Winter Olympics: CAS decision in Heraskevych v IBSF & IOC raises questions as to athlete justice

By Roddy Cairns - posted 27 February 2026

The Court of Arbitration for Sport (“CAS”) has published its decision in the case of in Heraskevych v IBSF & IOC (CAS OG 26/09), in which the Ukrainian skeleton athlete Vladyslav Heraskevych challenged the decision of the International Bobsleigh & Skeleton Federation (“IBSF”) to exclude him from competing in the Men’s Skeleton event at the Milano-Cortina 2026 Winter Olympics. The IBSF decision was itself a measure to implement an earlier decision by the International Olympic Committee (“IOC”), which banned Heraskevych from competing while wearing a specially designed helmet portraying images of Ukrainian athletes killed during Russia’s invasion of his homeland.

A previous blog post dealt with this case at the point it had been announced that Heraskevych was to be excluded from the competition, but before it was clear whether he would appeal that decision. This blog post will, therefore, focus only on an analysis of some key elements of the CAS decision itself. 

Key findings from the CAS Ad Hoc Division

The decision of CAS, with Ms Annett Rombach sitting as a Sole Arbitrator, was to reject Heraskevych’s appeal and uphold the IBSF’s decision to exclude him. In doing so, the Sole Arbitrator’s key findings were:

• Heraskevych wearing the commemorative helmet in the competition would have been a breach of rule 40.2 of the Olympic Charter, and the IOC Guidelines on Athlete Expression (the “Expression Guidelines”).
• It was appropriate for the IBSF/IOC to take pre-emptive disciplinary action against Heraskevych (that is, to discipline him on the basis of his indicating he intended to breach the rules, even where no such breach had yet occurred) in order to prevent a rule breach from taking place.
• Rule 40.2, as implemented in the Expression Guidelines, is compliant with an athlete’s right to freedom of expression under Article 10(1) of the European Convention on Human Rights.
• The sanction imposed on Heraskevych (denial of participation in the competition) was reasonable and proportionate in the circumstances.

It is worth noting that the Sole Arbitrator under the CAS Ad Hoc procedure has to work under enormous time pressure, and it is no mean feat to issue a reasoned 29-page decision in such brief time periods – for that reason, some leeway should be granted and it is to be expected that in some aspects less detail will be provided than in a standard judgment. However, even with that in mind, the decision contains some important omissions which call into question the level of justice Mr Heraskevych has received.

Applicable law: what rule is Heraskevych actually found to have breached?

One very intriguing element of the Decision comes in paragraphs 79 to 81, where the Sole Arbitrator states that “The IOC Decision (and, in turn, the Challenged Decision) is based on Rule 40.2 [of the Olympic Charter]”. Rule 40.2 states that “All competitors…shall enjoy freedom of expression in keeping with the Olympic values and the Fundamental Principles of Olympism, and in accordance with the Guidelines determined by the IOC Executive Board.”

The Sole Arbitrator goes on to state that the IOC and IBSF have “clarified during the hearing that the Challenged Decision is not based on Rule 50.2 [of the Olympic Charter]”. Rule 50.2 states that “[n]o kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas”.

This distinction is crucial to the Sole Arbitrator’s decision, as there is a very clear difference of position between the parties as to what rule Heraskevych is said to be in breach of – with a corresponding impact on what the parties must argue, and what point the Sole Arbitrator must decide upon.

• If the relevant rule is Rule 40.2, then the question is whether Heraskevych has exercised his (positive) right to freedom of expression in a way that is “in keeping” with the Olympic values (not defined anywhere in the Olympic Charter), the Fundamental Principles (which include things like “promoting a peaceful society concerned with the preservation of human dignity”, sport as a human right, non-discrimination, political neutrality) and the Expression Guidelines.
• On the other hand, if the relevant rule is rule 50.2, then the question is a narrower one – whether Heraskevych’s helmet constitutes a “demonstration” or “political propaganda” at an Olympic venue.

