SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC) AND AND DECISION

Transcription

1 SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC) NO: SDRCC STEVEN BARLOW (CLAIMANT) AND CANADIAN SNOWBOARD FEDERATION (RESPONDENT) AND DEREK LIVINGSTON (AFFECTED PARTY) DECISION Submissions: Steven Barlow Steven Hills, Executive Director Robert Joncas, Director, High Performance On his own behalf On behalf of the Respondent No one appearing on behalf of the Affected Party

2 1. On January 24, 2014, I was appointed by the SDRCC as an Arbitrator under section 6.8 of the Canadian Sport Dispute Resolution Code (the Code) to hear Steven Barlow s request for arbitration (the appeal ) of the Canadian Snowboard Federation s ( CSF or Canada Snowboard ) decision not to select him to the 2014 Canadian Olympic Winter Games Team. 2. As CSF s Olympic Team selection had to be sent to the Canadian Olympic Committee by 10:00 pm (EST) January 24, 2014, this appeal was conducted on an urgent basis by telephone conference call at 1:00 p.m. (EST) that day. At that hearing, the parties agreed to skip the internal appeals process and proceed directly to the SDRCC for a determination. The parties also agreed to waive the resolution facilitation process provided for in the Code. 3. I issued my decision at 7:30 pm (EST) January 24, 2014, with reasons to follow. These are my written reasons. PRELIMINARY MATTER 4. At the outset of the hearing, I confirmed that the SDRCC had attempted to contact the affected party, Mr. Livingston, both by telephone and e mail, in accordance with Section 6.12 of the Code. Mr. Livingston did not respond to messages left for him at the contact numbers provided. When CFS indicated that it was possible that Mr. Livingston s coach would be able to represent him, I adjourned the hearing for one hour so that efforts could be made to contact either one of them. After that hour, I was satisfied that reasonable attempts had been made to contact Mr. Livingston and in light of the urgency of this matter, I proceeded in his absence. I informed the parties that Mr. Livingston could make written submissions up to 6:00 p.m. (EST) and that any written submissions received by that time would be considered. 5. Section 6.13 of the Code provides that if a person wishes to participate in the Arbitration as an intervenor, such person shall complete and file an intervention with the SDRCC within the time limit set by the SDRCC. Mr. Livingston did not participate in any way before I issued my decision. BACKGROUND 6. Mr. Barlow is an athlete in the sport of snowboarding. He has competed for Canada in a number of World Championships and World Cup events. 7. The International Ski Federation (FIS) is the international governing body for the sport of snowboarding. FIS determines the overall maximum number of snowboard athletes that may participate in the Olympic Winter Games and establishes the eligibility standards for all participating athletes. FIS also establishes quotas for each nation with respect to that nation s maximum

3 team size, maximum number of athletes per gender, and maximum number of athletes. 8. FIS established a maximum quota of 24 athletes per nation, with quota places being earned based on the placement of competitors in World Cup and World Championship events. Canada earned the ability to select a team of 24 competitors across the four snowboard events (Alpine (which consists of Parallel Giant Slalom and Parallel Slalom), Halfpipe, Snowboard Cross and Slopestyle). 9. Each nation is permitted to allocate their quota of competitors between the four events provided that they do not exceed a maximum of 14 males or 14 females and a maximum of four athletes per event. 10. CSF is mandated by the Canadian Olympic Committee to nominate those athletes that it wishes to have represent Canada in the 2014 Olympic Winter Games in accordance with criteria established by CFS in accordance with quotas established by FIS. 11. On January 20, 2014, FIS published the snowboard allocation for each nation. Canada successfully obtained the maximum of 24 quota spots. 12. CSF established the 2014 Olympic Winter Games Selection Protocol on December 6, 2012 (amended December 5, 2013). The Protocol sets out the process of identifying those athletes who were eligible for nomination to the 2014 Canadian Olympic Winter Games Team and, from that group, determining those athletes whose names would be submitted to the Canadian Olympic Committee for final selection. 13. The allocation of Canada s quota to each discipline was to be decided as follows: ALLOCATION OF QUOTAS A maximum of 22 quota spots will be allocated by Methods (sic) A. Method B will allocate a minimum of two quota spots as well as any remaining quotas that have not been allocated by Method A. Method A [not relevant for the purposes of this appeal] Method B The remaining quota spots, if available, and a minimum of 2 quota spots will be assigned directly to the athletes after nominations have been

