The Olympics Chiles Arbitration Debacle, Part 3: A Sham Award Following a Sham Arbitration?

The Court of Arbitration for Sport (CAS) arbitration panel’s published Aug. 14 arbitration award in Cases 24-15 and 24-16--perhaps more aptly titled “The Decision To Strip Olympic Gymnasts Jordan Chiles and/or Sabrina Maneca-Voinea of a Bronze Medal” ( referred to here as “award”) --reveals further troubling irregularities. (Direct URL to the award: https://bit.ly/3yWQat9.)

Typically, one would turn to the signed, dated arbitral award for all of the information about the case. It is, however, unclear whether this unsigned “Award” is the true award that was shared with the Parties and “Interested Parties” on Aug. 10, 2024. 

It appears instead to have been written in response to events occurring after the decision was announced, but before the award was published.  This carefully crafted award could hold low evidentiary value to the courts and other actors who may be asked to rely upon it. 

While it may be against arbitration protocol whereby one lets the award speak for itself, one can empathize with the CAS’s urge to defend itself by issuing interpretative statements about the Award. See the Media Release at https://www.tas-cas.org/fileadmin/user_upload/CAS_Media_Release_ParisOG_15-16__full_award_pub_.pdf.  

While the arbitral panel’s award makes it appear as if the CAS Ad Hoc Division and the panel were partners throughout the procedure, the award blames all irregularities on the CAS Ad Hoc Division.  According to the award, the CAS Ad Hoc Division forced two Romanian gymnasts (Ana Maria Barbosu and Sabrina Maneca-Voinea), who had opposing claims and interests, to combine their cases (award para. 14).  This early combination ultimately determined the outcome of the case. 

The CAS Ad Hoc Division also appointed the panel (award para. 14), added the International Olympic Committee, U.S. Olympic gymnast Chiles, USA Gymnastics, and the U.S. Olympic & Paralympic Committee to the process as “Interested Parties” (award para. 13), allegedly notified all "Parties" and “Interested Parties” of the presiding arbitrator’s conflict of interests (award para. 15), but failed to notify the U.S. Interested Parties and the IOC of the proceedings until days later, after the deadlines for raising objections expired, and notably only 22 hours before the hearing (award para. 33).  The arbitral panel took no action to disrupt or remedy the CAS Ad Hoc Division’s actions.

Writing in its own defense, the panel appears to respond to Aug. 11 reporting that the U.S. inquiry was indeed timely, at 47 seconds. NBC Chicago Staff and Associated Press, "USA Gymnastics says video captured Jordan Chiles inquiry timing, argues ruling should be reversed," 5Chicago (NBC) (Aug. 11) (available at https://bit.ly/4dNYRVA). Rather than making a finding of fact, the panel creates the illusion that all participants agreed that the inquiry submitted on Chiles's behalf was late, at 1 minute 4 seconds.

While the award states that USA Gymnastics and Chiles did not challenge the submission that the inquiry was submitted “within one minute and 4 seconds” (award para. 79), sharp readers note that this is different from an admission or acceptance that the inquiry was submitted at “one minute and 4 seconds” (award para.  9).  It is unclear whether Chiles or USA Gymnastics had the ability to object

The panel also creates the impression that the U.S. Interested Parties, despite their ill-defined status, had the power or opportunity to object, when they were added to the case after the deadline to raise objections had elapsed. Kevin Dotson, "Dispute over Jordan Chiles’ Olympic floor routine rolls on as US claims CAS sent emails to the wrong addresses," CNN (Aug. 16) (available at https://bit.ly/4fTNv4k).

One must consider whether all entities had the meaningful opportunity to object each time the panel writes that there were no objections. 

Finally, the panel also appears to have drafted parts of the award in response to reports that the Romania’s Lawyer-Turned-Presiding-Arbitrator has a “Non-Waivable Red List” Conflict of Interest which, even under the CAS Rules, should have precluded his service on this case as arbitrator.  Court of Arbitration for Sport, Arbitration Rules for the Olympic Games, Art. 12, p. 5 (available at https://bit.ly/3AtfZSi), and IBA Guidelines on Conflicts of Interest in International Arbitration, Part II: Practical Application of the General Standards, (1) Non-Waivable Red List at 1.4 (2024) (available at page 15 of the PDF: https://bit.ly/4cpXziy) ("The arbitrator currently or regularly advises a party, or an affiliate of a party, and the arbitrator or the arbitrator's firm or employer derives significant financial income therefrom.").