The Sole Arbitrator was content to accept that Rule 40.2 was the relevant rule, and made the decision on that basis – but should she have? It is submitted that this was an inappropriate approach to take, for the following reasons;

• The Sole Arbitrator states that the IOC “clarified” it did not make its decision on the basis of Rule 50.2, and she seems to have taken their word for it. The IOC is a party to the arbitration, and a statement that it made its decision on the basis of Rule 40.2 rather than Rule 50.2 should be treated as a partisan legal submission or a statement of its position, not a fact – in other words, that position should be tested against any contrary positions, not taken as a self-supporting ‘clarification’ of the true position;
• The original IOC Decision of 12 February 2026 (which is essentially what was being appealed, as the IBSF Decision only implemented it) was contained in a letter sent to Heraskevych, and is set out at paragraph 15 of the CAS. It does not at any point make reference to Rule 40.2, nor to Rule 50.2. Instead, it refers only to the helmet as not being “compliant with your obligation to respect the Olympic Charter, and other rules, particularly the [Expression Guidelines].”
• This is in the context of a letter sent two days earlier to the Chef de Mission of the Ukrainian Olympic Committee (see para 12 of the CAS decision), which again did not mention any particular rule that Heraskevych was in danger of breaching, but did warn that he had to respect the “fundamental principle…that sports at the Olympic Games must be separated from political, religious or any other type of interference”.
• From these communications, it is clear that Heraskevych understood that the IOC Decision was made on the basis of Rule 50.2, the prohibition on “political propaganda” and “demonstrations”, with the Expression Guidelines being a secondary set of rules aimed at implementing Rule 50.2. Heraskevych’s case in his appeal was based on this understanding – the summary of his submissions (para 39) include statements such as: the helmet “was a commemoration of killed Ukrainian athletes” and that “such commemoration is not propaganda, and it is not political”; he “has not breached Rule 50 of the OC, which prohibits political, religious or racial propaganda at the Olympic Games”; and the Expression Guidelines “restrict demonstrations of a political nature”.
• Interestingly, it appears that the IBSF (being the First Respondent in this case) also prepared their briefs for the hearing on the basis that what was being argued was a political statement that breached Rule 50.2. In particular, the summary of their submissions includes (at para 43): “the IOC repeatedly warned [Heraskevych] that his Helmet together with his public explanation about the purpose of the design constituted a political statement”; “the design of the Helmet shall send…a political message which goes beyond the sporting competition”; and “the Helmet clearly conveys a political message”. At no point in this summary is there any reference to any other basis for disciplining Heraskevych than the political nature of his statement/message.
• In contrast to the Appellant and First Respondent, however, the IOC (Second Respondent) takes a different approach, stating (para 48) that “the IOC Decision, which forms the basis of the Challenged Decision, is not based on Rule 50 OC, but on Rule 40.2 OC and the Expression Guidelines”. In several other places within the summary, reference is made to “Rule 40.2 OC, as implemented by the Expression Guidelines.” The suggestion is clear – the Expression Guidelines are what has been breached, and they represent an extension of Rule 40.2, not Rule 50.2 (that is, they represent limitations on an athlete’s positive right to freedom of expression, rather than further clarification on situations where political propaganda is not permitted).

It is therefore evident that there is a difference of position as to which Rule the Expression Guidelines relate to, with the Appellant and First Respondent appearing to believe these relate to Rule 50.2, and the Second Respondent believing (or at least claiming to believe, for the purposes of this matter) that they relate instead to Rule 40.2.

Why is the distinction important? Because it is the Expression Guidelines themselves which are said to have been breached, and these only refer to an athlete “expressing views”, and state that such “expressions are not permitted…during competition on the field of play” (this being the provision which Heraskevych is found to have breached). The Sole Arbitrator makes very clear (para 81 of the decision) that she considers this concept of “expression of views” to be “wider than the concept of “political propaganda” addressed in Rule 50.2 OC” -  meaning by her own admission there is a substantive difference in the question she has to consider where the Expression Guidelines flow from Rule 40.2, as opposed to Rule 50.2. It is clearly easier to show that something is an “expression of views” than it is to show that it is “political propaganda”.

The problem is that the contention that the Expression Guidelines represent an implementation of Rule 40.2 alone is very difficult to support. For a start, the Expression Guidelines themselves very clearly reference both Rules, setting out the key text of both in its very first section. Even more clearly, the last edition of the Expression Guidelines (for Paris 2024) were actually called the “Rule 50 Guidelines” (and can be accessed on the IOC website, with that name still present at the time of writing).

It is therefore clear that, when drafting the Expression Guidelines, the IOC fully intended that they be read alongside Rule 50.2, as well as Rule 40.2, and that the “views” being talked about within them were not just any views, but were views of which constituted “political, religious or racial propaganda”, of the type forbidden “in any Olympic sites, venues or other areas” by rule 50.2.

