Imagine spending your life training in a sport. Decades of hard work and dedication, as well as some natural talent, have made you one of, if not the, best in the world. You train alongside the best athletes in your sport, continuously pushing each other to the limits of performance. This season, though, all of your training partners have been given an opportunity that you have not. You watch as they pack their gear to head to the pinnacle of sporting competition, the Olympic Games. While they dream of receiving an Olympic medal, as well as television coverage and endorsement money, you must stay back and watch the events on television in your home country. Now realize that your exclusion from the Games has nothing to do with qualifications, performance, injury, or illness. Instead, you are excluded from the Olympic Games simply because you are a woman.
This was the story of American ski jumper Lindsey Van. (1) Van, age twenty-five at the time of the 2010 Winter Olympic Games, (2) began her training in ski jumping at the age of seven, and rigorously trained for eighteen years in hopes of an Olympic berth. (3) Van won the 2009 women's world championship (4) and held the hill record, over both men and women, in the ninety-meter jump at the Vancouver, British Columbia facility leading up to the 2010 Winter Olympic Games. (5) Despite their undeniable talent and the fact men's ski jumping remained an Olympic event, the International Olympic Committee ("IOC") made an executive decision that Van, and all other elite women ski jumpers, would not be allowed to compete in the 2010 Vancouver Winter Games. (6)
Subsequently, Van and fourteen other highly ranked women ski jumpers sued the Vancouver Olympic Committee ("VANOC"); yet, ultimately, the Supreme Court of British Columbia, the Court of Appeal for British Columbia, and the Supreme Court of Canada determined the Canadian courts were powerless to mandate female ski jumping at the 2010 Olympic Games. (7)
Largely due to historical remnants of gender discrimination within the Olympic Movement, (8) ski jumping as a Winter Olympic event was closed to women until April 2011. (9) As women ski jumpers were not able to successfully litigate their way into the 2010 Olympic Games, (10) this Note analyzes whether litigation will ever be a feasible mechanism for athletes to protest and change the IOC's policies. This Note recognizes that over the past 100 years, the IOC's motives, incentives, and commitments have frequently contradicted the fundamental principles of the Modern Olympic Movement, (11) set out in the Olympic Charter. (12) Resultantly, the negative publicity that results from extensive athletic litigation ultimately weakens the Olympic Movement that inspires athletes in the first place. (13)
As national courts have been unwilling to rule against the IOC, this Note suggests the key to preserving the legitimacy of the Modern Games is not through litigation, but through an internal restructuring of the IOC so that the Olympic Movement's fundamental values of fairness and equality always prevail.
WOMEN AND THE MODERN OLYMPIC MOVEMENT
The global acceptance of women in sports has changed dramatically over the past century. (14) When Baron Pierre de Coubertin founded the Modern Olympic Games in 1896, (15) and while he led the IOC for twenty-nine years, de Coubertin did not promote or encourage "ladies' events." (16) De Coubertin described the Olympics as "the solemn and periodic exaltation of male athleticism with internationalism as a base, loyalty as a means, art for its setting, and female applause as reward." (17) The IOC leadership maintained this mentality against women in sports, and limited women's participation in the Olympic Games for over fifty years. (18)
Evolving Ideals on Women in Sports
Since the second half of the twentieth century, the number of women athletes and women's sports has dramatically increased. (19) As a result, many now view sports participation as a fight that belongs equally to both women and men. (20) Furthermore, the IOC and many independent nations promote equal sports participation between the sexes. (21) The most prominent example of this in the United States was the implementation of Title IX. (22) Congress enacted Title IX in 1972 to ensure equal athletic opportunities for both sexes. (23) During the first thirty years of Title IX, female participation opportunities in collegiate athletics grew over 400%, while female participation in high school sports grew 974%. (24)
The increase in women's athletics in the United States has been echoed in Olympic competition, although the IOC appears to have taken a more gradual approach to women in sports than Congress. (25) For example, 1976 was the first year that women comprised more than fifteen percent of all Olympic athletes. (26) In the 2004 Summer Olympics, women finally constituted over forty percent of all competing athletes. (27)
