The Sports Factor

Nick D'Arcy was dropped from the Australian Olympic swimming team, after assaulting a fellow swimmer. So he, like so many others before him, took his case to the Court of Arbitration for Sport, or CAS, as it's sometimes known. But what happens then?

Transcript

This transcript was typed from a recording of the program. The ABC cannot guarantee its complete accuracy because of the possibility of mishearing and occasional difficulty in identifying speakers.

To another controversial legal procedure into a sporting area that's also about to reach its conclusion.

Nick D'Arcy: Obviously, I'm very disappointed by today's decision, however I am lodging an appeal, it's already been put in the works in preparation for today's decision. I will be appealing to the CAS, that will be my final port of call.

Reporter: And continuing to train every day?

Nick D'Arcy: Yes well obviously I'll continue to train until every last option's been exhausted; hopefully there'll be a quick decision that will come round either late this week or early next week.

Mick O'Regan: Swimmer Nick D'Arcy, on the 'PM' program earlier this week. D'Arcy was dropped from the Australian Olympic swimming team, after an alcohol-fuelled incident ended up with him assaulting fellow swimmer, Simon Cowley.

D'Arcy challenged the right of the AOC President, John Coates to omit him, thereby ending any chance D'Arcy had of competing in Beijing.

So he, like so many others before him, took his case to the Court of Arbitration for Sport, or CAS, as it's sometimes known. But what happens then?

Deborah Healey is a solicitor, and senior lecturer in the Faculty of Law at the University of New South Wales.

Deborah Healey: There's a general recognition that court processes are slow, and that court processes are also costly. So the idea was to develop a specialist forum which would be cheaper and quicker and where the decision-makers would be more in tune with the realities of sport.

Mick O'Regan: Now this is the International Olympic Committee deciding I think, through Juan Antonio Samaranch, to set up a body that would deal with disputes that arose in relation to Olympic events?

Deborah Healey: Yes, originally it was in relation to Olympic events, but it's got more of a broad purview now, and a lot of Olympic sports specifically refer disputes within them outside the period of Olympics to CAS and other sports can do so too, if both parties to a dispute agree.

Mick O'Regan: Now should we think of it as a typical courts in the way that we would think of an Australian court where there are barristers arguing before a judge and she or he makes a decision?

Deborah Healey: Well it's interesting. There are some similarities and there are some differences. Yes, you usually have barristers arguing cases, and it can be quite costly, but I think its chief benefits for those involved in sport is the ability to get things on quickly and get a decision made.

Mick O'Regan: And the nature of those decisions, the judges hearing them would have specific expertise in the matters before them? Say if it was something about a discus thrower, there would be the requisite expertise on the bench?

Deborah Healey: No, not necessarily. I mean the people who are on the bench are generally lawyers who have an involvement in sport, and a lot of the specific arbitrators on the Oceania CAS, which is the one that we're talking about in relation to the D'Arcy matter, are a few seasoned judges. So I guess they are not specifically sports-related but they've generally been sportspeople, or they have an interest in a particular sport.

Mick O'Regan: Now if we then turn to the Nick D'Arcy case. Here's a situation where a potential Olympic swimmer has been excluded from the national team because of events that arose in an altercation with another swimmer. It's as though the arguments are about bringing the team or the sport into disrepute. Just explain very briefly how Nick D'Arcy found himself going to the CAS.

Deborah Healey: Well under the Olympic Athlete Agreement, there is a sole discretion in the AOC and the Chef d'Mission during the period of the Games to exclude and expel people based on breaches of the agreement, and one of the factors that's taken into consideration or one of the relevant provisions which is repeated in many places throughout a 65-page Olympic Athlete Agreement, is bringing the team, the sport, the person, into disrepute, and originally John Coates relying on that agreement and the alleged breaches, found that the athlete had brought himself and the sport into disrepute, and terminated his membership of the agreement.

Under the agreement itself, all reviews or processes disputing decisions, under Clause 20 of the Olympic Athlete Agreement, are solely and exclusively to be heard in the Court of Arbitration for Sport. So in reality, the jurisdiction of other Australian courts is ousted by that clause. You can't go to any other court, and that was upheld in relation to a selection dispute in 2000, where the New South Wales Supreme Court said No, you've got to have it heard in CAS, we won't hear it.

Mick O'Regan: If the situation is like Nick D'Arcy's where there are allegations surrounding an assault, does that have any impact? If the issue is beyond sport, does the local court still lose its authority in relation to CAS?

Deborah Healey: Well no, the local court is hearing a completely different matter. They're hearing a criminal charge laid by the police; that's quite a different matter to whether or not the Australian Olympic Committee can terminate the membership of the team, of a particular athlete, so they're quite different matters. And it's interesting the decision of CAS and the statement made by the AOC throughout this matter are quite careful to draw that distinction.

Mick O'Regan: Now the other thing that intrigues me about the Court of Arbitration for Sport, is the endlessness of it. Now I think to a situation say with the Tour de France, where the 2006 winner of the Tour de France, the American, Floyd Landis, I'm not sure but I think he's still going through some sort of legal process involving the CAS. Is there a point at which there's simply a definitive decision?

Deborah Healey: Look I can't comment specifically on that. I'm aware of that in a general sense but I don't quite know why it's gone on for so long. Perhaps they're taking a long time to make particular decisions. In relation to the D'Arcy case, the issue is that there was a decision made, he appealed to CAS about that decision. CAS said, Well we think that the decision could have been made but in the circumstances it was made by the wrong person. They sent it back, it's been made again, and D'Arcy is now I believe seeking to appeal from that second decision. So it's not as if the process goes on forever. We're now appealing a new decision.

Mick O'Regan: And just to be clear: if the Court of Arbitration for Sport says Look, he should be put back in the team, does the Australian Olympic Committee have any alternative but to follow that direction?

Deborah Healey: No, I don't believe that it has. The CAS rules give CAS full power to review the facts in law in relation to an appeal before it, and they may issue a new decision replacing or annulling the original decision, or they may refer it back. So in the case of the earlier decision, what they did was they said 'Do it again', and referred it back.

Mick O'Regan: Now I suppose just finally, there is a specific deadline here, I mean basically Nick D'Arcy needs a decision before 8th August.

Deborah Healey: Yes, I believe so.

Mick O'Regan: So I suppose in that sense we are going to come to the end of this legal tunnel eventually.

Deborah Healey: We are, and I guess you can't blame someone for keeping availing themselves of appeal mechanisms when they've spent a lot of time, their lifetime, preparing for an event, and there is that sort of a drop-dead date here because of the Olympics, but I believe that this new CAS appeal will be his last throw of the dice to use the expression.

Mick O'Regan: Lawyer Deborah Healey, the author of Sport and the Law, which was published in 2005 by the University of New South Wales Press.

Guests

Deborah Healey
Solicitor, and senior lecturer in the Faculty of Law at the University of New South Wales.

Presenter

Mick O'Regan

Producer

Andrew Davies