The cloud of Covid-19 (which loomed so large over Tokyo 2020 and Beijing 2022) has thankfully dissipated, but the lead up to the 2024 Olympiad in Paris (the “Paris Games”) has nevertheless been punctuated by logistical and legal challenges. 

Hosting the world’s largest multi-sport international event – attended by thousands of participants, support personnel, officials, media representatives and spectators – inevitably presents practical and operational complexities.^[1] When you throw in the existing geo-political climate, medical/environmental considerations, social activism and the overarching quest for many athletes to reach the pinnacle of competition, it is inevitable that lawyers will be involved (to some degree).

In this article, I address some of the key legal talking points that have dominated the build-up to the Paris Olympics and Paralympics. In part 2, to follow, I will then consider the legal issues that might expect to arise once the Paris Games formally commence on 26 July 2024.

Participation of Russian and Belarusian athletes

The participation of Russian athletes has fallen under different guises since 2016, initially in response to Russia’s state-sponsored doping program being exposed:

• Rio de Janeiro 2016 Games: The International Olympic Committee (“IOC”) removed over 25% of Russian athletes (who were implicated in the doping scandal) prior to competition.
• PyeongChang 2018 Winter Games: Although Russia was formally suspended by the IOC in 2017, Russian athletes who passed drug tests competed under the “Olympic Athletes from Russia” (“OAR”) designation.
• Tokyo 2020 (postponed to 2021) and Beijing 2022 Winter Games: Russian athletes competed under the “Russian Olympic Committee” designation (using the acronym “ROC”).

Following Russia’s invasion of Ukraine in February 2022, aided by Belarus, the IOC recommended that Russian and Belarussian athletes should be prohibited from competing in international sporting events. The IOC relaxed its stance in January 2023, announcing its intention to allow these athletes to compete as “neutrals” (similar to the approach in ATP, WTA and Grand Slam tennis tournaments). In October 2023, the IOC suspended the ROC entirely after it “absorbed” the regional sports organisations of Donetsk, Kherson, Luhansk and Zaporizhzhia, being action that “breached the Olympic Charter because it violate[d] the territorial integrity of the NOC of Ukraine”. The ROC appealed but the Court of Arbitration for Sport (“CAS”) upheld the suspension in its decision dated 23 February 2023.

So, what of Russian and Belarusian athletes in Paris? The IOC Executive Board has ruled that it would be unfair to exclude athletes based on their nationality alone, meaning some will be permitted to compete, but this will be subject to stringent conditions (and yet another “designation”):

• Athletes with Russian or Belarusian passports will compete as an “Individual Neutral Athletes” (to be known as “AINs”, which comes from the French translation Athlètes Individuels Neutres).
• AINs will be invited by the IOC and their respective International Federations (“IFs”), with only a limited number qualifying through the existing qualification systems.
• AINs will be subject to strict eligibility criteria – for instance:
  • Teams of athletes with Russian or Belarusian passports will not be permitted;
  • Athletes (and support personnel) who actively support the war in Ukraine will be excluded;
  • Athletes (and support personnel) who are contracted to the Russian or Belarusian military or national security agencies will be excluded; and
  • Athletes will have to meet all anti-doping requirements applicable to their sport in advance of the Games.
• The eligibility of each athlete shall be evaluated by a newly established Neutral Athlete Eligibility Review Panel.
• AINs can win medals but will not be displayed in the medals table.
• No flag, anthem, colours or any other identifications of Russia or Belarus will be displayed at the Games in any official venue or function.
• No Russian or Belarusian government or state officials will be invited to or accredited for the Games.
• AINs will not take part in the Opening Ceremony on the basis they are individual athletes rather than a team.

With the Paris Games less than a month away, there remain some uncertainties, such as what the AIN competition gear and anthem (one has been commissioned, without lyrics, for medal ceremonies) will look/sound like. Further, the exact number of AIN participants is yet to be finalised, but it will only be a small percentage of the number of Russian and Belarussian athletes that competed at Tokyo (which was 330 and 104 respectively).

Athlete selection and qualification

The lead-up to any major international competition, particularly multi-sport championships, can throw up challenges or controversy around athlete selection and qualification. This tends to be heightened for any Olympics and Paralympics, not least as there is an innate cachet in being an “Olympian”. Qualification issues will always arise (depending on minimum entry standards, athlete/team quotas, etc.), but Paris has been spared some of the Covid-related complexities of recent Games, where qualification criteria was impacted by the postponement of competitions and travel/vaccine restrictions imposed on athletes. 

