US gymnast Jordan Chiles was great at the Olympics. She was part of the team that won the gold medal. In the floor exercises, she initially came in fifth place, but after an inquiry by her coach, who thought that Chiles hadn’t “received credit for her tour jeté with a full turn, a leaping element known as a Gogean, because the judges didn’t think Chiles fully completed the turn,” the judges decided that they had incorrectly given her a difficulty score of 5.8 instead of 5.9. When the score was recalculated, Chiles was in third place and won the bronze medal, or so it seemed. The Romanian Gymnastics Federation took the case to the Court of Arbitration for Sport, and the arbitrators reversed the judges’ recalculation on the grounds that the American coach had submitted her inquiry four seconds too late. So the bronze medal went to Romanian gymnast Ana Barbosu, who by the way was also excellent. No one should drag either athlete into this mess!

According to news reports, after the award was issued, the Americans said they had video proof that the inquiry had been submitted in time, and they provided it to the tribunal with a request that it reconsider its award. But the tribunal responded that it lacked the authority to reconsider the award. Thus the only recourse is to the Swiss courts, and given the narrow grounds on which awards can be set aside, the prospects for the Americans’ challenge seem grim.

The common law rule at issue here is called functus officio. The idea is that once the arbitrators have discharged their office by issuing their award, they are no longer arbitrators and have no power to do anything, including to revisit their award. There are very narrow exceptions, mainly for the correction of obvious errors in computation. But the basic idea is that once the award issues, the arbitrators are done.

The same idea applies outside of the common law world. For example, in states that have adopted the UNCITRAL Model Law, it’s clear that subject to an exception for “errors in computation” or “clerical or typographical errors” (art. 33), the issuance of the final award terminates the mandate of the arbitrators. (art. 32). Switzerland, where the CAS has its seat, has not adopted the Model Law. But a report of the New York City Bar on functus officio, which reviews the history of the doctrine and looks at it in comparative terms, suggests that Switzerland has “developed a doctrine similar to U.S. functus officio” through case law.

My biggest question, which the news reports don’t seem to answer, is why the Americans didn’t submit the evidence in the arbitration proceedings. If they needed more time to obtain it, did they ask? It would be a shame to think that this was the reason the case came out as it did.

Image credit: Ocoudis (CC BY-SA)