4 completed for each discipline. Athletes chosen by Method B will be nominated in their respective discipline. Quota spots by Method B will be assigned by the following priorities: Priority 1: Given to an athlete who can potentially achieve a podium at the 2014 Sochi OWG. Determined by: Number of significant podiums achieved during the last 2 seasons as well as the number of top 8 OR injury considerations and past results. Priority 2: Given to an athlete who can assist another athlete achieve in reaching a podium at the 2014 Sochi OWG. Determined by: A competitive strategy that is appropriate in all the circumstances. Priority 3: Given to an athlete who has a strong potential to podium in 2018 and who can achieve a top 16 result in Determined by: Canada Snowboard s tertiary objective indicators, performance curves and % of top 16 results. Priority 4: Given to an athlete who has potential to achieve a top 8 result. Determined by: % of top 8 results, OR injury considerations and past results. Priority 5: Given to an athlete who has a strong potential to podium in Determined by: Canada Snowboard s tertiary objective indicators and performance curves. Priority 6: Given to an athlete who has strong potential to achieve a top 16 result: Determined by: % of top 16 results, OR injury considerations and past results. 14. The Selection Protocol provided that subject to FIS reallocation of quotas, Canada Snowboard shall identify the athletes it proposes to nominate to the [Canadian Olympic Committee] for positions on the 2014 Canadian Olympic Winter Games Team on 21 January, In the Event Selection Summary, the Selection Committee states that it decided that CSF would fill all 24 quota spots and would not change the final Olympic Team selection after the reallocation of quotas by FIS on January 24, On January 19, 2014, CSF identified and ranked the athletes available for selection. In the Alpine discipline, six male athletes were identified for possible selection. Of those six, Mr. Barlow had the lowest number of FIS

5 points based on his placement in World Cup and World Championship events over the Olympic qualifying period. The top four athletes had from 560 to 280 points while Mr. Barlow had 135 points. 17. Applying the criteria outlined above, the CSF Selection Committee, which consists of the National Team Coaches and the High Performance Program management staff, chose 17 athletes under Method A: 4 male athletes and 2 female athletes for the Slopestyle event, 3 male and 2 female for the Snowboard Cross event, 3 female and 3 male for Alpine events. 18. The Selection Committee then chose an additional 7 athletes using Method B. Specifically, it chose one athlete under Priority 2. That athlete was a male competitor in the Snowboard Cross event. An additional six athletes, including Mr. Livingston, were selected under Priority 6. All of these six were Halfpipe athletes. SUMMARY OF THE PARTIES POSITIONS 19. This summary is not intended to be a comprehensive recitation of every point made by each of the parties. It is a summary of the key positions of the parties, hopefully without oversimplifying those positions. Claimant s position 20. Mr. Barlow does not challenge the substance or reasonableness of the policies and procedures established by CSF, nor does he challenge the selections made by Method A. However, he does challenge the selections made under Method B. 21. Mr. Barlow s arguments are as follows: a. When CSF announced the team on January 21, 2014, he e mailed Mr. Hills to inquire about the choices the Selection Committee had made. He contends that at that time, he was led to believe that because several countries had not earned their full quotas, Canada was able to send more than 24 athletes due to FIS reallocating the quotas. He says that on January 21, 2014, he was told it would be possible for him to still be selected to the team. He argues that he ought to benefit from this re allocation. b. Mr. Barlow also argues that CSF did not follow its own selection criteria and policies for team selection in allocating the quota spots using Method B. He contends that the CSF should have chosen him for the 4 th spot in the Alpine event rather than Mr. Livingstone, who was the lowest ranked male Halfpipe athlete. Mr. Barlow says that because all Halfpipe athletes were chosen through Method B, Priority 6, they

