Written by “Life is not always fair, but you must always appeal if you have been wronged.” – Emma Carney
Is it fair to assume that you should be selected just because you feel you’ve earned it? Hundreds of hopefuls all feel that they’ve earned it, they can’t all be selected. Perhaps the bigger issue is are the selection processes convoluted and ambiguous? Worse, could selectors be guilty of bias or preferential treatment?
Australian champion triathlete, Emma Carney to this day feels wronged in failing to be selected for the 2000 Olympic Games in Sydney, Australia. Had the process been clearer would she have been more likely to accept the decision?
In her recently published autobiography, Hard Wired: Life, Death and Triathlon, Carney has for the first time spoken publicly about the dispute over her non-selection. There was an apparently ambiguously worded selection policy, allegations of commercial bias because of conflicting sponsorships, and a qualification race that was interrupted by an official’s error. Her appeals made it all the way to the Court of Arbitration for Sport in Switzerland, but decades later, Carney would exclaim; “It broke me, destroyed me and humiliated me.”
With the Tokyo Olympics just around the corner, sports lawyers are poised for the raft of athlete appeals to follow selection decisions. “Inevitably someone is going to be unhappy,” says Amelia Lynch, of the law firm Lander & Rogers, who represents many of the athletes, she acknowledges that with limited positions, the success of one individual means the displacement of another.
The first selection dispute to occur in Australia’s Olympic campaign has been initiated by the appeal of London gold medalist Nathan Outteridge and his sister Haylee who were not selected to represent Australia on the sailing team.
This was closely followed by two members of the Australian Women’s Hockey team, the Hockeyroos. Rachael Lynch and Georgina Morgan are able now to again enjoy the possibility of their Tokyo Olympic dreams coming true after winning an appeal against their unexpected ejection from the 2021 squad in December 2020. Their instant appeal was supported by teammates threatening to strike and was upheld by the appeals board who found there was reason to oppose their non-selection. But this only granted them the ability to be again considered for selection, it did not automatically guarantee a much-sought-after spot:
“While both are eligible to be selected, it does not mean they are automatically recalled, with the selection panel to determine any future selections.”
In April, at the time of this minor victory and with mere weeks to go, only 111 of the expected approximately 450 Australian athletes going to Tokyo have been selected and more disputes are anticipated. These appeals are shrouded in a web of administrative and contractual law, success is not common.
“It is very hard – the bar is set high … Successful non-nomination appeals, typically heard by an internal tribunal, with an appeal to the CAS – are very rare.” – Paul Hayes QC (Victorian barrister)
It is important to establish a culture that promotes ambition but also engenders humility and respect for authority. It is quite right to protest a decision that you feel isn’t sound, that will never be wrong, but the process has to be respected with good grace. Equally official bodies have a duty to provide clear guidelines and act in a manner that is completely fair and impartial. It is the honoring of these responsibilities that will contribute to a fair and just sporting culture.