Picture night court, except you’re in a conference room at an upper-middle tier business hotel outside Olympic Village, and an athlete accused of cheating, a coach, a federation rep, an IOC official, a few lawyers and three judges are crowded around a table, going over the arguments as to why this particular athlete should or should not be stripped of all medals and records and sent home from the Games in disgrace.
This is a CAS tribunal – the last stop before you get kicked out of the Olympics.
Athletes competing in the XXXI Olympics are under scrutiny like never before. Over the course of two weeks, officials in Rio will collect five thousand urine and blood samples. Competitors will be subject to testing at any time, day or night, on the field or off. Following each event, doping control officers will accompany the medalists to the bathroom and ask them to pull down their pants and roll up their sleeves, in case there are any devices (whizzinators) or clean blood hidden on them. Then an A and a B sample will be collected and sent to Rio’s newly re-accredited drug lab, where scientists will test for two-to-three hundred banned substances, as well as deviations from the “biological passports” kept on file for the world’s elite athletes.
But doping is only one of the many ways an Olympian might end up getting ejected from the Games. There’s also equipment and uniform tampering, the use of a false identity, lying about your age, and losing on purpose (like the Chinese, Korean and Indonesian badminton teams in 2012), to name just a few of the more notable sins.
These violations all have something in common. They come under the jurisdiction of the Court of Arbitration for Sport, or CAS, as it’s popularly known.
CAS is an arbitral tribunal – in effect, a private court – based in Switzerland. In everyday life, CAS acts as the “Supreme Court” for world sports – upholding the transfer ban on FC Barcelona and the suspension of the Russian track and field team, for example, or striking a blow in favor of gender fluidity in sports by overturning a rule that used to disqualify (and humiliate) female athletes with high testosterone levels who wanted to compete against other women. Its docket is a who’s-who of sports luminaries. FIFA, UEFA, the IOC, and more or less every major international sports federation look to CAS to settle their most difficult and contentious disputes.
But every two years, CAS does something special. It forms an elite “ad hoc” division – made up of a dozen attorneys, professors, and jurists from all over the world, many of them former Olympians, each an expert in his or her field – and charges it with bringing law and order to the high-pressure world of the Olympic Games.
This is how it starts. A positive drug test comes back from the lab. A losing team files a complaint against a competitor: his spikes were too long; her wetsuit too buoyant.
Depending on the infraction, the IOC or CAS’ own anti-doping division (serving on site at the Games for the first time in Rio) investigates and either clears the athlete or doles out punishment. Anyone who’s dissatisfied with the outcome has one recourse: the ad hoc division of CAS. For the length of the Games, its word is law.
Like most things at the Olympics, speed is of the essence for the ad hoc division.
“The Olympics don’t stop and wait for you to make your decision,” said Matthew Mitten, a professor of sports law at Marquette University Law School who served as an ad hoc division judge during the Sochi Games. “It all happens incredibly fast.”
A panel of three judges is assigned to each ad hoc division case. Some of the bigger countries, and the ones that suspect their competitors may run afoul of the rules, bring their own attorneys to the Games. In Rio, as in London, local lawyers are banding together to defend, pro bono, athletes in need of quick legal assistance.
Juan Torruella, a five-time Olympian who now sits on the 1st Circuit Court of Appeals, and before that served as co-president of the ad hoc division during the London Games, said the hearings bear a striking resemblance to suits brought in US federal court, only the lifespan of an Olympic case is measured in hours, not years.
Hearings tend to start late – typically, after the day’s events – and run deep into the night. In Sochi, Professor Mitten sat for a case against three French skiers who had allegedly tapered their ski pants to gain an aerodynamic advantage. The hearing started at midnight. The panel worked until dawn, so that the gold, silver and bronze medals (all won by the French) could be awarded before the Closing Ceremonies.
“The hotel had good lattes and cappuccinos,” Mitten recalled. “We needed them.”
Besides cheating, the ad hoc division also hears a number of “selection” cases – jilted athletes who were passed over for a place in the Olympics and want the ad hoc division to find a way for them to represent their country and compete at the Games.
Robert Décary, a former federal judge in Canada who also served in Sochi, recalls being asked to decide whether an Austrian skier should have been included on the Olympic team. Décary was in Sochi, sorting out the case, while the athlete was in Austria, waiting to board the night’s final flight to Russia. He ruled against her.
“There is always an added tension when you decide the fate of an athlete,” Décary said. “But even more so when you deny that athlete the chance to participate in the Olympics.”
CAS hearings are intensely personal. Maidie Oliveau, a sports attorney from Los Angeles who served as a judge for the ad hoc division at five different Olympics, told me that her heart breaks for every single one of the athletes whose fate she decides.
“They’re competitive people doing everything they possibly can to win.”
After the Sydney Games, Oliveau was asked to decide the case of Andreea Răducan, the gold medal-winning gymnast from Romania, who had tested positive for pseudoephedrine, a banned stimulant. Răducan was 16-years-old at the time.
“That’s not what you’re picturing when you think of a doper,” Oliveau said. “One of my colleagues told me it might help if I pictured her as a 200-pound weightlifter.”
Although the panel found that the stimulant provided Răducan no competitive advantage, it ruled against her, and she was stripped of the all-around gold medal.
“It’s a stressful process,” Oliveau said. “The right decision isn’t always clear.”
Once the ad hoc division panel has reached a decision, that’s it for the athletes. Since CAS is based in Switzerland, its decisions may be appealed to Swiss federal court. But that process unfolds slowly – too slowly to help an Olympian hoping to remain at the Games, and the Swiss courts have never overturned an ad hoc division ruling.
An athlete found guilty of cheating is stripped of his or her medals and Olympic credentials. Since those credentials also serve as an entry visa during the Games, the cheater is required to leave the host country. It’s another quick, brutal process.
Last week in Rio, ten days before the Opening Ceremonies, the ad hoc division officially opened for business in the Windsor Oceânico, across from Pepê Beach. Soon the first cases will start to trickle in. Aggrieved athletes will line up at the door. Some will be sent home. Some will be vindicated. Twelve judges will work deep into the night, and come dawn, the door to their conference room will open, and, for better or worse, the lives of a few more Olympians will be changed forever.
