June 19, 2017
Sporting Federations have been faced with challenges from time to time as to whether the selection or non selection of athletes for major competitions has been fair. Challenges of these decisions have received wide publicity in the media and have even been the subject of appeals to the Court of Arbitration for Sport (CAS) including a recent one by a Jamaican athlete on his non-selection to the Rio 2016 Summer Olympics Team. The issue of the selection process has become even more important as sports has become more of a business than in the past as their nancial rewards have increased.
What therefore should National Federations consider in creating selection procedures and criteria? The procedures and criteria for selection and eligibility should be transparent and should be given adequate publicity in a timely manner. They should be communicated prior to the commencement of the sporting season so that athletes are able to arrange their competition schedule during the season so as to meet the necessary qualifying criteria. A National Federation should not impose new deadlines or such short notices so that athletes could be prevented from being selected. It is important that the procedure and criteria be communicated in writing as one CAS Panel found that the oral discussion of such criteria was an imperfect method of communication (See CAS.OG/06/008).
A statement of one panelist in CAS 96/153 Watt v Australian Cycling Federation and Tyler Sharman is significant, he said “The dispute concerning the selection of an athlete rather than another for a particular event at the Olympic Games is not one where the Court of Arbitration for Sport is being requested to make a choice as to which of two athletes is better or which is more likely to win a medal at the Games. They are matters for those properly qualified to make a choice. Rather, this is a dispute about whether selection procedures have been properly and fairly exercised by the body invested with the power of making the choice”.
This shows the deference given by CAS to the expertise of the selectors in the sporting organisations in the exercise of this discretion. It is usually only where an abuse of this discretion is shown that CAS would intervene. Where the selection and eligibility criteria are clearly written and the Selection Panel follows the procedure and exercises any discretion they may have reasonably and in good faith there is unlikely to be a successful challenge. The discretion should therefore not be exercised in an unfair, discriminatory or arbitrary manner (See Antoine Duval, International Sports Law Journal (2016) Vol. 16.52 – 66 “Getting to the Games. The Olympic Selection Drama(s) at the Court of Arbitration”).
In the recent appeal, made by a Jamaican Jason Morgan v JAAA, IAAF & JOA-CAS OG 16/08 the Ad Hoc CAS Panel did not find it necessary to rule on the selection issue as they found that the Athletes appeal was inadmissible as the dispute arose prior to the period necessary for the Ad Hoc Division to hear it. Further the quota of thirty athletes for the male discus throw had been lled. They however noted the CAS jurisprudence with respect to the discretion of National Olympic Committees to select or not to select athletes or to flll the quota allocation for the Olympic Games. Sporting Federations are therefore advised to put in writing clear selection procedures and criteria and if possible limit the need for exercising any discretion in determining selection uch as selection being dependent on placing at trials or rankings by performance.
This should also include a procedure on how appeals on selection can be made and the establishment of an Appeal Panel separate from the Selection Panel to hear these appeals. Where Sporting Federations operate on this basis it can only create con dence in the selection process and avoid athletes believing that they are being unfairly treated.