Any other conclusion would lead to ludicrous outcomes. Athletes constantly express their “views” during competition, sometimes in manners which are controversial and detract from the actual sport. Examples from this Olympics would include the Swedish and Swiss curling team expressing their view that Canada’s Marc Kennedy was cheating during matches (as well as Kennedy’s expletive-laden expression that he was not), the Finland ice hockey coach’s challenge to the validity of Canada’s late goal in the men’s semi-final (which in his view was offside), or even Norwegian biathlon bronze medallist Sturla Holm Laegreid expressing the view that he had been through the “worst week of his life” because his girlfriend broke up with him due to infidelity (a stunt which was widely criticised for taking attention away from the achievements of gold-medal winning teammate Johan-Olav Botn). If an expression of any type of view was a rule breach, all of the above actions would potentially be in the firing line.

It is obvious that the Expression Guidelines are not designed to deal with such standard “views”, and instead only apply to those which already engage Rule 50.2 – that is, those of a political, religious or racial nature. No other interpretation of them is either sensible or workable.

In light of all of that context, it is entirely understandable that both Heraskevych and the IBSF operated on the basis that the key question in this Appeal was whether or not the wearing of the helmet constituted a political demonstration or political propaganda in breach of Rule 50.2 - with the Expression Guidelines being used to supplement that Rule, not something which stood alone from it. Indeed, most neutral commentators (including this one) responded to the news of Heraskevych’s ban on the basis and assumption that it related to a breach of Rule 50.2. In that context, it is submitted that the Sole Arbitrator erred in accepting the IOC’s “clarification” (really just their partisan submission within an advocacy process) that Rule 50.2 was not engaged here, without testing it sufficiently.

That makes the Sole Arbitrator’s conclusion (para 97) that “the wearing of the Helmet constitutes the “expression of a view” within the meaning of the Expression Guidelines” appear to be an unsafe basis on which to found her decision here. There is at very least an argument that she has reached a conclusion on the wrong question, and a fuller examination of the relationship between Rule 40.2, Rule 50.2 and the Expression Guidelines should have been carried out rather than the IOC’s position (only publicly expressed after Heraskevych had been excluded, and inconsistent with its previous actions) being simply accepted as correct.

In addition, there is an argument that Heraskevych was not given a fair opportunity to defend himself – he prepared his case on the basis of a (reasonable) understanding that the charge against him related to Rule 50.2, and therefore did not have a fair opportunity to defend a potential charge of “expression of a view”.

It should be noted, for completeness, that the Sole Arbitrator does seem to reach the conclusion that there is at least a political element to the helmet, stating at para 97 that “[t]he present case involves an act of commemoration for athletes that were killed in a war. Wars always have political connotations.” This perhaps allowed her to distinguish between the helmet and, for example, Norwegian biathlete Johan-Olav Botn shouting the name of recently deceased team-mate Sivert Guttorm Bakken as an act of memoriam as he crossed the finish line in first place in the biathlon. However, the fact remains that the Sole Arbitrator has clearly established different thresholds for “expression of a view” as compared to political propaganda, and has only reached a conclusion on the helmet’s meeting the former (lower) threshold.

Art 10(1) ECHR: Is the exclusion compatible with Heraskevych’s fundamental right to freedom of expression?

At paras 82 to 94 of the Decision, the Sole Arbitrator considers whether Rule 40.2 (as implemented in the Expression Guidelines) is compliant with Article 10 of the European Convention on Human Rights. Ultimately, the Sole Arbitrator finds that the Expression Guidelines are complaint with Art 10.

The Sole Arbitrator recognises that, because the set of rules which athletes must sign up to in order to compete in the Olympics are non-negotiable, the conditions they impose “must not be abusive and must not violate the fundamental rights athletes enjoy”. She also recognises that an athlete’s fundamental right to freedom of expression is not absolute, and under Art 10(2) can be subject to restrictions where these are “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”.

The difficulty is that the Sole Arbitrator does not set out which of these justifications the Expression Guidelines are said to engage, noting only that “the purpose with which the IOC seeks to justify the limitations of freedom of expression…is legitimate.” This is most disappointing, as it does not allow Heraskevych to fully understand the decision against him. In order to be compliant with Art 10 ECHR, the legitimacy of the limitations must be linked to one of the permitted justifications, but the Sole Arbitrator fails to show any such link. There is some discussion of other competitors having “a right that the core moments of their participation in this special event – the field of play and the ceremony – remains undisturbed from anything that does not relate to the sports performance as such” and later some discussion of ”the IOC’s legitimate aim to provide a “safe space” for athletes during the core moments of their performance in competition, to ensure that public attention during such moments is fully focused on sport”.  However, neither of those appears to be a sufficient basis to establish that the “protection of the reputation or rights of others” exception is met, and it would be hard to argue that the right of other athletes to enjoy their own athletic achievements without distraction is sufficiently “fundamental” to justify curbing someone else’s freedom of expression.  

