Canada is like many other countries that have, in recent years, created third-party dispute resolution mechanisms to deal with sport-related disputes. The earliest such system was created in the United States in 1978, when the Amateur Sports Act directed certain types of amateur sports disputes to the American Arbitration Association. China introduced provisions for dealing with sports disputes in the Sports Law of the People’s Republic of China in 1995. The United Kingdom, Australia, New Zealand and Canada have all recently introduced independent arbitration systems for the sport community.
Generally, such systems are considered to be preferable to traditional dispute resolution techniques such as litigation. The advantages of independent arbitration over litigation of sport disputes have typically been identified as being the ability to obtain a timely hearing, to incur lower costs than in litigation, to have access to an independent ‘expert’ adjudicator to hear the dispute, and to be able to work within a dispute resolution process that is sport-specific and sport-sensitive.
The Sport Dispute Resolution Centre of Canada (SDRCC) was created by federal legislation in 2003, although it had existed in an interim form since late 2001, just before the Salt Lake City Winter Games. At the time of writing, about 150 cases have been decided by the SDRCC. This number of cases is now sufficient to create a body of precedent cases, or jurisprudence, that establish trends and guidelines that are useful to everyone in the sport system. As well, it would appear that the SDRCC at the age of 5 years may have ‘matured’ in the sense that it is having an important impact in the Canadian sport system that cannot now be ignored . In fact, some recent decisions from the SDRCC suggest that this tribunal may no longer afford the quick, accessible and low-cost dispute mechanism that was initially intended when the SDRCC was created. 
We thought we could devote this column to providing some advice to coaches dealing with selection issues. This is important because most SDRCC cases that are not related to doping are disputes in selection, and the actions or inactions of coaches are at the heart of these cases. As well, it has been our experience over the last four quadrennials that the months leading up to a summer Olympiad produce many controversies. These disputes consume enormous energy and resources, attract negative media attention, and distract coaches and athletes from Olympic preparation. Coaches need to be aware.
A significant number of selection decisions are appealed to SDRCC because the discretion given to the selectors by the selection policy is not exercised properly. The goal of selection is to choose the best mix of people to fit the competitive circumstances. At the elite level, this often means discerning among subtle and intangible characteristics that do not lend themselves to an objective analysis. Attitude, injury, experience, strategic thinking, poise, rapport, ability to perform under pressure may all be important attributes in both team and individual sports. Many team sports have the added dimension of ‘positional considerations’ – a softball team going deep in the roster might favour a utility player over a specialist, a racquets team might want players who can compete in both singles and doubles events, and a track team might want sprinters who can succeed in individual races as well as relays. Selectors must use their discretion to interpret these different qualities and characteristics.
‘Discretion’ implies making a choice among a number of valid options. This means that any decision made within that array of options is a proper decision. Another decision-maker may exercise his or her discretion differently and arrive at a different decision. However, as long as the discretion was exercised properly – that is, within the parameters set by policy and in keeping with the overall stated purposes of selection, that different decision is equally proper. Generally, in SDRCC cases, adjudicators have given deference to discretion when it is exercised properly by people, such as coaches, who possess significant expertise.
The large body of cases before the SDRCC, and cases that came before its creation, can provide guidance on how coaches can improve their discretionary decision-making on team selection issues:
- Criteria, or the factors being considered in the discretionary decision, should promote the objectives of the selection and should be clear. These criteria will guide the exercise of discretion. Ideally the criteria should be weighted – in the absence of an explicit weighting of the criteria, all criteria will be viewed as having the same weight. If this is not what you intend, then identify the weighting for each criteria.
- Where there is more than one person involved in the selection, care should be taken to ensure that each person is considering the same information as measured against the same criteria. This does not mean everyone will decide the same way, as each selector will apply his or her expertise and particular perspective to the assessment.
- Again, if multiple persons are involved, it may be necessary to merge results into a single ranking or decision. It is important to determine beforehand how this will happen – will there be a cumulative score, an averaged score, or a consensus score based on discussion and negotiation? It is critical that this be sorted out in advance.
- The prudent coach keeps a careful written record of the entire process. Ideally, scores and comments are compiled into a single chart. As well, it is important to be able to prepare a rationale for how each candidate scored against each criterion – the best plan is to prepare this rationale in writing as the selection process is underway. This written record will be very useful later if your selection decision is challenged.
In closing, every coach involved in team selection should determine for themselves, if it is not prepared for them by their sport organization, the following: the information that will be used to assess each criterion; a guideline on how this assessment will occur, using ordinary and reasonable interpretation; the weighting of each criterion; and a system to handle differences in assessment, should they arise. Once these elements have been thought through, they should all be written down – which will help enormously at the end of the day.
And remember, to quote an adjudicator in the case of Softball Canada v. Canada Games Council (2004), “Selection criteria are important and highly technical documents. They should say what they mean and will be interpreted to mean precisely what they say”.
 SDRCC arbitrations are governed by a procedural Code that provides for what is called a hearing de novo – a full rehearing of the issue that is in dispute, thus giving the arbitrator very broad decision-making powers. The arbitrator may order any remedy that he or she feels is appropriate in the circumstances. As well, the Code contains a somewhat unique provision which states that when an athlete is challenging a decision on team selection, the onus of proof is reversed, and rather than the appellant athlete having to prove that an error was made, the respondent organization has the onus of proof to show that an error was not made. Also, and this is critical for a sport organization, the arbitrator may (and often does) award costs against a party, and arguably may also award damages. This is a very different proposition from deciding a selection dispute using an internal appeal policy, which limits the grounds of the appeal, restricts the appeal panel’s authority, and constrains the allowable remedies.
 Poss v. Synchro Canada et. al. (SDRCC File 08-0068), both the main decision of February 26, 2008 and the Supplementary decision of April 16, 2008, as well Dufour-Lapointe v. Canadian Freestyle Ski Association and Marie-Josée Lessard (SDRCC File 07-0065) dated January 21, 2008 are recent cases that may be indicative of a trend towards such cases becoming increasingly complex, litigious and costly to the parties. In the Poss case, the respondent organization was ordered to pay significant legal costs of the claimant and other parties, even thought the claimant’s appeal did not succeed.
Originally published: Coaches Plan (2008) Vol. 15(1)