Where an athlete feels they have been incorrectly or unfairly overlooked, they may choose to challenge or appeal the selection decision. The basis for doing may include, for example, arguments around whether (i) all relevant (or, conversely, any irrelevant) factors have been taken into account, (ii) the decision was unreasonable or perverse, or (iii) there is evidence of bias.

From a British perspective, two of the most high-profile absentees from Paris will be triathletes Jonathan Brownlee and Sophie Coldwell, who have been overlooked for selection despite being part of the Gold medal-winning mixed relay teams at the Tokyo 2020 Olympics and Birmingham 2022 Commonwealth Games respectively. In the case of Coldwell, she had reportedly successfully appealed her non-selection on the grounds of there being a “failure to follow the selection policy”, but the selection panel (who were required to reconvene and reconsider their initial decision) re-chose the original trio of Beth Potter, Georgia Taylor-Brown and Kate Waugh.^[2]

Perhaps most controversial of all is the composition of the Chinese swimming team for Paris. On 19 June 2024, China announced that 11 of the 23 swimmers caught up in the recent WADA doping scandal had been selected for Paris.^[3] Indeed, in April 2024, it emerged that 23 Chinese swimmers had tested positive for Trimetazidine (a banned heart medication) shortly before the Tokyo Olympics. They were, however, subsequently cleared to compete in Tokyo on the basis that WADA was “not in a position to disprove” an assertion from the China Anti-Doping Agency that they had unintentionally ingested the prohibited substance; a revelation that has sparked a backlash across the swimming and wider global sporting community.

On 25 April 2024, WADA announced that it had launched an “independent” investigation into the handling of the matter, but that has done little to pacify the criticism directed its way about perceived lack of transparency and apparent failure to follow its own rules (e.g. not issuing provisional suspensions at the time). Travis Tygart, CEO of the US Anti-Doping Agency has been particularly outspoken about his distrust of the WADA system, whilst swimming legend Michael Phelps said this week that WADA “continuously proves that it is either incapable or unwilling to enforce its policies consistently around the world”.^[4] The findings of the investigation have not yet been released but, with a third of the China’s 31-person swimming team for the Paris Games being under a shadow of doping, cynicism abounds.

Classification

The classification or re-classification of para-athletes is, and has been, a sensitive area. The assignment of certain classes is based on an evolutionary framework, as science and its impact on competition/performance develops. Depending on the class assigned, the prospects of medalling can change dramatically. 

In January 2024, British Paralympic Gold medallist Tully Kearney made a formal complaint to World Para Swimming, claiming that she was subjected to a classification process “undertaken in an inappropriate, insulting, at times humiliating, and arguably discriminatory manner“.^[5] Kearney, who was born with cerebral palsy and later developed a progressive neurological movement disorder, had been reassigned to “S6” (which featured less impaired athletes) rather than her previous “S5” classification. Kearney claimed the reclassification findings were “irrational and unreasonable and demonstrated a fundamental lack of knowledge and misunderstanding of [her] disability” – however, after reportedly being granted a review in March 2024, she is back competing as an S5 athlete.^[6]

As is stands, no para-athletes are banned on the basis of “Intentional Misrepresentation” ahead of the Paris Games. Indian para discus thrower Vinod Kumar, who won bronze at the Tokyo Paralympics, later had his results expunged and was given a two-year ban by the Board of Appeal of Classification for intentionally misrepresenting his abilities, which amounts to a disciplinary offence. Kumar was observed performing several movements and functions in competition which were “not consistent with his performance during the physical and technical aspects of classification”.

Incidentally, a new 2025 IPC Classification Code was approved in May 2024, which “aims to ensure standardisation and harmonisation within the Paralympic movement”. Amongst some of the changes are revised stages of the classification process, including the verification of an underlying health condition, eligible impairment assessment, minimum impairment criteria assessment, sport class assessment, and updated and strengthened provisions across all aspects of the classification process. For the sake of the Paris Paralympics, however, the existing 2015 IPC Athlete Classification Code remains in force. 

Transgender and DSD Athletes

Transgender participation

The fight to promote fair and/or safe competition should not, in principle, be contentious; however, this is certainly not the case when it comes to transgender athletes and those with differences of sex development (“DSD”). Regulation (or perceived lack of regulation) in these areas has proven to be extremely polarising and continues to be a minefield for the IOC and IFs to navigate.

