Vinesh Phogat: Drawing a Case for a Silver Medal using Legal Principles of Contra Proferentum, Promissory Estoppel and Harmonious Construction

Vinesh Phogat won three consecutive bouts under women 50Kg freestyle wrestling at the Paris Olympics. By virtue of her win, she qualified for the final match scheduled on the next day. Vinesh was disqualified because?she was found overweight by 100gms during the second weigh-in.?

Fans of Vinesh have been deeply disappointed by the disqualification. For the fans, disqualification due to extra 100 grams is perverse and shocks the public conscience. The level of dissonance has been so high that all kinds of conspiracy theories started floating. Thanks to the silence observed by the administrators accompanying the Indian team the confusion deepened further.?

Before I start getting into the legal technicalities it is important to examine the statement of Bach, IOC Head. He empathised with Vinesh but argued in favour of rules and justified his argument by providing examples of decisions in sprint (includes other forms of race also) made by the difference of fraction of second. Bach could have avoided comparison of weight of wrestling with time of sprint. Sprints or any other race are decided on the basis of time clocked by the winner. Assuming there is no foul there is no other distinguishing feature in sprint except time, which is the most essential and only essential feature of sprint competitions. It is not so in wrestling. There are rules to score points in wrestling competitions and the winner is declared on the scheme of the points. Weight is only a feature to categorise wrestlers in various categories. Therefore, the comparison of wrestling rules with sprint rules is devoid of ratio and without application of mind. It is important to mention that the International Olympic Committee?(IOC) is only an organiser of the Olympics. The competitions at the Olympics are held according to the rules of various sports agencies that are independent to make their own rules and regulations. Bach, in all probability, was not aware of the rules of the agency organising wrestling, which is United World Wrestling (UWW) known as Federation. [There are 184 countries that are members of the Federation. Only members of the Federation are allowed to participate in the wrestling events of the Olympics. All the participating wrestlers competing under UWW hold a calid license issued by UWW.]

We already know that Vinesh's matter is with CAS and a single arbitrator is hearing the matter. But how did it reach CAS? To answer the question, one has to understand the basic structure of the arbitration process. Vignesh's right to participate in the finals by virtue of winning the semi-final bout was denied by the officials (executive) of the UWW. It is UWW's responsibility to protect the rights of the players. Therefore, the dispute has to be raised against UWW and the first document to be referred to is the Constitution of UWW (In jurisprudence it is called "Grund norm", a German word used by Hans Kelsen meaning fundamental norm which determines other norms derived from it, for example Constitution of India in Grund norm of India as all the Acts and statutes are guided by it). Article 17 of the Constitution of UWW deals with " Article 17 – Disciplinary and dispute resolution regulations." It mentions:

Therefore, in accordance with Art 17 of the Constitution of UWW there is a regulation to deal with the disputes. On the "Regulations" page of the UWW website you would find " Disciplinary Procedure & Dispute Resolution Regulations (hereafter referred to as Regulation)". The preamble of the Regulation mentions:

It is evident from the Preamble that the Regulation is the correct regulation for dispute resolution in Vinesh's case. Title-1 of the Regulation contains two articles, Art-1 & 2 on the scope of Regulation that decides the issue of jurisdiction of the Regulation (applicability of the Regulation). Art-1 mentions:

Thus, Art-1 of the Regulation confirms that the Regulation being referred to and relied upon is the correct regulation applicable in the matter of Vignesh as she is a wrestler licensed by UWW [One of the first documents to be checked at the commencement of arbitration].?

Since we have confirmed the applicability of the Regulation, we now have to find provisions of appeal to know about the right forum of appeal. Title-V of the Regulation is about appeal. It mentions:

After identifying the correct forum we have to deal with relevant documents of CAS to know the appropriate seat of CAS and procedure to file appeal. CAS has circulated information about ad hoc seats of arbitration at the Paris Olympics. To approach CAS at the Paris Olympics one has to refer to the basic document of CAS, which is " Code of Sports-related Arbitration (hereafter referred to as Code)". S3 of the Code mentions " CAS maintains one or more list(s) of arbitrators and provides for the arbitral resolution of sports-related disputes through arbitration conducted by Panels composed of one or three arbitrators..." Clause 8 of S6 of the Code mentions, "It provides for regional or local, permanent or ad hoc arbitration, including at alternative hearing centres;". Further, Rule 8 of Code mentions " The seat of CAS and of each Arbitration Panel (Panel) is Lausanne, Switzerland. However, should circumstances warrant, and after consultation with all parties, the President of the Panel may decide to hold a hearing in another place and may issue the appropriate directions related to such hearing." Therefore, the seat at the Paris Olympics is the correct seat for the arbitration of Vignesh's?dispute.

The Code of CAS deals with the procedural issues of filing of request for arbitration under R47 titled "Appeal" and the procedure details have been mentioned under R48.

The fee is non-refundable 1000 Swiss Francs.?

Other important and relevant issues i CAS procedures are a) time limit (21 days mentioned in R49) - since Vinesh appeal was filed on the same day it conforms to R49; b) arbitrators (R50 deals with number or arbitrators, in Vinesh case there is a sole arbitrator which is a general norm unless and until parties disagree); c) cost - R64 deals with the cost. There are two types of costs mentioned in R64.1 and R64.4. Former is about non-refundable 1000 Swiss Francs and the latter is about the cost of arbitration.

