ARBITRAL AWARD. rendered by the COURT OF ARBITRATION FOR SPORT. sitting in the following composition:

Transcription

1 Chantelle Kerry v Ice Skating Australia ARBITRAL AWARD rendered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: Sole Arbitrator: Mr John Boultbee AM, Sydney, Australia CAS Clerk: Ms Suzie Fraser, Sydney, Australia; Mr Nick Fletcher, Sydney, Australia between Ms Chantelle Kerry, 9 Balaka Drive, Carlingford, New South Wales, 2118 represented by Ms Margaret Pavey, MSB Lawyers and Ms Maria Tzannes, Antunes Lawyers - Appellant - and Ice Skating Australia (ISA), PO Box 3266, North Strathfield, New South Wales, 2137 represented by Ms Zali Steggall OAM - Respondent Page 1

2 INTRODUCTION 1. The Appellant, Chantelle Kerry, an Australian figure skater, filed an Application in the Appeals Division of CAS on the 4 th December 2013, seeking a declaration that Brooklee Han, another Australian figure skater, is ineligible to be nominated by Ice Skating Australia (ISA) to the Australian Olympic Committee (AOC) to skate at the Winter Olympic Games in Sochi in 2014, together with other forms of relief. The Application named ISA as the Respondent, Brooklee Han as an Affected Party, and the AOC as an Interested Party. 2. At a Directions Hearing by teleconference on the 9 th December, the parties agreed that the Court of Arbitration of Court (CAS) has jurisdiction to determine, by arbitration the question of eligibility (the Eligibility Question) of Ms Brooklee Han (the Affected Party) to be nominated by the ISA (the Respondent) to the Australian Olympic Committee for the 2014 Winter Olympic Games in Sochi. They also agreed that once the Eligibility Question has been determined by the CAS, the question of nomination is to be referred back to the Respondent for determination in accordance with the applicable nominations criteria and that the determination of the Respondent referred to (above) is to be final and binding on all athletes, and all other persons whose interests might be affected, unless the determination is so obviously perverse or irrational, in which case the determination will be subject to a further appeal to the CAS. 3. The Appellant filed an Appeal Brief, containing submissions and some evidentiary documents. The Respondent and the Affected Party did likewise in their respective Outlines of Submissions, and the Appellant also filed some submissions in Reply, which included some new evidence. The Respondent s and Affected Party s rights to reply to that new evidence were reserved. APPLICABLE RULES AND REGULATIONS 4. Nomination of skaters for selection in the 2014 Australian Winter Olympics Team is governed by the AOC Olympic Team Selection By-Law (the Selection By-Law), the 2014 Australian Olympic Winter Team Selection Criteria Figure Skating (the Selection Criteria) and the 2014 Australian Olympic Winter Team Ice Skating Australia Incorporated Nomination Criteria Figure Skating (the Nomination Criteria). 5. The Selection Criteria set out relevant provisions for eligibility for selection including as follows: In order to be selected by the AOC as a member of the 2014 Australian Olympic Winter Team, each Athlete (or team where applicable) must: (1) have met the requirements prescribed in the Qualification System; (2) have met and continue to observe and meet the eligibility requirements for Australian competitors described in the Olympic Charter; (3) have met and continue to meet the requirements of Rules 40 and 44 of the Olympic Charter and their Bye-Laws. 6. The Bye-Law to Rule 40 of the Olympic Charter provides: Page 2

3 1. Each IF [International Federation] establishes its sport s own eligibility criteria in accordance with the Olympic Charter. Such Criteria must be submitted to the IOC Executive Board for approval. 2. The application of the eligibility criteria lies with the IFs, their affiliated national federations and the NOCs in the fields of their respective responsibilities. 7. In Ice Skating, the current rules relating to eligibility of skaters generally are to be found in the International Skating Union Constitution and General Regulations 2012 (the ISU Regulations). In relation to this matter, the relevant provisions relied on by the Appellant are found in Part B of the General Regulations, headed Eligibility and in particular in Rule 102 which provides: 1. Eligibility Status a) The eligibility Rules of the ISU are based upon the principles that: i) a person has the privilege to take part in the activities and competitions under the jurisdiction of the ISU only if such person respects the principles and policies of the ISU as expressed in the ISU Statutes and fulfils those obligations on the basis of which the ISU functions and governs all its activities; ii) the condition of eligibility is made for the adequate protection of the economic and other interests of the ISU, which uses its financial revenues for the administration and development of the ISU sport disciplines and for the support and benefit of the Members and their Skaters. b) An eligible person is one who elects to take part only in International Competitions which are: i) sanctioned by the Member and/or the ISU; ii) iii) conducted by ISU recognized and approved Officials, including Referees, Technical Controllers, Technical Specialists, Judges, Starters, Competitors Stewards and others; and conducted under ISU Regulations Definition of an ineligible person A person becomes ineligible to participate in ISU activities and competitions by: i) skating or officiating without the prior express authorization of the respective Member, in any capacity in a Skating competition, exhibition or tour in any of the sport disciplines of the ISU: ii) iii) skating or officiating in a competition conducted by Officials (Referees, Technical Controllers, Technical Specialists, Judges, Starters, Competitors Stewards, etc.) not on the approved list of the respective Member or on the ISU approved list; skating or officiating in an event not sanctioned by a Member and/or the ISU; or iv) otherwise violating this Rule 102. The Appellant s contention is that Brooklee Han became ineligible to be considered for nomination through the application of Rule 102(2)(i). Page 3