In August 2021, the IOC admitted that its previous transgender guidelines (which recommended that transwomen suppress their testosterone levels to under 10 n/mol per litre for at least 12 months to compete) were “not fit for purpose”.^[7] The IOC’s Transgender Framework, introduced in November 2021, states there is now no need for transwomen to lower their testosterone to compete against natal women, but this has been heavily criticised by some medical experts for ignoring the science on sex, gender and performance.^[8] 

Rather than attempt to define eligibility criteria for every sport, the IOC has left it in the hands of the individual IFs to determine if an athlete is at a disproportionate advantage. The different approaches include the following:

• A near-blanket ban on transwomen competing in female categories (e.g. World Rowing);
• Banning transwomen competing if they underwent puberty before starting their transition (e.g. World Athletics, UCI, World Aquatics);
• Requiring testosterone to be suppressed below a specified limit (e.g. (World Triathlon, World Archery); and
• Considering the participation of trans-athletes on a case-by-case basis (e.g. Badminton World Federation).

New Zealand weightlifter Laurel Hubbard became the first openly trans Olympian in Tokyo and, in the lead-up to the Paris Games, this continues to be a highly emotive topic. The most high-profile case is arguably that of US swimmer Lia Thomas, who rose to fame after becoming the first transgender athlete to win a NCAA title in March 2022, before World Aquatics tightened its rules. In a bid to make Paris, Thomas argued that the rules should be declared “invalid and unlawful” on the basis they were contrary to the Olympic Charter and World Aquatics’ constitution. However, Thomas’ hopes of competing ended when the CAS concluded, in a decision dated 10 June 2024, that Thomas “lack[ed] standing to challenge the policy and the operational requirements” as someone who was no longer a member of USA Swimming.^[9]

Semenya’s ongoing legal battle

DSD athlete participation has proven equally controversial, exemplified by the multi-forum legal battles of South African 800m runner Caster Semenya. World Athletics’ 2018 Eligibility Regulations for the Female Classification relating to DSD or hyperandrogenism (the “DSD Regulations”) drew much attention and were heavily criticised by many at the time, including a number of human rights organisations. Under the DSD Regulations, female athletes looking to compete in certain middle-distance events must demonstrate that their endogenous testosterone levels are below 5 nmol/L. Semenya challenged the DSD Regulations before the CAS in 2019 but, whilst the Panel held there was a discriminatory element to the regulations, they were deemed justifiable.^[10] That was not the end of the matter as Semenya had an appeal to the Swiss Federal Tribunal rejected in 2020, and in 2021 brought a challenge to the European Court of Human Rights (“ECtHR”).

On 11 July 2023, the ECtHR held by a 4:3 majority that the DSD Regulations had violated Article 14 (prohibition of discrimination) of the European Convention of Human Rights (“ECHR”), taken together with Article 8 (right to respect for private life), and Article 13 (right to an effective remedy). In particular, the Court held that Semenya had not been afforded sufficient institutional and procedural safeguards in Switzerland. The case, following appeal from the Swiss Government, has now been referred to Grand Chamber of the ECtHR, to be heard by 17 judges.

As Semenya’s application was pursued against Switzerland, rather than World Athletics, her “victory” is essentially a technical one as the DSD Regulations remain in force, meaning she cannot compete unless she complies with them. Semenya, who won Olympic 800m Olympic gold medals in 2012 and 2016, will therefore be absent from the Paris Games. Nevertheless, the significance of the ECtHR decision should not be underestimated, with Semenya’s lawyer commenting that:

“it means that [SGBs] around the world must finally recognise that human rights law and normal apply to the athletes they regulate.”^[11] 

Caster Semenya’s Lawyer

Environmental impact and sustainability

Last, but by no means least, there is a growing understanding and recognition that the sports industry needs to play its part in protecting the environment. At the COP26 Climate Summit in November 2021, the Organising Committee for the Paris 2024 Olympic and Paralympic Games (the “Paris OCOG”) formally joined the global “Race to Zero” campaign. This is a United Nations Framework Convention on Climate Change led initiative that seeks to rally businesses, cities and the sports community towards a zero-carbon economic recovery. The Paris OCOG subsequently set an ambitious goal of halving the carbon footprint of the Games compared with previous editions.

Central to its promise to be the “greenest ever games” is the use of existing or temporary venues (being 95% of the sites), whilst using low-carbon building for the rest (e.g. the Aquatics Centre in the suburb of Saint-Denis, which has a wooden roof topped with 4,680 square metres of solar panels).^[12] Other green initiatives cited by the World Economic Forum include powering the Athlete’s Village with geothermal and solar energy, doubling the amount of plant-based food served, repurposing apartments as homes after the Games, halving the amount of single-used plastic, 1,000km of cycle lanes and 200,000 new trees in the Parisian streets.

