Overview

In a recent decision, the Swiss Federal Supreme Court (the “Court”) has revised an award issued by the ad hoc division of the Court of Arbitration for Sport (“CAS”) concerning the women’s individual artistic gymnastics floor event final at the Paris 2024 Olympic Games. The CAS decision, which had led to the bronze medal being taken away from American gymnast Jordan Chiles on the basis that her coach had submitted an oral scoring inquiry outside the strict 60-second time limit, was revised by the Court based on the existence of video evidence that “could not have produced in the earlier proceedings despite exercising due diligence”.¹ The Court held that this new evidence is “conclusive” and that, had it been available to the CAS tribunal, the outcome of the arbitration might well have been different.² The matter will now return to the CAS for a further hearing to assess the new evidence allegedly demonstrating that Ms. Chiles’ coach submitted her scoring inquiry in time.

The decision is a landmark ruling on the standards governing the revision of arbitral awards under the Swiss Private International Law Act (“PILA”) where a party becomes aware of “decisive evidence” that, despite the exercise of due diligence, it could not have produced in the original arbitration proceedings. The decision also contains lessons for the conduct of expedited arbitration proceedings, particularly in such a high-pressure context as the Olympic Games, and the risk that such procedures may limit parties’ opportunity to gather and present critical supporting evidence.

Background

Established in 1984, the CAS is widely regarded as the foremost independent judicial authority tasked with settling sports disputes at a global level; athletes generally accept its jurisdiction as a condition of Olympic participation.³

The CAS ad hoc division for the Olympic Games addressed legal disputes that emerged during the Paris Olympic Games;⁴ its purpose was to answer the demands of sporting organisations and athletes by resolving disputes on an expedited timeframe (sometimes within 24 hours).⁵ The arbitration rules applicable to the CAS ad hoc division for the Olympic Games provided that the seat of arbitration was Lausanne, Switzerland and that arbitration proceedings were governed by Chapter 12 of the Swiss PILA.⁶

The case in issue concerned a dispute between American gymnast Jordan Chiles and the United States Gymnastic Federation (the “USAG”), on the one hand, and the Romanian Gymnastics Federation and Romanian gymnast Ana Maria Bàrbosu, on the other, arising out of the women’s individual artistic gymnastics floor event final, held on 5 August 2024.⁷ While Ms. Chiles initially received a score putting her in fifth place, her score was increased after her coach submitted an oral inquiry contending that the judges did not accurately score the difficulty of her routine. As a result, Ms. Chiles was moved into third place, garnering her the bronze medal (and thereby displacing Ms. Bàrbosu). The Romanian Gymnastics Federation initiated an arbitration before the CAS seeking the revocation of Ms. Chiles’ bronze medal, alleging that the oral inquiry was submitted outside the strict 60-second time limit under the Fédération Internationale de Gymnastique (“FIG”) 2024 Technical Rules.

On 10 August 2024, the CAS tribunal notified the parties of the operative part of its award, which concluded that the scoring inquiry made by Ms. Chiles’ coach had been submitted four seconds outside the 60-second time limit.⁸ On that basis, the International Olympic Committee (the “IOC”) withdrew the bronze medal from Ms. Chiles and awarded it to Ms. Bărbosu.

Just one day later, on 11 August 2024, Ms. Chiles and the USAG obtained video evidence allegedly showing that Ms. Chiles’ coach had made the scoring inquiry in time.⁹ The evidence in question – footage from a documentary crew associated with the “Religion of Sports” production company, recording the women’s gymnastics floor final for a documentary series spotlighting Ms. Chiles’ teammate Simone Biles – allegedly shows that the CAS tribunal’s decision rested on a critical factual error regarding the timeliness of the coach’s inquiry.¹⁰ Ms. Chiles and the USAG applied to submit this new evidence the same day (after the CAS tribunal had issued the operative part of its award on 10 August, but before the CAS tribunal issued its reasoned award on 14 August). The CAS tribunal rejected this application, on the grounds that its award had already acquired the force of res judicata.¹¹

Swiss Federal Supreme Court Decision

Ms. Chiles and the USAG filed a request for revision of the CAS tribunal’s award with the Swiss Federal Supreme Court, alleging that the CAS tribunal had violated their “right to be heard” by disregarding the new video evidence concerning the timeliness of the scoring inquiry.¹²

Under Article 190a(1)(a) of the PILA, a party may apply for the review of an arbitral award if it discovers “decisive evidence” that it was unable to rely on in the arbitration proceedings despite the exercise of due diligence.¹³ This provision was only introduced in recent revisions to the PILA that entered into force in January 2021, taking into account prior case law of the Swiss Federal Tribunal. The Court’s decision thus represents one of the first to interpret this provision since the revised PILA entered into force. 

