Review of London 2012 Selection Appeals Richard Harry www.sportresolutions.co.uk I’m EP, Chief Executive of Sport Resolutions In our slot this afternoon we want to do three things: Look at the role of dispute resolution in sport and the part played by Sport Resolutions in it – That’s the theory Take you through some recent cases from the recent Olympic Games that SR helped to resolve – That’s the Practice To involve you in a case study of an Olympic selection dispute that is to be decided by an appeals tribunal – That’s the Demonstration

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 To finish some examples of recent cases Sport Resolutions is named as the appeal body in the selection policies of most Olympic and Paralympic sports. A dispute between a group of rhythmic gymnasts based at University of Bath who British Gymnastics refused to nominate for selection to London 2012 Olympic Games. Dispute centred on a disagreement over interpretation of the required performance criteria. Arbitrator found in favour of the athletes and they went onto be selected to represent Team GB in London.

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 Swimming Grounds 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 Couch vs 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 Couch vs 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 Couch vs 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

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 Conflicts in selection process Take all factors in selection policy in to account Score all on same factors and time frames Consider affected athletes Timescales Take notes

Review of London 2012 Selection Appeals Richard Harry www.sportresolutions.co.uk I’m EP, Chief Executive of Sport Resolutions In our slot this afternoon we want to do three things: Look at the role of dispute resolution in sport and the part played by Sport Resolutions in it – That’s the theory Take you through some recent cases from the recent Olympic Games that SR helped to resolve – That’s the Practice To involve you in a case study of an Olympic selection dispute that is to be decided by an appeals tribunal – That’s the Demonstration