On March 24, the International Olympic Committee (“IOC”) and the Tokyo 2020 Organizing Committee jointly announced[1] that due to the unprecedented circumstances surrounding the Covid-19 pandemic, the 2020 Summer Olympic Games in Tokyo – scheduled to begin on July 24, 2020 – will be postponed until 2021 – later clarified to be July 23, 2021. While the Olympics have previously been cancelled on account of World Wars, this is the first time the Games have ever been postponed.
The contractual and legal implications are no doubt numerous: sponsorship agreements, ticket sales, hotel reservations, etc. will all have to be renegotiated – force majeure or not. But what about the most important stakeholders of the Olympic Games, the athletes? Each one, depending on their sport, has to meet specific criteria in order to punch their ticket to the Games. Some have already qualified, but many more have yet to compete at trials events or be selected based upon discretionary criteria.
As governing bodies are no doubt overwhelmed with questions from athletes who already qualified – or were on the path to qualifying – for the 2020 Olympic Games, International Federations and their National Governing Body members will no doubt be looking for guidance as to what to do regarding athlete qualification. Immediately, there is no answer to the broader questions of how this is going to impact athletes with a pandemic that changes on a daily basis; however, once it becomes safe for the world to again host international sporting events, those questions will need answers.
One of the major decisions that International Federations had to make is whether those athletes who have already qualified for the Summer Olympics will remain qualified, or if they will have to qualify all over again. If an athlete who has already qualified for the Olympic Games were to be told that he or she is no longer qualified because the International Federations changed the rules for qualification, that athlete would likely have the ability to challenge his or her “de-selection” before the Court of Arbitration for Sport (“CAS”). Similarly, an athlete or group of athletes who believe that an International Federation should be required to start its qualification procedure anew may file a challenge to the International Federation’s selection procedures before CAS.
On March 27, 2020, the IOC announced that all athletes who had already qualified and the quota places that were already assigned for the Olympic Games will remain unchanged, stating that “This is a result of the fact that these Olympic Games Tokyo 2020, in agreement with Japan, will remain the Games of the XXXII Olympiad.”[2]
Qualification varies greatly from sport to sport. In the Marathon event, for example, athletes must meet a minimum qualifying standards (time) on a World Athletics certified course, or achieve certain specified places at a specific championships event or World Marathon Major[3]. From that list of athletes, Olympic marathon “quota spots” are allotted with a maximum of three athletes per nation; and then each nation’s national governing body determines who will fill each of those quota spots. In the case of the United States, those three quota spots were filled during the Olympic Marathon trials on February 29, 2020. However, the remaining athletics (track and field) events for the United States have not been filled, as they were to be selected at the U.S. Olympic Track & Field trials that were scheduled for June 19-28, 2020 (and which have now been postponed).
In men’s basketball, eight teams have qualified to compete, but the remaining four quota spots that were to be determined at a final selection tournament will now be delayed. The women’s basketball quota spots were already filled during a tournament in February 2020 in Serbia (that was forced to move from China due to the spread of Covid-19 locally at that time).
Is it then fair that the athletes who have yet to have their chance to qualify might be at a disadvantage after weeks, and perhaps months, of quarantine? Will the quarantine and social distancing be consistent worldwide, or (more likely) will there be large disparity in athletes’ ability to train based on where they live or what sport they are engaged in?
In certain sports, individual athletes could find themselves at odds with their governing bodies, with the Olympics officially rescheduled for next summer (beginning July 23, 2021)[4]. For example, USA Cycling’s Athlete Selection Procedures for the 2020 Olympic Games provided athletes with the opportunity to automatically qualify if they met certain criteria during the relevant qualification time period. If not enough athletes met that criteria to fill all of the quota spots allotted to the United States, then the remaining spots were to be filled based upon defined “discretionary” criteria, in which remaining athletes were to be evaluated based upon specific criteria such as head-to-head performance and medal capability. With the postponement of the Olympic Games, disputes over the proper application of those discretionary criteria seem inevitable.
If a United States athlete does not believe that his or her national governing body has appropriately followed its published selection criteria for the Olympic team, then that athlete can file what is called a “Section 9 Complaint”[5] pursuant to the Ted Stevens Olympic and Amateur Sports Act, whereby an independent arbitrator will evaluate whether or not the national governing body followed its published criteria. Depending on the outcome of that arbitration, the athlete who filed the petition may or may not replace another athlete already selected to the Olympic Team. As the national governing bodies are forced to adjust their criteria to a new timetable, athletes and coaches may disagree over how the criteria was meant to be applied; and in such a case, the arbitrator will be forced to resolve difficult issues regarding team selection.
Whatever becomes of the Summer 2020 Olympic Games, one thing is certain: the athletes will have to wait for the answers to these questions, as the world waits for sports competition to resume. We can all hope that the 2021 Olympic Games will be a celebration as the IOC has predicted, but the process of getting there will be even more stressful for our elite athletes than usual.
[1] See ‘Joint Statement from the International Olympic Committee and the Tokyo 2020 Organising Committee,’ 24 Mar. 2020 https://www.olympic.org/news/joint-statement-from-the-international-olympic-committee-and-the-tokyo-2020-organising-committee (accessed 26 Mar. 2020).
[2] See ‘IOC, IPC, Tokyo 2020 Organising Committee and Tokyo Metropolitan Government Announce New Dates for the Olympic and Paralympic Games Tokyo 2020.’ 30 Mar. 2020. https://www.olympic.org/news/ioc-ipc-tokyo-2020-organising-committee-and-tokyo-metropolitan-government-announce-new-dates-for-the-olympic-and-paralympic-games-tokyo-2020 (accessed 30 Mar. 2020).
[3] See Huber, Martin Fritz, ‘It Just Got Way Harder to Qualify for the Olympics,’ 12 Mar. 2019 https://www.outsideonline.com/2391874/olympics-2020-new-standards-running (accessed 26 Mar. 2020).
[4] See fn 2, supra.
[5] Section 9 of the USOPC Bylaws provides a process by which an athlete, coach, trainer, manager, administrator, or other official may file a complaint with the USOPC against an NGB/Paralympic Sport Organization/Recognized Sport Organization alleging that he/she has been denied or threatened to be denied with the opportunity to participate in the Olympic Games, Pan American Games, World Championships, or other such protected competition. The Complaint Form can be found at: https://www.teamusa.org/Footer/Legal/Governance-Documents/Section-9-Complaint-Form (last accessed 26 Mar. 2020).