This award will hold a place in arbitral history as a demonstration of why the Non-Waivable Red List exists in the current IBA Guidelines on Conflicts of Interest linked above, which the CAS has repeated is applicable in this case. Alison Ross, "US furore over Gharavi Olympic ruling," Global Arbitration Review (Aug. 14) (available at https://bit.ly/3MdBrxe).  

It will serve as an example of the rarest abuse of arbitrator power, and the myriad ways that an arbitrator can promote or undermine an entity’s ability to present or defend its case. 

In this matter, the ultimate prevailing entity was not any of the gymnasts; it was the presiding arbitrator’s client, Romania.  With the U.S. gymnast off of the podium, Romania, present through the presiding arbitrator, left this process with two Olympic gymnasts with tied scores of 13.700.  This is an outcome that only the presiding arbitrator’s client, Romania, could have wanted. 

Romania has since treated the two gymnasts as if they were equally entitled to the bronze medal. "Sabrina Maneca-Voinea awarded a car in Romania, recognized as Olympic bronze medalist," International Gymnast Media (Aug. 18) (available at https://bit.ly/46Tky4g).  

The panel dismissed Sabrina Maneca-Voinea’s claim that would have elevated her score to 13.800. While some would argue that this proves that the panel was not biased, in effect the arbitral panel simply “split the baby,” taking a little from each side to reach a conclusion that looked superficially as if everyone lost a little, but in reality no one won. Rather than consider Maneca-Voinea’s claim, the panel gave the IOC the unsavory task of determining who, between Ana Maria Barbosu and Sabrina Maneca-Voinea, would receive the bronze medal. Associated Press, Romanian gymnast receives bronze medal first awarded to Jordan Chiles," CNN  (available at https://bit.ly/3yCjkxR).

One must wonder whether any other panel–in particular one without a conflicted arbitrator, in particular in a presiding role –could have created a process that would have produced the same result.  The process that this panel and the CAS Ad Hoc Division created from the outset determined its result.

First, although Romanian gymnasts Maneca-Voinea and Barbosu had unrelated claims, and sought opposing outcomes, the panel writes (award para. 14) that the CAS Ad Hoc Division combined their claims into one proceeding.  The panel provides no explanation for why these separate applications were joined under Article 11 of the CAS Ad Hoc Arbitration Rules (linked above) over the respondents’ objection, rather than allowed to proceed separately and independently before different panels. 

Second, the CAS Ad Hoc Division, the applicants, and the respondents recognized that U.S. gymnast Jordan Chiles, USA Gymnastics, and the USOPC had a stake in the outcome of this case (award para. 13, 52, 61).  One must wonder why the panel and CAS Ad Hoc Division that insisted on joining them as “Interested Parties” (award para. 13, 35), but never took adequate steps to ensure that they received notices that they, undisputedly (award para. 33), did not receive.  One must also wonder why the panel and the CAS Ad Hoc Division refused to grant an extension that would have enabled them to fully participate after this enormous and agreed procedural error by the CAS Ad Hoc Division and the panel (award para. 35.)

The panel never clarifies whether the Interested Parties had the same rights and obligations as the applicants and respondents, or one another.  The fact that the IOC was able to demand that the proceedings end before the end of the Olympics (award para. 33), rather than provide Chiles, USA Gymnastics, and the USOPC the extensions that would enable their participation, suggests unequal treatment.

The panel’s award reveals how Chiles, USA Gymnastics, and the USOPC were treated differently from the applicants and respondents.  For example, they were given only 22 hours to prepare for the hearing, while the applicants and respondents had more than three days. 

