Avoiding Selection Disputes

October 15, 2019

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Athletes must satisfy citizenship criteria for their particular country and then must be nominated by their National Olympic Association to the International Olympic Committee in order to participate in the Olympic Games. This nomination is usually done following the recommendation of the relevant National Sporting Organisation (NSO), following the NSOs consideration of the qualification criteria for the relevant event as determined by the International Federation for the particular sport.
It is important for selectors to understand how to minimise selection disputes as such disputes can be an unwanted drain on the resources of an NSO, not to mention the distractions such disputes can provide to athletes, coaches and administrators in the lead up to the Olympic Games.
In the selection process, selectors can be subjected to pressure from a number of stakeholders including:
  • Athletes;
  • Family and friends of Athletes;
  • Officials of the sport;
  • Coaches; and
  • Media.
Team selection is a difficult process that ought to be carefully undertaken, without interference from the pressures listed above. Selectors must ensure that any selection criterion is strictly adhered to and the process is administered fairly and consistently. While selection disputes can arise prior to Olympic competition through appeals against non-selection, fallout can also occur post-competition. For example, an aggrieved athlete may feel as though they have been discriminated against on the basis of sex, age, race or religion for example, in their non-selection. We have seen athletes issue proceedings previously in VCAT in such matters, which have the potential to be costly and time-consuming to defend for NSOs.
NSOs can achieve a smoother selection process and thus minimise the risk of selection disputes, by undertaking the following:
  • Having a clear written policy setting out the selection process and criteria;
  • Ensuring that all athletes are aware of the selection process and criteria;
  • Following and applying selection criteria strictly;
  • Not applying inappropriate criteria;
  • Being transparent and consistent throughout the selection process; and
  • Acting in good faith and without bias to an athlete or group of athletes.
In reality, selection disputes will always arise and often athletes feel they have nothing to lose in challenging their non-selection and therefore pursue an appeal against non-selection
If an athlete can prove that a selector has made a decision based on bias, or has not acted fairly, an appeal against the decision has high prospects of success.
However, the case of Mewing v Swimming Australia Limited (CAS 2008/A/1540) illustrates that a decision made by a selector is unlikely to be overturned on appeal if the selector:
  1. Properly applied relevant policies and considered the correct selection criteria; and
  2. Has given proper, genuine and realistic considerations to the overall needs of the team.
Ultimately, if a decision is made on fair grounds and with proper regard to relevant selection policies and considerations, an appeal will have difficulty succeeding.
Selectors are encouraged to take detailed contemporaneous notes of selection meetings and of their own selection decisions, including the reasons behind such decisions. Such notes may prove pivotal to either defending a discrimination claim of an athlete against the NSO or in ensuring that selection appeals are dealt with swiftly and with as little distraction as possible.
Nothing in this article should be relied on as legal advice.   The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought.  Please contact Paul Horvath on paul@sportslawyer.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.