The IOC expressly denounces "[a]ny form of discrimination with regard to ... gender" in the Olympic Charter's Fundamental Principles of Olympism. (28) Yet, despite the IOC's efforts to abolish its discriminatory past, commentators have argued that there is a disconnect between the IOC's conduct and the Olympic Charter. (29) According to Chantelle Forgues, the number of women participating in the Olympics and the number of Olympic events open to women still lags significantly behind those of men. This gap ultimately denies women the opportunity not only to receive medals, but also to participate in "certain kinds of events altogether." (30) Further, Susannah Carr contends that because the IOC does not use a comprehensive Title IX-type measuring system, but instead "only considers the proportion of female competitors, and the proportion of events open to female competitors," it is failing in its duty to equally treat female athletes. (31) Consequently, women athletes and their supporters have taken more drastic measures to pursue equality; litigation has been one popular route. (32)
Litigation as a Route to Achieve a Place on the Olympic Programme
As women's participation in sports has increased, litigation surrounding sporting opportunities and particularly participation in the Olympic Games, has also dramatically increased. (33) Since there is no independent, international sports body dedicated to dispute resolution, (34) disgruntled athletes must either arbitrate their claims through an arbitration board established and financed by the IOC--the Court of Arbitration of Sport ("CAS") (35)--or pursue their claims in national courts, which have shown a general deference toward Olympic rule. (36) Largely due to the increased commercialization of the Olympic Games, athletes usually will litigate in order to protect their already established right to compete. (37) More recently, however, women have brought litigation in order to create a right to compete and take their rightful place on the Olympic Programme. (38)
The Olympic Programme: Why Women Are Excluded
The Olympic Charter outlines the Olympic Programme, which is considered the plan of all the Olympic athletic competitions for a specific Olympic Games. (39) The Olympic Programme consists of "sports, disciplines and events." (40) Disciplines are branches of the broader sport category, and an event is a competition within a sport or discipline. (41) For example, "[s]kiing is a sport, ski jumping is a discipline, and women's 90-metre ski jumping would be an event." (42) Events ultimately lead to the awarding of rankings and medals. (43)
In accordance with Rule 46 of the 2010 Olympic Charter, the IOC chooses the sports to include in the Olympic Programme no later than at the election of the host city for that edition of the Olympic Games. (44) This decision typically occurs at least seven years prior to the holding of the Games. (45) Yet, the IOC decides which disciplines and events to include no later than three years prior to the opening of the Games. (46)
The controversy surrounding the exclusion of women's sports, disciplines, and events from the Olympic Programme is rooted in a rule the IOC adopted in 1949 to "slow the rapid growth of the number of Olympic events within recognized sports." (47) Rule 47 of the 2004 Olympic Charter, which was in effect at the time the controversy erupted over the inclusion of women's ski jumping at the 2010 Vancouver Winter Games, was the successor to the 1949 IOC rule. (48) It outlined the criteria for the inclusion of new sports and the review of existing sports within the Olympic Programme. (49)
Generally for an event to be included in the Olympic Programme, the event must be internationally recognized, "both numerically and geographically, and have been included at least twice in world or continental championships." (50) Male events must first be practiced in at least fifty countries and on three continents, and female events must be first practiced in at least thirty-five countries and three continents, before they may be included in the Olympic Programme. (51)
The 1949 IOC rule, however, as shown through Rule 47, also has a grandfather mechanism for sports, disciplines, and events that cannot meet the Olympic Programme's entry requirements. A sport that does not meet the entry requirement threshold may still "be maintained [in the Olympic Programme] by decision of the IOC for the sake of Olympic tradition." (52)
There are three major rationales behind the IOC's policy against including newer sports into the Olympic Programme. (53) The first rationale is logistical: to control the number of athletes that the IOC and Olympic host cities must house and protect in the Olympic Village. (54) The second rationale is to preserve the prestige of the Olympics. By slowing the growth of sports, disciplines, and events in the Olympics, the IOC is better able to keep Olympic competition exclusively at the most elite level. (55) The third rationale...