Consistent with Article 15 of the Arbitration Rules for the Olympic Games, the award reflects the control that the panel held over the process.  The panel, led by its presiding arbitrator, had full control over when and how the parties and Interested Parties received notices related to the process, the scope of their submissions, the availability of extensions, and their ability to submit evidence or raise objections. 

The panel determined the consequences of its own and the CAS Ad Hoc Division’s failure to send required notices correctly.  The panel chose to lead a process that was detrimental to all parties, possibly for the benefit of the presiding arbitrator’s client, Romania.

The legitimacy of this entire process depends on the independence and neutrality of the arbitrators. This award does not detail how these specific arbitrators were selected for this case. 

The award shows, however, that the panel recognized the gravity of the presiding arbitrator’s conflict of interests.  The award attempts to reassure readers three times that no one objected to his appointment.  First, the panel reports that, on Aug. 7, “the attention of the Parties and Interested Parties was drawn to the disclosure made by [Presiding Arbitrator] Dr. Hamid G. Gharavi . . . that he acts as counsel for Romania in Investment arbitrations before ICSID (Cases ARB/20/15, ARB/22/13 and ARB/16/19).  . . .” (award para. 15).  The paragraph then notes that no objection was raised at that moment or at any other time. 

Leaving aside that Gharavi’s disclosure is incomplete and there appears to have been no disclosure of any work by any of the other arbitrators, one must wonder how the CAS Ad Hoc Division or the panel informed “the Interested Parties,” i.e., Chiles, the USOPC, USA Gymnastics, or the IOC, of the presiding arbitrator’s conflict of interests on Aug. 7 (para. 15), when they were not even informed about the proceedings until Aug. 9 (award para. 32-33). 

This time travel issue is not resolved by a later section of the award, where the arbitral panel declares that only “the Parties” were satisfied with the composition of the tribunal at the beginning of the hearing (award para. 46) and at the end of the hearing (award para. 47). Contrary to the CAS’s Media Release (linked above) that everyone agreed, the “Interested Parties,” including the USOPC (which did not participate, see award para. 45) were not referenced in these self-serving  paragraphs. 

There is no indication in the award that Chiles, the USOPC, USA Gymnastics, or the IOC received the disclosure, had the power or the opportunity to object to the service of the presiding arbitrator, or consented to the presiding arbitrator’s service.  This panel, which would not even allow them necessary extensions to enable their participation and remedy the admitted gross procedural notification errors, likely wouldn't have entertained an objection that, if successful, could have produced the same result:  an extension.

Given that the presiding arbitrator’s concurrent and lucrative representation of an affiliate to a party is a Non-Waivable Red List conflict of interest under the International Bar Association Guidelines on Conflicts of Interest in International Arbitration noted and linked above, consent or waiver would not have cured this conflict.

Even the IBA Guidelines, which the CAS states that it follows (see Tariq Panja, "Head of Panel That Ruled Against Jordan Chiles Represents Romania in Other Cases," N.Y. Times (Aug. 13) (available at https://bit.ly/3X9PxG5)), indicates that it believes that some conflicts of interest are too significant to be cured by consent. 

The Swiss Federal Tribunal may consider that the presiding arbitrator’s concurrent and lucrative representation of an affiliate to a party is such a Non-Waivable Red List conflict of interest. 

This award demonstrates why some conflicts are indeed non-waivable.  The award reveals how the CAS Ad Hoc Division and the panel, to the detriment of all involved and to the sole benefit of the presiding arbitrator’s client, Romania, created a process that prevented Jordan Chiles, USA Gymnastics, USOPC, and the IOC (four of the five “Interested Parties”) from meaningfully participating in the process.  Gymnast Ana Maria Barbosu’s award is tarnished.  The CAS Ad Hoc Division and the panel also robbed Sabrina Maneca-Voinea of the opportunity to be heard by an independent tribunal. 

The award reveals how the panel and the CAS Ad Hoc Division actively shaped the process toward its ultimate outcome in favor of the presiding arbitrator’s client, Romania.  This was to the detriment of all the gymnasts, the detriment of CAS arbitration’s reputation, the detriment of international arbitration and to the detriment of basic principles of justice and fairness. 

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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.

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