This article was originally published in the World Sports Law Report, Vol 14, Issue 1.
With the Rio 2016 Olympics due to take place this year, athletes will be fighting for their chance to join their national team over the coming months. Some will succeed. Others will not. Those who are unsuccessful will have the right to challenge their non-selection by legal means. Legal challenges are increasing with a number of notable examples before the London 2012 Olympics, Glasgow 2014 Commonwealth Games and the Sochi 2014 Winter Olympics. In that context, it is almost inevitable that there will be a number of highprofile selection challenges over the next year. Edward Wheen, Partner at Hewitson Moorhead and John Mehrzad, Barrister at Littleton Chambers, discuss the alternatives that may assist athletes in the potential challenge of a selection decision ad portas for the 2016 summer Olympics.
Forum and jurisdiction
A particular sport’s national governing body (‘NGB’) should have a written selection policy and procedure (the ‘Policy’). That is usually the starting point for any selection dispute.
The Policy should set out jurisdiction and forum, often on an exclusive basis, for any dispute between an athlete and an NGB. Within the UK, jurisdiction is often expressly conferred on Sport Resolutions, a government-funded, not-for-profit appeals and mediation service established following Diane Modahl’s protracted and expensive dispute with the British Athletics Federation to organise and administer those services.
The selection appeal organised by Sport Resolutions will usually be conducted by either a single, independent figure taken from a panel of independent, senior lawyers with judicial and sports law experience. Sometimes a panel of three will be convened, with at least one member from a legal background and the others with personal experience of being an athlete, coach or sports administrator.
Legal costs of a selection appeal process are generally borne by each party, but the applicable Policy should be carefully checked on this point as some policies permit the award of costs against an unsuccessful athlete or NGB. Where each party bears its own costs, the appellant athlete is relieved of the risk of having to pay an adverse costs award but, by the same token, cannot recover any costs to which they have been put. This burden has been mitigated to some extent by Sport Resolutions’ appointment of a pro bono panel of experienced sports lawyers to assist athletes where needed.
Where the Policy confers exclusive jurisdiction for a challenge by way of an appeal process, any alternative challenge through the courts, almost certainly by way of a breach of contract claim, will be stayed pending the conclusion of that appeal process. Were it not so, there could be a flurry of injunctions before major events, adding greatly to the complexity and cost of the selection process. Where a challenge through the Courts is permitted the general rule, that both sides’ costs are borne by the losing party, renders a civil court challenge prohibitively expensive for most athletes (but not necessarily for their sponsors, who may have a great deal of money invested in promoting a particular athlete).
In a number of non-UK cases, challenges have been brought directly to the Court of Arbitration for Sport (‘CAS’), the decisions of which may in theory be challenged by the Swiss Federal Tribunal; albeit in practice the grounds for such a challenge are generally limited to points of procedure and, even if successful, the matter is remitted back to CAS for it to make a fresh award. During the Olympic and Paralympic Games, CAS sits on an ad hoc basis in the host city, with the local organising body often providing a panel of pro bono advocates to represent athletes as required. During those events, CAS aims to rule on any dispute within 48-hours to avoid disruption to the Games.
The meaning of the Policy
Before turning to consider whether it has been applied properly, the Policy must be construed for its true meaning and effect. That process follows well-established approaches to contractual interpretation.
The high-profile and successful challenge against non-selection, GB Rhythmic Gymnastics Group v British Amateur Gymnastics Association (Sport Resolutions, 29 February 2012) set out the approach to the construction of the Policy:
- The ultimate aim of interpreting a provision in a policy is to determine what the parties meant by the language used;
- The subjective interpretations of the parties is immaterial;
- The standpoint in determining what the parties meant is that of a reasonable person with all the background knowledge which would reasonably have been available to the parties at the time that policy was made;
- In ascertaining what a reasonable person would have understood the parties to have meant, the tribunal must have regard to all the relevant surrounding circumstances. If there are two possible constructions, the tribunal is entitled to prefer the construction which is consistent with common sense and to reject the other;
- Where the parties have used unambiguous language, the court must apply it;
- Where terminology is used which has a known meaning in a particular context, the meaning of that terminology will be a question of fact to be determined by the tribunal;
- Where a contract is poorly drafted and ambiguous, a tribunal should endeavour to ascertain the intention of the parties from the language that has been used; and
- If an ambiguity as to what the parties meant cannot be resolved by application of these ordinary principles of construction, the contract must be construed contra preferentem (that is to say, in this context, against the NGB).
Where there is no written policy CAS found, in Bauer v. Austria Olympic Committee & Or. CAS OG 14/01 that the athlete’s appeal should still be rejected where the subjective selection decision was not “arbitrary, unfair or unreasonable.” That test emphasises the heavy burden for an athlete to succeed in a selection challenge even when there is no written selection Policy and an ad hoc, subjective, procedure has been followed.
