August 7, 2008 11:59 PM

BEIJING 2008: An Arbitrator Goes to the Olympics

Posted by Brian Baxter

Debevoise & Plimpton international arbitration partner David Rivkin has a key part to play in the Games of the XXIX Olympiad in Beijing.

As the only American lawyer on an international 12-member ad hoc panel of the Lausanne, Switzerland-based Court of Arbitration for Sport (CAS), Rivkin has both the privilege and the burden of deciding the outcome of many of the event's competitions.

The Am Law Daily caught up with Rivkin in New York before he left for Beijing to chat about CAS, the Olympics, and the wonders of international arbitration.

How long have you been involved with CAS?
I began getting involved with CAS in the late nineties as a result of my work in the field of international arbitration. CAS was looking for arbitrators from that background, because a lot of its original arbitrators were appointed by the [major international] sports federations. I think I came on in late 1998 and was fortunate enough to be one of the tribunal members for the Salt Lake City and Athens games.

So the Olympic panels are different from normal CAS proceedings?
That's right. For each of the Olympic games since Atlanta in 1996, CAS appoints an ad hoc panel of 12 arbitrators who go to the games and hear cases as they arise. If you look at the CAS Web site, you'll see the specialized rules for the ad hoc tribunal. Cases that fall within the jurisdiction of the ad hoc panel are related to the Olympics and arise anywhere from a day to 10 days before the start of the games. [Ad hoc CAS] cases also are usually filed, heard, and decided within 24 hours, because the kind of disputes that arise at the games must be decided on an expedited basis.

So I take it you're on call when you're there, kind of like an emergency room doctor?
[Laughing.] Yeah, in the old days we used to carry special cell phones but now we just use our own. We're all reachable at any time and we're free to go off to events but we have to be within reach of the CAS office. If I get a call saying a new case has been filed and I've been assigned to it, then I head straight back to the office and review the papers that have been submitted by both sides, and we hold a hearing as soon as we can. A good number of cases involve eligibility issues or qualification standards where the [International Olympic Committee] or international federation running the event says the athlete in question isn't eligible or hasn't met the qualifying standard. So all that must be decided quickly before the event takes place.

Have you had to abandon meals or abruptly leave Olympic events for those situations?
Absolutely. I had a case in Athens where I got a phone call at 5 o'clock in the evening before an 8 or 9 o'clock rowing race the next morning. So I had to be at the CAS office by 6, we held the hearing from 8 to 11 that night, and we asked the parties to wait while we deliberated for about an hour before we got them a ruling around midnight allowing the rowers to compete. We wrote up the decision the next morning. So that's the role that we serve and it's an honor because otherwise athletes would have no ability to challenge those kinds of decisions. It's important for things to be streamlined."

Both parties are bound by CAS decisions?
Yes. One of the interesting aspects of the ad hoc panel is that our formal seat remains in Lausanne. So while we happen to be sitting for convenience at the site of the games, if an athlete wants to challenge one of our rulings, he or she would have to take it to the Swiss Federal Court. They could not take it to Chinese courts [in Beijing] as the law is quite clear that you can only seek to vacate an arbitration award in the country that it was rendered.

Does CAS have a central headquarters in Beijing?
The CAS office is in the Wangfujing Park Plaza, just a few blocks from Tiananmen Square. It's one of the Olympic family hotels. There will be office space for the CAS staff along with some decent-sized hearing rooms. There are always times when two cases are going on at once.

What lawyers appear in these proceedings?
There are three different answers to that, maybe four. There are some high-profile athletes who know that a case is going to come up and will show up with their own lawyers who have been working on a case for a while. More common is that a lot of the Olympic committees have somebody on staff. The bigger ones, like the [United States Olympic Committee] and [Canadian Olympic Committee] will actually have somebody there to represent their athletes should these cases come up.

For other matters, sometimes there won't even be a lawyer present. To a certain extent the cases turn on legal issues, but really they're simply applying whatever the relevant facts are to what the relevant rules are. And the people at the national Olympic committees know those rules so while there might not always be lawyers present, there are people who are knowledgeable. Lastly, there is always on call a staff of local lawyers willing to represent athletes on a pro bono basis.

Who normally represents the IOC in these proceedings--do they normally have their own in-house counsel?
Yes, his name is Howard Stupp. He's the general counsel or legal director for the IOC. He appears in a lot of hearings and in Athens [the IOC] was represented by a Swiss lawyer named François Carrard, who is based in Lausanne. Carrard used to be formally with the IOC and while he's now left that position, he still sometimes represents them.

What type of disputes do you tend to hear as an ad hoc CAS panelist?
We will hear any legal dispute that arises from the games. Some of them are the eligibility cases that I described, some of them are doping cases, and some of them are field of play cases. But one of our precedents, our guiding rules, is that we will not get involved in field of play decisions. We're not going to act as super-referees or videotape judges.

Are there any limitations on what type of cases you can hear?
CAS panels are always country neutral. I can't hear cases if they involve an American interest in some way, which is one of the reasons why we have 12 people from 12 different countries. When a CAS case comes in, the chair of the ad hoc tribunal, Robert Briner, consults with [CAS secretary general] Matthieu Reeb to decide the three arbitrators that should be on a case. If we get assigned, then we show up at [CAS headquarters].

How long do you plan to be in Beijing?
I will be there for most of August. I [arrived] on August 3 and will be there through the 25 or 26, the day after the closing ceremony.

Have you ever been to Beijing before?
Yeah, I was actually first in Beijing in 1981 as part of a long honeymoon trip that my wife and I took. It was very different [than it is today]. There were no cars, everyone was on bicycles. You had to go in as part of a group and I vividly remember being bussed from the Beijing airport on a barely paved road with hardly any street lights. It was hard to believe that was the third most powerful country at the time. I've been back to Beijing a number of times since, most recently about 15 months ago, and its certainly changed quite a lot.

Check back with The Am Law Daily on Friday for the second part of the David Rivkin interview, where the veteran CAS panelist discusses some of his most memorable cases.

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