Monday, 18 March 2013

Taking on the IOC at CAS

Last week the Court of Arbitration for Sport finally delivered its verdict in the case of Mu Yen Chu and Chinese Taipei Olympic Cttee v The International Olympic Committee. The IOC managed to carry the day and thereby maintain the status quo with regard to their London 2012 Athlete's Commission Election result. The IOC had disqualified Chu and the Japanese athlete Murofushi for breaches of the election rules regarding campaigning. The rules effectively outlaw campaigning. There seems little doubt that the rules place lesser known candidates at a disadvantage. This may have some relevance to CAS' ultimate conclusions.
 The merits of the rules for this particular election are dubious, although this was not the point of the case before CAS. Chu denied breaching the rules. The case had originally hit the headlines because Chu was accused of handing out lollipops to athletes in order to, supposedly,  entice them to vote for him. The source of this allegation only became known during the course of the appeal proceedings. The Australian Chef de Mission, Fiona de Jong, had emailed the Election Committee complaining that she had been told that Chu had been handing out the aforementioned candy in the Athletes' Village. It transpired that she had not witnessed this herself, had not identified any athlete who had in fact witnessed this and could supply no other evidence of its ever having taken place. De Jong was not called by the IOC at CAS, and although they maintained the allegation throughout the appeal, the IOC produced no further 'evidence' beyond the original second hand De Jong hearsay email. Unsurprisingly CAS found that there was insufficient evidence to 'confirm Chu distributed lollipops'.
 It may not be that surprising that the Australian delegation did not wish to further involve itself in this matter by appearing at CAS.  During the Games a photograph had been published in the media showing the Australian Election candidate, James Tomkins (he was elected), walking around the Village next to a giant 'kangaroo'. This might have been extremely awkward for the IOC and the Australians given that, unlike the case of Chu, there was actually photographic evidence of the activity, but nothing had happened to Tomkins. It might have been suggested that this was overt campaigning  of the kind outlawed by the IOC's rules. CAS commented (the matter was not directly relevant to the Appeal) that 'the photograph proved nothing in the absence of evidence that he deliberately posed with the kangaroo'. See for yourselves.

The appeal ultimately came down to the question as to whether there was evidence that Chu had further transgressed after he was given a written warning on the 26th July 2012 (following the De Jong email). The only evidence called by the IOC on this point was that of the Zimbabweans, Kirsty Coventry (travelled and appeared in person) and Busi Chindove (Chef de Mission of Zimbabwean team - by mobile telephone from Zimbabwe - incredibly and perfectly audibly). Interestingly Miss Coventry had lost the original election, but following the disqualifications of Chu and Murofushi she found herself in 3rd place and accordingly elected. Whilst acknowledging that Miss Coventry was 'de facto interested in the outcome' the Panel accepted her evidence, supported by her colleague Chindove, that Chu had campaigned in restricted areas after the warning letter of the 26th July, notwithstanding that she only complained about these transgressions after the vote had ended, and when the results of the election were certainly known to some, according to some unchallenged witness statements.
An interesting aspect of the case was the position of the Chair of the Election Committee, Anita De Frantz, a very senior and longstanding member of the IOC. De Frantz had caused the original warning letter to be sent to Chu. She was present at meetings with Coventry and Chindove, conducted the 'Investigation meeting' with Chu and presented a 'comprehensive oral report' to the Executive Board. The Appellants wanted to question her about the process by which it was decided that Chu had transgressed ie about the nature of the evidence and how it came to her attention and how the decision that Chu should be disqualified was arrived at.
De Frantz seemingly refused to play any part in the proceedings and the IOC proceeded without her, calling other witnesses in her stead, but never providing the answers that the Appellants were seeking. The Panel were of the opinion that the 'De Frantz argument' was not relevant as this was a hearing de novo, and accordingly it was for the them to decide whether the IOC had proved its case, and if so, whether the sanction imposed was within the appropriate range of proportionate responses.  The Panel never did hear what was contained within De Frantz's 'comprehensive oral report' for which there was no written record.
Reputation Intact

Mu Yen Chu had set out to clear his name. He had been stained with the label of 'lollipop man'. Although ultimately the Panel found against him in the appeal, it was interesting that they chose to specifically characterise him as being guilty only of 'excessive zeal rather than of a desire to cheat'. His  actions were 'overt rather than covert' and 'they should not be equated with dishonesty'. According to the Panel, Mu Yen Chu's 'reputation and integrity as a sportsman remain untarnished'. Vindication of sorts.

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