Sporting Organisations: Selection Dispute Risk Management

Whether you are currently faced with a selection appeal filed by an athlete or you want to do what you can to minimise the risk of future selection disputes in sports, this article has been written with you in mind. In the last two months we have successfully acted for parties in two Commonwealth Games selection disputes and a separate World Championships selection dispute.

We will cover the four grounds for appeal, the appeal process, what happens if an athlete is successful in their appeal as well as what happens if it is found there have been minor mistakes or flaws in the selection process.

We also cover what to know and do in your organisation to minimise the risk of future disputes.

Note: Given that different sports use different terms, when we use the term ‘selection’ throughout this article, we are referring to both nomination and selection of athletes.

Grounds for Appeal in Non-Selection

Strict appeal points must be established by an athlete challenging their non-selection.

There are generally four grounds for appealing non-selection. They are, if:

1. The Selection Policy was not properly applied;
2. The non-selected athlete was not afforded a reasonable opportunity to satisfy the Selection Policy;
3. The decision was affected by actual bias; and, if
4. The decision was one that no reasonable selection panel could have arrived at.

We will explore proper application, reasonable opportunity, actual bias and ‘reasonable’ decision making by selectors in more detail below, as some are often misinterpreted in the sporting context.

Proper Application of Policy

Any sport’s selection policy needs to be applied strictly, consistently and in a transparent manner. That includes informing all athletes about events, training and preparation so they can be in the best position for selection.?

This also includes letting eligible athletes know what selectors are likely to be looking for and impressed by when making their selection. Regular communication by way of meetings, phone and zoom calls, and attendance at training by coaches, high performance staff and selectors is ideal.?

If everyone is getting the same information at the same time, then it is not unfair to anyone. If some people are getting the information more easily, then there is a disadvantage to some and procedural fairness comes into question, making it a valid point of appeal.?

The application of the policy consistently over the lead up period to an event is what will minimise the risk of selection disputes. The lead up period can be two or three years for events such as the Commonwealth Games or Olympic Games, so the lead up period and education and informing of athletes must be consistent throughout any lead up period.

Risk can be reduced by seeking professional advice and education of selectors about transparent, consistent and fair application of selection policies.

Reasonable Opportunity

Usually, once a selection policy is in place, it won’t need changing or updating for some time, however, if the policy is insufficient and opens your organisation up to disputes, it may be required.

Given that athletes are planning to get their best results and peak at intervals for the purposes of selection, changes to selection policies need to be made at appropriate times. When a policy is changed, it can have the effect of turning an athlete’s preparation on its head, as their training will be geared to meet the criteria for key events in different parts of the world. For this reason, changes to the policy need to be very carefully considered, timed, managed and communicated to all athletes vying for selection.?

It is the duration of the lead time up to the event that needs to be considered when making changes to selection policies, but only if this is absolutely necessary. For example, the lead up time for the Commonwealth Games or the Olympics is two or three years so timing the changes to policies needs to be carefully considered.

Actual Bias

Bias is commonly misunderstood in the context of non-selection in sport. It is a serious allegation to make, and often involves seeking to impugn the integrity or character of the decision maker, and so requires a high standard of proof. Actual bias rather than perceived or apparent bias is what is required. What is difficult is that for actual bias to be considered grounds for appeal, it must be proven, and that requires a very high standard of proof that is generally very difficult to meet. There must be clear and direct evidence that the decision maker was in fact biased. Suspicions, assumptions, equivocal statements and the like will not suffice.?

Reasonable Decision Making

Your policy should detail your selection criteria and be written using language so it cannot be misinterpreted.?

This can become a valid point of appeal if your selection policy does not sufficiently detail your selection criteria or it is not written in clear language. It can also be an issue when the policy does not state the need for selectors to be given very broad or absolute discretion in exercising their judgment.

Additionally, detailed note taking by the selectors throughout the selection period and during selectors meetings is strongly recommended. Even though the process may run for years, this notetaking can be used later to show that the selection policy has been properly followed.

What Happens if an Athlete Succeeds in their Appeal?

Even if the athlete succeeds in his or her appeal, this does not mean they will be automatically selected onto the team. Generally, if the selection appeal is successful, the matter is referred back to the same selection committee to remake the selection decision. Only this time, they need to apply it strictly and properly, following the selection criteria.?

Selectors may arrive at the same selection decision (and often do) as originally made, which excludes the appealing athlete from the team.?

What if there have been Mistakes or Flaws in the Selection Process?

Even if there have been modest mistakes and flaws in the selection process, this may not lead to the selection being overturned. Generally, the selectors need to be shown to have taken into account irrelevant facts or considerations in selecting an individual or team, or they must be shown to have failed to take into account factors they should have considered.?

Given that selectors often have a very broad discretion, small mistakes rarely lead to a successful appeal for the athlete.

Enabling Discretionary Judgment in Selection

If you regard your selectors as the people with the greatest expertise in the sport, who are in the best position to understand what will put the team in the best position to achieve the best results at the relevant national or international competition, then your selection policy must reflect that.?

Equally, in sports where discretion is considered vital to allow for the consideration of athletes for team fit and so on, your policy must detail this. Unlike in sports such as athletics or swimming where there are objective criteria about times that makes team selection clear cut, in instances where multiple people meet that threshold, and there is a limit to how many can be on the team, then the sport may need to also take into account additional factors such as team chemistry.?

While an athlete may argue their race results and ranking position compared to other athletes may be better, other factors sufficiently described in a selection policy usually mean that an athlete’s compatibility within the team, and potential to be a future Olympic, Commonwealth Games or World Championship competitor can be considered. This alone often leads different experts to arrive at different selections, so it is not an exact science. Your policy must clearly detail the broad degree of selector discretion, specific to the requirements of your sport.

Avoid Selection Disputes

To minimise the risk of selection disputes in your sport, ensure the following:

• The selection criteria is applied strictly and consistently;
• No additional or inappropriate (or unspecified) criteria are to be applied;
• Transparent application of the policy throughout the selection process; and
• Selectors act in good faith and without bias to an athlete or group of athletes.

And, given that selection disputes arise due to unclear policies or issues in the application of the policy, including the lead up time, seek professional advice in these instances:

• When planning to update your selection and nomination policies;
• Ensure best practices are applied to ensure transparent and consistent application of the policy to all athletes;?
• To educate selectors about when and how bias may be alleged, and conflicts of interest for selectors to avoid;?
• To educate what may give rise to an arguable selection appeal, and therefore identify what selectors are to avoid; and
• To determine if your policy and process could withstand being challenged in a dispute or be considered clearly written and applied.

If you know your organisation has covered each of these elements effectively it should provide comfort that you are in a pretty strong position when faced with a selection dispute.?

Related Articles: Avoiding Selection Disputes

Procedural Fairness and Appeals in Sport

Our team specialises in working with sporting organisations of all sizes, across all capital cities and regions of Australia. We focus on managing and minimising your risk, so you can focus on your sport. To enquire about our services, fill in this form or call our office on (03) 9642 0435.

Disclaimer: Nothing in this article should be relied upon 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 [email protected] or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.