Crunch time for our national governing bodies

With under 63 days to go until the Olympic Games, its crunch time for our national governing bodies and in particular their selection committees to pick the best athlete for their sport to represent Ireland at the games. The selections and non-selections are now making the headlines in the sports pages on the national newspapers.

Maria McCambridge has accepted her fate by not appealing the decision not to select her for the marathon. No doubt her lawyers pored over the selection document.

Two to three years ago most, if not all, NGB’s of Olympic sports prepared selection criteria to provide a clear guide for its prospective Olympians to follow so as to allow a level playing field for all prospects. There is an onus on NGB’s to set out clear and unambiguous criteria so that the athlete knows what the basis for selection is. Selection criteria typically include references to: –

1. Deadline for application
2. Signing of athlete agreement
3. Agreement to OCI rules
4. Qualifying events
5. Scoring system
6. Basis for decision
7. Nomination process
8. Appeals

The basis for the decision may reference the following: –

a. Consistency and repeatability of performances in 2011/12;
b. Relevant rankings;
c. Performances at previous championships;
d. Competitive record of athletes against one another;
e. Athletes’ “final phase” readiness.
f. Discretion of the selection committee

In hindsight the CEO’s of NGB’s should have ensured the following: –

1. Selection committee finalise a draft at least two years before the Olympics
2. Selection criteria were reviewed by lawyers
3. An educational meeting with the athletes takes place following publication and distribution

The stakes are high. You can understand why when an athlete trains so hard to make it to the Olympics through hard slog, discipline and sacrifice. This is their dream, their raison d’etre for close on four years. Disappointment at being beaten to selection by a stronger competitor is human. However anger and dejection because your competitor was selected in disregard of the selection criteria is understandable. That scenario invariably leads to an internal appeal and also an external challenge. Those NGB’s who have not signed up to JSI arbitration face the prospect of an expensive High Court challenge.

Most selection criteria allow for a level of discretion to the selection committee. As Max Treacy and Anthony Shanks found out to their detriment despite having consistently better scores that their competitors and despite qualifying Ireland for a place in Qingdao at the 2008 Olympics in the Star class of sailing, this does not always qualify you for an Olympics. In that challenge the ISA’s selection committee were alleged not to have followed the selection criteria by selecting the in-form pair of Peter O’Leary and Stephen Milne to represent Ireland.

Specifically it was alleged the ISA’s selection committee were not impartial, that O’Leary and Milne had not applied for a nomination in accordance with the deadlines set out in the selection criteria and that the pair that qualified Ireland ought to have represented Ireland. The OCI’s appeals body decided that selection could be based on the discretion of the selection committee. Discretion is extremely difficult to challenge.

Where an athlete challenges the decision of the Selection Committee, they must appeal to the internal appeals body. Very few appeals bodies are recognised by challenging athletes as being sufficiently independent to deliver a fair decision and it is very rare for the appeals body to disagree with a selection committee. Invariably an external appeal is brought before an arbitral body. In the Irish context this means the OCI (Olympic Council of Ireland) or JSI (Just Sport Ireland) arbitration and ultimately to the CAS (Court of Arbitration for Sport).

In reality by the time selection is made there is not enough time for an athlete to appeal internally, then go before the OCI hearing and then to CAS. A level of practicality and cooperation should be agreed by both NGB and athlete on what level of hearing should be skipped to arrive at a final and binding decision.

Let’s hope that challenges do not occur but if they do now you know what you face.

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