The next important element is laws that would be applicable to the merits of the dispute. R 58 deals with the same. It mentions:

So far, I have dealt with the issues of identifying the correct forum and the relevant procedures. Now, we have to deal with the merit of the dispute. The merits of the dispute are: a) Vinesh was successful in the first weigh-in but she was unsuccessful in the second weigh-in and b) Vinesh was declared successful without any conditions by UWW on the day -1. The key issue is about the validity of day-1 results. The answer to the dispute would be provided by the rules of wrestling of UWW. The concerned document is " INTERNATIONAL WRESTLING RULES (hereafter referred to as Rules). Art-1 and Art-3 of the Rules deals with the object and scope of the Rules. Reading of both Rules confirm that the said Rules would be applicable to the merits of the Vinesh's case.

Art 8, 11, 15 and 54 of the Rules are the relevant articles in Vinesh's case. Art 8 deals with a Competition System that also deals with weigh-in. Art-11 titled "Weigh-in" deals exclusively with the issue concerned in the extant case. Art 15 is about elimination and Art 54 is about protest.?

The laws on merit are in favour of Vinesh. The basis of the same are two legal doctrines a) contra proferentum, and b) doctrine of promissory estoppel. "Contra proferentem is a rule of contract interpretation that states an ambiguous contract term should be construed against the drafter of the contract (Legal Information Institute, Cornell Law School)." The reading of Articles 8, 11 and 15 does not provide any reference on the fault committed?by Vinesh on the day one. According to the rules Vinesh was declared medically fit and within the weight limit and therefore she was allowed to participate in the three bouts. There are no reports of warnings issued to Vinesh during the weigh-ins. Nothing has been reported against Vinesh during the bouts and therefore the completion and subsequent formal declaration of results leaves no doubt of fair play and in favour of Vinesh. Articles 8, 11 and 15 mentions two weigh-ins and the same is mentioned in a portion of Art 8 mentions " The medical control and a first weigh-in will be held the morning of the concerned weight category. The qualified athletes for the finals and repechages will be weigh-in again the second morning of the concerned weight category. No more weight tolerance will be allowed for the second weigh-in. 2kg weight tolerance is allowed for the World Cup and for the International Tournaments (Except UWW Ranking Events)."

It is not clear whether extra 2 kgs was allowed during the first weigh-in. Even if extra weight was allowed by the Rules the bouts fought should be valid and legal. The relevant portion of Art 11 in Vinesh's case are the last three paragraphs:

Further, Art 13 mentions, " Article 13 – Starting List If one or more wrestlers do not attend or fail the weigh-in, their opponent(s) will win the bout by forfeit. These wrestlers will be eliminated of the competition and will be ranked last, without rank. NO pairing will be made again the day of the competition." It is not clear which weigh-in is being referred in Art13. A portion of Art14 also deals with weigh-in. It mentions " The morning of the second day of the concerned weight category, the qualified athletes for the repechages and finals will be weigh-in again. The wrestlers who does not attend or fail the weigh-in on the second day will be eliminated and ranked last, without rank, except for the injured athlete(s) on the first day (cf. Article 56 – Medical Service Intervention). If one (or more) athlete qualified for the repechages and/or finals doesn’t attend or fails the weigh-in, the athlete(s) (who successfully passed the second weigh-in) will move to the next round in his(their) part of the bracket.*

*If all athletes don’t attend or fail the second weigh-in, the ranking will be made according to individual ranking criteria (Cf. Article 8)."

Thus, we notice there is confusion in the weigh-in rules and in absence of clarity the benefit of doubt should be given to Vinesh according to the legal principles of contra proferentum.

Among various articles mentioned Art 54 titled "The Protest" mentions:

My emphasis is on, "Under no circumstances may the result of a match be modified after victory has been declared on the mat." In Vinesh case the result of the match was declared and according to Art 54 the same cannot be changed. A promise made by UWW on day one cannot be made null and void on day-2 according to the doctrine of promissory estoppel. "Promissory estoppel is a contract law doctrine that allows a plaintiff to recover damages, despite no actual contract, when the defendant made a promise that the plaintiff detrimentally relied upon, and the plaintiff's reliance on that promise was?reasonable (Legal Information Institute, Cornell Law School)." [In the extant case Vignesh is similar to plaintiff and UWW is defendant.] If the same has to hold true disqualification on the day two weigh-in hits Art 54. The results of the Vinesh bouts cannot be changed by UWW. Moreover, there is no Article to decide the hierarchy of articles in case of conflict (for example there are Conflict Clause in contracts that decide prevalence of one clause over the other in case of conflicts.) Therefore, Vinesh has a strong case.

It is evident that there is a contradiction between weigh-in rules and the Art 54. The weigh-in rules are not explicit about the successful weigh-in on day-1 and the consequences of the same obtained through Article 54. It is true that Art11 on weigh-in precedes Art54 however the numbers mentioned after articles are only nominal. The Rules does not contain any article to indicate hierarchy or preference. Therefore, the effect of second day failed weigh-in and the clean and fair day-1 results should be harmoniously constructed to meet the ends of justice. Rule of harmonious construction is a relevant rule in the extant matter because it upholds the effect of valid day-1 and also disqualification of Vinesh from contesting finals where she could have achieved maximum and won a gold medal. By winning semi-final bout Vinesh met mandatory condition precedent of contesting finals. Not all wrestlers meeting weigh-in norms qualify for the finals. Winning semi-final is obligatory. The minimum effect of winning semi-final bout is a silver medal. Therefore, Vinesh should be awarded a silver medal.