NASHVILLE, Tenn. – Allan Erbsen, a Vanderbilt fellow and instructor
at
Vanderbilt Law School, says it is unlikely that arbitrators would award
South Korean gymnast Yang Tae Yong a gold medal after a scoring error
by Olympic judges placed him behind American Paul Hamm and a fellow
South Korean.
Judges mistakenly shaved 0.100 off Yong’s score, putting him behind
Hamm and Kim Dae-eun in the men’s all-around gymnastics
competition. Hamm was awarded the gold medal, but there is
sentiment to also award the top prize to Yong.
"The problem from a legal perspective is not that the judges made a
mistake, but that South Korea’s coaches apparently failed to formally
object to the mistake until after the time for protesting had expired,"
said Erbsen, an expert in international sports litigation who recently
returned from Athens, where he served as an attorney arguing before a
board of 12 arbitrators in place to settle Olympic disputes.
"If the protest had been timely, and if the judges had nevertheless
failed to correct their error, then South Korea would have had a
plausible claim that the international gymnastics federation violated
its rules and that an arbitration panel should remedy the violation by
awarding a gold medal to the affected athlete."
However, said Erbsen, "the historical reluctance of
arbitrators to reverse competition outcomes, absent bad faith or a lack
of due process, means that the late filing of a protest – in other
words, the failure to invoke due process at the proper time – will
likely be fatal to any arbitration claim that South Korea may file."
Erbsen added that the scoring dispute highlights the need for
coaches to be vigilant during events. "If South Korea’s coaches had
been more vigilant, they might have succeeded in changing the scores
before medals were awarded or at least placed themselves in a stronger
position to challenge the judging mistake in arbitration."
Erbsen has made many appearances before the Court of Arbitration for
Sport and other sports tribunals arguing appeals involving
field-of-play judging decisions, doping and disciplinary actions, and
eligibility disputes. He worked on several cases in Athens, including
defending against a challenge to the composition of the U.S. women’s
road cycling team, an appeal against the exclusion of the Canadian team
from the two-man rowing final, and the defense against a doping-related
appeal by suspended U.S. sprinter Torri Edwards.
Media contact: Jim Patterson, (615) 322-2706
Jim.patterson@vanderbilt.edu