If the Paris OCOG is to deliver on its promises around environmental impact and sustainably, there are various legal issues that will have needed (and/or continue to need) careful navigation. The author does not propose to go into these in any great detail for the purposes of this article, but examples of some the legal challenges include the following:

• Compliance with Environmental Regulations: the Paris OCOG must ensure all construction and land use comply with French and EU environmental laws, including those relating carbon emissions, biodiversity protection and environmental impact assessments. Over the last five years, new “Green Building Regulations” have been implemented in France that have set far more demanding targets for cutting the energy consumption of buildings.
• Intellectual Property and Green Technologies: incorporating new, sustainable technologies may involve negotiating IP rights and licensing agreements, which in turn can result in patent infringements or contractual disagreements.
• Waste management: the Games must adhere with legal standards for estate segregation, recycling and disposal, otherwise sanctions (e.g. fines) can be imposed.
• Sponsorship and Marketing: the Paris OCOG, as well as its sponsors and partners, must avoid so-called “greenwashing” (i.e. making false or misleading claims about their environmental impact through public messaging and advertising).
• Human Rights and Labour Laws: labour used in the construction and operation of Olympic venues will need to comply with domestic legislation, as well as the ECHR. This was an area that attracted a great deal of controversy in respect of the 2022 Football World Cup in Qatar, with an investigation by Amnesty International showing a “pattern of human rights abuses against migrant workers”.^[13]

[1]The Paris Olympics (scheduled from 26 July to 11 August 2024) will involve circa 10,500 athletes, from 206 National Olympic Committees, competing in 329 medal events across 32 sports. Meanwhile, the Paris Paralympics (scheduled from 28 August to 8 September 2024) will feature around 4,400 athletes, from around 180 National Paralympic Committees, competing in 549 medal events across 22 sports.

[2] Eleanor Crooks, ‘Triathlon star Jonny Brownlee controversially snubbed for Olympic selection’ (The Independent, 19 June 2024) https://www.independent.co.uk/sport/olympics/jonny-brownlee-triathlon-selection-olympics-paris-2024-b2565119.html

[3] Alexander Smith, ‘China names 11 doping scandal swimmers in its Paris Olympics team’ (NBC News, 9 June 2024) https://www.nbcnews.com/sports/olympics/paris-olympics-china-picks-11-swimmers-tested-positive-banned-heart-dr-rcna157885

[4] Jamie Gardiner, ‘Michael Phelps believes athletes have lost faith in WADA over Chinese doping scandal’ (The Independent, 26 June 2024) Michael Phelps believes athletes have lost faith in Wada over Chinese doping scandal | The Independent

[5] Dan Roan, ‘Tully Kearney: Paralympic champion makes formal complaint over classification process’ (BBC Sport, 23 January 2024) https://www.bbc.co.uk/sport/disability-sport/68063982

[6] Jeremy Wilson, ‘Tully Kearney given Paralympics boost after returning to original classification’ (The Telegraph, 7 April 2024) https://www.telegraph.co.uk/swimming/2024/04/07/tully-kearney-paralympics-returning-original-classification/

[7] Sean Ingle, ‘Conflicting opinions: IOC’s transgender guidelines delayed again until 2022’ (The Guardian, 20 September 2021) <https://www.theguardian.com/sport/2021/sep/20/conflicting-opinions-iocs-transgender-guidelines-delayed-again-until-2022>

[8]For example, some scientists point to recent studies showing that transwomen maintain significant advantages from undergoing male puberty even when they subsequently lower testosterone. See Sean Ingle, ‘IOC’s new transgender guidance criticised as unfair towards female sport’ (The Guardian, 17 January 2022 <https://www.theguardian.com/sport/2022/jan/17/iocs-new-transgender-guidance-criticised-as-unfair-towards-female-sport>

[9] CAS 2023/O/10000, Lia Thomas v World Aquatics, at [105]

[10] CAS 2018/O/5794 Caster Semenya v IAAF & CAS 2018/O/5798 Athletics South Africa v IAAF

[11] Jamie Gardner, ‘European court rules that Caster Semenya’s human rights were violated’ (The Independent, 11 July 2023) <https://www.independent.co.uk/sport/caster-semenya-world-athletics-swiss-court-of-arbitration-for-sport-south-african-b2373212.html>

[12] IOC Press Release, ‘Less, better and for longer: Five ways Paris 2024 is delivery more sustainable Games’ (22 April 2024) https://olympics.com/ioc/news/less-better-and-for-longer-five-ways-paris-2024-is-delivering-more-sustainable-games

[13] Miguel Delaney, ‘Qatar World Cup workers suffered “human rights abuses”, new Amnesty report finds’ (The Independent, 15 June 2023 https://www.independent.co.uk/sport/football/qatar-human-rights-abuse-world-cup-amnesty-b2357713.html