The Olympics Chiles Arbitration Debacle, Part 2: The Paris Screw Job?

By Benjamin G. Davis

More on the Olympics arbitration examined worldwide last week (and triggered in part here, at Katherine Simpson, Benjamin G. Davis & Odette Lagacé , “BREAKING–Did Romania’s Lawyer Strip Jordan Chiles of a Bronze Medal?” CPR Speaks (Aug. 12) (available here)):

As many know from the firestorm of interest in both print and other media, U.S. gymnast Jordan Chiles was awarded a bronze medal in the Olympics. That bronze medal was challenged in a Court of Arbitration for Sports (CAS) arbitration started on Aug. 6 by the Romanian Gymnastic Federation against the Federation Internationale de Gymnastique, alleging that the inquiry by Chiles’ coach that increased Chiles' score was made four seconds too late, thus improperly bumping a Romanian gymnast Ana Maria Barbosu out of the bronze medal.  

A second complaint for a second Romanian gymnast Sabrina Maneca-Voinea also was introduced that same day challenging her reduction of score for an alleged error in her routine.

CAS appointed an arbitral tribunal with a presiding arbitrator of French and Iranian nationality, who disclosed current representation of Romania in unrelated International Centre for Settlement of Investment Disputes arbitrations, as well as two co-arbitrators of, respectively, Chinese nationality and French/United Kingdom/Mauritian nationality.

CAS added the U.S. Olympic and Paralympic Committee (USOPC), U.S. Gymnastics, Chiles and the International Olympic Committee (IOC) to the arbitration as “interested parties.”  Unfortunately, the U.S. entities and the gymnast did not receive notice of the arbitration until Aug. 9, with the hearing scheduled for Aug. 10.  The U.S. entities and gymnast asked for extra time to respond but were only given a two-hour extension on that same day by the arbitral tribunal. The IOC said it was not going to participate but wanted the matter completed by the Aug. 11 Olympics Closing Ceremony.

On Aug. 10, the hearing went ahead without the participation of USOPC. The arbitral tribunal accepted the challenge to Chiles’ score. The effect of the decision was to move up Barbosu to the bronze medal, and strip Chiles of her bronze medal as she fell to fifth. The arbitral tribunal also rejected the challenge of Maneca-Voinea. The result was that Barbosu and Maneca-Voinea now have identical scores.  

On Aug. 14, an unsigned but dated award of the arbitral tribunal was made available to the public. It can be found here.  On Aug. 16, the IOC awarded the bronze medal to Barbosu in a ceremony in Romania.  Both Romanian and U.S. entities and the gymnasts other than. Barbosu have stated they intend to appeal the award to the Swiss Federal Tribunal.

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The following is more a meditation on the dynamics of the Chiles case than a memorandum on law.  This post tries to get a grasp on the firestorm of reactions as to what transpired.

It starts by seeing how the arbitration started.  The dispute was between Romanian applicants and two respondents including the Fédération Internationale de Gymnastique, which appears to be organized under the laws of Switzerland.  

Under the CAS Ad Hoc Division rules (available here), the arbitral panel described above was appointed by CAS, none of the members are of the parties’ nationality, and formal nationality neutrality is preserved.

For those unfamiliar with international arbitration, under most institutional rules something as small as one’s nationality is enough to exclude an arbitrator from a case, owing to the potential for bias that is associated with nationality.

Then, it gets complicated.  The Romanian and Swiss original parties and the CAS recognized from the submissions that the matter concerns several U.S. entities and the U.S. gymnast as well as the IOC. One thing  the CAS and the applicants and respondents must no doubt be aware of is that a presiding arbitrator of French nationality would not appear to be an issue.  As a slight digression for purposes of this post, I would draw the attention to the point that even when they are not of any party nationality, having a presiding arbitrator and a co-arbitrator of French nationality (in other words, of the same nationality) might raise some eyebrows because of the relative cultural affinity as compared to the non-French co-arbitrator.   

