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Judgement in Athens Give the Koreans Their Day in Court

Give the Koreans Their Day in Court

by MARK DONHAM

Who doesn’t watch the Olympics? Well, aside from those who are mad cause their afternoon TV shows are pre-empted. Oh yeah, and those that, although they love our national anthem and all that, just get tired of hearing it incessantly. Once a day is enough, thanks. We don’t want to wear it out.

You gotta understand that where we live, and being off the grid, we do not have cable or satellite TV. But, since we are on a very high point in this part of the country, we receive, with an indoor antenna, the ABC station from Carbondale, Illinois, the NBC station from Paducah, Kentucky, the CBS station from Cape Girardeau, Missouri, and the PBS station from Murray, Kentucky. Yeah, we can get Fox from Cape Girardeau, but can you imagine trying to watch Fox broadcasting from the home of Rush Limbaugh? It would be intolerable.

I guess the reason for the above explanation is to give some foundation to my source of information about the Olympics. Most of it anyway. Ok, we do get USA Today, only because they are the only major paper that can deliver us today’s paper by mail out in our rural neighborhood. We also listen to NPR and watch Jim Lehrer newshour on PBS. With all that wonderful input, it seems pretty obvious that the Olympics are part and parcel of what world attitudes are today, and will have an impact on international relations.

Of course, the epitome of this is the controvery over Paul Hamm’s gold medal for the "overall" men’s gymnastics. This has generated a controversy because one of the South Korean gymnasts has challenged Hamm’s gold medal. Not withstanding the fact that Hamm fell badly during one of the events, the judges gave Hamm the gold medal based on his nearly flawless last performance. No doubt his last performance on the uneven bars was great, but unfortunately, issues of injustice don’t seem to go away easily.

This wasn’t shown live on American network TV. It was one of these prime time manipulations. But even that night, which was hours after it really happened, nothing was mentioned about any controversy. Hamm was being credited with one of the greatest comebacks in sports history – snatching the gold at the last second by an extraordinary performance, overcoming a humiliating fall and reaching the pinnacle of success.

Oh, but the next morning we learned that there was indeed a controversy – one that won’t and never will go away. Unfortunately, Hamm isn’t to blame. He just did what he could do – and very well, at least that night. But Hamm has been swept away in the unspoken truths of international politics.

The U.S. doesn’t have a lot of good friends left in the world. I guess South Korea, for whatever reason, qualifies as somewhat of a friend. I mean, they actually have sent a few troops to Iraq, and didn’t pull out when one of their men got kidnapped and threated with beheading and ultimately beheaded. Certainly more of a friend than a couple other countries who bailed out after a similar hostage episode. Also, I guess it is important in some kind of historic way that we fought a war to capture the south part of the Korean peninsula and keep it "free." Oh yeah, and I guess it is relevant that the North Koreans now have nuclear weapons and thumbed their nose at the US. In all that context, you would think that we would be trying to stroke the South Koreans, not screw them with a legal technicality.

Then again, our fearless President recently announced that he is pulling a bunch of troops out of South Korea, and not too long ago the South Koreans elected a president that ran on a somewhat anti-American platform. So who knows where our relationship stands. But I guess on an "official" level, they are still pretty high up there in terms of our ally as a nation. Just in terms of their allied actions in Iraq one would have thought that we would be reaching out to them on every level.

So now we down to the crux. We all know the story now. Hamm got the gold on his last performance on the uneven bars, although he fell on his ass during the vault. The Korean guy didn’t have such a faux pas. And, although you can’t get nearly he accolades from the American TV announcers for a Korean as you can for an American, just the simple visual of the Korean guy’s routine on the parallel bars should have tipped us off that this guy is really good. Instead, the Korean guy got screwed on his "start value" for his parallel bars routine. Noone seems to be disputing that. I read at one point that an American judge was in a key position to oversee this, but the U.S. media has shyed away from this level of detail But, it seems to be undisputed that the Korean gymnast should have another tenth of a point added onto his score, which, in this level of gymnastics, is a huge amount. In fact, it takes him from the bronze to the gold.

Some mainstream journalists, such as Matt Lauer, have seemed to buy into the theory that this objective tenth of a point that makes the difference between bronze and gold, could be sucked up in a detailed review of all the judging of the event. But that’s a red herring. This is the difference between an objective standard that has nothing to do with the judges’ opinion and the completely subjective judging of how certain routines were executed. There is no comparison. However, to the benefit of the mainstream entertainment-journalist (like Lauer), Charlie Gibson from ABC Good Morning America said he thought the Korean deserved gold. The hangup here doesn’t seem to be the facts, but the procedures. Being one who deals with officially adopted procedures on a day in – day out basis, I find this of great interest.

Granted, by the time this might get published, facts could be a whole lot different and things could have come out that I’m not aware of at this time. But, based on what I know, I feel compelled to write about it. But, what I first heard was that the Olympics had a rule that said that a protest had to be filed before the next event started. The story then continues that the Koreans did not file it on time, thus, they lose their right to pursue a complaint, regardless of how legitimate it might be.

