The ad hoc Division of the Court of Arbitration for Sport (CAS) has registered an application filed by the Swedish NOC and the
Swedish Triathlon Federation against the decision of the International Triathlon Union (ITU) issued on 8 August 2012 rejecting an appeal from the Swedish NOC requesting that Lisa Norden be ranked
in the first place of the women’s triathlon event, ex-aequo with Nicola Spirig of Switzerland and that a second gold
medal for this event also be awarded to Lisa Norden.
Lisa Norden finished the women's triathlon, which was held on August 3rd with the same time as Switzerland's Nicola Spirig - 1 hour, 59 minutes and 48 seconds. In a photo finish, Spirig was awarded gold and Norden took silver.
It was the first time in olympic sports history that an Olympic triathlon had been decided on a photo-finish.
Judges examined the photographic evidence and decided Spirig's winning margin was less than 15 centimeters. Officials later issued a photograph which appeared to show Norden's head crossing the finish first. However the ITU ruled that the winner was the athlete whose torso crossed the line first, and said two cameras at the finish showed the Spirig's torso ahead of the Norden's.
An initial Swedish appeal to triathlon's governing body (International Triathlon Union - ITU) was rejected on August 8th and then Swedish NOC together with Swedish Triathlon Federation took the
issue up with CAS.
They believe the ITU did not follow procedures because it may not have taken into account the position of the athletes' torsos at the line and that it's impossible to distinguish precisely on the photo finish the position of Spirig's torso, which is slightly back from her belly and which is hidden by the torso of the Norden.
A hearing will take place on August 11th in the offices of the CAS ad hoc Division in London. Both athletes, their team leaders and representatives of the ITU, International Olympic Committee and London Games organizing committee (LOCOG) have been invited to attend the court session.
Sport's highest court (The Court of Arbitration for Sport) can alter results if legal process has not been followed, but cannot interfere in 'field of play' decisions made by race or match officials.
Cas guidance on the issue of the challenging technology-based decisions is instructive. In Neykova v. International Rowing Federation (FISA) & International Olympic Committee the applicant was a participant in the women's single sculls event final during the Sydney Olympics 2000.
Following a photo finish, the first place for the women's single sculls was awarded to Karsten from Belarus (time 7:28.141) and second place to Neykova from Bulgaria (time 7:28.153) on the basis of evidence produced by the official 'Scan'o'vision' photo finish system using two special Swatch photo finish cameras fixed permanentely to the structural steel frame of the finish tower. The Bulgarian Olympic Committee challenged the result based on video evidence provided by television cameras. These cameras were set up in approximate manner for the television audience and served no official purpose. So the question facing the panel was to what extent video evidence that had been presented as contradicting the official photography technology might be used to override the stated result.
Essentialy, Neykova concerned a challenge to the accuracy of the official technical equipment that determined placing in the race. Because that panel found that on this question, the applicant had not proved that the technical equipment was deficient, it dismissed the application. The case had not been based on evidence questioning the reliability of the official photographic equipment, but rather on the basis of images produced by TV cameras primarily positioned to produce pictures for viewers. In fact, expert evidence was argued that the TV cameras were: located 10 centimeters of the finish line. When this 10 centimetres discrepancy is projected across the 200 metre wdth of the course, it's not surprising that the television camera's perspective is different to that of the Scan'o'vision photo finish. This was therefore 'different to that of a typical officials field of play decision'.
The limitations of video imagery from single or multiple cameras is highlighted by the facts that:'..it's obvious that a camera can only show what it see from it's particular angle. What it shows will depend upon where it was in relation to the particular incident when the incident took place. A different camera showing the same incident from a different position may well give an entirely different perspective of the same incident'.
The view of the panel in the case of the Canadian Olympic Committee v. International Skating Union (ISU), 2006. was that:'..there is more fundamental reason for not permitting trial, by television or otherwise, of tecnical, judgmental decisions by referees. Every participant in a sport in which referees have to make decisions about events on the field of play must accept that a referee sees an incident from a particular position, and makes his decision on the basis of what he or she sees. Sometimes mistakes are made by referees, as they are by players. That is inevitable fact of life and one that all participants in sporting events must accept. But not every mistake can be reviewed. It is for that reason that CAS jurisprudence make it clear that it's not open to a player to complain about a 'field of play' decision simply because he or she disagrees with that decision'.
In chapter 'Adjudicative technology in sports' written by Simon Gardiner in The Handbook of the International Sports Law (authors James A.R. Nafziger and Stephen F.Ross), Gardiner concluded that the dynamic between human deliberation and the exercise of the judgment, on the one hand, and the view of the electronic eye, on the other hand, is clearly changing. The mantra supporting an increased role for technology is that it can improve on human error and provide objectivity. However, what it's crucial to comprehend that technology as we know it, does not provide it an absolut truth. Whether law is national, supra-national or international, it brings familiar values and principles to 'play within sport', any of which is beneficial to sport and sport athletes, especialy within the liberal discourse of the enforcement of individual rights. Controversies will of course continue to occur in sport and adjudicative officials and technology will often be central to them and only time will tell whether sport's courts will be more or less likely to intervene when a more prominent role of technology is at issue.
In both, sport and the law, sporting adjudication is often in the 'hard cases', where the outcome is unclear and is based on contingencies. The relationship between technological and human deliberation is crucial and former should be 'an interpretive tool', helping to manage human error.
Finally, Alan Hunt in 'Explorations in Law and Society: Towards a Constitutive Theory of the Law' wrote that law exists as an increasingly detailed and particularistic regulation of ever more specific situations and relations in which any boundary between law and non-law is difficult if not impossible to identify.
I just think that nobody ever expected such a close finish because you would expect after two hours of competition in triathlon that there would be a bigger gap. Maybe some people would say that it's shame for beautiful sport like triathlon that it has gone to sport's highest court because the race has gone and the medal ceremony cannot be brought back, but on other side, you cannot underestimate how much that gold medal means because it can change somebody's life. Majority for sure just think about the race and that they should get on with it, but that gold could mean also an amount of money for somebody's sport success and that's why someone are possibly appealing. Furthermore, rights of appeal in the law are not an absolute right but a privilege: there is finality in what circumstances legal decisions can be reviewed. I'm sure everyone would have done the same if it had been the other way around.
Some says that rightly would be also to give both, Spirig and Norden a gold medal regardless what would be verdict of the CAS. They have opionion: 'Isn't the Olympics about truly sportsmanship? If two people finishes at the exact same time they should both be declared winners.'
Regardless of the last circumstances I absolutely love triathlon and I thought that the Olympic women's triathlon race in London was gripping. I was watching it and told about it to a lot of people who weren't fans of triathlon and now they absolutely love it. I hope that the attention the triathlon is receiving will now help get people into it because it was really a wonderful spectacle.
London, 11 August 2012 - The ad hoc Division of the Court of Arbitration for Sport (CAS) has denied the application of the Swedish NOC and of the Swedish Triathlon Federation: the medal positions in women’s triathlon are confirmed.
The Panel denied the application in view of the fact that there was no violation of any ITU rule and that the matter concerned a 'field-of-play decision' which, according to long standing CAS jurisprudence, is unable to be reviewed by CAS panels except in the event that there has been arbitrariness or bad faith in arriving at such decision.
The full decision with the grounds is published on the CAS website.
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gibbsbarrister (Sunday, 12 August 2012 12:37)
Great blog Jurica - you have travelled a long way my friend. Re Norden sport cannot allow lawyers to intervene in field of play calls. Did they get it wrong in any event?