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Published April 30, 2012
By Rachel Corbett and Kevin Lawrie.
The 2012 London Olympic and Paralympic Games are fewer than 90 days away and many NSOs are preparing to select, or are in the middle of selecting, the teams and athletes that will represent Canada in London. Athletes who are not selected for a major event like the Olympics or Paralympics may appeal these selection decisions. Such appeals can create a major distraction for the appellant athlete, for other athletes who may be adversely affected by the appeal, for coaches and high performance directors, and for the sport organization as a whole. We have prepared this detailed resource for NSOs so that we can to share what we think you need to know to be ready for selection disputes and to minimize their harmful impact on the entire team’s preparations for these upcoming Games.
At the end of this article are a number of links to more resources that we have prepared over the last four Olympic quadrennials.
Pre-Selection
All NSOs have written criteria to guide how athletes compete for and become selected to Olympic and Paralympic teams. These criteria often are general and applied to every event, or they might be event-specific. In the case of the Olympic and Paralympic Games, it is expected that a selection policy will be very specific and detailed. Indeed, certain sport agencies – the Canadian Olympic Committee, Canadian Paralympic Committee and Own the Podium, for example, require that NSOs have appropriate team selection criteria prepared and published well in advance.
But just because a selection policy has been carefully prepared by a high performance committee, approved by an external body, or triple-checked by a lawyer or sport consultant does not mean that it is appeal-proof. Depending on the sport, team selection can be a complex matter, involving consideration of objective performance criteria, the application of performance standards, and subjective assessments of the athlete’s potential. Performances, rankings, and results must be achieved within certain windows of time, or qualification periods, which vary from sport to sport. The point here is that the existence of written selection criteria, even those that have been very carefully constructed, will not prevent legitimate appeals.
Pre-selection, it is vitally important that the decision-makers fully understand the selection criteria. A mis-application of the criteria (for example, by evaluating an athlete on items not specified in the criteria, or by not considering all athletes in a consistent way against published criteria) would be an appealable ground. So too would be placing greater weight on one criterion and lesser weight on another criterion, when the criteria are presented as being equally important. It is not possible for an NSO to change the selection criteria once athletes have started competing for selection. After one recent successful appeal of a sport selection, the adjudicator who heard the appeal wrote “Selection criteria are important and highly technical documents. They should say what they mean and will be interpreted to mean precisely what they say”.
What Goes Into A Selection Policy?
Again, most NSOs already have selection criteria and it is likely too late to change anything before selection to the Olympic or Paralympic Games team. But in any case, the following items typically fit into a selection policy:
The selection criteria for team sports would be different than the selection criteria for individual sports. For example, an NSO that is assembling a team from a collection of individuals (like in Field Hockey) may choose to weigh subjective criteria like adaptability and leadership in addition to objective criteria like shot power and running speed, whereas an individual sport (like Diving) may choose to include only objective criteria (like scores at events) in their selection policy. In terms of subjective criteria, variables like ‘leadership’, ‘team cohesion’ or ‘creativity’ should be operationalized and defined. No matter the selection criteria, they must be clearly stated in the selection policy and understood by both the athletes and the decision-makers who are determining selection.
Coaches may be selected too. Some NSOs may make coach selection as simple as a Board vote or appointment by a high performance director; while other NSOs may prefer having selection criteria for coaches similar to the selection process for athletes. Even with the ‘simple’ appointment route, there still should be a formal means of selection (such as a nominating committee, an application, an interview/presentation, etc) which must be written down and must provide the coaches who were not selected with the opportunity to know the basis for their non-selection.
Selected! What Next?
Once a selection committee has decided which athletes have been selected, they must document their decision with reasons showing why these athletes have been selected instead of other athletes. For objective criteria, the documentation is easier – “Athlete A finished higher than Athlete B at the Trials and therefore Athlete A is selected” – but becomes more complicated when multiple objective criteria are weighted and when subjective criteria are used. The selection committee should be prepared to explain why Athlete A received a leadership score of ‘7’ and why Athlete B received a leadership score of ‘5’. In these cases it would help to have detailed definitions of the subjective variables.
Detailed spreadsheets showing rankings, weightings, and objective and subjective criteria are not uncommon. This data does not need to be shared with athletes but should be retained and ready to be produced in case of an appeal. What does need to be submitted to athletes is the official selection decision, with reasons. The date of the communication of the decision to the athlete is also important because an appeal policy almost always has a deadline for appeals that starts ticking once athletes are notified of the decision.
Typically, athletes are notified individually of their selection or non-selection to an event or team. For larger NSOs, not every athlete may receive a personalized message – but they would instead receive a mass email. It also varies by NSO whether they announce, to the non-selected athletes, the identities of the athletes who were selected. Athletes who were close to being selected and who may have reason to appeal should be provided with additional details for why they were not selected. We have occasionally seen athletes appeal a decision primarily because the announcement of the non-selection by the NSO was a terse message with no reasons. The NSO does not benefit from withholding information – and in fact, being more open and proactive can go a long way toward averting an appeal.
Generally, since only athletes who were not selected to a team appeal the selection decision, here are some approaches that NSOs can use in their announcements to those athletes who were not selected:
If the athlete has been selected as an alternate athlete (a process which should be described in the selection policy), the letter should inform the athlete what the status of alternate means (some alternates travel with a team while others do not), and how it may occur that they take the place of a selected athlete.
