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Is Canada not the keeper of its own national house? Well, maybe not! The 2010 Olympic and
Paralympic Winter Games in Vancouver/Whistler provides a unique window through which to
view the impact that international sport bodies can have on Canadian laws and policies, particularly
where international decisions conflict with our national laws and values. The Games showed how
the Canadian legal system can find itself without recourse to intervene where such decisions run
contrary to Canadian laws, and where national sport organizations can find themselves in intractable
circumstances. This article examines two Canadian sport cases that led to results inconsistent with
important Canadian values.
International Sport/
Canadian Values:
What If They
Collide?
Hilary A. Findlay
… sport is a highly regulated and structured international activity
and often has to be carried out within the rules of international
organizations.
© Serguei Bachlakov | Dreamstime.com
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31
Sagen v. Vancouver Organizing Committee for the 2010
Olympic and Paralympic Winter Games (VANOC),1 captured
headlines leading up to the 2010 Winter Olympic Games, putting
into question the inclusion of any ski jumping events – male or
female. In this case, a group of 15 female ski jumpers challenged
the International Olympic Committee’s (IOC) decision not to
include women’s ski jumping in the 2010 Olympic program.
The trial court found that the IOC’s decision to include only ski
jumping events for men was discriminatory.
The source of the discrimination, the court said, was
historically rooted in a 1949 decision by the IOC. At that time, the
number of Olympic sports was expanding rapidly and needed to
be controlled. In response, the IOC established selection criteria to
determine which sports would be part of the Olympic program. At
the same time, the IOC decided that those sports already on the program would not have to meet the
newly-established criteria. In other words, they were ‘grandfathered’. Men’s ski jumping was among
this grandfathered group and thus was not subjected to the selection criteria, and never has been since
then. Indeed, it would not satisfy such criteria even today.
However, notwithstanding a finding of discrimination under Canadian law, both the trial
and appeal levels of court concluded that control over the decision of what sports to include in the
Olympic program rested solely with the IOC and was beyond the reach of a Canadian court to
intervene. The decision was perplexing to many. How could something that was discriminatory
under Canadian law, and which violated Canadian values, be allowed to be part of an event taking
place on Canadian soil, organized by a Canadian group and which received significant public
funding from all three levels of government?
The more broadly interesting aspect of this case is that it re-inforces the extent to which
national governments agree to relinquish substantial control when they agree to host the Olympic
Games. In reaching their conclusions in the Sagen case, both levels of court recognized the strict
contractual obligation of VANOC ( the Vancouver Organizing Committee for the Olympic Games)
to host and stage the Olympic Games under the exclusive direction and control of the IOC.
Once a city is selected to host the Olympic Games, the IOC requires the host organizing
committee (in this case VANOC) and the National Olympic Committee (in this case the Canadian
Olympic Committee) of the host nation, to enter into an agreement with the IOC. The contractual
agreement is known as the Host City Contract. Under this contract, the IOC is recognized as having
the exclusive authority to determine what events will be staged at the Olympic Games. It was
therefore acknowledged by both levels of court that VANOC did not have any control over the
Olympic program and, more specifically, over the decision not to include an event for women’s ski
jumping.
How could something that was
discriminatory under Canadian
law, and which violated Canadian
values, be allowed to be part of
an event taking place on Canadian
soil, organized by a Canadian
group and which received
significant public funding from all
three levels of government?
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Similarly, it was also recognized by the courts that the Government of Canada, although
not a party to the Host City Contract, was a significant financial contributor to the Games and a
virtual financial guarantor of the Games to the IOC, but it, nonetheless, had no legal authority
to manage or direct the activities of VANOC relating to the planning or staging of the Olympic
Games. In fact, the federal government had already agreed to respect the IOC’s exclusive control
over VANOC and the terms of the Host City Contract when it
assumed a broader contractual obligation far earlier, to comply
with the rules of the IOC in bidding to host the Olympic Games.
In short, the reasoning of both courts, and the ultimate outcome
in Sagen, is illustrative of the extent to which countries defer,
through contractual arrangements, to the authority and rules of
the IOC when agreeing to host an Olympic Games; and by doing
so, how countries may find themselves in a position of very limited
influence over matters involving national interest, national laws and
cultural values. The IOC controlled the content of the Olympic
program, even if the absence of women’s ski jumping from the
Olympic program squarely contravened Canadian laws and values.
A second Canadian case, Nagra v. Canadian Amateur
Boxing Association (Nagra), [2000] O.J.No.850 (Ct.J.) serves
as an example of the problems that can arise when the rules of
international sport bodies, to which national sport bodies owe their
allegiance, conflict with national laws. The conflict here involved
the eligibility of Mr. Nagra, a Sikh boxer, to participate in the
Canadian National Boxing Championships, which were governed
by the rules of the International Amateur Boxing Association
(IABA). The IABA maintained a so-called ‘clean-shaven’ rule. Not only was the Canadian Amateur
Boxing Association (CABA), as the designated national governing body for boxing in Canada,
required to enforce the IABA’s rules, including the clean-shaven rule, it was required by the IABA to
incorporate such a rule within its own policies. Following the tenets of the Sikh faith, Mr. Nagra was
precluded from shaving his beard, and was thus ineligible to compete under both international and
national rules so long as he was not clean-shaven.