But, turning to the Iranian and U.S. diptych, there are 40 years of what might mildly be called animosity between the United States and Iran.  As such, being savvy and diplomatic persons at the CAS, the question arises as to whose idea it was to appoint a French and Iranian national knowing full well of this animosity and the interests of U.S. entities and U.S. gymnast.  Now for those who think I am expressing a U.S. bias, reverse the situation and imagine a presiding arbitrator who was both a French and U.S. national, and important interests of Iranian entities and an Iranian gymnast were a subject of the arbitration.

Now, even though nationality alone is enough to exclude someone from a panel, that someone is of a certain nationality is not an immediate indicator that they are supportive of the political positions of that country.  That being stated, it is clear that, at the time of Presiding Arbitrator Gharavi’s appointment, CAS Ad Hoc Tribunal Vice President Carole Malinvaud, a partner in the Paris office of Gide Loyrette Nouel knew of Gharavi’s strong Iranian ties. Malinvaud is a Vice President of the International Court of Arbitration at the International Chamber of Commerce (ICC). 

On Jan. 9, Gharavi announced on his firm's website that CAS had appointed him to CAS’s Ad Hoc Division for the Paris 2024 Olympics. As of July 1, before the Chiles case, Gharavi was appointed an “alternative member” at the ICC Court upon nomination of the Iranian National Committee--not the French National Committee--the same ICC Court where CAS Vice President Malinvaud serves as vice president.  

What that means for those not familiar with this institution is that the Iranian National Committee within the ICC structure decided to nominate Gharavi, and the ICC agreed to appoint him  as a member of the ICC Court for the Mandate 2024-2027.

In a situation where there is animosity between the United States and Iran, is it likely that a nominee in this setting would be perceived as non-aligned with the Iranian state and neutral on these animosities? 

It is certainly possible that person would be completely neutral.

But, at the risk of stating the obvious, that someone is neutral does not mean that a presiding arbitrator will appear to be neutral to the parties concerned where there is animus between their country of nationality and the country of the nationality of a party.  

This can operate in two ways to the detriment, possibly, of any party. First, within the arbitral tribunal, when submissions related to the United States are discussed, it is possible that the other arbitrators will instinctively give more credibility to statements of the presiding arbitrator that favor the United States entities and gymnast, and discount statements that are against the United States.  

Second, the same is true about how the submissions of all parties are viewed when they touch on the United States entities and gymnast.

This situation does not mean that such a reaction will happen or did happen in this case.  The point is that in making the choice, the CAS took an unnecessary risk of compromising the way the parties, including “interested” parties, view the tribunal’s reaction to its submissions, the dynamic of the arbitrators’ deliberation, and made the award more fragile than was really necessary.

Take out this nationality issue and independent of any issues of conflict of interest, one eliminates a clear risk of appearance of bias for the parties and anyone who follows these things simply by eliminating this nationality complexity.  It was a risk that simply did not have to be taken.

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The consequence is that some skepticism of every act of the presiding arbitrator is inevitable. The CAS has announced that he has suffered death threats on account of his actions.  This is horrific and there is no excuse for that kind of attack on the peaceful means of dispute resolution.  

Would this same animus exist for a presiding arbitrator who was not of his dual nationality?  It is certainly possible as interested entities and persons who disagree with the result might condemn any presiding arbitrator. The point is that, for the CAS, and whatever the qualities of the presiding arbitrator, the CAS put him in an untenable position. And that position resounds also on the other arbitrators and the parties but, most important, the trust the gymnasts have in the system.

So that is the nationality issue. Compounding that concern is the issue of conflict of interests in terms of their content, whether they are non-waivable, whether they were properly disclosed to all parties, and so forth. Given the presiding arbitrator’s current and past representation of Romania, similar problems as to his reactions to (i) anything in the case, (ii) his arbitral tribunal members’ reactions to anything he does or says, and (iii) the parties’ reactions to whatever he says or does, all plague his performance, however above reproach anyone may believe he was.

