where punches are thrown. The complexity, size, and value of the Olympics means that numerous legal disputes are almost certainly looming on the horizon. Given the pace with which disputes can crystallise and need for speedy resolution, parties would be well-advised to have their advisers close to hand during the next few weeks. 

For more information, please contact our sports disputes practice - Neil Blake (Partner), Mike McClure KC (Partner), Jake Savile-Tucker (Senior Associate) or your usual HSF contact.

The authors would like to thank Lucca Rolim (Trainee Associate) for his assistance in preparing this piece.

1. https://olympics.com/ioc/olympic-charter
2. https://chambers.com/articles/olympic-related-sports-dispute-resolution
3. https://www.bbc.co.uk/sport/olympics/articles/ckrgxv95nl2o
4. For example see CAS OG 00/013 Bernardo Segura v IAAF, award of September 2000
5. https://www.tas-cas.org/fileadmin/user_upload/CAS_Media_Release_Tokyo_9_ENG.pdf
6. For example see CAS 2019/A/6148 World Anti-Doping Agency v. Sun Yang & Fédération Internationale de Natation
7. Rule 50.2 of the Olympic Charter
8. https://olympics.com/ioc/news/declaration-by-the-ioc-against-the-politicisation-of-sport
9. https://olympics.com/ioc/news/ioc-puts-robust-anti-counterfeiting-efforts-in-place-to-protect-consumers-and-maintain-athlete-support-ahead-of-paris-2024
10. https://www.bbc.co.uk/news/articles/cprq880yz0xo