Grounds for a challenge
The decision in Belcher v. British Canoe Union (Sport Resolutions, 5 July 2012) set out the grounds upon which a selection decision can be challenged:
- The decision was not in accordance with the selection policy as published; The policy has been misapplied or applied on no good evidence and/or in circumstances where the application of the policy was unfair (for example, because someone with selectoral authority has given a categorical assurance to an athlete that the policy would not be applied);
- The decision-maker has shown bias or the appearance of bias or the selection has otherwise been demonstrably unfair; and/or,
Where the conclusion is one that no reasonable decision-maker could have reached.
The decision in Belcher also indicated that the NGB will be given considerable discretion in the selection decision since the Sport Resolutions appeal arbitrator accepted that a panel: “should not substitute our own judgment on the merits for those of the selectors […] so long as selectors apply the policy properly, and do so honestly, fairly and reasonably, and take account of relevant factors […] their decision must be accorded the outmost respect.”
Where a list of factors is set out in the selection criteria, unless otherwise stated in the Policy, it is for the NGB to decide how much weight to attach to each factor in all of the circumstances: Stanley v. National Ice Skating Association (Sport Resolutions, 5 December 2014) and Olubi v. British Bobsleigh (Sport Resolutions, 21 January 2014).
Whilst it is preferable to have objective criteria in the Policy, the existence of subjective criteria is by no means fatal. The decision in Birkner v. Comité Olímpico Argentino & Federación Argentina de Ski y Andinismo CAS OG 14/3 found that using the subjective discretion of “the evolution and projection in the future” did not render the selection decision unfair. In other words, NGBs have the right, in some circumstances, to ‘blood’ younger athletes who have potential for the future in favour of more established, older and experienced athletes, who may be ‘better’ at that particular point in time.
Examples of successful Challenges
Despite those high hurdles and taking into account that each case will obviously turn on its own facts and circumstances, the following are examples of successful selection challenges over the recent past:
- Applying the Policy in a way which was contrary to its wording, even if the application was objective: Stanley v. National Ice Skating Association (Sport Resolution, 5 December 2014).
- An inconsistent and unfair application of the selection criteria: Abbey Burton v. British Shooting (Sports Resolutions, 17 May 2012); Peternell v. South African Equestrian Federation CAS 2012/A/2845 and Knight.
- Presence and influence of a personal coach with voting powers on the selection panel: Abbey Burton.
- Reliance upon incorrect information and scoring records which worked to the disadvantage of the appealing athlete: Abbey Burton.
The NGB did not set out an aspect of the Policy with sufficient clarity that it was open to interpretation in favour of the athlete: British Gymnastic Group.
Some common issues related to selection appeals
There are other issues which should be considered in this context and which generate very different views, depending on whether they are viewed from the unsuccessful athlete’s perspective, the successful athlete’s perspective, or from that of the NGB.
The selected athlete
Selection appeals inevitably concentrate more on the rights of the athlete appealing against nonselection than on the rights of the athlete selected who, though entirely faultless in the matter, is put through a great deal of uncertainty, and sometimes subjected to unpleasantness, during the appeal process. It is in the interests of selected athletes, as well as all others concerned, that any appeal process is conducted as quickly, and with as little acrimony s possible. In view of the appeal process, it is also necessary to inform selected athletes that their selection is provisional (and, usually, confidential) until any appeal process by other athletes has been concluded (and, where necessary, ratified by others – such as by the British Olympic Association and the British Paralympic Association in the case of the 2016 Olympics and Paralympics respectively).
Pressure from third parties
Pressure from supporters, or others with an interest in the selection, whilst understandable, is not likely to be helpful to the process, or to the athlete who has appealed. It is likely only to put inappropriate pressure on those involved in conducting the appeal, and to subject the NGB and selectors to unfair comments and intrusive attention, in particular on social media. Where an appeal succeeds, it by no means follows that the original selectors have acted in bad faith or are biased. The sort of procedural errors that have led to successful appeals are usually more obvious in hindsight, often following the involvement of lawyers, than at the time. It should be borne in mind that the athlete and the NGB (and possibly the selectors) will probably have to work together once the appeal is over, irrespective of the result.
Confidentiality of the appeal process
Some selection appeal policies provide that any appeal process will be confidential. Whilst such confidentiality requirements can be hard to enforce in practice, they can help to limit the extent of media intrusion into an appeal process. The press, of course, may argue that such clauses prevent transparency, and reasonable oversight by the public of NGBs, many of which are partly or wholly funded by the public. The pejorative term ‘gagging clauses’ is often used. It should be borne in mind, however, that the press has its own vested interest in publicising these disputes, and is likely to be seeking stories about selection disputes in the run up to any major Games, irrespective of whether such publicity is in the best interests of any of the athletes or the NGB involved.
