In the latest twist to the gymnastics drama that has trailed out of the Paris Olympics, the American Jordan Chiles, now out of a bronze medal in the floor exercise after an arbitration ruling, made a lengthy social media post that said she was “overwhelmed” by the “love” she had received and “incredibly grateful” to, among others, USA Gymnastics and the United States Olympic & Paralympic Committee.
USA Gym? Sure.
The USOPC? Wow. Does anyone else read these rulings? Because it is as plain as day, page 9, paragraph 45, that the United States Olympic & Paralympic Committee did not show at the hearing. Why? It didn’t offer a reason. Nor “did it contact” the Swiss-based Court of Arbitration for Sport “any more at any time until the conclusion of the proceedings” – that is, until the three-judge CAS panel ruled, as the world now knows, against Chiles.
This matter involves a considerable number of twists and turns – any number of things one might say fall into the category of woulda, coulda, shoulda.
Chiles with the bronze medal // Getty Images
But how does the USOPC not attend the hearing?
The question is particularly acute because anyone who knows Olympic history knows the mirror case to the Chiles matter involves the American Paul Hamm, who in Athens in 2004 ended up with the all-around gold medal after a scoring dispute involving the South Korean Yang Tae Young.
From the Hamm case: “The essence of the defense,” benefitting the American, was that “the protest was made too late, by the wrong person and not in conformity with the rules.” Next sentence: “We uphold that defense.”
Since then, it has been incumbent on the USOC, now the USOPC, to be lawyered up at each and every edition of the Olympic Games.
In lawyer terms, the USOPC is on notice. That is, the USOPC knows, it has to know, to be ready for anything. To act on exceptionally short notice. To be – proactive.
If the USOPC’s position in the Chiles matter is arguably that it was waiting to hear from CAS, the common-sense response: what about being proactive? It’s not like CAS officials are hard to track down. Especially at the Olympics, when time is of the essence – especially in the aftermath of the Kamila Valieva matter from the Beijing 2022 Winter Games, when everyone but everyone knows to a certainty there’s going to be intense pressure to wrap up a controversial case before a Games comes to a close.
Indeed, the IOC made this clear — at 12:03 p.m. on Friday, August 9, it said it would be “preferable and consistent” that the matter be wrapped up before the end of the Games since the women’s floor took place on Monday, August 5. The closing ceremony was on the night of Sunday, August 11.
The CAS panel made its ruling on Saturday the 10th. Its detailed explanation was made public Wednesday the 14th.
Meantime, if the Hamm matter about the timing of when to file a protest didn’t make what’s what clear, a case from the 2014 Sochi Games hammers home the point.
At those Games, French ski cross riders went 1-2-3. The Canadians and Slovenians protested, saying there seemed to be something unusual about the French pants. The race ended at 2:50 p.m. on February 20, 2014. The rule: you had to file a protest within 15 minutes. One protest came in at 9:47 p.m., another at 10:33 p.m.
Denied.
To rule otherwise, that panel said, would “contravene the natural expectation of athletes, sports governing bodies, spectators, and the public that competition results are final unless promptly and properly protested within a reasonable amount of time after the competition ends. In addition, it is not for this Panel, but for the competent [federations], to change the rules governing protests.”
This brings us to the Chiles case.
The rule here: any protest had to be filed within one minute.
Again, women’s floor took place on Monday, August 5. Chiles went last in the rotation of nine. It is “undisputed,” per the evidence presented at the hearing, that the protest on her behalf, lodged by her coach, was made at one minute and four seconds.
That protest, successful until the CAS ruling, moved her to third and dropped two Romanian gymnasts to fourth and fifth. The CAS decision dropped Chiles to fifth. Romania’s Ana Barbosu is third, Sabrina Maneca-Voinea fourth.
Barbosu Friday in Bucharest // Getty Images
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Update:
On Friday, at a ceremony in Bucharest, in a ceremony attended by Romania’s prime minister, Marcel Ciolacu, the 18-year-old Barbosu was presented a bronze medal. “I want to believe that the day will come when all three of us will receive a bronze medal,” she said, referring to herself, Maneca-Voinea and Chiles.
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Now, more about rules:
Is there an argument to be made that CAS coulda woulda shoulda picked someone besides an arbitrator with ties to Iran, Hamid Gharavi, to be chair of a panel centering on what was exploding into a controversy involving an American gymnast? Sure.
But as the August 14 explanation makes clear, no one objected. And let’s be fair: Gharavi has a postgrad degree from NYU and started his impressive – it is hugely impressive – career at the megafirm Skadden Arps in New York.
Is there an argument that in a case involving women’s gymnastics, it’s funky that the three people deciding the case were – three men? Sure.
But no one objected.
Is there an argument that Gharavi serves as a lawyer for Romania in commercial arbitration involving investments, and that might make for a conflict of interest? Sure.
But no one objected, and CAS went to the highly unusual step of emphasizing this in a statement:
“CAS condemns the outrageous statements published in certain U.S. media alleging, without knowledge of the above and before review of the reasoned award, that the Panel, and more particularly its chairman, was biased due to other professional engagements or for reasons of nationality. As none of the parties involved in this case has challenged any Panel member during the procedure, it can reasonably be assumed that all parties were satisfied to have their case heard by this Panel. Any subsequent criticism is without foundation or merit.”
