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Player Selection Disputes: Comparative Legal Analysis

By Roshan Gopalakrishna

Introduction

One of the most challenging tasks for any national or international governing body of a sport is the development of fool proof criteria for team selection. However, a large part of the selection process comprises a subjective element that cannot be quantified. Therefore, prior to any major sporting event, and, particularly the Olympics, there arise many disputes over team selection. For instance, the selection of World No. 59 Lutalo Muhammed over World No.1 Aaron Cook to represent Great Britain in Taekwondo and the selection of equestrian Kristey Oatley over Hayley Beresford to represent Australia are among the many selection controversies that have emerged prior to the London 2012 Olympics. This has made it important to scrutinise the redressal procedure available to various athletes across jurisdictions in case of a selection-related dispute.

As far as Olympic sports are concerned, it is impossible for an athlete to approach courts, as the statute of the International Olympic Committee (“IOC”) provides that CAS should be the forum to hear an appeal from the tribunals of the NSFs.

Australia

Each of the National Sports Federations (“NSFs”) in Australia has a designated Selection Committee which is responsible for evaluating athletes and selecting them for various tournaments. With respect to the Olympics, once the athletes have met the requirements of the International Olympic Committee and the concerned international sports federation, they are nominated for selection. However, the final selection is made by the Australian Olympic Committee (“AOC”) which may exercise its discretion in such regards keeping in view various essential factors.

The AOC Olympic Team Selection By-Law provides for the appointment of an Olympic Appeal Consultant by the relevant NSF to redress grievances of athletes who have appealed or wish to appeal their exclusion from the Games. The Consultant in such cases does not render legal advice but only engages in a discussion with the athlete explaining the reasons for non-selection and facilitates a dialogue or a consultation between the athlete and the NSF or AOC. The aggrieved athlete may appeal the decision of non-selection to the Appeals Tribunal, required to be established by the NSF. An appeal from the decision of the Appeal Tribunal may be made to the Court of Arbitration for Sport (“CAS”). It is pertinent to note here that the CAS looks into such complaints only when the selection policy has not been strictly followed. The CAS does not delve into the merits of the complaint.

This principle was seen in operation in Andrew Mewing v. Swimming Australia Limited (CAS 2008/A/1540) where the former appealed to the CAS against the decision of the latter to exclude him from the Australian team for the Beijing 2008 Olympics, despite having met the Nomination Criteria. Dismissing the appeal, the CAS held that, the national head coach had followed the stipulated criteria and had accurately considered the overall needs of the team during selection and hence an appeal against the selection decision could not succeed in the absence of bad faith.

In the case of non-Olympic sports, an athlete may appeal the athlete’s exclusion before the National Sports Dispute Centre (“NSDC”) in Sydney. The NSDC is a tribunal that arbitrates on selection disputes provided there is an agreement between parties with respect to the same.

Canada

In Canada, national sports organizations operate as autonomous bodies. Canada has seen a large number of selection disputes with regard to sports. The legal basis for the adjudication of sport in Canada can be traced back to Lee v. Showmen’s Guild of Great Britain ([1952] 1 All ER 1175), wherein it was held that courts of law have the jurisdiction to review any decision of an organization that involved a question of law or a question of the organization’s constitution. Further, the threshold for judicial intervention is based on the nature of the relationship between the parties. For instance, intervention would be more warranted where the decisions of the organization could have a significant effect on the livelihood of the members of the organization as opposed to an organization that was created simply for recreational purposes. Most national sports organizations or federations would fall under the first category. Judicial Review of the decisions of sports organizations can only be challenged on the “true construction” of the governing documents of that organization. The forum for the settlement of such disputes has now shifted from the courtroom to arbitration. For instance, after the Salt Lake Olympics in 1996, an ad-hoc arbitration tribunal was created to hear all disputes in connection with the Games.

More recently, the Sports Dispute Resolution Centre (“SDRCC”) was established to address the need to offer the Canadian sport community tools to prevent conflicts and to resolve them. The SDRCC provides for a host of alternative remedies to resolve sport related disputes, the chief among them being arbitration. Parties can approach the SDRCC on agreement, if there is a specific clause to the affect in the contract or the only remedy is the SDRCC. Further, a remedy can only be had with the SDRCC if all internal mechanisms for dispute resolution have been complied with. Another important feature is that once the SDRCC has taken up a case, no further or alternative remedy can be availed of in any court of law.

For instance, in the case of Sebastien Michaud v. Taekwondo Canada (SDRCC 12- 0164), the interpretation of a certain provision of Taekwondo Canada’s selection policy was in question. The case involved a particular clause in the selection policy that was ambiguous. A clarification was issued by Taekwondo Canada. However, it was alleged that the so called ‘clarification’ had the actual effect of altering the selection criteria itself and amounted to an amendment of the selection policy on account of which athletes that were guaranteed qualifying spots had to undergo a further qualifying procedure. The SDRCC held that Taekwondo Canada had followed a procedure which was observed by it on previous occasions thereby making the changes sought completely legitimate.

