The Olympics-Chiles Arbitration Debacle, Part 5: Neutrality, Independence & the CAS Opinion

The Court of Arbitration for Sport Olympics arbitration and the appeal proceedings filed by Romanian gymnast Sabrina Maneca-Voinea and by U.S. gymnast Jordan Chiles with the Swiss Federal Tribunal in response could refine and delimit what the alternative dispute resolution community should expect from “neutral,” “independent,” and impartial dispute resolution. 

The independence and impartiality of the CAS has been tested by the Swiss Federal Tribunal. Most recently, in 2003, the Swiss Federal Tribunal found that the CAS was sufficiently independent of the International Council of Arbitration for Sport and the International Olympic Committee, such that CAS awards in proceedings involving these parties could be considered as equivalent to state judgments. See the History of CAS on the organization’s website at https://bit.ly/4gSMUAv.

The Swiss Federal Tribunal, however, has not yet had the opportunity to opine on the independence of CAS arbitrators in respect of a remanded or reopened CAS arbitration.

According to the CAS, “[t]he CAS performs its functions through the intermediary of arbitrators […] [who] must carry out their functions with total objectivity and independence.” Id. 

As previously opined on CPR Speaks, the Aug. 14 award revealed how closely the CAS worked with the tribunal.  Even where the panel had full control over the proceedings, the award presented the CAS and the tribunal as working as a team, with the tribunal ratifying, rather than remedying, CAS errors. See CPR Speaks (Aug. 22) (direct here).

The CAS has taken strides to convey that the parties were afforded due process in this arbitration.  Given the myriad interpretative statements that the CAS has issued in respect of this arbitration, one must wonder whether any future CAS panel could be independent and unbiased in its decisions. 

Owing to how the CAS has openly praised the Aug. 14 award and has defended the process that led to it (see, e.g., CAS Media Release (Aug. 14) (available at https://bit.ly/3N0wyb9), and more below), and how the CAS and its representatives have criticized those who have questioned either, one could appreciate how a future CAS tribunal may feel pressured to issue a decision that is consistent with the views expressed by the CAS and the initial tribunal. 

In the typical arbitration, the award is expected to speak for itself.  An arbitrator or institution speaking about one of its awards after it is rendered can be detrimental to the arbitrators, institutions, and parties, alike. 

Post-hoc statements put arbitrator and institutional neutrality and due process into question.  Since such statements often come at the expense of one party and to the benefit of another, they could violate the parties’ equality, leaving parties without a chance to respond, except through vacatur.

Often, arbitrators and administering institutions refrain from speaking about the award and the process that led to it because the confidentiality provisions prevent such discussion.  Even when the rules do not require it, arbitrators and institutions refrain from speaking because silence supports the continuing institutional duty to preserve the neutrality and to respect the parties’ equality.  Silence supports the finality of the award.

The CAS has been abnormally vocal in its support of the Aug. 14 award and the process that created it. 

For example, in its initial press release, the CAS attempted to create the impression that the U.S. Olympic & Paralympic Committee (USOPC) was “involved in” the arbitration procedure as an interested party, rather than simply “identified as” such.  See Aug. 10 CAS press release here.  When releasing this statement, the CAS knew the procedural history could not support the phrase “involved in.”  The CAS press release failed to note that the USOPC refused to participate, presumably in protest, after only learning of the proceedings approximately 22 hours in advance of the hearing.  Award para 33, 45 (available here).)

Next, on Aug. 13, the New York Times reported that the CAS stated that the presiding arbitrator’s disclosures were made in writing and did not receive objection and that, “[i]n accordance with the guidelines on conflicts of interest issued by the International Bar Association (IBA) [available here], CAS has no reason to remove an arbitrator making such a disclosure if the parties do not object to his/her appointment.” Tariq Panja, “Head of Panel That Ruled Against Jordan Chiles Represents Romania in Other Cases,” N.Y. Times (Aug. 20) (available at https://bit.ly/3X9PxG5).

CAS Director General Matthieu Reeb repeated this in a GAR publication on Aug. 14 before the award was published.  In that same article, CAS arbitrator Jan Paulsson, who was recently appointed by the Olympics gymnastics arbitration Presiding Arbitrator Hamid G. Gharavi and his co-arbitrator to serve as chairman in a high-value International Centre for Settlement of Investment Disputes arbitration, noted, “it seems Gharavi made the proper disclosures and the appellant Jordan Chiles could have recused him.  If so, it is her advisors that have egg on their (presumably tight) chins.” Alison Ross, "US furore [sic] over Gharavi Olympic ruling," Global Arbitration Review (Aug. 14) (available at https://bit.ly/3MdBrxe). 

When making these statements, the CAS and presumably Paulsson was aware that the disclosures were made two days before all of the parties had been informed of the dispute (Award paras. 15, 33).  The CAS was also aware of the argument that (1) the U.S. interested parties had never received the disclosures, (2) that CAS’s own recordkeeping might not support the argument that the U.S. interested parties ever received the disclosures (Chiles Appeal, Exhibit 28), and that, (3) even if the U.S. interested parties had received the disclosures, they received them after the deadline to object to the arbitrators had expired. Jon Powell, “Jordan Chiles defended by USOPC in hard-hitting statement over bronze medal appeal,” Yahoo Sports (Aug. 15) (available here).

