The case involves an appeal by Water Polo Australia (WPA) and Joseph Henry Kayes against a decision by the Fédération Internationale de Natation (FINA) regarding Kayes' request to change his sport nationality from New Zealand to Australia. The Court of Arbitration for Sport (CAS) addressed several key legal and procedural issues in its ruling. The dispute centered on whether Kayes met FINA's eligibility requirements for changing his sport nationality, particularly the requirement of residing and competing under the jurisdiction of the new national federation (WPA) for a continuous 12-month period. Kayes, born in New Zealand, moved to Australia in 2009 and played for Australian clubs but had not fulfilled the uninterrupted 12-month requirement at the time of his application in 2015. FINA denied his request, and WPA appealed to the FINA Bureau, which upheld the decision.
WPA and Kayes then appealed to CAS, arguing procedural and substantive issues, including the interpretation of FINA's rules and the timeliness of the appeal. CAS ruled that the term "decision" under its code is interpreted broadly, focusing on whether the act affects the parties' legal positions. The time limit for filing an appeal is mandatory, and failure to adhere to it renders the appeal inadmissible. The appeal period begins the day after the decision is communicated, regardless of whether the appellant has actual knowledge of its content. In this case, the appeal was filed nine days late, making it inadmissible.
CAS also clarified that the substantive right to choose or change sport nationality belongs to the athlete, not the governing body, as it directly affects the athlete's personal rights. While WPA had an interest in the outcome, its rights were not directly affected by the decision, meaning it lacked standing to sue. Kayes, however, had standing as the decision impacted his rights, but his appeal was dismissed due to procedural deficiencies, including the failure to exhaust internal remedies within FINA before appealing to CAS.
The case underscores the importance of adhering to procedural timelines and the athlete-centric nature of sport nationality decisions. It also highlights the complexities of international sports governance, particularly regarding athlete eligibility and jurisdictional disputes. The final ruling rejected the appeal as inadmissible, emphasizing the strict application of procedural rules to ensure legal certainty and fairness in sports arbitration. The decision reaffirmed that athletes must comply with federation rules and exhaust internal remedies before seeking external arbitration.