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Real-Time Rulings: How the CAS ‘Ad Hoc’ Division Resolves Urgent Sports Disputes
On Saturday, American gymnast Jordan Chiles was stripped of her women’s floor bronze medal following a ruling by the Court of Arbitration for Sport (CAS) Ad Hoc Division. The fact that this decision was based on a technicality proved particularly contentious; it is unusual for Olympians to get stripped of their medals for reasons unconnected to doping or cheating. What was initially celebrated as the first all-black podium in Olympic gymnastics has become overshadowed by the controversy, with Chiles facing a slew of online abuse in yet another reminder of the challenges that black athletes continue to face.
The CAS ‘Ad Hoc Division’ is an interesting part of the international sports legal framework; well-known to sports legal professionals but less familiar to the general public. This specialised branch of CAS operates during major sporting events, delivering rapid rulings on urgent disputes to ensure that competitions proceed smoothly. In this article, I’ll explore how the Ad Hoc Division functions, its impact on events like the recent controversy involving gymnast Jordan Chiles, and the challenges of appealing its decisions.
Background – Women’s Floor Final
On 5 August at the women’s floor final, Romania’s Sabrina Maneca-Voinea was given a score of 13.700 following her routine. Contributing to this score was a penalty of 0.1 points for stepping out of bounds; this later proved controversial as video footage appeared to show her narrowly staying within bounds at the relevant moment. Following that, Ana Bărbosu, also of Romania, scored 13.700, beat Maneca-Voinea by a tiebreaker and secured herself third place. Jordan Chiles initially scored 13.666, but a successful appeal to the judges to raise her difficulty score increased her point total to 13.766 enabling her to come third and win bronze at the award ceremony.
Subsequently, the Romanian Gymnastics Federation and the two Romanian athletes involved filed an application to the CAS Ad Hoc division disputing the day’s results, claiming that USA Gymnastics had filed their successful inquiry to increase Jordan Chiles’ score four seconds beyond the one-minute deadline to do so. On this basis, they argued that Jordan Chiles’ score should be readjusted to 13.666. CAS accepted this argument on 10 August and, as a result, Chiles’ score was adjusted down to 13.666 with Romania’s Ana Bărbosu then taking third place.
What Is The Court Of Arbitration For Sport?
Within sport, arbitration plays a significant role in the resolution of disputes. In layman’s terms, arbitration could be thought of as a “private court”. All members of a sports governing body (e.g. FIFA, the ITF, the ICC) collectively agree to abide by a set of rules and principles governing interaction between different parties. Within this broader agreement, the parties almost always agree to have disputes determined by way of arbitration. In these circumstances, arbitration is often preferred as a more discreet option to resolve disputes, but it also ensures that there is consistency of approach in resolving disputes in any one sport, or that occur across different jurisdictions. Within sports arbitration, CAS is the highest ruling tribunal and its role can be thought of as akin to a “supreme court” of sport, being recognised by all Olympic sports federations as well as the International Olympic Committee. Unlike the ‘supreme court’ there is an option to appeal CAS decisions to the Swiss Federal Supreme Court (often referred to as the Swiss Federal Tribunal or SFT) for a final determination.
What Is The Ad Hoc Division Of CAS?
Since 1996, CAS has maintained “Ad Hoc” panels of arbitrators to hastily resolve any disputes emerging at the Olympic Games (the Ad Hoc Division also convenes at other major sporting events). Recognising the need for efficiency in such cases, they aim to make decisions within 24 hours. Despite being physically based in host cities, these ad hoc bodies maintain their legal seat in Lausanne and remain bound to the same Swiss procedural law that governs CAS arbitrations.
It is notoriously difficult to bring a successful challenge to a field of play decision. Nevertheless, the outcome of a CAS Ad Hoc tribunal can have implications on the results of an event, as with the case of Jordan Chiles, Ana Maria Bărbosu and Sabrina Maneca-Voinea. While that CAS decision did not impose a performance judgment on any of the athletes involved, its ruling upon the legitimacy of one of the inquiries was consequential enough to provoke a medal revocation.
Appealing a CAS Ad Hoc Division decision?
On 12 August USA Gymnastics released a statement that they had submitted new “time-stamped, video evidence” showing an inquiry to the judge made within the 1-minute window i.e. within the permitted time. They argued that this evidence was not available before the tribunal decision and therefore could not have been considered. There is no procedural mechanism for the CAS to ‘reconsider’ an award in this way and CAS has confirmed that they are not reopening the case. USA Gymnastics is now faced with one option – an appeal to the SFT.
With its legal ‘seat’ in Switzerland, the appeal mechanism for a decision of the CAS (including the Ad Hoc Division) is to the SFT. Appeals of this nature are particularly difficult, with the Swiss Arbitration Association reporting that less than 10% of challenges to arbitral outcomes are successful. Throughout the entirety of CAS’s existence, only a handful of such appeals have succeeded, most due to procedural technicalities.
