Discipline and Selection Policies

Sport and Recreation Alliance

25th March 2013

Disciplinary Policies and Procedures- Dos and Don’ts….

Summary

• Jurisdiction

• Powers to Discipline

• Procedures

• Possible Challenges

Jurisdiction

IFIF

athletes/participants/ athletes/participants/ officialsofficials

NGBNGB NGBNGB NGBNGB NGBNGB

county/regional county/regional divisionsdivisions

clubs/associationsclubs/associations

eventsevents clubs/associationsclubs/associations

Jurisdiction - Events

• Consider Olympic Games and Paralympic Games/ Commonwealth Games - ad hoc CAS jurisdiction

• Event specific participation agreements

Criminal proceedings

• What if a serious matter- possible criminal offence?

Powers to discipline

• Requires a breach of a rule• Provision in rules (e.g. Constitution/ Codes of Conduct)-

provision for making and amending rules• Ensure consistency with IF where applicable • Publication • On field- laws of the game- possibly prescribed

sanctions save for serious breach• Off field- e.g. doping/ “bringing the participant/sport into

disrepute”/ match fixing/ betting/ social media

Powers to Discipline

• Sanctions- prescribed standard sanctions in rules?• If discretion- exercise fairly, rationally and proportionately• Decision of referee/umpire?

Procedural Rules and Process

• Procedural Rules- clear, not overly restrictive/ prescriptive• Investigation• Disciplinary charge- specific alleged rule breach and facts

relied upon and potential sanctions• Interim suspension?• Standard Timing- prescribed in the rules?

Panel

• Who to determine?

- internal/ external

- experts in sport/ legal

- no conflict/ bias

• Chairman- power to set directions?

• Rules/ guidelines for the Panel

Procedures- pre hearing

• Directions- fixed/ determined by Panel?• Statements of case• Disclosure of evidence in advance of hearing (e.g.

witness statements)• Skeleton arguments

Hearing

• Order of proceedings• Witnesses• Burden of Proof• Legal representation • Costs• Public/private

Decision

• If oral, follow up with written reasoned decision• Establish jurisdiction• Establish facts• Apply rules (and law)• Sanction- within rules or fair and proportionate if

discretion• Right of appeal?

Appeal

• Chance to cure any procedural issues at first instance• Is first instance internal/ external and independent?• CAS?• De novo or review of decision taken? • Appellant- knowledge of timings/ forum/ notice of appeal/

statement of appeal etc.

Challenges

• No jurisdiction • Panel- not followed rules/ law• Panel- not considered relevant evidence/ incorrectly

considered irrelevant evidence• Procedural unfairness/ contrary to natural justice• Decision- not founded in fact• Decision- irrational/ arbitrary• Sanction- unreasonable/ restraint of trade

And finally…

Any Questions?

Selection Policies

Introduction

• 2012 Olympic Games: – >50 Appeals across 15 sports– c.10 successful– generally not in team sports

• Variety of issues including:1

– Procedural flaws (e.g. selection panel voting conflicts)– Uncertainty of qualification/selection pathway– Incorrect application of criteria– Vague exercise of discretion (subjective criteria)– Interpretation conflicts (e.g. terminology usage, bad drafting)– Flawed appeals process (e.g unfair hearings, lack of legal expertise)

1 Source: British Olympic Association

Grounds for appeal

“it is of fundamental importance that we should not substitute our own judgment on the merits for those of the selectors – i.e. who would have been selected, or who is the better athlete or has the better performance figures and so forth. So long as selectors apply policy properly, and do so honestly, fairly and reasonably, and take account of all relevant facts (they being best judged to decided what is relevant and what is not), then their decisions must be accorded the utmost respect”.

Belcher v British Canoe Union

Grounds for appeal

1. Decision is not in accordance with Selection Policy as published.

2. Policy misapplied or applied on no good evidence and/or in circumstances where the application of the policy was unfair (for example, because someone with selectoral authority had given a categorical assurance to an athlete that the policy would not be applied).

3. Bias or the appearance of bias or the selection process otherwise demonstrably unfair.

4. Conclusion is one that no reasonable decision maker could have reached.

Case study 1

• GB Rhythmic Gymnastics Group v British Amateur Gymnastic Association

• Policy sent to all athletes and acknowledged in September 2011

• Required benchmark score of 45.223 ‘…at the 2nd Olympic qualification CI,15 – 18th January 2012’.

Case study 1

• Test event at O2 arena 15th – 18th January 2012

• 16 and 17th – total score 44.950

• 18th – total score 47.200• BAGA claimed CI meant

competition on 16th and 17th

• Team not nominated

Case study 1

• Question whether team had two chances to qualify at test event or one

• Contract law approach to interpretation

• Resolved around use of words ‘CI’

• Drafting and inconsistent use of terminology/jargon criticised by arbitrator

Case Study 1

“It seems to me, therefore, that a reasonable person with all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time that the Policy was made, would conclude that the Policy required…to achieve a benchmark score during the 2nd Olympic Event [The Test Event, 15th -18th January 2012]”

Case Study 2

• Tonia Couch v British Swimming

• 2 athletes selected for 10m individual event

• Couch higher ranked than one of the selected athletes

Case Study 2

• Selection Policy provided for the following objectives:

1. To select athletes that will form the team to achieve the best possible results

2. To select athletes for the Olympic Games 2012 that have the best chance of potential success

3. To select athletes that have the potential to succeed in the Olympics of 2016

Case Study 2

• British Swimming position was that Couch was a medal prospect in the synchronised event, but not the individual, and that her results suffered in the past when selected for both

• Appeal rejected:– ‘Team’ interests paramount in the first objective– Success is second objective, i.e. winning medals – fourth not a

success but third is– No basis for each event being treated in isolation

Key Points

• Clear policy • Communication with Athletes• Keep to policy (be careful what selectors say)• Conduct of process• Timing• Keep records

Workshop exercise

Jason SmithPartnerBrabners Chaffe Street LLP 55 King StreetManchester M2 4LQ

jason.smith@brabnerscs.com Tel: 0161 836 8813Mob: 07747 770704

Carol CousePartnerBrabners Chaffe Street LLP 55 King StreetManchester M2 4LQ

carol.couse@brabnerscs.com Tel: 0161 836 8815Mob: 07814 016399

Chris AndersonAssociateBrabners Chaffe Street LLP 55 King StreetManchester M2 4LQ

chris.anderson@brabnerscs.com Tel: 0161 836 8912Mob: 07741 197912

Workshop locations