Sports Law Olympic Selections

Friday July 29, 2016

Selections in Olympic Year

Introduction
Olympic selection represents the pinnacle of many athletes’ career.  However, not all of these decisions are clear-cut.  Many are contentious causing significant disappointment for those not selected (as well as their families, friends and supporters) after years of dedication, training, and often sustaining this through self-funding.  As recent media coverage has highlighted, such decisions can lead to appeals with the underlying allegations often being somewhat scandalous.  For both the athlete and their lawyer, the appeal process can be fast moving, challenging and complex with sporting careers at stake.   

Selection v Nomination
The first issue question is what decision is actually being appealed: was it the decision by the governing sports body known as the ‘National Sporting Organisation’ (“NSO”) when reviewing the athlete’s performance?  Or was it the New Zealand Olympic Committee’s (“NZOC”) ultimate decision not to select?  Within this process, it does not matter whether the athlete has qualified a place for the Olympics or not; the ultimate decision rests with the NSO to nominate and the NZOC to select. 

Nomination Decision
The first decision in the process is the nomination decision.  This rests with the NSO, when they name those would like to nominate to the NZOC based on established criteria.  Each sport has its own criteria that outlines what an athlete must do in order to be nominated.  Common criteria a selector will use include a list of events or races that are deemed compulsory to be competed in (for example, “the nationals”), the weighting an individual event may be given and whether athletes nominated have a realistic chance of finishing in a certain position in their desired sport.

Athletes who intend to be nominated for the Olympic Games are required to sign an Athlete Application and Athlete Agreement.  These documents indicate that they understand the nomination and selection criteria and that they will adhere to the Athlete Agreement.  Effectivity, this is the contract between athlete seeking selection and the NSO.  Importantly, the agreement also sets out the process and grounds for any appeals of nomination.

NSOs selectors must then decide which athletes or teams they will nominate and this list is sent to the NZOC along with supporting reasons and evidence.

Selection Decision
Nominating an athlete or a team does not necessarily mean that this team or athlete will be attending the Olympic Games.  This is a decision for the NZOC and is known as the selection decision.

In making the selection decision, the NZOC assess whether a nomination meets the selection criteria before deciding whether to select this athlete or team for inclusion into the Olympic Games.  The NZOC focus is generally around whether the nominated athlete has the ability to perform (in individual sports, this is usually the capacity to achieve a top 16 placing and the potential to finish in the top 8 while for team events the general standard is the capacity of advancing beyond the first round or making a quarter final).  If an athlete is nominated but not selected, their appeal rights arise out of the NZOC/NSO Application, Nomination and Selection Agreement.

An Appeal
As all Olympic sports are ultimately overseen by the NZOC, this means in practice that the relevant Athlete Agreements have a degree of consistently between sports.  This includes the process of appeal.

The NZOC/NSO Application, Nomination and Selection Agreement and the Athlete Agreement, indicates how an athlete or team can appeal a nomination decision or how an athlete, team or NSO can appeal a non-selection decision by the NZOC.  For Olympic decisions, this process is that the athlete, team or NSO must appeal the decision within two days (and this does not mean working days).  Thus, appeal decisions must be made quickly.  For example, an athlete advised of non-nomination on a Friday night would need to lodge an appeal by that Sunday.  In the case of a non-nomination decision, this appeal must be lodged with the CEO of the NSO and, in the case of a non-selection decision, this must be raised with the Secretary General of NZOC. 

After this appeal has been lodged, it is then usual practice that a “without prejudice” meeting is held between the parties to reach an outcome.  If no outcome is reached, then it is usual practice that within 5 days of the date of the meeting or 10 days of the nomination or selection date (whichever is later) a party may appeal the non-nomination or non-selection decision to the Sports Tribunal of New Zealand (ST).

The ST is a dedicated body that specialises in resolving sporting disputes, whether selection, nomination, governance or doping disputes.  The hearings are usually heard under the guidance of Senior Counsel assisted by legally qualified former sports people.  In terms of nomination/selection appeals, the cases are often conducted in the same manner as a civil trial; submissions are filed; witnesses are cross-examined and legal arguments are raised.  For the NSO, the reputational risks are substantial and any criticism made by the ST is usually widely reported in the media.  That said, for the athlete the burden of convincing the ST that selectors have behaved in a manner requiring the ST’s intervention is high.  This is because the ST has expressly recognised that selection decisions are difficult, involve a significant degree of subjectivity and freedom for sports to self-determine is crucial.

Issues Faced in Olympic Year
In Olympic year, selection and nomination decisions are particularly crucial, given the Olympics only occur every four years.  In addition, the timeframes between key qualification events, any nomination and selection and the Olympic Games itself, can be very tight.  This means that there is very little time for any appeal process to happen and the timeframes around the process are particularly stringent.

Another particularly key issue that is faced in Olympic year is the relatively small number of spots available in many events.  This may mean that a certain sport has qualified more places in an event or sport than they are able to send.  The reason this is done is to ensure representation of as many nations as possible in all the events at the Olympic Games with the result being that any appeal may affect another athlete's ability to attend the Olympic Games.  Hence if a section appeal is successful, another athlete previously selected may miss out.

The appeal process is required to have a particularly tight timeframe to ensure that any decisions are made final quickly.  Consequently, if an athlete or team is successful, they can commence preparation in a timely manner and, if unsuccessful, the athlete or team originally selected can focus solely on their preparation rather than worrying about the possibility that their position is in jeopardy and minimising crucial preparation.

Learning for Lawyers
Sports litigation and Olympic appeals can offer key learning learnings.  First, there is a balancing of very personal interests, whereby money or damages are not an adequate remedy. Often, no one is at fault. Rather, it is a question of degree.  For the lawyer to achieve an outcome for their client highlights the importance of dialogue, consideration of other parties’ interests and practicality as ingredients than can lead to negotiated outcomes.  Often cases are resolved through agreement and it is common for the ST to either hold mediation or recommend that this process occur before a hearing is held.

Secondly, the importance of knowing and compiling with procedure and rules.  For example, in the case of Te Rina Taite v Swimming New Zealand Inc ST 06/08 the entire appeal was dismissed due to failing to meet the 2 day timeframe to file an appeal against a nomination decision as outlined in the NZOC/NSO Application, Nomination and Selection Agreement referred to in the Athlete Application.  The lawyer that fails to educate themselves can leave their client without recourse due to their own failings.

Finally, nomination and selection disputes are, at their heart, an argument of contractual interpretation. Therefore, it is also important for the lawyer to ensure both athletes and those in charge of making sport decisions understand the agreements that they are signing.  In particular, what events will be weighted highly and as such important not to miss and the timeframes where they have to have key documents to the NSO.  Those that do not adequately understand what they are agreeing to and the consequences that may result will be vulnerable.

This article is written by David Fraundorfer and Sam Fellows and appears in LawTalk Issue No. 892.