The grounds for appeal (which can only confirm or annul the award) are set out in the Swiss Federal Act on Private International Law (PILA) and comprise: (i) improper constitution of the arbitral tribunal; (ii) the arbitral tribunal improperly accepted or rejected jurisdiction; (iii) the arbitral tribunal ruled on matters beyond the claims submitted to it or failed to address one or more of those claims; (iv) the fundamental procedural rights of the parties were violated; or (v) the award is not compatible with public policy.
The SFT bases its decisions on the facts already established by the arbitral tribunal and generally does not correct or add to these findings, even if they appear inaccurate. This creates an additional challenge for USA Gymnastics. The SFT may exceptionally review factual findings in very rare circumstances:
- if new facts or evidence emerge from the decision itself; or
- if the facts were established in violation of fundamental procedural rules or procedural public policy, or if they result from an oversight that constitutes a formal denial of justice.
If they choose to appeal to the SFT, USA Gymnastics may argue that the speed at which an irrevocable CAS decision was made, which limited the availability of evidence, was in violation of their right to fair process under Swiss law. Nevertheless, they will be challenged by the fact that an explicit founding purpose of CAS ad hoc tribunals was to provide 24-hour resolutions to disputes at the Olympics and that in principle every National Olympic Committee has freely consented to recognise its authority.
Conclusion
In summary, the CAS ‘Ad Hoc’ division plays a crucial role in maintaining fairness during major sporting events by resolving disputes swiftly and efficiently. While its decisions, such as the recent ruling on Jordan Chiles’ medal, can be contentious, they are designed to ensure that competitions proceed without unnecessary delays. Taking decisions in such a short time frame, will always lead to questions about the fairness of the process, especially given the need for legal counsel to prepare evidence and submissions on the fly.
The avenue for appealing these decisions is narrow, underscoring the importance of the division’s role in delivering timely justice in the high-pressure environment of international sports.
If you require any advice on sporting regulation or disputes, please get in touch with Simon Grossobel, Litigation Partner and Head of the Quastels Sports Group.
Property Guide for Hong Kong Residents Relocating to the UK
For Hong Kongers looking to purchase residential properties in the UK, understanding the residential conveyancing process is essential. This article will provide an overview of residential conveyancing, offering insights into the legal procedures and considerations involved.
The UK legal system is recognised and trusted with a long established and transparent system of title records stored at the Land Registry. The Land Registry in England and Wales operates differently from Hong Kong as all Official Copies that prove ownership of properties, are stored electronically, and can be retrieved easily by solicitors acting in a property transaction. This differs from the system in Hong Kong, where the original title deeds are often held and passed to the new buyer upon completion.
The below is a simple explanation of the residential conveyancing process in UK:
1. Make an Offer
When you find a property you like, you make an offer to the seller/developer. You specify the price you’re willing to pay and any conditions you have. It is important to set out crucial terms at the outset. For example, do you have a particular timeframe you require for exchange and completion.
2. Acceptance of Offer
If the seller agrees to your offer, a memorandum of sale (for second-hand properties) or a reservation form (for new builds) will be issued detailing the terms and conditions for the purchase. It is important to check the details on the memorandum of sale/reservation form are correct. For example, is your full legal name used? Is the address provided your current residential address?
3. Appoint a Solicitor
You instruct a solicitor to handle the paperwork and legal aspects of the property purchase. In UK, the burden is on the buyer’s solicitor to establish the property has a good title. Quastels LLP is experienced acting for purchasers on developments across London and second-hand transactions. We can communicate in Cantonese to assist purchasers from Hong Kong understand the paperwork in their mother tongue language. We will assist you in a seamless transaction and provide a detailed legal report explaining important issues related to the purchase prior to exchange of contracts. Usually, a 10% exchange deposit is required upon exchange of contracts.
4. Surveys and Inspections
Unless you are buying a new build direct from a developer, no guarantee will be given as to the condition of the property. You should appoint a surveyor to prepare a report for you on its condition. In the UK, solicitors do not inspect the property or make any physical checks. This is the job of a surveyor.
5. Mortgage Arrangements
If you’re getting a mortgage, arrange this with a mortgage broker or a lender directly. For second hand transactions, you must consider the finance options prior to the offering stage. For off plan purchases, if you require a mortgage, we recommend you start the application at least 6 months prior to the estimated completion date, but of course you should not commit to an exchange of contracts unless you are certain you will have funds available at completion.
6. Exchange of Contracts
If you are satisfied with the legal report that you have received, the results of your survey , and that you will have funds available to complete the purchase, then you can ‘exchange contracts’. This is the point when you sign the contract and pay a 10% deposit, and fix the completion date. Once you have exchanged contracts both you and the Seller are ‘locked in’. Up to this point either you or the seller can withdraw from the transaction without penalty.
7. Completion
On the agreed-upon completion date, you pay the remaining balance of the purchase price. Any mortgage funds will be sent direct to your solicitor to use. The property’s legal ownership is transferred to you, and you receive the keys. Quastels LLP will deal with paying the SDLT and registering the property at Land Registry. For off plan properties, registration can take up to 12 months. The application to register the title at the Land Registry is protected until the Official Copies are received.
Below are answers to some common questions that purchasers from Hong Kong often ask during the conveyancing transaction:
Why do solicitors check source of funds in such detail for purchasing a residential property in UK?
