Avoiding successful challenges to selection decisions
Issue: Volume 31 Number 1
Selection appeals are becoming more frequent so it is important as a coach, either selecting or with athletes up for selection, that you are aware of the significance of selection policies. There are ways to minimise the likelihood of selection disputes arising. These include:
- having a clear written policy setting out the process and criteria
- making sure all athletes are aware of the selection process and criteria
- following and applying selection criteria
- not applying inappropriate criteria
- being transparent
- being consistent
- acting in good faith and without bias.
The above considerations aim to achieve a smooth process of selection, however, in reality selection disputes will always arise. Athletes make many sacrifices and work extremely hard to be selected. In the case of Olympic athletes, they only have the opportunity to be selected to compete once every four years. If they are not selected during this small space of time, they may feel unfairly excluded regardless of whether or not the relevant selection criteria were applied. Often athletes feel they have nothing to lose in challenging non-selection and therefore pursue an appeal.
If an athlete can prove that a selector has made a decision based on bias or has not acted fairly, an appeal against the decision has relatively high prospects of success. However, if we assume for the purpose of this article that a selector is not acting in bad faith and that natural justice has been afforded, the following case illustrates that no matter what decision is made by a selector, it is unlikely to be overturned on appeal if the selector properly applied relevant policies and considered the correct criteria.
The decision of Mewing v Swimming Australia Limited (CAS 2008/A/1540) states that:
being entitled to consideration for nomination and being eligible for nomination is not the same as having a right to nomination. In selection disputes, in the absence of bad faith, dishonesty or perversity, the CAS [Court of Arbitration for Sport] has consistently considered that an appeal against a selection decision cannot succeed when … the relevant decision maker, has properly followed and implemented the Nomination Criteria and has given proper, genuine and realistic consideration to the overall needs of the team.
In Mewing v Swimming Australia Limited, Andrew Mewing was not selected for the Australian men’s 4 x 200-metre relay team for the Beijing 2008 Olympics despite satisfying the eligibility criteria. There were no grounds for disqualifying him. Further, additional places in the team were also available and his selection would not have displaced another swimmer. Mewing appealed the decision to the Court of Arbitration for Sport.
One of the relevant nomination criteria to be considered by the selector was the ‘overall needs of the team’. Mewing argued that the selector did not consider this requirement. In order to succeed on this argument, Mewing needed to prove that ‘proper, genuine and realistic’ consideration was not given to the ‘overall needs of the team’. Mewing argued that due to the fact that the relay team would be selected in Beijing (as opposed to in Australia), his presence in Beijing would increase competition and provide more options, thus benefiting the ‘overall needs of the team’.
The selector disagreed as to the benefit of having Mewing present. He believed that the other swimmers selected sufficiently satisfied the ‘overall needs of the team’.
The Court of Arbitration for Sport found that just because different conclusions could be reached as to who should be in the relay team, or in fact how many swimmers should be selected for the relay team, this did not lead to a finding that the ‘overall needs of the team were not considered’. The Court of Arbitration for Sport also disregarded any inference as to bad faith or dishonesty as there was no evidence to this effect. In rejecting Mewing’s appeal, the Court found that the coach did in fact pay appropriate regard to the ‘overall needs of the team’.
Ultimately, if a decision is made on fair grounds and with proper regard to relevant selection policies and considerations, an appeal against the decision will be unlikely to succeed.
