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Risk Management Focus
out and they could reasonably pursue
an argument that they were not given
a reasonable opportunity to fulfil the
selection criteria. Sporting associations
need to ensure selection criteria are
published well in advance of the relevant
event - the ASC recommends a period
of at least 12 months.
As to what should be included in the
selection policy, the possibilities are
endless. National associations usually
refer to their international associations
(i.e. FINA for swimming, IAAF for
Athletics etc) to guide them in setting
the relevant performance standards
and national quotas for selection. While
other sporting associationsmay not need
to set their performance expectations
at such a high level, at the very least,
selection criteria must broadly include:
• The process for selection.
• The criteria and how this will be
applied.
• Who is responsible for selection.
• Relevant dates and events to which
the selection criteria will be applied
(including deadlines for meeting the
criteria).
• Who to contact in relation to the
selection criteria.
• The appeals process.
‘APPLYING IT’
Even the best written selection criteria
will be useless in reducing appeals
if they are not applied, or seen to be
applied, correctly.
Toapply theselectioncriteria ina manner
which will reduce instances of appeals,
the selection committee must apply the
selection criteria as they are published.
This means the selectors must consider
those factors they say they will consider.
It also means that selectors must not
have regard to inappropriate factors (for
example: family or social connections,
media comment or monetary backing/
sponsorship).
The selection criteria must be applied by
the selection committee in a consistent
manner, and must be applied in good
faith. This means that the selection
committee cannot act with bias (indeed
if the selection committee does act with
bias, it is a breach of natural justice and
grounds for an appeal).
To assist in avoiding appeals, the
selection committee must be transparent
about the selection process - it must be
clear not only what they are considering
but also that what they are considering
aligns with the selection criteria.
Uncertainty or ambiguity opens the door
to allegations that improper factors have
been considered or the rules have been
changed to assist certain athletes. Even
in instances where the selection criteria
have been strictly adhered to, a lack
of transparency will lead to a greater
number of appeals (albeit it usually
unsuccessful for the athlete).
Arguably, one of the biggest contributors
to athlete discontent with the selection
process is the use of discretion by the
selectors. Provided the written selection
criteria permits the use of the selectors
discretion, it is unlikely an appeal which
relies solely on a ground relating to the
selector’s exercise of discretion (in the
absence of bias) will succeed. While
this is the hardest type of appeal to
prevent, given the subjective nature of
discretionary considerations, instances
might be reduced if the selection
committee is transparent in its reasons
for selecting a certain athlete over
others.
‘APPEALS’
While the sporting selection process, at
the elite level, often explicitly excludes
recourse to legal action through state or
federal courts, it should not be forgotten
that the selection process must adhere
to the principles of natural justice, a
principle which underpins most legal
systems. Natural justice, put simply,
means the selection process must be
fair. In order to protect the integrity
of the selection process and ensure
selections are made in accordance with
natural justice, selection criteria must
provide a process to appeal selection
decisions. For example, to appeal
against non-selection for the Olympics,
athletes first appeal to the Selection
Appeals Tribunal and then have the
option of further appealing to the
Court of Arbitration for Sport. In both
instances, legal representatives are
usually engaged to represent the parties
and one or more legal practitioners are
called upon to decide the matter. Similar
measures would be extreme at junior
levels of competition. Nevertheless,
sporting associations would be wise to
implement a process which acts as a
‘check and balance’ to ensure selectors
adhere to the selection criteria and act in
accordance with the principles of natural
justice.
SUMMARY
It is impossible toprevent appealsentirely
- nor should a sporting association want
to, no matter how inconvenient they
are. They act as an important tool in
ensuring selection committees are held
accountable for their decisions and
act as a check to ensure the selection
criteria is being followed properly.
While elite level sporting organisations
are more familiar with the selection
procedures as recommended by the
ASC, sporting organisations at every
level are called upon to make selection
decisions and would be wise to adopt
clear-cut and transparent selection
procedures. Clarity about what is
expected and how an athlete will be
evaluated for their selection in a sporting
team, accompanied by transparency in
the application of those factors reduces
the likelihood of athlete discontent
and appeals or complaints against the
selection process and their outcomes.
James McIntyre is a special counsel
with DLA Piper in Australia.