The Court held that an application for review under Article 190a(1)(a)is available only where five cumulative conditions are met: (1) the evidence relates to prior facts (“pseudo-nova”); (2) the evidence is “conclusive”, meaning that it is capable of producing a modification in the award favourable to the applicant; (3) the evidence existed at the time the decision was rendered (specifically, up to the last moment it could have been introduced in the underlying arbitral proceedings); (4) the evidence was discovered only after this time; and (5) the applicant could not have discovered it earlier, despite exercising due diligence.¹⁴

The Court assessed each of these five conditions in light of the facts of the case:

• First, the Court determined that the new evidence undisputedly concerned a fact that had occurred prior to the rendering of the CAS award on 10 August 2024 – i.e., the timing of the oral scoring inquiry made by Ms. Chiles’ coach on 5 August 2024.¹⁵


• Second, the Court determined that the new evidence was “conclusive” concerning the issue of whether the scoring inquiry was submitted on time, since it would likely lead to a modification of the award in a manner favourable to the applicants.¹⁶


• Third, the Court determined that the evidence had already existed when the award was issued, since the audio-visual sequences in the recording were made on the same day as the event took place on 5 August 2024, even though they had only been assembled and compiled into a single file on 11 August 2024.¹⁷


• Fourth, the Court determined that the audio-visual sequences compiled in the recording had only been discovered by the applicants’ representatives one day after the CAS had issued the operative part of its award on 11 August 2024.¹⁸


• Fifth, the Court determined that the applicants had not “lacked due diligence”, given that Ms. Chiles and the USAG were subject to “extraordinary time pressure” in the proceedings. In addition, the Court held, a notification error attributable to the CAS had “not only caused an imbalance between the parties, but also significantly aggravated the time constraints” on the applicants.¹⁹

The Court thus concluded that all five of the conditions were met to satisfy the test for the discovery of new “decisive evidence” under Article 190a(1)(a) of the PILA. The Court therefore remitted the matter to the CAS tribunal for a further hearing to consider the new evidence.

Comments

The Court’s decision is a rare but important illustration of how the Swiss law remedy of revision under Article 190a(1)(a) of the PILA can operate in the high-pressure context of an Olympic Games ad hoc adjudication, where decisive new evidence emerges that could not have been placed before the arbitral tribunal before its award was issued. As such, the Court’s decision raises important questions about a number of aspects of the sports arbitration system, including the scope of review of arbitral awards, the balance between procedural efficiency and evidentiary completeness in time-sensitive disputes, and the treatment of decisive evidence that emerges only after the arbitral proceedings have concluded.

Two aspects of the Court’s reasoning are particularly notable:

• First, the Court’s treatment of what constitutes “conclusive” new evidence is pragmatic and outcome oriented: the new evidence need only be capable of producing a modification of the award favourable to the applicant.


• Second, the Court calibrated the “due diligence” requirement to the procedural realities of ad hoc arbitration during the Olympic Games. It took into account the extraordinary time pressure on the applicants, as well as the notification misstep attributable to the CAS, finding that these factors disadvantaged the applicants and materially compressed their window to gather and present relevant evidence. In doing so, the Court clarified that what constitutes due diligence is context specific; what is reasonably achievable over the course of many months in the course of an ordinary arbitration may be unreasonable during mere hours or days in an expedited Olympic Games dispute.

The Court’s decision also highlights the tension between the principle of res judicata (particularly in expedited proceedings) and the Swiss law mechanism for revision. The CAS had declined to admit the video footage after having already notified the operative part of its award, invoking the principle of finality. Yet the Swiss Court’s intervention underscores that this will not immunise an award from revision where the statutory conditions are met. In other words, the lex arbitri preserves a narrow safety valve even in the Olympic Games’ fast track regime; future tribunals are on notice that they must take this into consideration.

Looking ahead, the implications of the Court’s decision are practical as well as legal. Athletes, teams and sports federations should anticipate the need for immediate evidence collection and preservation, especially where strict timing rules may be outcome determinative. Event organisers and sports federations should also consider formalising inquiry time-recording to better scrutinise rule compliance, as well as adopting clear protocols to minimise ambiguity in the proper handling of such inquiries.

