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≡ GYMNASTICS ≡
The 55-page filing by U.S. gymnast Jordan Chiles to the Swiss Federal Tribunal asks the court to send the matter back to the Court of Arbitration for Sport for a re-hearing in front of a new panel of arbitrators.
Chiles’ action was made against the Romanian Gymnastics Federation, the two Romanian gymnasts who are now ahead of her in the women’s Olympic Floor Exercise final standings – Ana Barbosu and Sabrina Maneca Voinea – and the Federation Internationale de Gymnastique.
Under the controlling Swiss Private International Law Act §190 – in force since 1989 – there are five grounds on which an arbitration award can be set aside; Chiles specified two:
● §190 (2.a.): that “the arbitral tribunal [was] improperly constituted”
● §190 (2.d.): “where the principle of equal treatment of the parties or their right to be heard in an adversary procedure were violated”
The improper construction of the Court of Arbitration for Sport panel identifies the panel’s chair, Dr. Hamid G. Gharavi, of French and Iranian nationality, as representing the state of Romania in three significant cases at the International Centre for Settlement of Investment Disputes (ICSID) with a collective value of more than €100 million.
Moreover, Ghavari was reported to represent the Romanian government since at least 2016, and the appeal states (computer translation of the original German):
“Dr. Hamid G. Gharavi finds himself in a blatant conflict of interest due to his long-standing mandate relationship with the Romanian state”
Further, this relationship was not discovered until after the 10 August award from the Court of Arbitration for Sport panel, in fact only due to media reports on 13 August, and Ghavari did not himself disclose them at the time of selection. The deadline to challenge the panel composition was on 7 August.
Chiles’ appeal notes, that given the timeframes involved, “it would also be offensive to accuse the complainant in this case of having a duty to investigate the independence and impartiality of the CAS Panel.”
The timeline in this case is also the key to Chiles’ second grounds for appeal, that she was denied the “right to be heard” on multiple grounds:
● After USA Gymnastics produced a time-stamped video showing that the U.S. inquiry on Chiles’ score was made within the required one minute on 11 August, the Court of Arbitration panel said it could not accept evidence after its decision had been delivered via news release, on 10 August.
But the appeal contends that the decision of the CAS panel is not final – and therefore closed – until the written decision is published, which was on 14 August. If so, then the CAS panel should have considered the new video evidence provided to it by USA Gymnastics. The inability to submit this evidence and have it considered denied Chiles’ right to be heard.
● The appeal also notes the unusual difficulty in communications that penalized Chiles. The Court of Arbitration notified Chiles, the U.S. Olympic & Paralympic Committee and USA Gymnastics of the arbitration proceedings brought by the Romanian Gymnastics Federation on 6 August – the day after the Floor final took place – by electronic mail.
However, typographical errors in the e-mails to Chiles’ representative and to USA Gymnastics in-house attorney meant they did not receive any notice at all. Further, the e-mail address for the USOPC attorney was to an individual who had left the organization, meaning the USOPC also received no notice.
Continued use of these erroneous e-mails was finally corrected only on 9 August at 5:16 p.m. Paris time, with a hearing already scheduled for the next day! The Court of Arbitration finally got hold of USOPC Counsel Chris McCleary at 10:23 a.m. Colorado Springs time, who questioned why the errors were made when he had received other messages from the Court of Arbitration from Paris a few days earlier.
McCleary demanded – and eventually got – an additional eight hours to respond, but with no movement in the hearing to begin at 8 a.m. Paris time on 10 August. Chiles was not notified of the appeal until later on the 9th, already back in the U.S. and the attorney asked by the USOPC to represent Chiles – in Portland, Maine – had less than three hours to prepare a response in advance of the hearing.
Despite questions raised about the unreliability of the recording of when the U.S. inquiry about Chiles’ score was actually made, the Court of Arbitration panel insisted on using the proffered 64-second time provided by the scoring system, which was not set up to record when inquiries were made. On that basis, it decided to void the added 0.10 points to Chiles’ score and she was moved to fifth place.
However, on the next day – 11 August – new evidence was found that showed otherwise. From the appeal:
“The events of the following minutes are recorded in unedited video and audio material that was recorded by the US production company The Religion of Sports Media, Inc. (RoS) for a documentary film about Simone Biles.
“RoS had three cameras on site (A-Cam, B-Cam and C-Cam). The Footage from RoS includes also the live broadcast from the US television station NBC (video window top left) and from Olympic Broadcasting Services (OBS ) (video window in the center).
“The RoS video also includes a running clock (RoS Clock).”
The video showed Chiles’ score posted at 15:31:52 Paris time and at 15:32:41 – 49 seconds later – U.S. coach Cecile Landi signaled her inquiry:
“Cécile Canqueteau-Landi, who is not seen here in the RoS video, raises an oral objection for the first time on behalf of the complainant. In the RoS video she can be heard saying clearly and audibly: ‘Inquiry for Jordan!’
“One of the two white-clad technical assistants responsible for receiving objections made eye contact with her and nodded to her to to indicate receipt of the verbal inquiry.” (Citations omitted)
The video shows Landi saying “Inquiry for Jordan” again at 57 seconds and 59 seconds after her score was posted. The appeal states:
● “The CAS Ad Hoc Division’s decision not to admit the RoS video also raises concerns with regard to the procedural maxim applicable before the CAS Ad Hoc Division according to which the CAS Panel could have obtained the relevant evidence on its own initiative, and is all the more problematic against the background that the appellant only had a few hours to prepare for the arbitration proceedings.
“For this reason, and based on the description of the further development after August 10, 2024, the complainant cannot be accused of having been able to obtain the RoS video earlier.” (Citations omitted)
● “Consequently, the CAS Panel violated the appellant’s right to be heard was violated. This violation inevitably influenced the outcome of the proceedings, since the RoS video provides evidence that Cécile Canqueteau-Landi had made the appellant’s objection of the complainant (Verbal Inquiry) within less than one minute of the announcement of the the announcement of the complainant’s result at the final.”
Complicated? Yes, but cases that get to a national supreme court always are. There’s no timetable on a decision by the Swiss court, but if Chiles wins, the matter will take even longer as a new Court of Arbitration for Sport panel will hear the issues all over again.
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