1. Discipline and Selection Policies Sport and Recreation Alliance 25 th March 2013

2. Disciplinary Policies and Procedures- Dos and Don’ts….

3. Summary Jurisdiction Powers to Discipline Procedures Possible Challenges

4. JurisdictionIF athletes/participants/ officials NGBNGBNGBNGB county/regional divisions clubs/associations eventsclubs/associations

5. Jurisdiction - Events Consider Olympic Games and Paralympic Games/ Commonwealth Games - ad hoc CAS jurisdiction Event specific participation agreements

6. Criminal proceedings What if a serious matter- possible criminal offence?

7. Powers to discipline Requires a breach of a rule Provision in rules (e.g. Constitution/ Codes of Conduct)- provision for making and amending rules Ensure consistency with IF where applicable Publication On field- laws of the game- possibly prescribed sanctions save for serious breach Off field- e.g. doping/ “bringing the participant/sport into disrepute”/ match fixing/ betting/ social media

8. Powers to Discipline Sanctions- prescribed standard sanctions in rules? If discretion- exercise fairly, rationally and proportionately Decision of referee/umpire?

9. Procedural Rules and Process Procedural Rules- clear, not overly restrictive/ prescriptive Investigation Disciplinary charge- specific alleged rule breach and facts relied upon and potential sanctions Interim suspension? Standard Timing- prescribed in the rules?

10. Panel Who to determine? - internal/ external - experts in sport/ legal - no conflict/ bias Chairman- power to set directions? Rules/ guidelines for the Panel

11. Procedures- pre hearing Directions- fixed/ determined by Panel? Statements of case Disclosure of evidence in advance of hearing (e.g. witness statements) Skeleton arguments

12. Hearing Order of proceedings Witnesses Burden of Proof Legal representation Costs Public/private

13. Decision If oral, follow up with written reasoned decision Establish jurisdiction Establish facts Apply rules (and law) Sanction- within rules or fair and proportionate if discretion Right of appeal?

14. Appeal Chance to cure any procedural issues at first instance Is first instance internal/ external and independent? CAS? De novo or review of decision taken? Appellant- knowledge of timings/ forum/ notice of appeal/ statement of appeal etc.

15. Challenges No jurisdiction Panel- not followed rules/ law Panel- not considered relevant evidence/ incorrectly considered irrelevant evidence Procedural unfairness/ contrary to natural justice Decision- not founded in fact Decision- irrational/ arbitrary Sanction- unreasonable/ restraint of trade

16. And finally… Any Questions?

17. Selection Policies

18. Introduction 2012 Olympic Games: –>50 Appeals across 15 sports –c.10 successful –generally not in team sports Variety of issues including: 1 –Procedural flaws (e.g. selection panel voting conflicts) –Uncertainty of qualification/selection pathway –Incorrect application of criteria –Vague exercise of discretion (subjective criteria) –Interpretation conflicts (e.g. terminology usage, bad drafting) –Flawed appeals process (e.g unfair hearings, lack of legal expertise) 1 Source: British Olympic Association

19. Grounds for appeal “it is of fundamental importance that we should not substitute our own judgment on the merits for those of the selectors – i.e. who would have been selected, or who is the better athlete or has the better performance figures and so forth. So long as selectors apply policy properly, and do so honestly, fairly and reasonably, and take account of all relevant facts (they being best judged to decided what is relevant and what is not), then their decisions must be accorded the utmost respect”. Belcher v British Canoe Union

20. Grounds for appeal 1.Decision is not in accordance with Selection Policy as published. 2.Policy misapplied or applied on no good evidence and/or in circumstances where the application of the policy was unfair (for example, because someone with selectoral authority had given a categorical assurance to an athlete that the policy would not be applied). 3.Bias or the appearance of bias or the selection process otherwise demonstrably unfair. 4.Conclusion is one that no reasonable decision maker could have reached.

21. Case study 1 GB Rhythmic Gymnastics Group v British Amateur Gymnastic Association Policy sent to all athletes and acknowledged in September 2011 Required benchmark score of 45.223 ‘…at the 2 nd Olympic qualification CI,15 – 18 th January 2012’.

22. Case study 1 Test event at O2 arena 15 th – 18 th January 2012 16 and 17 th – total score 44.950 18 th – total score 47.200 BAGA claimed CI meant competition on 16 th and 17 th Team not nominated

23. Case study 1 Question whether team had two chances to qualify at test event or one Contract law approach to interpretation Resolved around use of words ‘CI’ Drafting and inconsistent use of terminology/jargon criticised by arbitrator

24. Case Study 1 “It seems to me, therefore, that a reasonable person with all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time that the Policy was made, would conclude that the Policy required…to achieve a benchmark score during the 2 nd Olympic Event [The Test Event, 15 th -18 th January 2012]”

25. Case Study 2 Tonia Couch v British Swimming 2 athletes selected for 10m individual event Couch higher ranked than one of the selected athletes

26. Case Study 2 Selection Policy provided for the following objectives: 1.To select athletes that will form the team to achieve the best possible results 2.To select athletes for the Olympic Games 2012 that have the best chance of potential success 3.To select athletes that have the potential to succeed in the Olympics of 2016

27. Case Study 2 British Swimming position was that Couch was a medal prospect in the synchronised event, but not the individual, and that her results suffered in the past when selected for both Appeal rejected: –‘Team’ interests paramount in the first objective –Success is second objective, i.e. winning medals – fourth not a success but third is –No basis for each event being treated in isolation

28. Key Points Clear policy Communication with Athletes Keep to policy (be careful what selectors say) Conduct of process Timing Keep records

29. Workshop exercise Jason Smith Partner Brabners Chaffe Street LLP 55 King Street Manchester M2 4LQ jason.smith@brabnerscs.com Tel: 0161 836 8813 Mob: 07747 770704 Carol Couse Partner Brabners Chaffe Street LLP 55 King Street Manchester M2 4LQ carol.couse@brabnerscs.com Tel: 0161 836 8815 Mob: 07814 016399 Chris Anderson Associate Brabners Chaffe Street LLP 55 King Street Manchester M2 4LQ chris.anderson@brabnerscs.com Tel: 0161 836 8912 Mob: 07741 197912

30. Workshop locations