Similarly, there is no suggestion in the decision that the Sole Arbitrator was seeking to protect the reputation or rights of the 13 Russian and 7 Belarussian athletes competing at the Games (albeit under the neutral banner of Individual Neutral Athletes rather than their own flags).

Proportionality of the sanction

The final challenging element of the decision relates to proportionality. Even if Heraskevych was in breach of the rules, were the IBSF and IOC right to go straight to the nuclear option of excluding him from competition, rather than some lesser punishment such as a warning or a fine?

Under rule 59.2 of the Olympic Charter, there are a few different options open to the IOC where an individual competitor breaches the rules: temporary or permanent ineligibility/exclusion is one of them, but so too is the denial of ranking points, as well as financial sanctions (either by way of a fine or the denial of pre-existing financial support from the IOC). It is clear that exclusion/disqualification is a far more severe sanction than the others, and the academics Mark James and Guy Osborn argue that the sanction power available to the IOC under rule 50 is “rarely used to its fullest extent”, partly because the very possibility of disqualification is a sufficient deterrent to force athletes to back down when the IOC warns them that their conduct may be a breach.

The Sole Arbitrator found that, whilst a competition ban was “the most severe measure possible to respond to a breach, much more so when the breach has not (yet) happened” (para 111), ultimately it was proportionate under the circumstances because “no other – less intrusive – measures were available to the Respondents” (para 113).

In making that decision, the Sole Arbitrator considered how “bearable” the two alternatives were. It was found that Heraskevych did have an alternative (racing without the helmet, and still being able to show off the helmet in training and other non-competition events), meaning it would have been “bearable” for him to compete without the helmet and then later challenge the validity of the helmet prohibition later. Ultimately, it was held that “it was more bearable for him to compete with a different helmet than for the Respondents to tolerate a breach of its rules.”

This seems like a very one-sided conclusion, and one that is difficult to support. The argument around proportionality does not suggest that the IBSF should have tolerated a rule breach, but that they should have sanctioned any rule breach with a lesser punishment. If the Respondents had let Heraskevych race, and then issued him with a fine for wearing the helmet, they would not be tolerating the purported breach, but rather issuing a proportionate punishment in line with Rule 59.2. The race would still have gone ahead, and it seems very unlikely that eventual winner Matt Weston would have been distracted by the helmet his opponent was wearing (or at least, any more distracted than he must have been by the media circus surrounding this case).

Curiously, the IOC offered Heraskevych the chance to compete wearing a plain black armband or ribbon, as an alternative memorial to his fallen colleagues. This was described as an “exception to the Guidelines in this specific case” (see letter at para 12 of the decision) which would allow the athlete to “pay tribute to his fellow athletes and express his sorrow”. Clearly the IOC considered that the athlete wearing such an armband (itself an expression of precisely the same ‘views’ as the helmet) was both bearable and tolerable, so much so that it was willing to bend its own rules to accommodate it. It is therefore difficult to see how the Sole Arbitrator reached the conclusion that tolerating a very similar rule breach to the one they had themselves promoted, expressing the same view in the same way (wearing of apparel) would be so unbearable.

The other factor which the Sole Arbitrator was unmoved by was Heraskevych’s claim that the IOC had taken no action in six other instances of athletes expressing their views during the Olympics in what he claimed were similar contexts. Ultimately, it was held that the IOC’s purported failure to take action in those examples had “no bearing for this case” (para 117).

Whilst it is not clear from the judgment what those examples are, one does not have to look far to see the sorts of things Heraskevych’s team could be referring to: at Paris 2024, Algerian athletes tossed red roses into the Seine during the opening ceremony in honour of the victims of a historic French crackdown on protesters in 1961, while Palestinian flag bearer Abu Sal wore a shirt depicting children being bombed by the Israeli military; in 2021, players from a number of national football teams “took the knee” on the pitch at the Tokyo Olympics in an anti-racist protest, while the Australian team unfurled an Indigenous flag;  also in Tokyo, US hammer thrower Gwen Berry raised her fist to protest racial injustice before the women’s final, and silver-medal winning US shot-putter Raven Saunders made an ‘X’ symbol on the medal podium in a stand against oppression; Ethiopian runner Feyisa Lilesa made the same gesture at the 2016 Rio games when crossing the finish line in reference to ongoing protests regarding minority rights in his home country; even in Milano-Cortina, the Ukrainian luge team raised their helmets in support of Heraskevych at the end of their run in the team relay, in a clear expression of their view that he was unjustly treated (there were also shows of support from fellow Ukrainians alpine skier Dmytro Shepiuk and luger Olena Smaha). Even Heraskevych himself held up a sign saying “No war in Ukraine” after one of his runs at the 2022 Beijing Olympics. None of these displays were sanctioned by the IOC.

