Case Study: Tokyo 2020 Pro Bono Legal Mechanism

Background:

The Tokyo 2020 Olympic and Paralympic Games Pro Bono Legal Advice and Representation Service was made to provide free legal advice and representation for accredited athletes, coaches, team officials, National Olympic Committees, National Paralympic Committees, International Federations, and International Paralympic Sporting Federations participating in the Games.

The Service was designed to provide access to independent legal advice across four areas of law: sports law, criminal law, civil law and immigration control, and refugee recognition law. It was therefore intended for those who either did not have their own legal representatives in Japan, or who could have had difficulty identifying representatives at short notice. It was in operation from 13 July to 8 September 2021.

This Service was separate from the two temporary Tokyo offices set up by the Court of Arbitration for Sport (CAS), which at every Games sets up an Ad Hoc Division responsible for resolving legal disputes arising during the Games itself and the Anti-Doping Division responsible for potential doping cases during the Games or referred by the International Testing Agency.

The Service worked in cooperation with the Japan Sports Arbitration Agency (JSAA) and collaborated with the Japanese Olympic Committee. The General Division was charged with leading on cases related to criminal law, civil law, and immigration / refugee related issues, while the Sport Division dealt with matters of sport law and cases in relation to the CAS Ad Hoc Division.

Scope, Capacity and Promotion of the Mechanism:

The Service was composed of 30 lawyers in the Sports Division and 43 in the General Division, though it was noted that some lawyers decided to quit working on the service due to their personal opposition to the Games.

Athletes were made aware of the Service either through the CAS which promoted it in a news release, or directly through their NOC; however, the Service itself admitted the mechanism could have been better promoted. For example, cases in relation to sexual harassment, athletes violating the coronavirus playbook, or Rule 50.2 were in the scope of this mechanism – there was an example of a gymnast who took the knee on the podium and was sanctioned. This case could have come through the mechanism, but did not. Nevertheless, a similar mechanism at the London 2012 Games only received 4 cases, so the number of cases can be hard to predict.

In addition, specifics requirements were needed to raise a case in front of the Service – for example, the matter must have taken place within Japan, during the service period, be in relation to one of the four categories (sports law, criminal law, civil law, immigration control and refugee recognition law) or have already been tried before the CAS. The matter also had to be compatible with the Service’s objective of contributing to the smooth running of the Olympic and Paralympic Games.

Expertise and Response:

In total, the mechanism received seven cases – three of which were in relation to the CAS Ad Hoc Division and the other four all related to sports law, with no cases raised to the General Division. The Service recognised that it did not have expertise in all potential issue areas, including on Rule 50.2, and that in general expertise on international sports law and international human rights law was lacking. This was one way in which the Centre for Sport and Human Rights supported this mechanism. The Centre had a group of international experts who were experts in international human rights law who stood ready to offer support and advice should a related case have been raised. In the end, no such case was brought forward, but with this established group of experts, the Centre will look to provide this sort of support to events going forward.

In addition to recognising some limitations on promotion, the Service also recognised that it could have have been more proactive on some cases. For example, one issue that came up during the Games was a Ugandan athlete who was deemed ineligible to compete and had to return to his country. The Service could have more actively contacted the Uganda NOC or even the athlete offering support. The same was true of the case of the Belarussian sprinter who was removed from participating in the Women’s 200m heats due to her “emotional, psychological state” – something she believed to be politically motivated after complaining about the coaching staff on her Instagram. The athlete protested, filed a complaint with the CAS Ad Hoc Division and even sought asylum elsewhere in Europe as she feared returning to Belarus. The request for provisional measures was however dismissed and she was granted a humanitarian visa to Poland. This case also did not come through the Service, but would have been in scope. No issues were raised during the Paralympic Games, but the question of whether athletes were aware of the Service was acknowledged.

Despite some limitations in the promotion of the mechanism and proactive outreach to issues that did occur during the Games, it was recognised that for those cases that were raised, the response time was extremely fast and all cases were able to move forward very efficiently. For more information on the cases raised, please see the summary report of the pro bono legal mechanism here.

Key Takeaways:

• For future games, promotion should be a central consideration – ensuring that there is overall better promotion, better access, and more proactive outreach to athletes
• It would also be better to have included content on the IOC Playbook or the IOC Charter, especially Rule 50.2 and eligibility requirements – needed more training for lawyers on Olympic specific issues (but in general, there should be training on the event organisers’ rules)
  • The same was true for eligibility requirements which are limited to sport law knowledge and international sports arbitration – including international human rights expertise would have helped
• Regardless, it was acknowledged that the CAS Ad Hoc Division could not have offered appropriate remedy for many of the cases raised and that MSEs need more human rights specific remedies
• The Centre is a good option for convening international experts on short notice to plug gaps in expertise, but this is not a solution over the long-term