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Selection and Eligibility: Sport attorney offers best practice tips for NSOs

The Central American and Caribbean (CAC) games are over and congratulations are in order to the Trinidad and Tobago (T&T) Team, their coaches, and administrators for a job well done and special congrats to my client Cleopatra Borel Baptiste. This is why, and due to current happenings in our sporting governance, I feel encumbered to lay out what case law considers best practice in the selection and eligibility process of an athlete for a Team; the Right Stuff.

The importance of being selected to represent one’s country is the goal of every professional athlete. Moreover, the opportunity to represent one’s country at the highest stage of sport, the Olympic Games, can be the pinnacle of an athlete’s career and the cusp of future financial gains.

Photo: Trinidad and Tobago shot putter Cleopatra Borel prepares to throw.
(Courtesy Sport Archives TT)

It matters not the sport, a National Sporting Governing Body (NSGB) eligibility and selection criteria must comply with its international governing body. The Commonwealth Games Federation, International Olympic Committee and World Rugby are just some of the organisations with which any professional T&T NSGB selection and eligibility process must comply.

Eligibility criteria will differ from sport to sport and may include nationality, residency, membership, sex and age. It is not uncommon for other conditions such as the participation in tournaments or certain events during a prescribed period to be added to the matrix.

Disputes on eligibility will be determined upon the interpretation of the relevant eligibility rules implemented by the NSGB. Accordingly, it is critical that the wording of the rules are clear and unambiguous and should be documented. Documentation such as a written evaluation form is crucial: it provides a historical snapshot of the process for analysis and decreases the likelihood of a challenge based on an unclear process.

The UK Courts have acknowledged that procedures which are based on the criterion of nationality are legitimate only if the selection had been made as a matter of sporting interest rather than on the basis of economic activity. During the 1990s and 2000s, a controversy now known as “Grannygate” took place.

The rules of the International Rugby Board (IRB) in effect at the time provided that players could play for more than one nation and that they could be eligible for selection for a country on the basis of their parents’ or grandparents’ country of birth.

Photo: Trinidad and Tobago’s Marisa Dick, who was born in Canada, goes through her routine on the balance beam at the Rio Olympic Games on 7 August 2016.
(Courtesy Sean Morrison/Wired868)

Obviously, wooed by cash, some players who had previously played for other countries traded allegiances under the guise that their grandparents had been born in Wales. It subsequently transpired that the grandparents of certain players were not born in Wales and their motive had been the prospect of financial gains. Consequently, the players were ineligible for selection.

It is also considered best practice if an athlete has to compete in certain tournaments/competitions before they can be selected to represent their nation.

In Gosiewski v British Judo Association, 2012 unreported during the 2012 Olympic Games in London, two judokas were selected by the British Judo Association but were subsequently found to be ineligible as they had not participated in the requisite events.

Drawn from an article entitled “Selection and Eligibility Disputes: An Analysis” by Stephen Sampson and Lloyd Thomas, two revered sports attorneys, a robust sport selection process requires a combination of objectivity and subjectivity. As most are aware, different sports require different objective criteria.

Weight, distance, rankings or points gained at an event or over a series of events are some of the objective criteria an SGB would consider. They are commonly referred to as “first past the post” criteria. As a matter of best practice they should be expressly set out and placed in the SGB’s selection policy.

Photo: Dexter St Louis serves during a table tennis contest with Northern Ireland at the Gold Coast 2018 Commonwealth Games on 6 April.
(Copyright Allan V Crane/CA-Images/Wired868)

Where such criteria are of an objective nature, it is usually much more difficult for an athlete who has not been selected to raise a grievance. That does not however mean that such policies are impervious to challenge.

In Renshaw v British Swimming, the selection criteria in British Swimming’s Olympic Games 2012 Pool Swimming Selection Policy were challenged on the basis that there was a lacuna in the rules, which were allegedly unclear. The rules stated that there were “up to two places available” for qualification. The athlete finishing first in trials would be selected on the condition that they achieved the FINA A minimum standard of 2:26.89. Ms Renshaw was not selected on the basis of her performance at trials.

At the subsequent National Championships, Ms Renshaw won her race but in a time just outside the FINA A standard. Again, Ms Renshaw was not selected and appealed that decision, contending that the selection policy was unclear in that Ms Renshaw believed she would be selected for the team on the basis of the time achieved at the trials, if she was not beaten at the National Championships.

The Panel held that the policy was clear and that that there was no lacuna as the policy specifically allowed for a team to be nominated with “up to” two swimmers, thereby acknowledging that British Swimming would not necessarily always nominate two swimmers in all events. The Panel went on to state that the criteria were based solely on performances by athletes in particular events and that, as a result, they were “entirely objective” and therefore permissible.

Subjectivity requires the selector to look at criteria with discretion on the basis that there may be a number of surrounding factors which would determine the best team or athlete. More succinctly, who is the “best”, leading up to the tournament or who is most capable to medal at the tournament?

Photo: Trinidad and Tobago gymnast Thema Williams performs at the Toronto 2015 Pan American Games.
Williams was in line to be Trinidad and Tobago’s first gymnast to perform at an Olympic Games.
(Courtesy Allan V Crane/Wired868)

In Couch v British Swimming, the Appeal Panel held that expressed terms such as “the National Performance Director has sole discretion to decide the composition of the synchronised diving teams whilst at the Olympic Games” had been permissible on the grounds that diving is an extremely subjective sport, and accordingly, there will be a significant component of subjective decision making in regard to final selection of the team.

The accepted approach and the one less likely to invoke a successful challenge will usually entail selectors using their discretion to select the athletes, but by reference to some set of objective criteria.

In the end, there has been enough case law to draw up a dos and don’ts list: Eligibility and selection criteria should be clearly set out in the relevant rules. The selector(s)/decision maker should be made known within those rules. Selectors should ensure they do not take into account irrelevant factors when making their decision.

Where the selection criteria involve a degree of discretion, the selectors should ensure they exercise their discretion without bias, applying the criteria honestly, fairly and in good faith.

The selectors should avoid making late changes to the criteria, at least once the selection process has begun. This is imperative in order to protect the athletes’ legitimate expectations. The relevant rules should provide an appeals process.

Photo: Trinidad and Tobago rising table tennis star Aaron Wilson (right) receives advice from TTTTA president Ian Lewis during the Gold Coast 2018 Commonwealth Games in Australia.
(Copyright Allan V Crane/CA-Images/Wired868)

The rules should clearly specify the relevant steps needed to be taken in order to effect the appeal procedure and the time periods in which the relevant steps need be taken. Any appeal panel must be independent from those selectors who made the appealed decision.

Finally, any best practice selection process should provide a de-selection process for circumstances where the athletes are no longer selected, whether through injury or disqualification.

Up next? Medals for money!!

About Christophe Brathwaite

Christophe Brathwaite
Christophe Brathwaite is an Attorney at Law who specializes in Corporate, Commercial, Sport and Entertainment Law

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