BREAKING–Did Romania’s Lawyer Strip Jordan Chiles of a Bronze Medal?

CPR Speaks,

By Katherine Simpson, Benjamin G. Davis & Odette Lagacé

 

Throughout history, many athletes have been forced to return their Olympic medals.  As explained by NBC News, “Jordan Chiles is a rarity in Olympic history:  an athlete forced to return their medal for reasons other than a doping violation.” See Alexander Smith, "Jordan Chiles' case is unusual. Most returned Olympic medals are for cheating." NBC News (Aug. 12) (available at https://nbcnews.to/4dnpJfs),

Inquiring minds want to know more about the Aug. 10, 2024, Court of Arbitration for Sports (CAS) decision to strip U.S. Olympic gymnast Jordan Chiles of a bronze medal, in favor of Romanian gymnast Ana Maria Barbosu.

The factual issue is known to many.  There is no dispute that the original judging panel misjudged the performance of Chiles by failing to credit her for one of her leaps.  The governing gymnastics body, the International Gymnastics Federation, agreed.  Consequently, the International Olympic Committee adjusted the score for Chiles and awarded her the bronze medal. For background, see Juliet Macur, "Jordan Chiles Lost a Bronze Medal Because an Appeal Was Four Seconds Late," N.Y. Times (Aug. 11) (available at https://bit.ly/3SI66Gs).  

Romania later appealed that decision to the CAS, arguing that the application to the International Gymnastics Federation was seconds late. 

The CAS panel, comprising of Hamid G. Gharavi, the presiding arbitrator from France and Iran; Philippe Sands KC, of representing Great Britain, France and Mauritius, and Song Lu of China, found in favor of Romania's Barbosu and decided that the inquiry submitted on behalf of Chiles was indeed late. 

As a result, the CAS panel ordered that the IOC to reinstate Chiles' original score. (The CAS decision is described at https://bit.ly/3M4bEY2.) The United States has appealed on behalf of Chiles, stating that the inquiry was filed within the time limit, and that they were not given sufficient notice of the CAS decision and did not have the opportunity to be heard. Jovonne Ledet, "New Video Proves Jordan Chiles Inquiry Was Submitted in Time," Real 103.9 (Aug. 12) (available at https://ihr.fm/46NiURU).

Is the cornerstone of arbitrator independence in question?

The release from the CAS does not address how or whether the parties were informed that CAS Presiding Arbitrator Gharavi, currently serves as legal counsel to Romania in its disputes before the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID).

Gharavi’s relationship with Romania began at least in 2011, when he was appointed by the U.S claimant in a case against Romania.  Hassan Awdi, Enterprise Business Consultants Inc. and Alfa El Corp. v. Romania (ICSID Case No. ARB/10/13) (2015) (available at https://bit.ly/4di1eQx). In 2016, about one year after the conclusion of that case, Gharavi began representing Romania in its ICSID Proceedings, prevailing in a matter this spring. Nova Group Investments B.V. v. Romania (ICSID Case No. ARB/16/19)(June 13) (available at https://bit.ly/4diPrRX).

In two additional ICSID cases, Gharavi is serving as lead counsel--see Aderlyne Ltd. v. Romania (ICSID Case No. ARB/22/13), a pending renewable energy project available at https://bit.ly/4dCX9X0--and/or is working alongside Romanian government counsel. EP Wind Project (Rom) Six Ltd. v. Romania,  (ICSID Case No. ARB/20/15) (available at https://bit.ly/3LZEj0B).

The idea that those who decide disputes must be free of bias and able to render an award in favor of either side is a cornerstone of arbitration. IBA Guidelines on Conflicts of Interest in International Arbitration (May 25) (available at https://bit.ly/4cpXziy). Under CAS R33, “every arbitrator shall be and remain impartial and independent of the parties and shall immediately disclose any circumstances which may affect his/her independence with respect to any of the parties.” Available at www.tas-cas.org/en/arbitration/code-procedural-rules.html.

The issue is whether an Olympic arbitrator who currently represents a country on the global stage can decide a case involving a gymnast of  that country, in an unbiased manner.  Is it realistic to expect such arbitrator can decide against the interests of that country or of that country’s gymnast, who in this case is represented by the Federation of Romanian Gymnasts?  

Reasonable people could agree that these issues should have been presented to the parties to the dispute before Hamid Gharavi was selected as presiding arbitrator. We can only hope that they are raised in the CAS appeals procedure.

Some would wonder whether the arbitrator’s relationship with Romania is one that might give the arbitrator a significant financial or personal interest in one of the parties, or in the outcome of the case–a “Non-Waivable Red List” conflict of interest. See IBA Guidelines on Conflicts of Interest linked above, at page 15.

This matter puts on the global stage the question of what, if any, restrictions are or must be placed on CAS arbitrators with respect to their independence and impartiality in the eyes of the parties.  

An arbitration is only as good as the arbitrators.  There would appear to be a need for closer examination of this case, for the benefit of both Jordan Chiles and Ana Maria Barbosu.

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Dr. Katherine Simpson is an Arbitrator with Simpson Dispute Resolution  (U.S.) and 33 Bedford Row Chambers (UK).  She is a 2023-2024 Postdoctoral Associate at Cornell University's School of Industrial and Labor Relations, where she teaches Conflict Resolution.  See https://simpsonadr.net. Benjamin G. Davis is Emeritus Professor of Law of the University of Toledo College of Law and a former Legal Counsel of the ICC International Court of Arbitration with 42 years of teaching and practice in international commercial arbitration. Odette Lagacé is a retired attorney, former Legal Counsel at the ICC International Court of Arbitration; former Director of the Court Office, Canadian Commercial Arbitration Centre, and Senior Case Administrator for the Canada ADRSportRED Program (interim program for the sports-related dispute resolution program in Canada).