On 5 August, Jordan Chiles – a gymnast representing the United States – took part in the final of the Women's Floor Exercise in the Olympic gymnastics competition. Her performance earned her a score of 13.666, placing her fifth. That was until her coach filed an "inquiry" (an appeal) in relation to the scoring of her routine which – upon review – was upheld and her score adjusted to 13.766. That adjusted score moved Chiles from fifth place to third, ahead of two Romanian gymnasts, Sabrina Maneca-Voinea and Ana Bărbosu, and Chiles was awarded the bronze medal.
The Federation of Romanian Gymnastics (FRG) subsequently challenged the decision to uphold Chiles' inquiry in the Court of Arbitration for Sport (CAS). Amongst other things, the challenge sought to adjust Chiles' score on the basis that her inquiry was out of time by four seconds (Article 8.5 of the Technical Regulations of the International Gymnastics Federation (FIG) requires that inquiries in respect of the routine of the final gymnast to perform must be made within one minute of their score being displayed, and that "late verbal inquiries will be rejected").
CAS decision
The CAS found in FRG's favour and (despite FRG's request that the medal be shared between the three affected athletes) re-awarded Bărbosu the bronze medal. In its decision, the CAS noted that the evidence of the late enquiry was unchallenged and in clear violation of "an important rule that [was] adopted to protect the athletes and the public" (by providing clarity as to the outcome of a competition after the final competitor's routine). Accordingly, Chiles' initial score of 13.666 was reinstated.
A further appeal?
The saga has since continued. USA Gymnastics (USAG) attempted to re-open the CAS decision on the basis that "conclusive new evidence" (currently not public) shows the inquiry was not out of time. That attempt failed because – as set out in the CAS procedural code – CAS awards are final and binding. USAG subsequently released a statement saying it "will continue to pursue every possible avenue and appeal process, including to the Swiss Federal Tribunal, to ensure the just scoring, placement and medal award for Jordan".
The story has been widely reported and commented on given the harsh outcome – with a medal-winning performance (the CAS otherwise upheld Chiles' adjusted score) completely undermined on an administrative technicality amounting to only four seconds of delay.
A further appeal by USAG may lead to more twists, but whatever the final outcome, the case is a reminder of the importance of adhering to contractual time limits for commencing claims and appeals.
Contractual time limits in English law
While the CAS determined the case on the basis of its own rules and Swiss law, English law would likely have produced a similar outcome. The general rule in England is that contractual time limits for commencing claims or appeals will be binding if clear and unequivocal on their face, even where the consequences of failing to meet them are significant or the delay is minor. This is an application of the English court's approach to contractual interpretation, whereby the parties' clear, objectively ascertained contractual intentions will be upheld; the English court does not interfere with the clear words of a contract merely because a different interpretation would seem reasonable or fairer.
An example of the approach taken by the English Courts is David Joseph v Deloitte NSE LLP [2020] EWCA Civ 1457. Mr Joseph was removed as a partner of Deloitte via a compulsory retirement procedure set out in Deloitte's LLP agreement, and exercised his appeal rights under that agreement, which provided for two appeal stages: (1) he could challenge the decision to retire him at a board meeting and (2) he could then request a special meeting of all of Deloitte's equity partners to review the board's decision, provided he made any such request within seven days of the board meeting.
A board meeting took place on 2 October to consider Mr Joseph's challenge. He was told the final board decision would be communicated to him by no later than 9 October (i.e. within seven days). By 10 October, he had heard nothing and so requested an equity partner meeting to review the board's decision (whatever it was). He learned of the board's decision to dismiss his challenge on 11 October, but was told he was out of time to request an equity partner meeting because, by 10 October, it had been more than seven days since the board meeting.
Mr Joseph commenced legal proceedings, which reached the Court of Appeal. Although each of the three judges who heard the case expressed their sympathy for his position, they found the seven day time limit was "clear and unambiguous" and must be upheld.
Even though Mr Joseph's request was only one day late and had been made before he learned of the board's decision, the Court held that was not a sufficient basis for re-writing the agreement. Nugee LJ noted that the role of the Court "is not to make a better contract for the parties but to ascertain what their contract is". The clearly stated time limit in the LLP agreement was seven days from the date of the board meeting, and "no amount of implication" could convert that into seven days from Mr Joseph being told the outcome of such meeting. Like Chiles' late inquiry, Mr Joseph's challenge was therefore out of time.
English law allows some additional leeway for contractual time limits for commencing arbitration. Section 12 of the Arbitration Act 1996 empowers the Court to extend any such time limit in circumstances where it is just to do so. However, the cases in which the Court exercises this power are rare and (at the risk of mixing Olympic sporting metaphors) the bar for persuading the Court to do so is very high.
Conclusion
The Chiles case underscores the unforgiving nature of contractual time limits for claims and appeals. It is important that contracting parties understand the relevant limitations and adhere to them, as pursuing claims outside of the time limit is likely to be challenging, irrespective of their underlying merits.
The Panel would simply point out that its task is to rule on the law and the evidence before it, and in this case both are crystal clear in relation to the one-minute rule and its application to the circumstances of this case. It is not the function of the Panel to apply principles of equity, or to attribute medals, or to determine that there should be multiple recipients of the bronze medal, as some of the Parties have proposed.
https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_OG_15-16__for_publication_.pdf
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