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≡ ANALYSIS & OBSERVATIONS ≡
“Through the present press release we would like to inform you that today, 26.08.2024, the Swiss Supreme Court (TSE) confirmed the reception of the appeal formulated by FRG and Sabrina Maneca Voinea against the decision of the Sports Arbitration Court in Lausanne.”
That Instagram post from the Federatia Romana de Gimnastica – the Romanian Gymnastics Federation – announced not simply the latest challenge to the Paris 2024 women’s Floor Exercise results, but a call to change the way sports events are operated and officiated under the rules of Olympic International Federations.
The impact could be staggering.
The facts are, by now, well established:
● On 5 August, Rebeca Andrade (BRA: 14.166) and Simone Biles of the U.S. (14.133) were the gold and silver medalists on Floor, with a three-way fight for the bronze.
● Ana Barbosu (ROU) scored 13.700, as did teammate Sabrina Maneca-Voinea, but Barbosu was ranked higher thanks to a better execution score. American Jordan Chiles scored 13.666, but an inquiry about her difficulty score resulted in her total being increased to 13.766, good enough to win the bronze.
● The Romanians filed an action with the Court of Arbitration for Sport, protesting that (1) Chiles’ inquiry came after the 60-second limit and (2) Maneca-Voinea did not step out of bounds, as per a video replay, and should not have been penalized 0.100 points. If not, she would have scored 13.800 and been the bronze winner in any case.
● The Court of Arbitration for Sport heard the case on 10 August, and a three-member panel issued their decision on the same day, with the full opinion delivered on 14 August. In it, the upwards revision of the Chiles score was eliminated, the Maneca-Voinea request for a review of the out-of-bounds deduction was dismissed and Barbosu was named as the bronze medalist, later confirmed by the Federation Internationale de Gymnastique (FIG).
USA Gymnastics and the U.S. Olympic & Paralympic Committee have promised to pursue a further appeal for Chiles on procedural grounds – they were informed quite late in the process – and the Romanians have now appealed the same decision to the Swiss Federal Tribunal – the Swiss Supreme Court – which sits in Lausanne.
What they are asking for is for Maneca-Voinea’s score to be increased because video replays indicated she did not step out of bounds, which resulted in the 0.100-point deduction. This way outside the jurisdiction of the Swiss Federal Tribunal, whose authority in reviewing cases from the Court of Arbitration for Sport is limited by the Swiss Private International Law Act §190.
The five grounds include whether the arbitration panel was improperly arranged; jurisdiction questions, that the claims were not decided, “where the principle of equal treatment of the parties or their right to be heard in an adversary procedure were violated” or “where the award is incompatible with public policy.”
There has been a long-standing principle that judging or refereeing decisions are not reviewable on appeal. The CAS opinion in the Barbosu and Maneca-Voinea decision went into this in detail:
● “104. The Panel agrees that the ‘field of play’ doctrine is well-established and settled as a cornerstone principle of sports and CAS case law. The Panel will not depart from this principle, which is, moreover, in line with the application of the same in all CAS cases cited by Respondents [FIG]. The Parties agree on the rationale and the scope of this principle.”
● “105. According to the field of play principle, if a decision is demonstrated to be a ‘decision made on the playing field by judges, referees, umpires and other officials, who are responsible for applying the rules of a particular game,’ (CAS 2021/A/8119), the same should not be reviewed by the Panel. This wise principle seeks to avoid a situation in which arbitrators are asked to substitute their judgment for that of a judge, referee, umpire or other official, on a decision taken in the course of a competition that relates to a sporting activity governed by the rules of a particular game.”
● “106. As put in CAS 2021/A/8119, ‘[t]he rationale for the ‘field of play’ doctrine is that CAS Panels are not sufficiently trained in the rules of any or all sports and do not have the advantage to observe the event. All submissions by a party in relation to the judging and scoring of a competition are within the ‘field of play’ doctrine and cannot be reviewed by a CAS Panel.
“Consequently, any challenge to the assessment of difficulty in a performance, assessment of artistry and execution – including the results of the performances – are all matters within the doctrine of ‘field of play.’ Any challenge on technical breaches in the athletes’ performance are always matters requiring the expertise and judgment by those experts in the ‘field of play.’ If a video recording was a procedural aspect that led to the decision-making in the ‘field of play,’ its use is not open to review.”
Consequently, the CAS panel dismissed Maneca-Voinea’s appeal:
“The Applicants contend that the 0.1 deduction, corresponding to a line deduction, applied to Ms. Maneca-Voinea’s score, was unjustified as the athlete did not step out of the boundary during her performance. The Panel considers that the decision as to whether a 0.1 deduction was appropriate is a textbook example of a ‘field of play’ decision, one that does not permit the arbitrators to substitute their views for that of the referee. It warrants the non-interference of CAS as it entails the exercise of judgment by the referee, based on expertise in the ‘field of play’. Whether the judgment is right or wrong, it cannot be reviewed.”
It was further noted that the Romanian coaches did not make an inquiry about Maneca-Voinea’s score within the allowed 60-second time frame, as the U.S. did (or tried to do).
What the Romanians are asking for now is to have the Swiss Federal Tribunal intercede in the on-the-floor scoring of Maneca-Voinea’s routine in Paris, or at least send the matter back to the Court of Arbitration for Sport to re-examine the matter and to shrink or eliminate the “field of play” principle.
This is a potentially dangerous possibility and it is inconceivable that the Swiss Federal Tribunal will do as the Romanians have asked. But they have asked.
Observed: Whether this cascade of errors – by the FIG for not having a protocol for timing the receipt of inquiries, and by the Romanians for not protesting the deduction on the spot – eventually results, as the Romanians asked, for Barbosu, Maneca-Voinea and Chiles to all receive bronze medals, is yet to be determined. Only the International Olympic Committee, as the owner of the Games can do that, and that could happen.
Chiles’ appeal, however, is about procedure and the inability of USA Gymnastics and the USOPC to have enough time to prepare effectively for the hearing, on a day’s notice. That is in line with one of the grounds for action by the Swiss Federal Tribunal and more is to be said.
But the great danger of having courts interfering – days, weeks or months after the fact – in decisions of judges and referees on the field of play is too horrific to imagine. It is likely that the Swiss Federal Tribunal will think so too.
¶
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