The question of whether Gharavi was conflicted or, in the alternative, whether this was remedied by any disclosure, is a question before the Swiss Federal Tribunal.  See Chiles Appeal of Sept. 16, 2024, linked here:  https://www.gibsondunn.com/wp-content/uploads/2024/09/Jordan-Chiles-Appeal-Before-the-Swiss-Supreme-Court.pdf

On Aug. 14, following the award’s publication, CAS made further interpretive statements, including that “there was no dispute that Ms. Chiles’ inquiry was submitted 1 minute and 4 seconds after her score was official[ly] displayed on the scoreboard.”  CAS Media Release (Aug. 14) (available here).

When the CAS made this statement, it was aware that the CAS had rejected Chiles’ attempt to submit evidence to the contrary, on Aug. 11.  (Chiles Appeal, Exhibits 46, 47).  The CAS was also aware that Cecile Landi, Chiles’ coach who had appealed her score, had testified to the contrary.  In response to the question, “Do you have a reason to believe that maybe there was–that the time may be not correct, the 1 minute and 4 seconds”? she responded “I do.  I didn’t take a minute and –over a minute to go to the desk.”  (Chiles Appeal para 105, Exhibit 9, Exhibit 10).

The CAS, speaking to the media from a position of authority, further stated that the parties “accepted as clear and determinative the report prepared by Omega, the official timekeeper for the Olympic Games.  . . .”  CAS Media Release (Aug. 14) (available here). 

Again, in her motion to set aside linked above, Jordan Chiles has provided transcript evidence that demonstrates that this simply was not so. The International Gymnastics Federation is quoted as testifying that “the Omega report registers only when the complaint is made in the system.  But there is an inconsistency because what is the relevant point is when the inquiry is made verbally.  . . .  The Omega report has a delay . . . between when the inquiry has been made verbally and when it is registered in the system.” Chiles Exhibit 9; Chiles Appeal, para 106).  

When the CAS told the New York Times on Aug. 13 (in the Aug. 20 report linked above) that the parties involved had had what it described as “ample opportunities” to present their arguments and objections, the CAS neglected to acknowledge that it had sent the notifications to the wrong email addresses for two days (Award para. 30, 33, 34, 35; Chiles Appeal para 88 et seq.). 

Now, thanks to the Jordan Chiles appeal to the Swiss Federal Tribunal, the world has access to information that has always been in the CAS file:  This notification error could have been rectified much sooner had the CAS Ad Hoc Division reacted to the “email bounce back notifications” that it received each time it wrote to the wrong email addresses, from Aug. 7-9, 2024.  (Chiles Appeal para. 73-74; Chiles Exhibits 16, 17.)

Sabrina Maneca-Voinea and Jordan Chiles’ separate appeals of the CAS Olympic gymnastics award have not stopped the CAS or its representatives from discussing the case publicly.  David Rivkin, deputy president of the CAS Anti-Doping Division, for example, used his appearance at the International Bar Association’s annual conference “to […] reject[ ] allegations that the U.S. gymnast did not receive a fair hearing” and to allege that those criticizing the process had simply failed to read the award. Tom Jones, “Rivkin addresses CAS media storm at IBA,” Global Arbitration Review (Sept. 20) (available here).

The fairness of the CAS hearing, however, is at issue in the Jordan Chiles appeal to the Swiss Federal Tribunal.  “Jordan Chiles Appeals Bronze Medal Decision to Swiss Federal Supreme Court,” Gibson, Dunn & Crutcher Press Release (Sept. 16) (available on Business Wire here).  

Further defending the process, Rivkin stated that the reasoned award revealed that Romania proposed sharing the bronze among all three athletes, but that the International Gymnastics Federation refused to accept that request, leaving the arbitrators no choice but to apply the rules.

Perhaps Rivkin was unaware that, as reported in Chiles’ Sept. 24 Revised Appeal (available at https://bit.ly/4dro07L),o on Aug. 10 at 5:21 p.m. and 5:32 p.m., the parties asked the CAS tribunal to delay issuing the dispositive part of the award until at least after 8:00 p.m., to enable the parties to settle the matter and propose a Consent Award to the Tribunal.  (Chiles Second Appeal, para 106, Hearing Transcript page 117 et. seq.; Emails exhibit 72). The tribunal instead issued the dispositive minutes later, at 5:56 p.m. (Exhibits 45 and 73 to Chiles’ Amended filing)

In her filings, Chiles has requested that the matter be reheard by a CAS tribunal.  As each side files their appeals, one must wonder, given the statements by the CAS, CAS arbitrators, and CAS leadership, whether a CAS tribunal will feel free to decide a dispute based on the facts before it.  As noted above, one could envision that even a future CAS tribunal might feel pressured to decide the case consistently with the CAS’s published interpretative statements on the matter. 

These CAS statements were not neutral–-they were against any party that would challenge the award.  Future CAS arbitrators may also understand these statements as a warning to any future arbitrator who may issue contrary findings.

While it is unsettling that the CAS has issued interpretative statements, it is nevertheless important that the ADR community speaks openly about this matter.  These are the cases that could come to stand for conflicts of interest, neutrality, and self-regulation in ADR.

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Dr. Katherine Simpson is an arbitrator with Simpson Dispute Resolution (U.S.) and 33 Bedford Row Chambers (UK). See https://simpsonadr.net.