To select, or not to select?

2020 is Olympic year, which means many national sporting federations will be in the process of selecting their athletes and teams to send to Tokyo.  These decisions have significant implications for many athletes who have spent countless hours preparing for the pinnacle of sporting events. 

2020 is Olympic year, which means many national sporting federations will be in the process of selecting their athletes and teams to send to Tokyo.  These decisions have significant implications for many athletes who have spent countless hours preparing for the pinnacle of sporting events.  

 

It is important for all parties involved in the selection process to be aware of the selecting organisation’s obligations when it comes to choosing which athletes will represent them in international competition.  It’s also important for the athletes themselves to understand how they can appeal a potentially adverse or unfair decision by a sporting organisation. 

 

NZOC Policy

 

The 2020 Olympic Selection policy sets out eligibility criteria for both individual athletes and teams seeking selection for Tokyo. The New Zealand Olympic Committee (NZOC) has discretion in determining whether an athlete will be able to compete on sport’s greatest stage, so it is important that all requirements are satisfied by prospective athletes.

 

For an individual, they must demonstrate that they are capable of finishing in the top 16 athletes in the Olympics at their chosen event, and they must have a quality track record at the event to satisfy the NZOC that they will be competitive at the Games. This can be shown through performance and results of the nominated athlete at their chosen event, and the results of the likely competitors. The athlete must also provide a defined “performance plan”, which should outline how the athlete will prepare to have their best possible performance at the Games, and provide a track record of sufficient quality and depth of results. The same must be provided by teams wishing to compete, as well as their requirement of qualifying for a team place.

 

The NZOC considers results from international or continental events from the past 2 years with a field of athletes that have a skill level similar to equivalent to what may be expected at the Games as sufficient for evidence. The NZOC may also select athletes based on their conduct and ability to set a good example to youth athletes in New Zealand. The NZOC can take into account any actions which may reflect badly on the NZOC or bring the NZOC into disrepute.

 

What if I miss out?

 

The unfortunate reality with sport is there are always athletes, undoubtedly talented, who will miss out.  Selection will often be tough and unforgiving - but that does not preclude athletes any right to appeal an adverse selection decision.

 

Any athlete who has been nominated for selection may appeal their selection or non-selection by the NZOC. They may appeal on the following grounds:

  1. The NZOC selection policy was not properly followed and/ or implemented; or

  2. The nomination was affected by bias; or

  3. There was no material that the nomination decision could reasonably be based.

 

Procedure and timing is important when it comes to initiating appeals.  Any athlete seeking to appeal selection or non-selection must give written notice of appeal to the Chief Executive of the national federation within 2 business days of the nomination date. After receiving an appeal, NZOC may hold a confidential and without prejudice meeting between the athlete and the respective sporting body to attempt to reach a resolution. Where a resolution is not met, or the athlete wishes to proceed with an appeal, a notice of appeal must be filed with the Sports Tribunal.  Any notice must be filed within 5 business days from the meeting or 10 business days from the date of selection, whichever occurs later.

 

The Sports Tribunal’s decision may be appealed to the Court of Arbitration of Sport in Geneva, Switzerland. 

 

Athletes must understand that, although non-selection is difficult and can take a toll on their wellbeing, they must be proactive in appealing given the short timeframes imposed by the NZOC.  In 2008, swimmer Te Rina Taite’s appeal was filed 3 weeks after non-selection.  This resulted in her appeal being thrown out altogether.

 

Athletes must also be mindful that, given the small nature of places available for the Olympics, successful appeals against non-selection may have an impact on other selected athletes, as their newfound selection may result in a fairly selected athlete missing out on their chance to compete. This has also been shown to impact international team sports. Media personality and former athlete Zac Franich was unable to compete in a World Cup kayaking regatta, after his partner refused to race and appealed the non-selection of another athlete. The appeal process resulted in no team being sent, meaning Franich missed out through no fault of his own.

 

Success of recent appeals

 

In recent times, the most prolific form of appeal for non-selection occurs in the form of perceived bias. Where any bias is alleged by athletes, it is important to understand that the standard of proof required to prove bias in non-selection is incredibly high, and appeals to the Sports Tribunal are almost always dismissed. This is because allegations of bias can result in intense media scrutiny, and can lead to questions of integrity for an entire sporting body.

 

Out of 17 recent cases alleging bias in the Sports Tribunal dating back to 2005, only one has succeeded. Athletes must proceed with caution when levelling such claims, as history demonstrates that the Tribunal does not take such allegations lightly.  However, where the NZOC has ultimate discretion to select, it is difficult to prove there has been bias in selecting athletes for the games.

 

Whether you are a selecting organisation or an athlete who has not been selected, the Cavell Leitch Sports Law team can give you advice on any selection disputes.  Matt Rhodes is on the Legal Assistance Panel on the Sports Tribunal, meaning he can represent you at the Tribunal, if that becomes necessary.

Author

Matt Rhodes

Litigation - Solicitor

+64 3 339 5615

matt.rhodes@cavell.co.nz

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