From Sagen to Henriques: Legal Challenges to Olympic Event Selection Decisions and the Role of the Court of Arbitration for Sport

Abstract

AbstractThe interests of athletes are a fundamental aspect of the Olympic Movement. Yet, athletes face jurisdictional barriers when attempting to advance their interests and challenge the International Olympic Committee (IOC)’s exercise of authority over the Olympic Movement, including the IOC’s decisions regarding which sport events are included in the Olympic Games. Previous attempts to challenge the IOC’s selection of sport events for the Olympic Games have been unsuccessful in national courts, as seen in the case of Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (“Sagen”) involving women’s ski jumping. Following the outcome in Sagen, academics theorized that athletes might have better success challenging Olympic event selection decisions at the Court of Arbitration for Sport (CAS), as CAS has several jurisdictional advantages over national courts. A recent CAS decision in Henriques v. IOC (“Henriques”), involving the exclusion of women’s 50 km race walking from the 2020 Olympic Games, casts doubt on this approach as CAS dismissed the application due to the lack of an arbitration agreement between the appellants and the IOC. However, the outcome in Henriques should not deter athletes from using CAS to challenge the IOC’s Olympic event selection decisions in future cases. It is arguable that the CAS panel’s reasoning in Henriques did not properly consider how the arbitration clause in the Olympic Charter could form the basis of an arbitration agreement between the appellants and the IOC under Swiss law. Additionally, the CAS panel’s decision in Henriques can be used to inform legal strategies in subsequent disputes to ensure that CAS is able to hold the IOC accountable for Olympic event selection decisions that are discriminatory or otherwise unlawful.