Review of London 2012 Selection

Appeals

Richard Harry

www.sportresolutions.co.uk

Olympic Selection

• Legal Principles

• Case examples

• Successful appeals

• Learning points

Grounds of Appeal

Legal Principle #1

On what grounds can an athlete appeal?

Test as set out in Belcher v British Canoe Union

Lani Belcher vs British Canoe Union

A decision may be open to challenge if, but only if: •It is not in accordance with Selection Policy as published and/or

•The policy has been misapplied or applied on no good evidence and/or in circumstances where the application of the policy was unfair

•The decision maker has shown bias or the appearance of bias or the selection process has otherwise been demonstrably unfair, or

•Where the conclusion is one that no reasonable decision maker could have reached.

Rhythmic Gymnastics Group vs British Gymnastics

Legal Principle #2

Interpretation of the Selection Policy

•Benchmark score (of 45.223) had to be achieved “at the 2nd Olympic qualification, CI, 15th – 18th January 2012 [Test Event]”

•Background Facts

Rhythmic Gymnastics Group vs British Gymnastics

Principles to be applied in interpreting the policy (1)

• 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 are 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 the 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

Rhythmic Gymnastics Group vs British Gymnastics

Principles to be applied in interpreting the policy (2)

• 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

• 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 preferentum

Andi Manley (on behalf of Molly Renshaw) vs British Swimming

• Qualification for ….

• “up to 2 places available”

• Athlete finishing 1st in Trials on condition she achieves the FINA A minimum standard of 2.26.89

• 2nd spot to athlete finishing second in Trials provided she achieves the World LC ranked top 16 time of 2.25.99

• Nominations for remaining places will be determined at the later Nationals to the fastest available swimmer achieving the FINA A time

Andi Manley (on behalf of Molly Renshaw) vs British Swimming

Facts: •At Trials, Molly finished 2nd. The winner achieved the FINA A time and was selected.

•Molly finished in 2.26.81 which was within the FINA A time but outside World LC time

•Molly therefore not selected on performance at Trials

•At subsequent Nationals Molly won her race but in time just outside FINA A standard.

•Again, Molly not selected

Andi Manley (on behalf of Molly Renshaw) vs British SwimmingGrounds of Appeal and Outcome

• That the Selection Policy was unclear in that MR believed that she would be selected for the team on the basis of the time achieved at the Trials if she was not beaten at the Nationals, and

• That there was a lacuna in the Policy in that no provision had been made for circumstances where the second placed swimmer at the Trials met the FINA A standard (but not the World LC time) and no one met the FINA A at the Nationals.

 • Appeal rejected on the basis that the policy was clear and there

was no lacuna as the Policy specifically allowed for a team to be nominated with “up to” 2 swimmers, thereby acknowledging that British Swimming would not necessarily always nominate 2 swimmers in all events.

Tonia Couchvs British Swimming

Selection criteria for the women’s individual 10 m diving event were: •To select athletes who will form the team to achieve the best possible results

•To select athletes who will have the best chance of potential success

•To select athletes who have the potential to succeed in the Olympics of 2016

Tonia Couchvs British Swimming

• Tonia Couch was the highest ranked female individual diver

• Lower ranked athlete was selected to compete

• Appeal on basis that as best athlete Ms Couch should have been selected

• British Swimming’s position

Tonia Couchvs British Swimming

• Appeal rejected

• First objective refers to selecting the “team” to achieve best possible results

• Second refers to winning medals

• No basis for treating each event in isolation

Abbey Burtonvs British Shooting

• Non-selection for Ladies Trap• Argued:

i) that BS failed to give any proper consideration to whether she should be selected, and

ii) that BS failed to follow its own procedure• Appellant (with 3 others) had obtained Olympic Qualifying

Standard

Abbey Burtonvs British Shooting

• 3 May 2012 – Abbey Burton won gold at a World Cup event ahead of the Olympic Champion and World Cup gold medallist

• Selection meeting on 2 May 2012 (date of which was included in Selection Policy from November 2010) included 3 World Cup events

• Event on 3 May 2012 was only due to cancellation from March 2012 and BS had considered moving date of Selection Meeting but declined to do so

Abbey Burtonvs British Shooting

• Appellant was invited to World Cup event at Tucson but not as a team member

• 3 places were available and awarded by virtue of domestic ranking and Ms Burton was ranked UK number 2

• Ms Burton was told her score would not count towards Olympic selection and that she would have to self-fund, so she did not attend Tucson event

Abbey Burtonvs British Shooting

Findings:

•BS’s decision not to change Selection Meeting date not irrational

•Ms Burton was disadvantaged by non-selection to Tucson as:

i) it deprived her of results to compare against other athletes

ii) it impacted on Ms Burton’s world ranking

iii) it denied Ms Burton the chance to ‘get eye in’ for later London event

Abbey Burtonvs British Shooting

Selection Minutes showed:

i) that Selection Panel failed to consider all athletes against all factors in Policy

ii) the Panel looked at performance of selected athlete back to 2007 but failed to do so for Appellant

iii) the only coach who had input to the Selection Panel was the coach of selected athlete

iv) non-selection for Tucson World Cup event had a knock-on effect on world ranking and performance in London and Panel should have had regard to it

Decision:

•To remit the matter back to BS Selection Panel

Successful Appeals – Reasons

• An inconsistent and unfair application of the selection criteria

• Presence and influence of a personal coach with voting powers on selection panel, who

• Relied upon incorrect information and scoring records which worked to the disadvantage of the appealing athlete, and

• Where the NGB did not set out an aspect of the selection policy with sufficient clarity such that it was open to interpretation

Learning Points

• Misconception that lodging the policy with the BOA means it has

been checked and approved

• Considerations when populating the Selection and Appeals Panel

• Independent Appeals processes

• Independence at the Selection Meetings

Learning Points

• Take minutes of the Selection Meeting

• Work with athletes/their representatives in advance of the selection

process to have an agreed policy which can be distributed to all eligible

athletes

• Ensure all communications about selection and timelines are sent to all

eligible and affected athletes

• If conflicted do not take part in the selection process

Learning Points

• If conflicted, declare the conflict

• Appeal process must be clear

• Selection policy must be comprehensive and have no lacunas

• Take all factors identified in the selection policy in to account and

score athletes on the same factors and time frames

Learning Points

• Non-selection for pre-Games events may be relevant

• Consider affected athletes and make provision for them in the policy

• Ensure that you use clear and unambiguous language and take

special care in using technical terms, making sure they are defined

and/or clearly understood

Learning Points

• Give consideration to what happens if due to injury, technical failure

or some other circumstance it is not possible for an athlete to perform

at trials or secure sufficient points or scores to warrant selection

• Be mindful to include technical knowledge and experience on the

selection panel

• Give careful consideration to timescales within a selection policy

Review of London 2012 Selection

Appeals

Richard Harry

www.sportresolutions.co.uk