Last summer, we produced a 10 point guide on how to avoid selection disputes in the drafting, publication and implementation of selection policies. Pre-planning and careful management of the selection process can go a long way towards reducing the number of athlete appeals and reducing the chances of success of the ones which do go ahead.
However, it's inevitable that some athletes who aren't selected, but who have devoted their entire training programme to preparing themselves for the Olympics or Paralympics, will look at ways of challenging the decision - usually by bringing an internal appeal in the first place.
This note sets out a reminder of the major considerations for any appeal process. We also revisit the key grounds on which appeals tend to be based, so that selection panels can keep them in mind (and try to avoid them!) when making their decisions.
How to get the appeal process right
- Right of appeal: It is strongly recommended that NGBs provide athletes with the opportunity to appeal. In the absence of a formal appeal procedure athletes may resort to the courts. In terms of time, cost and reputation this is neither in the best interests of the parties nor the sport in general.
- Narrow grounds: The right to appeal should be drafted narrowly and carefully, setting out very specific and limited grounds upon which a decision may be challenged. This helps to filter out appeals which have can have no prospect of succeeding and prevents both the athlete and the NGB from wasting time.
- Appeal policy: It may sensible to set out the appeal process in a separate policy document. This should be appropriately communicated to athletes (for instance on the NGB's website). One way or another, the requirements for appealing a decision and the processes governing appeals need to be clearly set out and to be made easily accessible.
- Speed is key: The process itself should be simple and streamlined to ensure that a settled position is reached as quickly as possible and to avoid an extended period of uncertainty which can interfere with Games preparation. But it must allow a fair opportunity for the athletes to prepare and submit their arguments as to why their appeal should be allowed. This period can be as short as 24 hours from the publication of the selection decision (e.g. on the NGB's website).
- Independent appeal panel: The members of any appeal panel should have had no involvement with the original decision and should be independent of the selection panel. Ideally the appeal panel would include at least one legally qualified individual. NGBs might even consider the possibility of using an external dispute resolution organisation to ensure that the requirements for independence are observed.
- Organise early: From a practical perspective, the date for any appeals should be determined well in advance and the availability of the appeal panel should also be ascertained as soon as possible.
- Paper appeals: It can be acceptable for the appeal process to be conducted solely by way of written submissions.
- The panel's approach: The scope of the panel's review should be set out in the appeal procedure document, but generally an appeal panel will not re-hear the athlete's case in full, since the technical expertise needed to make the selection decision is the domain of those involved in the initial selection decision. This expertise is respected: often, the remedy granted following a successful appeal is for the matter to be remitted back to the selection panel so that the process can take place again, albeit this time without the flaw which enabled the appeal to get off the ground in the first place. The appeal panel may provide guidance to the selection panel to help to avoid the same problems occurring again.
- The selected athletes: It is also important to remember the interests of athletes who have been picked ahead of the appellant and whose selection could be jeopardised by their appeal. For example:
- NGBs may want to explain that selection decisions are provisional until the culmination of any appeals process.
- Affected athletes should be kept appraised of developments likely to impact upon them.
On what grounds do athletes usually appeal?
The basis on which an athlete can appeal may be set out very specifically in the appeal policy. This is best practice: it ensures certainty for both parties and enables the NGB to have some control over the types of appeal it is prepared to entertain.
If there is no such policy, the case of Belcher v British Canoe Union  sets out guidance as to the main grounds of appeal which may generally be open to athletes.
In either case, because both appeals panels and the courts have considerable respect for the technical expertise of the original selection panel, they will be reluctant to interfere with its assessment of the athlete's performance or potential, or in decisions based on other technical issues. As a result, grounds of appeal usually focus on the processes involved in the making of the selection decision, rather than the correctness of the decision itself.
Typical grounds include:
1. The selection decision was not in accordance with the selection policy
In other words, the selection panel has failed to follow the wording of the policy. For instance, it may not have taken into account the stated selection criteria in making its decision. This might be particularly persuasive where objective criteria (e.g. a minimum qualification standard) are set out in the policy and are not adhered to.
2. The selection policy has been misapplied, or applied without sufficient evidence and/or in circumstances where the application of the policy was unfair
This might be the case where it can be shown that the selection panel hasn't assessed the athlete's individual performances against the selection criteria, or where the decision is based on irrelevant considerations or inaccurate information.
3. The selection decision-maker has shown bias, or the appearance of bias, or the selection process has otherwise been demonstrably unfair
The issue of bias is likely to arise, for instance, where an individual on the selection panel is a family member or personal coach of one of the athletes involved or, alternatively, there is a history of dislike between one or more of the panel and athlete(s), which is likely to prejudice the decision-making process. Where there is even a small possibility of bias or even perceived bias, it is advisable that the selector declares the conflict of interest and, in many cases, abstains from the decision-making process.
Equally, it is recognised that those that take part in the selection process are likely to be closely involved in the sport and will not always come to the table without having already formed some of their own views. There is therefore some margin of appreciation. What is important is that any potential conflicts of interest (no matter how small) are declared and considered in advance of the selection being made.
4. The conclusion is one that no reasonable decision maker could have reached
Whilst an appeal panel will generally not look at the substance of the decision, preferring to leave that to the technical expertise of the selection panel, there may be some circumstances where the decision reached is so obviously unfair on the facts that it should be invalidated. Appeal panels will (and should) be reluctant to grant an appeal on this ground unless the situation is absolutely clear cut.
Whilst a good selection policy is vital, it is equally important that the selection panel understands the need to avoid imperfections in the selection process and applies the selection policy properly. This will go a long way to ensuring that the selection decisions are made correctly.
Familiarisation with the selection policy before the selection meeting is an important part of this. NGBs should also consider instructing an independent observer (usually a solicitor or barrister) to be on hand at the meeting to advise on the terms of the selection policy and any procedural issues.
The benefits of getting these things right are unquestionable. The appeals process inevitably creates some delay, but this will be exacerbated in situations where, because of problems in the selection process, there are multiple appeals or, in the case of successful appeals, decisions are remitted back to the selection panel. Moreover, a flawed policy and/or process is likely to result in criticism of the organisation by the appeal panel, as well as dissatisfaction amongst athletes affected, who may choose to use the media as a means of voicing their discontent. In the run up to the Games, this is plainly a distraction that NGBs will want to avoid.
If you require further information on anything covered in this briefing, including any advice on selection and appeals processes in the run-up to Rio 2016, please contact Kate Allass (firstname.lastname@example.org; +44(0)203 375 7220), Tom Rudkin (email@example.com; +44(0)203 375 7586)) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Sports Governing Bodies page on our website.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, May 2016