The CAS, for its part, could consider clarifying its guidance for the conduct of proceedings in the interval between the release of the operative and reasoned parts of an award, as well as providing a streamlined pathway to address late discovered evidence and avoid foreclosing the admission of relevant evidence by an overly rigid reliance on res judicata.

As concerns Ms. Chiles’ case, the CAS tribunal must now engage with the new video footage in order to resolve the question on which hangs a bronze medal: was the oral scoring inquiry submitted by Ms. Chiles’ coach made within the 60-second time limit under the FIG 2024 Technical Rules? While the Swiss Federal Supreme Court did not express a view on this question, its decision has ensured that the question will be resolved on the basis of all the available evidence. This outcome is a measured balancing of interests: respect for the finality of awards in the context of the Olympic Games’ uniquely high-pressure environment, tempered by a limited corrective mechanism where decisive facts were, through no fault of the parties, unavailable at the critical moment.

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¹Art. 190(a) para 1.a of the PILA that provides: “A party may request a review of an award if: (a) it has subsequently become aware of significant facts or uncovered decisive evidence which it could not have produced in the earlier proceedings despite exercising due diligence; the foregoing does not apply to facts or evidence that came into existence after the award was issued”. Available at: https://www.fedlex.admin.ch/eli/cc/1988/1776_1776_1776/en.

²See para 9.5.2 of the Swiss Federal Supreme Court Decision of 26 January 2026 (the “Swiss Court Decision”) (author’s translation). Available at: https://www.bger.ch/ext/eurospider/live/fr/php/aza/http/index.php?highlight_docid=aza%3A%2F%2Faza://23-01-2026-4A_438-2024&lang=de&zoom=&type=show_document.

³See history of the CAS here: https://www.tas-cas.org/en/general-information/history.

⁴See the Arbitration Rules applicable to the CAS ad hoc division for the Olympic Games here: https://www.tas-cas.org/en/arbitration/ad-hoc-division.

⁵See the Arbitration Rules applicable to the CAS ad hoc division for the Olympic Games here: https://www.tas-cas.org/en/arbitration/ad-hoc-division.

⁶See Art. 7 of the Arbitration Rules applicable to the CAS ad hoc division for the Olympic Games here: https://www.tas-cas.org/en/arbitration/ad-hoc-division.

⁷See Ms. Chiles’ final floor performance in the 2024 Paris Olympic Games here: https://www.youtube.com/watch?v=kU0769SvbWE.

⁸See para 146 of the CAS Decision here: https://www.tas-cas.org/generated/assets/lists/feb900ba-1137-4b78-a9ff-d68af7869087/CAS_Award_OG_15-16__for_publication_.pdf. See also Art. 8.5 of the Technical Regulations of the FIG 2024, which states that: “[…] For the last gymnast or group of a rotation, this limit is one (1) minute after the score is shown on the scoreboard. The person designated to receive the verbal inquiry has to record the time of receiving it, either in writing or electronically, and this starts the procedure […].”. Available at: https://www.gymnastics.sport/publicdir/rules/files/en_1.1%20-%20Technical%20Regulations%202024.pdf.

⁹See para 9.5.3 of the Swiss Court Decision.

¹⁰See para 7.1 of the Swiss Court Decision.

¹¹See para 7.1 of the Swiss Court Decision.

¹²See para 7.2 of the Swiss Court Decision. Ms. Chiles and the USAG also sought to set aside the CAS Award on the basis that the tribunal president, Dr. Hamid G. Gharavi, allegedly lacked independence because he had acted as counsel for Romania in unrelated ICSID investment arbitrations. The Swiss Federal Supreme Court, however, held that this challenge was time-barred, given that the relevant information had been disclosed during the arbitration and no timely objection had been raised.

¹³See Art. 190(a) para 1.a of the PILA that provides: “A party may request a review of an award if: (a) it has subsequently become aware of significant facts or uncovered decisive evidence which it could not have produced in the earlier proceedings despite exercising due diligence; the foregoing does not apply to facts or evidence that came into existence after the award was issued”. Available at: https://www.fedlex.admin.ch/eli/cc/1988/1776_1776_1776/en.

¹⁴See Swiss Court Decision para 9.1.1.

¹⁵See Swiss Court Decision para 9.5.1.

¹⁶See Swiss Court Decision para 9.5.2.

¹⁷See Swiss Court Decision para 9.5.3.

¹⁸See Swiss Court Decision para 9.5.4.

¹⁹See Swiss Court Decision para 9.5.5.

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