6 are not medal contenders. He says that he ought to have been chosen under Method B, Priority 2, as he is very capable of assisting other Canadian athletes in the Alpine event in achieving a podium. He also says that Canada has a distinct competitive advantage in the Alpine event, in which athletes compete in two events and that CSF should allocate any remaining quota spots to this event. Mr. Barlow agreed that although he was not as strong a contender as the top three athletes chosen, he and his coaches believe that he is good enough to be chosen under Priority 2. Mr. Barlow says that, notwithstanding the fact that he has never had a top 16 finish in any of the qualifying events, his qualifying times have become progressively better. During the hearing, Mr. Barlow also argued that he also should have been considered as a team member under Priority 5. Respondent s Position 22. CSF submitted an analysis of the rankings of each of the athletes under consideration and the points they had obtained in events in the qualifying period, as well as the reasons each athlete was chosen (the Event Selection Summary). CSF denies that it misunderstood or misapplied its protocol. Its arguments are as follows: a. When the Selection Committee made the team selections, Canada did not have any additional quota spots and considered the possibility of Canada obtaining additional quota spots too speculative. Because any potential reallocation was so close to the Olympic Games, the Selection Committee felt it was most important for the athletes to be prepared for their competition so they decided that Canada would send no more than 24 athletes. Although Mr. Hills conceded that CSF may have initially communicated otherwise to a number of athletes, he said that the Selection Committee was confident it had chosen the best 24 athletes to represent Canada. b. Mr. Joncas said that the Selection Committee fully and fairly evaluated all the athletes, including Mr. Barlow and Mr. Livingston, and relied on the Event Selection Summary. Mr. Joncas pointed out that the Selection Committee reviewed the results of World Cup and World Championship events within the qualifying period, and considered the number of times Mr. Barlow finished in the top 50%. He noted that Mr. Barlow never had a top 16 finish at any World Cup event; his best result was a 20 th place at a World Cup event over one year ago. Mr. Joncas noted that Mr. Barlow had never been on the podium in any Canadian Championships. Mr. Joncas said that the Selection Committee considered all of these factors when making its decision. Mr. Joncas asserts that Mr. Barlow s results do not

7 establish that he is able to assist another athlete, as provided in Priority 2. c. Mr. Joncas also disputed Mr. Barlow s assertion that he was a strong potential to medal in 2018, in part because he has never competed head to head with another top athlete as he has never placed higher than 20 th at a qualifying event in his career. Affected Party s Position 23. Although I did not hear from Mr. Livingston, I infer that he would be supportive of CSF s position. ANALYSIS AND DECISION 24. Section 6.7 of the Code requires the Respondent, in this case the CSF, to demonstrate that the team selection criteria were appropriately established and that the selection decision was made in accordance with such criteria. Once that has been established, the onus of proof shifts to the Claimant, in this case Mr. Barlow, to demonstrate that he should have been selected in accordance with the approved criteria. Each onus is determined on a balance of probabilities. 25. Section 6.17 of the Code provides that the Panel shall have full power to review the facts and the law. In particular, the Panel may substitute its decision for: (i) the decision that gave rise to the dispute and may substitute such measures and grant such remedies or relief that the Panel deems just and equitable in the circumstances. 26. As this Tribunal has consistently noted, deference is owed to the sporting authority s experience and expertise: wherever possible, selection decisions are best determined by appropriate and knowledgeable representatives of the sport organization (including high performance coaches and selection committees), in accordance with valid and applicable rules. (Elizabeth Milovitch Sera and Canadian Amateur Wrestling Association/Wrestling Canada Lutte, SDRCC (Drymer) 27. The Tribunal will not interfere with the sporting authority s decision provided that it falls within a range of possible acceptable outcomes that are defensible in light of the policies and the facts.