It is baffling and at least a mystery why CAS would go to these lengths to appoint this presiding arbitrator given the dispute is between Swiss and Romanian entities and persons,  and the CAS was aware the case had significant issues affecting U.S. entities and gymnast.  With all due respect to all concerned, it is simply abnormal to combine all these risks of nationality and disclosure when the alternative of naming someone without that baggage is readily available.

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Another curious thing about this case is the structuring of the actual proceedings. The two Romanian gymnasts are opposed and yet their cases were merged into the same arbitration when they could have just been in separate arbitrations with different arbitral tribunals. I understand that is complicated, but CAS’s heavy hand in pushing for the joinder, while bending its own rules to do so, seems to have been focused on speed and not necessarily efficiency in the sense of fairness.

A second structural aspect curiosity is to have the U.S. entities and gymnast not permitted to be more than an interested party, unlike what happened with the Romanian gymnasts becoming applicants in the amended request.  When one reads the Ad Hoc Division rules, the powers of so-called interested parties are not clearly laid out. Which means that all the U.S. entities and gymnast were vulnerable to the named parties and the wide discretion of the arbitral tribunal.  Just as one example, a challenge of an arbitrator can be done by a party, but the rule does not reference the power to challenge an arbitrator by an “interested party. “

This structure appears weird.

Further, on the treatment of extension requests by the U.S. entities and gymnast after their late receipt of any awareness of the case, one can ask why only the limited two-hour extension was granted: the problem of procedural speed becoming procedural haste.

It seems the obvious answer is that the IOC informed the CAS and the arbitral tribunal that it wanted this matter resolved by the Closing Ceremony on Sunday after the Saturday hearing--and even though the U.S. entities and gymnast had only got wind of this matter on Friday while the other parties had been working on this since at least Wednesday. We don’t know if that IOC information was communicated to the parties and the other interested parties, as one would hope.  But, whether it was communicated to the parties, it clearly put a thumb on the scale for any decisions on extensions of time.

For those who are not familiar, the arbitral tribunal has power to grant extensions under Ad Hoc Division Rules linked above. The tribunal could have proceeded by seeking the agreement of all parties to extend the time more substantially than it did (giving some cover for CAS vis-à-vis the IOC) and, failing that, in its discretion, the arbitral tribunal could extend it longer, IOC pressure be damned. Maybe that is to write heresy in this milieu, but the point is that the arbitral tribunal could have diplomatically explained such an extension either based on the party agreement or its own estimation of the need for speed but not for haste.  An opportunity was clearly lost.

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So this brings us to the IOC and its reasons for wanting what amounted to haste and not speed. As is well known, it is essential for the business continuity of the Olympic Games and the IOC that there be sponsorship/media views. This imperative has been suggested as even going to team selection, as discussed in the sports world, about the non-selection of Jalen Brown for the U.S. men’s Olympic basketball team. Brown is a non-Nike MVP of the NBA Finals champion Boston Celtics, but being MVP apparently was not enough. When Kawhi Leonard stepped away, Brown’s teammate Derrick White was selected as Leonard’s replacement.

Is it possible that the IOC came to the belief that a women’s gymnastics podium made up of Black womenfolk from the Americas is problematic? Is there an imperative in this competition space that there be a White/European included? We can wonder whether the IOC considers this.  Moreover, we can certainly wonder about the IOC’s interests influencing the CAS to such an extent that it might turn what we would hope would be a neutral dispute resolution into something more akin to customer service.

In any event, we know that this past Friday August 16, the IOC held a ceremony giving the bronze medal to Ana Maria Barbosu further to the arbitral award. This of course smacks of the old game of putting the pressure of a fait accompli on all concerned both among those in the arbitration and the broader world.  See “Romanian gymnast receives bronze medal first awarded to Jordan Chiles,” Associated Press (August 16) (available on ESPN.com at https://www.espn.com/olympics/story/_/id/40882663/romanian-gymnast-received-bronze-medal-first-awarded-jordan-chiles).