United States of America

With respect to Olympic sports in the U.S., the Ted Stevens Olympic and Amateur Sports Act, provides for the establishment of the United States Olympic Committee (“USOC”). The Act provides for a framework within it for the national sports federations to function and it provides for a redressal procedure that may be followed when an eligibility dispute arises.

The USOC has been established by a federal charter. Due to the absence of any government funding it does not fall under the ambit of ‘state’. Consequently, an American athlete has no ‘right’ to participate in the Olympic Games, as was held in DeFrantz v. USOC 492 F.Supp. 1181, 1190-92 (D.D.C.1980) involving a group of athletes not permitted to participate in the Moscow Olympic Games as a result of the U.S. boycott of the Games. The district court held that the USOC had the ultimate authority in determining whether to send a team to the Olympics or not and the court would not interfere in the process.

While the Act does not permit the athletes to enforce their rights in court, Article IX of the USOC’s by-laws render protection to both amateur athletes and professional athletes who participate in sporting events including Olympics. The grievance redressal is a three step process called the Athlete Ombudsman, which mandates that every NSF should have a procedure to resolve disputes internally. Only when the athlete is aggrieved by the decision of the NSF can the athlete file a complaint under Article IX to the USOC. The USOC only investigates and mediates and does not hold a hearing. If the athlete is dissatisfied with the decision of the USOC, the athlete can submit the same to the American Arbitration Association (“AAA”). The decision given is final and binding on the parties. However, where there is an agreement between the parties, a dispute between an athlete and the International Olympic Committee or an International Federation, may be submitted to the CAS.

The court may scrutinise the award conferred by the arbitration association to eliminate the elements of corruption or bias if any. Professional athletes can avail the remedy of arbitration. While no federal law to the effect of Ted Stevens Olympic and Amateur Sports Act exists with respect to professional league sports, where a dispute with respect to contract, labour or antitrust arises, the athlete may approach the court. However, like Olympic athletes, professional athletes cannot enforce their ‘right’ to participate and compete in professional leagues.

United Kingdom

In UK, as in India, any decision of a public authority is amenable to judicial review by the Courts. However, the position regarding judicial review of the decisions of Sports Associations has been far more complicated. This is because the relationship between the Sports Associations and their members stems from a private contract between the members. However, this view was changed in the case of R (Datafin plc) v. Panel for Takeovers and Mergers [1987] QB 815 where the Court of Appeal of England and Wales held that the decisions of sporting bodies are subject to judicial review as long as it performed ‘public law functions’. Thus, even if the source of the power of the body is not a statute per se, its decisions can be subject to judicial review because of the nature of functions it performs.

Further, it has also been held in the case of Enderby Town Football Club Ltd. vThe Football Association Ltd. [1971] Ch 591, 606 that, where a sports body has a monopoly in the specific sport it administers, (for example, the British Football Association has monopoly status in Great Britain with respect to Association Football), it would be wrong to bar their decisions from judicial review as the athletes or sportsmen would have had no choice but to join the organization even if the relationship is theoretically a ‘contractual’ one.

However, in the same case it was held that courts should generally not interfere in a sports related dispute and the matters should be settled by the internal mechanism of the governing body itself, post which recourse could be had to arbitration proceedings. However, all available internal redressal mechanisms need to be exhausted before arbitration can be resorted to.

For the purpose of providing alternate dispute resolution services in connection with sports related matters, the Sports Dispute Resolution Panel (“SDRP”) was set up on 1 st Jan 2000. The SDRP in the UK follows a procedure similar to that adopted by CAS for both its arbitration and mediation proceedings. The SDRP is noted for having resolved a large number of selection and eligibility issues. The organizations behind the SDRP are the British Olympic Association (“BOA”); the British Athletes Commission, CCPR, Institute of Professional Sport, Institute of Sports Sponsorship, Northern Ireland sports Forum, Scottish Sports Association, etc.

The organizations that have entered into an arbitration agreement with the SDRP include the English FA, the British Olympic and Paralympic Association. Further, one of the main tasks of the SDRP is to solve eligibility issues with regard to the BOA and with regard to this, the SDRP has also set up a special pro bono division specifically for the 2012 London Olympics and Paralympics which gives athletes, coaches, organizations, etc., free legal services for the duration of the Games.

Conclusion

In cases involving inherent bias in selection or if the proper procedure has not been followed or arbitrary practices in selection of athletes, it is common for athletes to challenge their exclusion from national representation. The CAS has set up an ad-hoc court to hear such disputes in relation to the London 2012 Olympics.The first case heard by the ad-hoc division was that of Peternell v. SASCOC (CAS 2012/A/2845), where a South African rider who had fulfilled all the subjective criteria for selection, was not selected by the South African Equestrian Federation. The Ad-hoc division overturned the decision stating that he should be placed on the team that would represent South Africa at the Olympics.

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