8 28. As noted above, Mr. Barlow does not dispute the substance and reasonableness of the criteria established in the Selection Protocol. 29. There is no evidence before me that the Selection Committee acted improperly, in bad faith or in excess of its jurisdiction. Although Mr. Barlow suggested that CSF changed its mind about applying for additional quota spots, I accept that CSF is not seeking any additional spots in the event of a reallocation of FIS quota. In fact, that is made clear in the Event Selection Summary. While I accept that Mr. Hills may have mistakenly communicated otherwise in conversations with athletes other than Mr. Barlow, such communications are not evidence of bad faith or improper conduct. 30. While I am of the view that the criteria for determining Priority 2 is somewhat vague when compared with the specific criteria for other Priorities, I nevertheless find that they are essentially performance based and thus fair and measurable. The only athlete selected under Method B, Priority 2, was Jake Holden from the Snowboard Cross team, who had a top 10 result in the qualifying period. 31. There is no evidence that the Selection Committee either failed to apply the criteria outlined in the Selection Protocol or applied criteria that were not outlined in the Selection Protocol. 32. The Event Selection Summary contains an analysis of the performances of all athletes selected based on the published criteria. 33. As Arbitrator Drymer stated in Sera (above), It is not for an arbitrator to decide who stands a better chance of getting a medal or who is more deserving of a place on the team. The Selection Committee consists of experts in the sport and I must grant deference to the technical analysis of that Committee. 34. I find, on a balance of probabilities, that the Selection Committee performed a thorough analysis of the results of all of the snowboard athletes, including Mr. Barlow and Mr. Livingston according to the criteria set out in that Selection Protocol and arrived at a reasoned decision. 35. The Event Selection Summary indicates that the Selection Committee analyzed each Halfpipe athlete s finishes and consistency in achieving top 16 results. (Method B, Priority 6). Mr. Livingston is the current national champion and has two top 16 FIS Junior World Championship results and was the top performing Canadian at Sochi test events. Furthermore, he placed in the top 15% of the field four times in the 2014 Quota accumulation period. The Committee considered him as the best Canadian hopeful to medal in Halfpipe in The World Snowboarding Point List event results

9 demonstrates that the six Halfpipe athletes, including Mr. Livingston, demonstrated a high level of consistency in achieving top 16 results. On the other hand, Mr. Barlow has not had a podium finish at any National event and has never finished higher than 20 th in qualifying events. Furthermore, Mr. Livingston was the third ranked Halfpipe athlete while Mr. Barlow is the sixth ranked eligible Alpine athlete. 36. I acknowledge Mr. Barlow s strong belief that he can assist other athletes to medal and that he is a strong potential to podium in However, Mr. Barlow s views are unsupported by any evidence. On several occasions during the hearing, Mr. Barlow stated that he and his coaches felt he would be an asset to the team. However, none of those coaches testified or presented their opinions in writing. Mr. Barlow s results do not demonstrate that he is able to assist another athlete. Furthermore, I note that in Mr. Holden s case, the Selection Committee determined that a commonly used strategy in Snowboard Cross was to have weaker athletes eliminated in earlier rounds to protect the stronger athletes. There is no evidence that a similar strategy is used in the Alpine events. 37. In my view, the Committee s decision to select Mr. Livingston over Mr. Barlow was not only made in accordance with transparent and supportable criteria, it falls within a range of possible acceptable outcomes. 38. I am not persuaded that I have any basis to overturn or vary the Selection Committee s decision. CONCLUSION 39. The appeal is dismissed. January 29, 2014, Vancouver, British Columbia Carol Roberts, Arbitrator