I have mulled over this Chiles case and the iconic photo of Andrade, Biles and Chiles (lined up as ABC--What do you know? See Kelly McCarthy, “What Simone Biles, Jordan Chiles said about bowing to Rebeca Andrade after Paris gymnastics floor final,” ABC News (Aug. 5) (available here)) being awarded their medals in gymnastics during the Olympics with the wonderful image in the Closing Ceremony  of three African women—the winner representing the Netherlands but of Ethiopian origin--who won the women’s marathon being awarded their medals as part of the IOC Closing Ceremony. See Matias Grez, “Sifan Hassan receives her women's marathon gold medal at the closing ceremony,” CNN (Aug. 11) (available here).

Having remembered what Surya Bonaly (a Black French skater of remarkable ability who did things never done by a woman before) went through in skating back in the 1990’s (and it would have been something if the French had had her carry the torch--just saying; see Scott Stump, “Forgotten history: Black figure skater Surya Bonaly started the quad craze 30 years ago,” The Today Show (Feb. 18, 2022) (available here) ), I wondered something that is probably being thought, but no one is willing to put it out there.

So I will.

It seemed to me that it was acceptable to the authorities in the IOC to have the podium for the women’s marathon have three African women only because of the recognized dominance of Africans in that particular track and field sport.

But, to who be the powers in the IOC, to have the same happen in gymnastics where the three black women are from the New World and just may be also descendants of enslaved people where white athletes have dominated for so long, well, that just did not work for the powers that be in the competition between dominant gymnastic organizations.

So weird stuff happens in the arbitration to un-take that iconic gymnastic photo. In fact, heaven and earth are moved to not recognize what happened on the field of play--including the judges’ decisions--so as to undo that photo.

After reading the award, my attention was drawn to the fact that the result of accepting the challenge of Jordan Chiles and rejecting the challenge of Sabrina Maneca-Voinea is that Ana Maria Barbosu receiving the bronze medal from the IOC Friday and Maneca-Voinea (who has not received a bronze medal) now have the same score.  

This would mean that Maneca-Voinea might have a case with the IOC and the Swiss Federal Tribunal to say she should get the bronze medal too. Maybe that is why the Romanians say they intend to appeal the arbitral decision with regard to Maneca-Voinea to the Swiss Federal Tribunal.

Oh, the web that may be being spun. 

I hope the Americans and Romanians stay steadfast in getting this to the Swiss Federal Tribunal in order for a court to at least look this over.

It all stinks to me and is unfair to all the gymnasts. They did their job, but I am not sure everyone else did theirs. This reminds me of the WWE Montreal Screw Job on Brett Hart decades ago, except this time it's the Paris Screw Job on Jordan Chiles, and it's the Olympics, not pay-per-view wrestling entertainment. 

* * * 

I have for nearly 20 years decried the lack of African Americans and other minorities as well as women in the U.S. version of international arbitration. When the Ad Hoc Division arbitrators for the Olympics were announced, I again decried the lack of Black people and especially African American arbitrators (at least in my Facebook feed and among contracts professors). Given the vast number of Black athletes in Africa and the African diaspora around the world, it is apocryphal that the arbitrators are not a reflection of that diversity.

One must wonder why there were no Black arbitrators of African Descent on the Ad Hoc CAS Panel for the 2024 Paris Olympics, when there are many Black arbitrators on the CAS Panel. (The list is available on this June 11 CAS press release.)

Some will think I am special pleading here in order to get myself appointed to these prestigious lists--the narrow self-interest game that consumes so many in international arbitration. But, in fact, I have no such interest. And, apparently, because I have no such interest, I am not considered a “player” so what I say or write can be happily ignored by all the “players.”  

So be it. But at least know that you had a chance to read these ideas that you choose to ignore. So you cannot  say you did not know. 

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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.  He received a 2022 Outstanding Contribution to Diversity in ADR award from the CPR Institute, which publishes CPR Speaks.

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