Arguing that the clean-shaven rule discriminated against him on the basis of his religious
beliefs, contrary to Canadian human rights laws, Mr. Nagra successfully obtained a court order
requiring CABA to allow him to compete at the national championships. While this order was an
apparent success for Mr. Nagra, it put CABA in an impossible situation. If CABA complied with the
court order and allowed Mr. Nagra to compete, it would breach the international association’s rules
and risk being fined or suspended. As well, any athlete boxing against Mr. Nagra would be suspended
under the so-called ‘tainted athlete’ rule of the IABA (that is, any athlete who competes with an
… the reasoning of both courts,
and the ultimate outcome in
Sagen, is illustrative of the extent
to which countries defer, through
contractual arrangements, to the
authority and rules of the IOC
when agreeing to host an Olympic
Games; and by doing so, how
countries may find themselves
in a position of very limited
influence over matters involving
national interest, national laws
and cultural values.
Special Report: The Law and Sports January/February 2012
33
athlete ineligible or sanctioned under IABA rules will be similarly
found ineligible and sanctioned). If, on the other hand, CABA
disregarded the Canadian court order and continued to block Mr.
Nagra’s participation in the Canadian national championships,
it would likely have found in contempt of the court order. The
national sport association found itself caught between Canadian
values and the force of a Canadian court order, and the directive of
an international governing body, with which it had to comply.
Ultimately, in Mr. Nagra’s case, an accommodation was
negotiated between the national and international associations
whereby the IABA agreed not to impose sanctions against CABA to
the extent that a court order allowed Mr. Nagra to box in Canada.
However, that court order was only enforceable within Canadian
borders. It was the position of the IABA that Mr. Nagra would not
be allowed to compete internationally unless he was clean-shaven.
In other words, if Mr. Nagra qualified through the competition to
box internationally, his victory would have been a hollow one as the IABA would have blocked his
further participation internationally (in this case, at the Olympics). Mr. Nagra did not advance so it is
not known where his case might ultimately have ended up.
The Nagra case highlights two issues that arise where the rules of an international association
conflict with decisions of national courts or tribunals (whether in the case of sport or otherwise).
• First, the national association can be placed in a completely untenable position between
two seemingly intractable forces – the order of a domestic court and the directive of an
international association.
• Second, the practical effect of a ruling of any domestic court or tribunal is limited to its
jurisdiction. Once an athlete or national association moves beyond the bounds of the
domestic jurisdiction of the court (i.e., outside of Canada in the Nagra case), the effect of
any domestic legal directive is non-existent.
At the end of the day, what does this tell us? First, sport is a
highly regulated and structured international activity and often has
to be carried out within the rules of international organizations.
The interesting thing for sport is that these international governing
bodies are, in fact, private entities. To whom are they accountable?
Too often the answer is, to no other body, except to the IOC.
And, to whom is the IOC, a private body itself, accountable? Until
relatively recently, no one.
This accountability question is one on which the IOC has
been making advances. There is now an international Court of
Arguing that the clean-shaven
rule discriminated against him on
the basis of his religious beliefs,
contrary to Canadian human
rights laws, Mr. Nagra successfully
obtained a court order requiring
CABA to allow him to compete
at the national championships.
While this order was an apparent
success for Mr. Nagra, it put CABA
in an impossible situation.
The national sport association
found itself caught between
Canadian values and the force
of a Canadian court order, and
the directive of an international
governing body, with which it had
to comply.
Special Report: The Law and Sports January/February 2012
34
Arbitration for Sport (CAS), which has increasingly gained legitimacy as the “world court for sport”.
The IOC has, as well, instituted a code to govern Olympic sport. Included within the code is an
anti-discrimination provision. Could the Olympic ski jumpers have used this provision and made a
case before CAS? Could Nagra, or CABA on his behalf, have made such a submission? Absolutely.
However, to date, few athletes, or national sport organizations on their behalf, have made such
applications. Until some do, we will continue to see the sorts of cases that boggle our collective
minds, cases such as Sagen and Nagra, that seem counter-intuitive to what we believe to be fair
and just. Perhaps we need to be more aggressive in pushing for Canadian sport organizations, and
advocates of sport, to challenge situations that clearly run counter to our uniquely Canadian, yet
highly respected, laws and values.
Notes
1. Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC),
2009 BCSC 942 [“Sagen Trial Court”]; Sagen v. Vancouver Organizing Committee for the 2010 Olympic and
Paralympic Winter Games (VANOC), 2009 BCCA 552 [“Sagen Appeal Court”].
Hilary A. Findlay is an Associate
Professor with the Department
of Sport Management at Brock
University in St. Catherines,
Ontario.