Olympics Arbitration at the Swiss Federal Tribunal: Whose Interests Are Being Served?  

The best interests of the athletes and the arbitrator--but maybe not the best interests of sports arbitration--were preserved in the Swiss Federal Tribunal decision in the case of U.S. Olympics gymnast Jordan Chiles and the sports arbitration case published Jan. 23.  

The case concerned both attacks on the arbitral award and requests for revision of the award rendered in August 2024 in disputes concerning the bronze medal in women’s gymnastics at the 2024 Paris Olympics. The French version of the decision is available here: https://bit.ly/4rCiBm1.

This Court of Arbitration for Sports arbitration was the subject of CPR Speaks commentaries in Fall 2024 and can be found using the search function at www.cpradr.org/news/cpr-speaks.

This is a brief commentary on last month’s Swiss Federal Tribunal decision on requests by Chiles and Sabrina Maneca-Voinea, a Romanian gymnast who, like Chiles, sought a bronze medal after Olympics judges awarded the bronze medal to another Romanian gymnast, Ana Maria Bărbosu, at the 2024 Paris Olympics.

With respect to the challenges to the regularity of the composition of the arbitral tribunal and in particular the independence and impartiality of the presiding arbitrator, Hamid G. Gharavi, the Federal Tribunal ruled the recourse and claims admissible.

The Federal Tribunal rejected the attacks on Gharavi’s independence and impartiality, finding that his existing relationships with Romania had been properly disclosed and any conflict had been properly waived.

The Swiss Federal Tribunal considered there was failure of the Americans’ lawyer to respect their duty of due diligence and duty of curiosity about the presiding arbitrator’s relationship with Romania in the 22 hours between when the lawyer received the case and when the hearing began. 

The Swiss court recognized that the American side should have had more time and that Court of Arbitration for Sport had repeatedly sent the file to an incorrect email address and had received bounce notices that it chose not to act upon.  Nevertheless, the Court considered that the American side had received the disclosures in a timely manner and that the concerns about Arbitrator Gharavi’s conflicts that were raised in the recourse were considered waived. 

Childs and the U.S.A. Gymnastics are represented by Maurice Suh, a partner in Gibson Dunn’s Los Angeles office. See the firm’s Jan. 29 press release on the Swiss court’s decision here.

On the matter of the revision requests, however, the case was sent back to the Court of Arbitration for Sports on these points:

1) The question of compliance with the rule requiring a 60-second appeal of a score by Chiles is seen as a field-of-play rule about which there is deference, as opposed to a legal rule subject to review by the arbitral tribunal, and 

2) The Federation Internationale de Gymnastiques did not have a system to check the timing, and there was objective, time-stamped evidence that the 60-second rule was in fact complied with that could not have been or was not available before the arbitral award decision.

The field-of-play rule, in the Olympic Charter, provides deference to the judge or referee at the event and is a longstanding tradition in CAS and Swiss Supreme Court precedent. 

Since the Presiding Arbitrator Gharavi no longer is a CAS member, he is no longer eligible to sit as a CAS arbitrator.  He also recently announced that he would not serve on the new panel. Alison Ross, “Gharavi will not preside over reopened Jordan Chiles case,” Global Arbitration Review (Feb. 4) (available at https://bit.ly/3ZiNaRJ).

It will be of interest to see who will make up the arbitral tribunal in the subsequent proceedings.

Assuming the CAS has learned a lesson and will have an unimpeachable panel do the revision, the three gymnasts have a chance of having a fair hearing, although the aggressive CAS stance in the nullification process makes one wonder whether a thumb remains on the scale.  

That being said, it seems that  the best interests of the athletes have been respected as their case will be heard anew.  

But I am not so sure about the best interests of sports arbitration. 

I am nagged by the laying at the feet of the “party” lawyer the failure of a duty of due diligence and duty of curiosity given the incredibly short time they had after receiving the notice of the arbitration and other procedural shortcomings.

At the same time, I am also nagged by the objectively “equitable” nature of the Swiss decision.  Outside of Oprah (“You get a car!”), it is rare to have a case where everyone who was present wins.  The only loser in this case seems to be Chiles’s original lawyer, who received the file only hours before the hearing.

There is a part of me that sees the court taking an institutionalist approach by trying to save face for all but the lawyer whose client ultimately gets what she wants as the matter is looked at again. With this result, the lawyer will not complain about being--what I believe is unfairly if due process means anything--the “fall person” in that part. 

Further thoughts:

1) The remand back to CAS is inexorably to a new arbitral formation, so fresh eyes can see the case and CAS’s various unfortunate due process mistakes in managing the case that did not need to be addressed by the Swiss Federal Tribunal.

2) Both on the challenge and the revision, the Swiss Federal Tribunal keeps the respectability of the CAS arbitration intact. It is now up to the CAS to maintain that. 

3) The athletes have the chance to receive a fair examination--which is a good thing--of what they are entitled to.

So all ends well for the athletes, but I remain concerned that all is not well for sports arbitration.

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The author is Emeritus Professor of Law, University of Toledo College of Law.

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