Letters to selected athletes can also describe how the athlete was selected (but generally do not need to – the athlete may not be that interested in the selection process any longer!) but should definitely describe the ‘next steps’ in terms of who will be contacting the athlete, what the athlete needs to do to remain selected, and how it may occur that the athlete becomes ‘unselected’ or dismissed from the team. All of these aspects should also be set out clearly in writing as part of the organization’s selection policy or other national team policies.
Responding to an Appeal
Even with a comprehensive letter explaining the decision, an athlete (or multiple athletes) may still decide to appeal. NSOs are required to have an internal Appeal Policy that describes the timelines for an athlete to appeal the decision, the grounds on which an appeal would be allowed, the group or committee hearing the appeal (who must be different than the selection committee), and other possible recourses for the athlete (such as appealing to the SDRCC, which we will explain later). Some NSOs have a panel of three people hear appeals, while other NSOs refer appeals to a single adjudicator.
The first step for an NSO upon receiving an athlete appeal is often to appoint an independent third party to administer the appeal. The Sport Law & Strategy Group regularly handles this process for numerous NSOs and PSOs. The advantage of an appeals administrator is that the NSO’s staff and volunteers are not burdened with the administrative work, pressure, and inherent conflict of the appeal. Prior to a Major Games, their focus should be elsewhere.
In our experience, NSOs are often successful in defending their selection decisions if they can demonstrate the following:
When an Appeal Succeeds
In a written decision, the adjudicator or appeal panel will either allow or dismiss the appeal and will provide reasons for this decision. In our experience administering appeals, we have seen successful appeals of selection decisions about 40% of the time. Usually appeals are allowed because the NSO has improperly applied its written selection criteria or the selection decision was made by a group or body that did not have the authority for selection. In these cases, the adjudicator will point out where the process was done improperly and direct the NSO to re-do the selection process from that point, or remit the decision to the group or body properly responsible for the decision. Rarely does this decision involve additional competition, but instead a clarification of the selection process and applying the proper process to the existing performance results.
A successful appeal may also result in placing the athlete who appealed onto the team, and removing a different athlete from the team. This effect of pitting one athlete against another adds to the complexity and controversy of appeals, and is another reason why independent appeals management is a good idea.
NSOs have a couple of options when an appeal is allowed – but usually these options are time dependent. Even with an efficient appeals administrator, the appeal process can take 7-14 days and the event draws closer with each day. Athletes need time to prepare and the window to make a new selection decision is shorter still. NSOs with more time may challenge the appeal decision at the SDRCC (and athletes who ‘lose’ an appeal can take this path also) but in the vast majority of cases, NSOs respect their internal appeal decisions and re-do the selection with the proper procedure or criteria. It is certainly possible that the result of the new selection will remain the same even with a corrected process.
Internal Appeals vs. the SDRCC
The Sport Dispute Resolution Centre of Canada is a government-funded arms-length agency that acts as the highest tribunal in Canada for disputes involving amateur sport organizations. The SDRCC uses a similar process to an NSO’s own internal appeals policy and, in fact, the result of the NSO's internal appeal can itself be appealed to the SDRCC. SDRCC decisions are not appealable and therefore some disputing parties may choose to bypass the NSO’s internal appeals process and proceed straight to the SDRCC tribunal. There are benefits and drawbacks to going straight to the SDRCC – and CanoeKayak Canada's CEO Lorraine Lafrenière explained the differences in a recent article for the SDRCC newsletter.
Each NSO may have different reasons for taking the path of an internal appeal versus using the SDRCC as the first and only step in the process. Legally, the two mechanisms are quite different, as internal appeals are limited in scope to procedural grounds, while SDRCC appeals may be heard on the selection decision’s merits. In other words, the tribunal in a SDRCC hearing can consider every aspect of the initial decision, while a tribunal in an internal appeal hearing is limited to considering potential procedural errors in the initial decision. Hearings before the SDRCC may be unduly complex as lawyers are frequently involved and the adjudicators hearing these cases may not be familiar with the particular sport. On the other hand, the final and binding nature of a SDRCC ruling can be attractive as it can bring closure to a drawn-out dispute.
The advice we would give an NSO is to do an internal appeal using their appeal policy and independent administration, and make the effort and commitment to get it right. Professionally managed appeals rarely go beyond the NSO jurisdiction. In fact, we are unaware of any internal appeal that the Sport Law & Strategy Group has administered being overturned by a subsequent SDRCC tribunal.
Resources
This is not the first time we have written about appeals in advance of an Olympic or Paralympic Games. These issues come up every two years. Here are some links to our previous pieces from previous Olympics and Paralympics – which are all still very relevant for the upcoming Games in London this summer:
Final Tips
We mentioned that appeals can be controversial and emotionally taxing. An athlete who feels that he or she deserved to be selected to the team attending a Major Games can become embittered or disillusioned. It is important for the NSO to not only provide this athlete with a fair process for an appeal, but to also retain the athlete’s interest, involvement, and commitment after the appeal has ended. Here are some final thoughts:
At the Sport Law & Strategy Group, we have administered countless appeals in our 20-year history. In the role of an appeals administrator we:
We are pleased to offer these services to NSOs in advance of the upcoming Olympic and Paralympic Games. If you would like to start the conversation about your selection process and/or appeals administration please feel free to contact us at rmc@sportlaw.ca