The requirement for a source of funds and anti-money laundering (AML) checks in the UK for residential property purchases is primarily aimed at preventing illegal financial activities, such as money laundering and fraud. These checks are part of a broader effort to maintain the integrity of the financial system and property market. UK law firms are required to review the source of funds and origin of funds for the purchase of the property in UK to comply with AML regulations.
Quastels LLP provides a thorough Source of Funds Questionnaire to assist purchasers in providing the correct information. The following can be provided in readiness prior to starting the conveyancing process:
- Bank statements for the last three months
- Payslips/Employment contract/Business card
- Copy of your passport
- Copy of your proof of address within last three months (utility bill or bank statement)
- An explanation for the source of funds. How were the funds accumulated? For how long? Did you receive any gift of funds from a third party?
- Evidence for your source of funds. For example, have you sold/refinanced another property to raise funds for the purchase? Do you have stocks and shares portfolio? Do you receive bonus/commission from your workplace? Do you have rental income?
What Do I Need To Look Out For If I Am Purchasing A Property Through a Company?
There may be adverse tax consequences from holding the property through a company. At Quastels our tax department can guide you. In addition The Economic Crime (Transparency and Enforcement) Act 2022 creates an obligation on overseas entities to ensure information is provided as to the ownership of overseas companies holding property and that it be renewed on an annual basis.
Is It True That I Don’t Need To Pay Ground Rent On New Build Flats Anymore?
The Leasehold Reform (Ground Rent Act) 2022 prohibits ground rent being charged on new leases. Therefore, if you purchase a new property where a new lease is granted, no ground rent will be payable under the lease.
There are exceptions to the Act, including:
- Existing leases
- Leases granted pursuant to contracts exchanged before 30 June 2022
- Business leases
If you are interested in purchasing a residential property in the UK, please contact us and fill out the form below.
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Five Key Legal Concerns When Buying a Business in Administration
Purchasing a business in administration can be a great strategic move. However, this process comes with its own set of risks. Below we explore the five key legal concerns that buyers should consider when purchasing a business in administration.
1. Establishing What Is For Sale
The information in sales particulars will not be guaranteed, so a physical inspection of the assets is recommended. Some assets might be subject to retention of title or lease agreements and so will not be the seller’s to sell.
Debts owed to the seller generally remain with the seller and are collected by the administrators. The buyer may want to consider making an offer on the debts or negotiating an arrangement whereby the buyer collects the debts on behalf of the administrators for a fee.
2. Legal Due Diligence
Undertaking comprehensive legal due diligence is crucial when considering the acquisition of a business in administration. This involves a review of (amongst other things) the target company’s commercial agreements, any ongoing legal disputes, intellectual property rights and regulatory compliance. However, there may be little time available for the buyer to carry out thorough due diligence due to completion deadlines and in any event, generally, there will be no right of recourse if information provided by the administrators is incorrect. It is therefore important to strike the right balance of legal due diligence when buying a business in administration.
3. Warranties, Representations And Indemnities
Administrators act as agents of the seller. They will accept no personal liability under the sale agreement and will give no warranties about the assets sold. As a result, the normal warranties that a seller might give will be very limited or excluded entirely. Buyers should approach the purchase with the understanding that they are likely to receive the business on an “as-is” basis, with no assurances about the condition or performance of the business or its assets.
Conversely, the administrator will likely require the buyer to provide indemnities to the administrator and seller in respect of any liabilities that arise post-completion such as any employment related claims under The UK Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) or any ongoing contractual obligations that the buyer agreed to take over.
4. Employment Law
Navigating employment related legal issues is crucial when acquiring a business in administration. Where possible, buyers should examine existing employment contracts and any pending employee disputes. TUPE generally applies where the seller company is in administration. As a result, employees assigned to the business that is being sold will be transferred automatically on their existing employment terms to the buyer. It is therefore not possible to elect to choose certain employees and employment related liabilities in the same way as other assets and liabilities.
TUPE is particularly important in an administration sale context as TUPE related claims are likely to be focussed on the buyer given the seller’s insolvency and, as mentioned above, administrators will usually require broad indemnities from buyers for any liability as a result of failing to comply with TUPE.
5. Customer and Supplier Relationships
Maintaining strong relationships with customers and suppliers is essential for the continued success of any business. Buyers should assess the impact of the acquisition on existing customer and supplier relationships. Reviewing and understanding the contractual obligations of the target business is crucial. Existing contracts with customers, suppliers, and other stakeholders should be reviewed to assess transferability of contracts, identifying any change of control provisions, and understanding the consequences of the acquisition on ongoing agreements. Your legal advisor can provide guidance on contract novation, renegotiation, or termination to ensure a seamless transition and avoid legal disputes.
Conclusion
While buying a business in administration presents unique opportunities, there are inherent risks that require careful consideration. At Quastels, we have experienced legal advisors in our Corporate Department to draft and review business sale agreements and all related documents to ensure that the buyer’s interests are protected to the fullest extent within the constraints of the administration sale.
To discuss any of the points raised in this article, please contact Nilam Davé or fill in the form below.