1. Review of London 2012 Selection Appeals
Richard Harry
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

2. Olympic Selection Legal Principles Case examples Successful appeals
Learning points

3. Grounds of Appeal Legal Principle #1
On what grounds can an athlete appeal?
Test as set out in Belcher v British Canoe Union

4. 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.

5. Rhythmic Gymnastics Group vs British Gymnastics
Legal Principle #2
Interpretation of the Selection Policy
Benchmark score (of ) 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.

6. 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

7. 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

8. 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
2nd spot to athlete finishing second in Trials provided she achieves the World LC ranked top 16 time of
Nominations for remaining places will be determined at the later Nationals to the fastest available swimmer achieving the FINA A time

9. 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 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

10. 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.

11. 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

12. 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

13. 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

14. 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

15. 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

16. Review of London 2012 Selection Appeals
Richard Harry
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