Summary of the Facts

Vladyslav Heraskevych, a prominent Ukrainian skeleton athlete, was scheduled to compete at the 2026 Winter Olympics in Milano-Cortina. In the months leading up to the Games, Heraskevych made several public statements to international media outlets, drawing attention to the ongoing war in Ukraine and expressing his desire to use the Olympic platform to honor Ukrainian athletes who had lost their lives in the conflict. Notably, he wore a helmet during official training sessions that depicted images of these fallen athletes. 

The International Bobsleigh & Skeleton Federation (IBSF) and the International Olympic Committee (IOC) viewed the helmet as a breach of the Olympic Charter and the IOC’s Expression Guidelines, which restrict expressions of views on the field of play, during ceremonies, and in the Olympic Village. Despite having been warned, Heraskevych publicly declared at a press conference on the evening of 10 February 2026, his intent to compete with the helmet. Consequently, on 11 February 2026, the IOC sent a letter to Heraskeyvich, informing him that the IOC had decided not to allow him to start in the Men’s skeleton event of 12 February 2026 wearing the helmet and that the IBSF would implement such decision. On 12 February 2026, the IBSF issued a decision (Challenged Decision) withdrawing Heraskevych from the starting list of the Men’s skeleton event.   

Heraskevych appealed the decision to the CAS Ad Hoc Division, arguing in particular that the sanction was premature because he had had no opportunity to even present this equipment, helmet or skeleton sled and that he had not breached Rule 50 of Olympic Charter (OC) which prohibits among other political propaganda. According to Heraskevych, the helmet was a simple commemoration of killed Ukrainian athletes, but not a political propaganda. 

Summary of the Decision

The Sole Arbitrator of the CAS Ad Hoc Division dismissed Heraskevych’s appeal. 

The Sole Arbitrator first pointed out that the Challenged Decision was based on Rule 40.2 prohibiting expression of views and not on Rule 50.2 of the OC prohibiting political propaganda. The Sole Arbitrator concluded, hence, that the substantive scope of the Expression Guidelines, which refers to any «expression of views», is wider than the concept of «political propaganda» addressed in Rule 50.2 of the OC. 

The Sole Arbitrator then went on to analyze whether IOC’s Expression Guidelines are compatible with Heraskevych’s right to freedom of expression guaranteed under Article 10 of the European Convention on Human Rights (ECHR), according to which: 

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The Sole Arbitrator acknowledged that athletes have a fundamental right to freedom of expression, but pointed out that such a right is not absolute. Restrictions are permissible where necessary «in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others.»

The Sole Arbitrator found that the IOC’s Expression Guidelines provided athletes with broad opportunities to express their views outside the field of play, including in media interviews, on social media, and during training runs. Therefore, the Expression Guidelines provide a fair and reasonable balance between athlete’s fundamental rights of freedom of expression and the IOC’s legitimate aim to provide a safe space for athletes during the core moments of their performance in competition, ensuring that public attention during such moments is fully focused on sport. The Sole Arbitrator then concluded that the IOC’s Expression Guidelines are compliant with Article 10 ECHR. 

The Sole Arbitrator then analyzed whether the exclusion of Heraskevych was lawful. She determined that wearing the helmet during competition would constitute an «expression of a view» within the meaning of the Guidelines and that, given the political context, the gesture was inherently political, even if motivated by commemoration. The Sole Arbitrator held that the IOC and IBSF were entitled to act pre-emptively, given Heraskevych’s clear and repeated intent to breach the rules. She rejected the argument that Heraskevych should have been allowed to compete and then sanctioned afterward, emphasizing that rules exist to be abided by, and that athletes must challenge decisions through legal channels rather than open defiance.

Furthermore, the Sole Arbitrator concluded that the exclusion was deemed proportionate because Heraskevych had other means to express his views and was offered alternatives like a black armband. The Sole Arbitrator also noted that the exclusion was not a disciplinary sanction, but a necessary measure to prevent an imminent breach of the rules.

The Challenged Decision was, therefore, upheld and Heraskevych was not allowed to compete. 

Comments

This case is important because it confirms that human rights apply to sports arbitration. Interestingly enough, the Sole Arbitrator proceeded with an analysis of the compatibility of the IOC’s Expression Guidelines with Article 10 ECHR even though Heraskevych did not expressly refer to the ECHR in his pleadings (para. 83 of the Award). The Sole Arbitrator held that «[T]he freedom of associations [the IOC and the IBSF] enjoy finds its limit in fundamental human rights athletes enjoy» (para. 83 of the Award), and that “while the direct application of the ECHR is limited to its signatory states (i.e., public authorities), its fundamental guarantees must also be respected by international sports federations enjoying a market-dominant position in the organization, planning and execution of major sports events” (para. 84 Award). 

The proactive approach of the Sole Arbitrator in verifying the compatibility of the Challenged Decision with the ECHR is welcomed, considering the decision Semenya vs. Switzerland. One may argue, however, that the Sole Arbitrator could have gone a bit deeper with the analysis of Article 10 ECHR. The latter provides that limitations to the freedom of expression are permitted if «prescribed by law». The analysis of this requirement is missing in the Award. There is no analysis as to whether IOC’s Expression Guidelines qualify as «law» under 10(2) ECHR and, therefore, are sufficient legal basis to limit the athletes’ fundamental right to freedom of expression.

In the author’s opinion, it is arguable to contend that the IOC’s Expression Guidelines can be considered «law» within the meaning of Article 10(2) ECHR because the IOC is a private association of Swiss law. Its rules are instruments of private law that are not issued based on a delegation of powers from public authorities.

Finally, it is also interesting to read that even though the Sole Arbitrator ruled that she would subsidiarily consider Swiss law as the applicable law (para. 70 Award), she carried out the analysis by resorting exclusively to the ECHR. There is no reference in the Award to provisions of Swiss law, in particular to Articles 27 and 28 of the Swiss Civil Code (CC) on personality rights, which could have come into play to determine whether the limitation to freedom of expression contained in the IOC’s Expression Guidelines is lawful under Swiss law. The lack of any reference to Articles 27 and 28 CC in the Award confirms that human rights – an notably the ECHR - are becoming increasingly important in sports arbitration. 

At Bratschi we have experienced lawyers specializing in international sport and highly complex sports cases involving human rights. Please reach out to Marco Vedovatti if you have any queries.