Back in 2005, we wrote about a procedural fairness case (Clegg, Albert, Ciaramidaro & Biathlon Canada v. Canadian Olympic Association, 2002) involving an athlete being selected to an Olympic team even though he had missed a selection deadline. The athlete, Clegg, had achieved a result that would have qualified him for the Olympic Biathlon team – but his accomplishment occurred 12 days after the application deadline for selection. Arbitrator Ed Ratushny refused to intervene in the selection criteria of Biathlon Canada (by extending the deadline or revising the performance standards) but he did allow the appeal because the athlete merited consideration for selection.
Contrast Arbitrator Ratushny’s decision to allow the appeal with another case (Janyk v. Canadian Olympic Association & Alpine Canada, 2002) in which the arbitrator did not allow the appeal of an athlete who had missed a deadline. In the Janyk case, the athlete wanted the deadline extended in the hopes that she could achieve, at a future competition, the performance standard required for Olympic selection. Clegg, conversely, had achieved the performance standard and only missed the deadline by 12 days.
In allowing Clegg’s appeal, Arbitrator Ratushny considered five factors:
- Whether or not another athlete would be adversely by a successful appeal
- If the deadlines set by the governing associations were clear
- If the deadlines had been extended in other circumstances
- Whether or not the process is merit-based
- Whether or not strict application of the deadlines is related to merit – or whether the deadlines are purely administrative in nature.
In the Clegg case, Arbitrator Ratushny decided that since no other athlete had achieved the performance standards, the selection of Clegg to the Olympic team would not adversely affect another athlete (1). It was also unclear how the deadlines set by both Biathlon Canada and the COC were to be applied when they were read together (2). Arbitrator Ratushny recognized that deadlines had been extended for the skeleton team (3) and that the Canadian process and timeline for selection was stricter than the International Federation’s timelines and standards (4). Finally, Arbitrator Ratushny determined that the deadlines set were mostly administrative deadlines and there was very little outside pressure that required their rigourous enforcement (5).
In the Clegg case, the appeal succeeded, the ‘deadline’ was brushed aside, and Clegg participated with the Olympic team at the 2002 Games in Salt Lake City – finishing 28th in the competition.
Recently, a new case involving the University of Fraser Valley (UFV) appeared before an arbitrator and referenced the SDRCC’s previous resolution of the Clegg case.
The UFV missed the deadline set by the Canadian Colleges Athletics Association (CCAA) for when they could submit an application to be considered for a wildcard entry into the CCAA Men’s Volleyball National Championship. In their appeal, the UFV cited the Clegg decision and Arbitrator Pallard used the same five factors (see above) to decide this case that Arbitrator Ratushny used to decide the Clegg case.
Arbitrator Pallard explained that each province is allowed to nominate one wildcard team and there are two possible wildcard spots. The CCAA appoints a wildcard selection committee to apply a selection process that determines the wildcard teams. Arbitrator Pallard showed that another British Columbia team, UBC-Okanagan, would not be allowed to be considered for a wildcard spot if the UFV appeal was upheld (1).
Arbitrator Pallard showed that the deadline for the wildcard nominations was posted on the CCAA website six months prior to the deadline date. Further, the deadline was communicated to affected teams via a newsletter and two additional emails and that these items made clear there would be no extensions. The application from UFV arrived, incomplete, three days past the deadline and a second, complete, application arrived another day later. The deadline was clear (2) and Arbitrator Pallard also found that the deadline had never been extended before in any circumstance (3).
As part of the wildcard selection process, the wildcard committee evaluated all entries on rigourous multi-point selection criteria. The work of this committee was not simply administrative – but rather performance-related. The committee considered each team on merit (4). Finally, the deadline was enforced by the CCAA because the wildcard committee needed to make a rapid decision by the end of that week. There were a mere sixteen days between the deadline and the National Championships – not enough time for extensions (5).
Arbitrator Pallard decided to deny the UFV appeal and uphold the deadline. Though the decision appears to be in opposition to the Clegg decision in which the deadline was brushed aside, both Arbitrators used the same process (the five factors) to arrive at a different result based on the facts. It is encouraging that the ‘common law’ of sport dispute resolution is being uniformly applied.
The team that was initially awarded the wildcard spot (UBC-Okanagan) ended up winning the Bronze medal at the National Championships.
Originally published: Centre for Sport and Law Newsletter (2010) Vol. 6(2)