Published May 8, 2005
We have spent the last 15 years urging sport organizations to follow their rules, and at every opportunity doing our best to convey the message that the organization that deviates from their rules does so at their peril.
Now, there is a new twist to this subject. Several selection disputes have come forward recently that suggest some deadlines should not be construed as strict deadlines. Maybe the rules do not always need to be followed?…. Let us tell you more.
Since it began as an Interim program late in 2001, over 50 cases have been heard and decided through ADR Sport RED arbitration mechanism (visit [www.adrsportred.ca] for more information about the Sport Dispute Resolution Centre of Canada). Combine these with court cases as well as arbitration rulings before 2001, and a significant body of sport case law is emerging. These cases offer rich information, especially for coaches who are intimately involved in team selection procedures and decisions.
As shown in the chart below, the majority of cases in the ADR Sport RED program have involved disputes about selection (note that this program is available only to national sport organizations). In 2004, all 22 of the cases heard related to selection. This was the year of Athens Olympics and Paralympics, and 18 of these 22 cases were selection disputes relating to Athens that went to binding arbitration. At the heart of these cases were many issues we have written about before in this column: bias in the selection process, unclear selection criteria, the rigidity of selection standards, changing criteria late in the process or without any notice at all, among other issues.
In about three-quarters of the selection cases, arbitrators found that selection procedures were handled properly, while in about one-quarter of the cases, appeals were upheld and selection procedures were changed.
These decisions influence the way we go about our work, and also influence the way coaches should go about the task of selecting athletes to teams. While we could write about many different principles in these cases in this column, we choose to focus on one: when is a deadline not a deadline?
Coaches and others responsible for implementing a selection policy certainly understand the importance of following the policy and being consistent in its application. In fact, is it not true that firm adherence to a published policy is the best defense against successful appeals? In many cases yes, but not in every situation. We are finding that a failure to be flexible may, in some cases, have the opposite effect and lead to winning appeals.
In the ADR-Sport-RED case of Clegg, Albert, Ciaramidaro and Biathlon Canada v. Canadian Olympic Association (January 2002), the Adjudicator found that even though one of the athletes had missed a clear deadline set out in the selection policy, he should nonetheless be selected to the Canadian Team competing in the Salt Lake City Winter Olympics. In this case, the selection criteria had been established by the national sport organization, Biathlon Canada, and the performance standards (top 16 finish) and timing of the process were governed by a joint agreement between Biathlon Canada and the Canadian Olympic Association (COA), as it was then named. This agreement read, in part,
“Between September 1, 2000, and January 13, 2002, athletes achieving the following absolute placing or standards…will be eligible…”
The standards were then listed for the various events. Unfortunately, one of the athletes achieved the performance standards but did so 12 days after the deadline of January 13th. The COA maintained that the Agreement should be strictly applied and that the timeframe for qualifying was a condition for qualifying and was fully understood and accepted by the athletes. The purpose of this strict application was to “maintain objectivity and avoid arbitrariness” that had plagued selection decisions in previous years. In other words, the line must be drawn somewhere. To be fair for all, the COA must set a final date for qualification that will permit other matters to be completed such as internal appeals, COA approval of nominations, registration of selected athletes with the host, outfitting of the team, etc.
In this case the Arbitrator recognized two kinds of conditions – performance-related conditions and administrative conditions. In this case he found the published deadline for qualification to be administrative in nature. The arbitrator found that the basic goal of the selection process was to ensure athletes were selected on the basis of their performance – in other words, a merit-based selection. In this case, the strict application of the qualifying time line undermined this basic principle. From a practical perspective, the Arbitrator accepted that the athlete’s performance did not adversely affect any third party, was within the timeframe of International Federation rules, and supported the principle of merit-based selection.
There has been some refinement of this principle in a subsequent case heard through the ADR Sport RED program (Janyk v. Canadian Olympic Association and Alpine Canada, February 2002). However, this time the athlete had not yet met the qualifying standard by the time she brought forward her appeal, as opposed to the athlete in the prior decision who had already made the qualifying standard. Janyk was asking for an extension of the timeline in the hopes she would make the qualifying standard. In this case the Arbitrator refused to grant her appeal.
The differences between the two cases is that in the first case the athlete had made the qualifying standard, although just outside the permissible timeline, and in doing so was not affecting any other athlete who had made the standard within the timelines. As well, the 12-day delay was still within reasonable timelines from an administrative perspective. In the second case, the athlete wanted timelines extended. Standards had not been met, and thus the case was not a simple matter of judging how a late qualification affected other athletes and related to administrative requirements.
We had the opportunity to apply this principle in a selection dispute for the Canada Summer Games in August of this year. In a nutshell, the athlete had succeeded in being selected to Team Ontario in the previous year. She then allowed her membership in the provincial sport organization to lapse, and such membership was a condition of eligibility for selection to any provincial team. The error was noticed in ample time and could easily have been corrected, but the provincial sport body took the position that the athlete had missed the deadline for membership renewal. Moreover, this deadline was linked to dates for provincial and national competitions only, and bore no relationship to the Canada Games. We were successful in helping to get the athlete reinstated to Team Ontario, on the basis that the deadline was purely administrative in nature.
The lesson learned here is that there is a distinction between criteria relating to performance and criteria relating to administrative requirements or conveniences. Administrative requirements are important and at some point they are simply indisputable and immoveable. However, the lesson is that selectors can have far greater flexibility and remedial powers when dealing with administrative criteria, particularly when relaxing them does not adversely impact anyone else. While we maintain that it is always good policy to follow the rules, sometimes a deadline is not a deadline –and that can be a good thing when it ensures an athlete is selected based on merit.
Originally published: Coaches Report (2005) Vol. 12(2)