I have read a couple things that temper this. One is that in a USA Today report, they said that the Koreans had orally lodged their protest with some official, and that official had told them that it would be OK to put in writing the next day after the competition was completed. Another is an NPR report that the Olympic regulations didn’t even contain such a deadline. Who knows. I don’t even know where to go to find the IOC regulations. Nonetheless, the dispute seems to come down to whether or not the Koreans filed their complaint on time.

I do find this interesting because it involves a concept in law that is the primary issue in a case I am working on. The concept in law is called "equitable tolling." "Equitable tolling" is a legal concept that says that a party can ask a court (or some judging body) to set aside a dismissal of a complaint that was filed past a deadline set in a regulation or rule as an agency process for filing such complaints. This is the general concept at hand here, assuming the worst – that the Koreans did not "officially" lodge the complaint in time to meet an established deadline.

Notwithstanding the fact that someone might not be able to prove that such a deadline exists, (and they very well might not be able to), let’s assume that such a deadline does exist. And, let’s assume that they Koreans missed the deadline. Should their complaint be dismissed?

Equitable tolling is a concept that says that a court can extend a deadline and allow certain filings past a deadline if certain facts are present. A lot of this is common sense stuff. If you were tricked out of knowing when the deadline was, you shouldn’t be held responsible and lose all your rights. If you just had a really hard time finding out when the deadline was and guessed wrong you still ought to be able to file your complaints, especially if the agency tried to make it hard for you to find out. Also, you have to balance the harms to all the parties if the deadline is tolled and if it isn’t. All of these factors have to be balanced to decide if a deadline can be waived and a complaint filed even after the regulatory deadline.

Now, in U.S. law, if Congress specifically puts in a law that "equitable tolling" doesn’t apply to any deadlines they prescribe in the legislation, then forget it about going to court to toll a deadline. It ain’t gonna happen. But, if Congress doesn’t specifically prescribe that equitable tolling doesn’t apply, then it does. Then a court can strike down the dismissal of a complaint simply because it wasn’t filed in time and avoid having to deal with the issues raised in the complaint.

This is relevant, because this dispute is before some obscure legal body, although I can’t say for sure which one. But, either its rules say that the judge can’t toll the deadline, or they need to hear arguments about whether or not the deadline should be tolled. To me it is a no-brainer that it should. When a judging body tries to determine whether or not to strike down a deadline and require consideration of issues raised in a complaint that was filed "late," the court must consider the reasons why the party was late, what efforts they made to meet the deadline, and how others would be harmed if the deadline is tolled. What we have here is a case in which the gold medal winner may not have gotten the best score. This is not the way the system is supposed to work.

As far as the Olympics goes, I seriously doubt that there is a provision in their rules that says that a party that misses a deadline absolutely cannot go any further. If there is doubt as to whether the provision requiring a fast appeal exists, certainly there would have to be doubt as to whether or not the governing body prohibited late appeals regardless of the reason for the lateness. The IOC needs to address this head on.

So, in the interim, let’s balance the harms, and look at the reasons for not filing on time. The Koreans have apparently testified that they did bring their complaint up orally in time. The reports are that they were told orally that it would be OK to file the complaint later in writing. They apparently took that at face value. Were the Koreans diligent? I believe going to the authorities and bringing it up orally does in fact meet the diligence standard. They did in fact raise the issue in time. And why shouldn’t they believe any authorities that told them it would be OK to wait until tomorrow to file it in writing? As far as the harms go, it is indeed a harm to Paul Hamm to have this happen. He did a really great routine. Nonetheless, he fell in a very bad fall in one of his routines, and it is questionable that one who falls so badly should get the All Around gold for men’s gymnastics. But that harm is outweighed by the fact that th person who might have gotten the best score, based on an objective standard and not a subjective one, didn’t get the proper reward. The bottom line is that the US and IOC should not try to disguise their bias in the name of justice. Justice by any other name allows the Koreans’ complaint to be heard.

Oh, by the way, my case with this legal issue involves 3 different occasions when the Forest Service informed Heartwood of dates when administrative appeals were due in writing, only to dismiss the appeals as late because they moved the deadline up without notifying anyone. We are trying to get our appeals reinstated by a court, and that involves this very concept. I think that saying that the Koreans missed the deadline and therefore have no right to have their complaint reviewed is completely bogus. Are the Olympics going to be a place where merit is rewarded regardless of ethnicity and nationality, or is it just going to become another corporate yawn?

I guess the resentment that is building about America will continue if things like this continue. We are in the process of losing France and Germany as friends, and it looks like we might lose South Korea. Who is left? If people come to believe that you are only operating in your own self interest and have no concern for equity and justice, you will be abandoned. That is what is happening to us. We should, on the other hand, be happy that our friend can perform equal or better than us and embrace them with all the accolades due him. Instead, we are perceived as fighting justice just so our guy can win. This is bad, and it almost epitomizes where we are in the world. It is a recipe for disaster, and needs reform right now, before we lose all our friends. An entity in this world without friends is indeed very very lonely.

MARK DONHAM lives in Brookport, Illlinois. He can be reached at: markkris@earthlink.net.