Whilst the Sole Arbitrator is right to state that it is Heraskevych’s case alone which was before her, there are two elements which suggest she was wrong to pay so little heed to these other instances. The first is that, even if the previous examples could not be used for the purposes of showing whether or not Heraskevych’s actions constituted a rule breach, they were surely relevant as to the point of what was bearable – if other athlete expressions of views (some significantly more political in nature than his) could be allowed to take place without having attracted sanction or ruined the event, then surely it would have been ‘bearable’ for Heraskevych to have been allowed to race and faced only a milder financial penalty. This would be in line with what happened in football, for example, when the football associations of Scotland, England, Wales and Northern Ireland were fined by FIFA for displaying the poppy during World Cup qualifying matches played on or near Armistice Day – but their matches were not cancelled nor were they excluded from competition.

Secondly, CAS jurisprudence suggests that perhaps the Sole Arbitrator should have considered the IOC’s previous non-sanctioning of similar expressions when deciding how the relevant rules should be interpreted. In the case of Gibraltar FA v FIFA (CAS 2014/A/3776), the Panel held (at paragraph 239-240) that monopoly international sports federations (such as the IOC) act in a manner which is “analogous to that of a state legislator”, and as a result have “special responsibilities” to those they regulate, including the duty to “respect general principles that also constrain legislators and governmental administrations, including the non-retroactivity of laws and rules, good faith, and procedural fairness.” In paragraphs 298 to 309 of that decision, the Panel went on to rule that FIFA, having consistently used an interpretation of the word “country” which included non-sovereign nations between 1988 and 1998, could not use a different interpretation (one which was restricted to only recognised independent states) as a justification for rejecting Gibraltar’s application for membership.

Similarly, it could be argued here that, having failed to sanction other athletes in the past for similar expressions of views (and even Heraskevych himself in 2022), the IOC created a legitimate expectation that their interpretation of the Rules and Expression Guidelines did not extend to expressions such as the one Heraskevych intended to make with his helmet – in other words, it would not be fair on Heraskevych for the IOC to change what it considered to be “political propaganda”, nor to change its approach to the Expression Guidelines such that they were no longer to be linked only to Rule 50.2 “political” expression and instead could cover the wider concept of “expression of views”.

Conclusion – is CAS too cosy with the IOC?

All of the above issues with the Sole Arbitrator’s decision add fuel to the fire of a criticism that is often levelled at CAS; that it is too closely aligned with the IOC, and therefore lacks sufficient judicial independence. That is certainly Heraskevych’s view, with the athlete telling the Guardian that he wished to appeal the decision “in another court which is not under control of the International Olympic Committee”. But is that criticism fair?

Certainly, the genesis of CAS is that it was founded by the IOC in 1984, and there have long been concerns that it is essentially an arm of the IOC. The case of Gundel in 1992 brought those to a head, with the Swiss Federal Tribunal ruling that, while CAS did meet the criteria to be considered a true court under Swiss law (and could thus render a decision in the dispute between Gundel and the Fédération Equestre Internationale), it would not be considered sufficiently independent in any proceedings to which the IOC was a party. Major reforms post-Gundel sought to reinforce the CAS’ independence from the IOC, but there is still regular criticism from academics like Antoine Duval that the court lacks sufficient independence and sometimes interprets the law (and the ECHR) in a way that is favourable to Sports Governing Bodies. Duval has gone as far as to say that CAS “is whitewashing and laundering the decisions of sports governing bodies. Any decision they take is almost impossible to overturn.”

It is beyond the scope of this piece to delve into those criticisms in detail, but suffice to say that the decision made by the Sole Arbitrator in Heraskevych does little to dampen those concerns: in particular, the manner in which the IOC’s position regarding the non-engagement of Rule 50.2 was simply accepted without question (with significant detrimental consequences for Heraskevych’s case), and the lack of detailed scrutiny applied before the court held the restriction of the athlete’s right to freedom of expression was justified. There should be some sympathy with the Sole Arbitrator, given the incredibly time-pressured 24-hour window in which they must make rulings on complicated and controversial subjects, but justice on such matters still has to be served if the CAS is to retain the confidence of stakeholders – something that is crucial if it wants to continue to occupy its de facto role as the ‘Supreme Court of sports law’.