Objective vs. subjective criteria
It is widely accepted as good practice in selection decisions that objective criteria should be used where possible, to limit the possible influence of subconscious or conscious bias. The extent to which this is appropriate in practice, however, depends on the nature of the sport, and whether performance is assessed in an objective way. Some sports (for example ice dancing and synchronised swimming) necessarily involve a subjective element in the judging, and it is likely to be appropriate to take account of that in the selection process. Even events which involve purely objective criteria (such as athletics track events, swimming and rowing) or other objective criteria (such as athletics field events, shooting or archery), are by no means immune from selection disputes (for example where a star athlete is coming back from injury). In team sports, of course, it will not always be the best performing individuals - on an objective basis - who will make the team, as the criteria is to achieve the best mix of players in order to make the best team.
It is undeniably good practice that athletes wishing to be considered for selection should be made aware of the selection process, and the criteria to be applied. In particular, for instance, athletes must be made aware of events, or other matters, which are likely to be regarded as important for selection purposes so that they can plan accordingly to give themselves the best chance. Failure by an NGB to honour the legitimate expectations of an athlete can lead to a successful appeal: Watt v. Australian Cycling Federation CAS 96/153. The need for transparency must, however, be balanced against the need to enable selectors to exercise their judgment and expertise to select the athletes with the best chances of success. In practice, a fair balance must be aimed for between these competing criteria - which is easier said than done.
Selectors must take care over the weight given to world rankings in selection decisions as, firstly, such rankings often take account of historic performances going back many years which may not necessarily reflect current form; and, secondly, the rankings will not be comparing like with like where other athletes being considered for selection were not competing throughout the full timeframe used by those particular world rankings (e.g. because of injury, or because they were too young or are relatively new to the sport). In short, the way that the performance data is processed and weighted by the body in charge of the world rankings is unlikely to precisely correspond with the requirements of an NGB’s selection Policy, and undue reliance on world rankings should be avoided.
Conflicts of interest and bias
Many selectors will know and/or have worked with some of the athletes under consideration. Whilst any such connections should be disclosed, abstention by reason of such connections will affect the selection process by placing greater emphasis on the votes of the remaining selectors (and possibly excluding the votes of those selectors best placed to assess the merit of a particular athlete). The well-established legal test for bias (albeit in another context) is whether the fair-minded and informed observer, having considered the facts, would conclude there was a real possibility that the selection panel was biased (confirmed by the House of Lords in Porter v.Magill  2 AC 357). Any selector who fails that test must abstain from taking any part in that particular selection decision. If that results in a significant distortion of the selection process (for example if too few members of the selection panel are left unaffected), replacement selectors must be sought. However, given the many close connections within a sporting context, the often small pool of potential selectors available, and the possible distortion of the selection process caused by an abstention, selectors should not be too ready to stand down, and only do so where the circumstances give rise to a real possibility of bias. Where a selector is related to, or the partner of, an athlete under consideration; there is a history of hostility between the selector(s) and an athlete; or there is reliable evidence of pre-determination of the issue by a selector, abstention is inevitable. However, very careful consideration should be given before abstaining in circumstances which are not so clear cut and, where there is any doubt, legal advice should be sought.
As most selectors are experts in their own sporting field rather than on selection procedures, and given the number of difficult procedural decisions that can arise, and the damage and expense of getting it wrong, NGBs may consider having an appropriate procedural adviser (for example an experienced solicitor or barrister with expertise in this field) present at the most important or difficult selection meetings in order to ensure that correct procedures are followed, and to reduce the risk of a successful appeal.
Given the above, it is plain that it will be very difficult for an athlete to overturn a selection decision taken by an NGB. Legal advisors should not shy away from that reality. Even if successful, it is generally the case that the selection decision will be remitted back to the NGB to take the decision afresh, which does not guarantee that the athlete will be selected as a result of that remission exercise. In 2014, of the six selection cases before Sports Resolutions, the athlete succeeded in only two: but, notably, neither ‘successful’ athlete was selected at the remitted selection decision and subsequent further appeals were unsuccessful. In the same year, all four challenges brought before CAS were unsuccessful. That said, such decisions are of such life-changing importance to the athletes concerned, where competing in an Olympics or Paralympics, it is often the pinnacle of an athletic career that an increase in the number of appeals seems likely. This is particularly so as the mechanism for so doing becomes more accessible and more widely understood, and the jurisprudence of selection appeals develops and expands.
Edward Wheen Partner, Hewitson Moorhead, London
John Mehrzad Barrister Littleton Chambers, London