Is Gharavi’s investment litigation involvement a red line that, as this case goes on, a matter that ultimately might undo the CAS at-the-Olympics ruling? It already has created buzz in the tight world of arbitration lawyering, and it might well be the best chance Chiles has going forward.
But that’s looking ahead.
For now, it’s critical to understand that, as the record that is detailed in the August 14 explanation makes plain, everyone connected to this case had the opportunity to be heard.
Was it a scramble?
No question.
Were emails sent to a USOPC lawyer who no longer works there?
A better question: does that matter?
This photo went viral — winner Rebeca Andrade of Brazil, silver medalist Simone Biles of the United States on the left, Chiles to the right. Now what? // Getty Images
At 10:23 a.m. on Friday August 9, CAS finally made contact with the USOPC and “duly provided” the case file. The USOPC, the ruling says, said “deadlines were not reasonable.” But: “Eventually, the USOPC made no formal objections to the procedure adopted.”
That same day, at 2:44 p.m., USA Gymnastics asked – along with the USOPC – for more time to review the file.
At 3:51 p.m. in response, CAS said, sure, you can have more time.
To be clear, the USOPC and USA Gymnastics were among a collection of “interested parties,” not the “respondents.” Those were two: the international gymnastics federation, which goes by the acronym FIG, and Donatella Sacchi of Italy, president of the women’s artistic (as opposed to rhythmic) gymnastics technical committee.
In an email that had been sent that day at 2:22 p.m., CAS said it had already given USA Gymnastics and the USOPC extra time – until 6 p.m.
Now, at 3:51 p.m., it said it “appreciate[d] the circumstances” and was giving both USA Gymnastics and the USOPC until 8 p.m. to file whatever legal papers they might want. In addition, both USA Gymnastics and the USOPC, “like any other Party,” would be given “ample opportunity to present their position” at the hearing, scheduled to begin at 8 the next morning, Saturday the 10th.
“Ms. Chiles and USA Gymnastics, through their lawyer,” filed at 7:57 p.m. – three minutes before deadline.
CAS noted: “USOPC did not file any submission.”
The hearing actually started at 8:30 a.m. It was not in person but “virtually.” The Romanians showed. FIG showed. The IOC. USA Gymnastics chief executive Li Li Leung and the federation’s senior lawyer, along with Chiles’ coach.
The USOPC “received the link to connect to the video hearing” but “did not attend.” How come? “It did not give any explanation for such absence.”
At the beginning of that Saturday morning hearing, everyone was asked if there were objections to the three panelists. No one had any. At the end, same question – the parties were “invited to confirm they had no objection” to the way the hearing was done and “to confirm that their right to be heard had been respected.”
Next sentence: “All the parties so confirmed.”
The case, as is clearly understood by now around the world, turned on when the American challenge was submitted. The hearing makes plain it was too late – one minute and four seconds.
More woulda coulda shoulda – now there’s purportedly new evidence.
Maybe on appeal that evidence will see the light of day. Perhaps.
Or maybe the time to present evidence is when evidence is due. Isn’t it a little like this: you have an exam in college and after you get your grade, which you don’t like, you come up with new stuff, and even if what you have proves your point and would give you a better grade – what should the professor say?
In legal terms – there’s a difference between “law” and “equity.”
What we have here is “law.”
Indeed, the CAS panel made the express point of saying that it was “well aware” of the “disappointment” the ruling would necessarily cause but that its job was to “rule on the law and the evidence,” not “to apply principles of equity,” which, for instance, could have meant awarding multiple bronze medals.
A “great deal of heartache would have been avoided” if that was what was on the table, it said.
But – it was not.
For its part, the USOPC has issued a statement saying it “strongly contests” the CAS decision:
“From August 6-9, CAS sent crucial communications to erroneous email addresses at USOPC and USAG, an error not corrected until August 9—three days after filing, two days past the deadline to submit objections, and less than 24 hours before the hearing. This deprived us of adequate time to respond meaningfully or gather necessary evidence. We informed CAS of our objections immediately.
“Our objections have since been validated by new evidence indicating administrative errors by FIG and mishandlings by CAS, which would have been impossible to raise at the time of the rushed hearing. In short, we were denied a meaningful opportunity to be heard.”
Query: really? How was it denied that opportunity? In what way?
“Given these circumstances,” it goes on, “we are committed to pursuing an appeal to ensure Jordan Chiles receives the recognition she deserves. Our pursuit of truth in this matter remains unwavering.”
USA Gym issued a separate statement – interesting – saying it “strongly disagrees” with the “detailed decision” issued by CAS, noting it did “not become aware of the case until August 9,” adding that video evidence “later made available,” after the close of the hearing, “conclusively establishes” the protest was made at 47 seconds, within the rule.
One will note that at the CAS hearing: USA Gym got heard. “We will pursue these and other matters upon appeal,” USA Gym said in its statement, “as we continue to seek justice for Jordan Chiles.”
In her Instagram post, Chiles also said, “I believe that at the end of this journey, the people in control will do the right thing.”
Does that describe the USOPC? If you were Jordan Chiles, at this point in the “journey,” what might she point out coulda woulda shoulda been, you know, a “right thing”?