4 7. Loss of eligibility a) The consequences of a breach of the eligibility Rules shall be the loss of eligibility. The status of a person disqualified or suspended under other applicable Rules, does not affect the eligible status of such person, but it limits, according to the terms of the applicable disciplinary sanction, the right of such person to participate in the competitions and activities of the ISU. b) The ISU Council, upon presentation of such evidence as it considers sufficient at its sole discretion, may rule upon an alleged breach of the eligibility Rules, whether or not any protest has been made against an individual s eligible status in skating. c) Before a ruling is made by the Council, both the Member and the person concerned shall be notified and the person concerned shall be given the opportunity to furnish an explanation of the alleged breach (which may be in writing). If the person concerned does not avail himself of such opportunity within fifteen (15) days of receipt of such notice, his right to furnish an explanation shall be waived. 8. Matters concerning eligibility not otherwise foreseen in the ISU Rules shall be considered by the Member concerned in a manner consistent with the spirit and intent of the ISU Rules. 8. Finally the relevant Nomination Criteria are as follows: 2. Nomination of Athletes For the purposes of nomination to the AOC of Athletes for selection to the 2014 Australian Olympic Winter Team, Ice Skating Australia will. (1)... (2) nominate Athletes according to the following process: (a) if Australia qualifies a quota place(s) at the ISU Olympic Qualifiying Competition, then Ice Skating Australia will nominate the Athlete(s) who qualified the quota place... THE FACTS 9. It is common ground between the parties that Brooklee Han competed for Australia at the Olympic Qualifying Event, the Nebelhorn Trophy at Oberstdorf, Germany in September 2013 and there she qualified Australia for a quota spot for ladies figure skating at the Olympic Winter Games in Sochi. There has been no argument that, apart from the Eligibility Question, Clause 2 (2) of the Nomination Criteria would then see her automatically nominated to represent Australia in Sochi. 10. However, in August of 2013, Brooklee Han competed in the Hershey Open 2013 Figure Skating Competition in New York City. The question which is raised by the Appellant in her Application and Submissions is whether Brooklee Han s competing in that competition rendered her ineligible under ISU Rule 102 (2) (i), the contention of the Appellant being that she did not have prior express authorization of the respective Member, namely the ISA, to do so. 11. The evidence as to authorisation is as follows: 12. On June 30, 2011, the President of ISA wrote to Brooklee Han as follows: Dear Brooklee, Page 4

5 RE: Permission to Skate in US Figure Skating sanctioned events On behalf of Ice Skating Australia, I am pleased to give you permission to skate in any competition or exhibition that is sanctioned by US Figure Skating. I encourage you to take whatever opportunities are available. All the best for the Summer, and I look forward to seeing you in Brisbane for the Junior Grand Prix in September. Sincerely, (Signed) Cathy Taylor, President, Ice Skating Australia. 13. Then on 25 July 2012 there was a further letter as follows: To Whom It May Concern Ice Skating Australia is pleased to give permission for Brooklee Han to skate in any exhibition or compete in Junior or Senior singles competitions sanctioned by US Figure Skating during I can confirm that Brooklee is a current member in good standing. She competed at Junior and Senior National and International level in 2011 and is still Junior age eligible (Date of Birth 06/07/1995). Sincerely, (Signed) Cathy Taylor, President, Ice Skating Australia 14. There was no similar letter written in However, evidence adduced by the Affected Party included a proposed competition schedule for her for the season, sent to ISA in April 2013, which proposed competing in the Hershey Open in August 2013, amongst other events. 15. On 28 November 2013, an was sent to the Appellant s father in response to correspondence from him raising the eligibility issue, which stated that Reading ISA and ISU Rules, the ISA Board of Management has determined that Ms. Brooklee Han continues to be an eligible skater. Regards Sean O Brien, Honorary Secretary, Ice Skating Australia. 16. There is no evidence that the eligibility question has been raised with the ISU. 17. It is common ground between the parties that the Hershey Open is an event which is sanctioned by US Figure Skating, the ISU Member Federation in the USA. It is a domestic competition which, it seems, accepts entries from foreign competitors. However, Brooklee Han, who is a dual Australian and US citizen, competed in the event under the name of the US club of which she is a member. 18. The Appellant also adduced evidence in her Submissions In Reply outlining the process usually undertaken in seeking authorisation to compete internationally, and examples of eligibility decisions and rules from other countries. This evidence was admitted on the Page 5

6 condition that the Respondent and Affected Party would have the opportunity to answer it, if need be. THE PARTIES SUBMISSIONS 19. The Appellant contends that authorisation from the ISA was required for Brooklee Han to skate in the Hershey Open in 2013, and that no such authorisation was obtained. It was argued by the Appellant that because the Hershey Open was an event being conducted by a Member other than ISA, whether sanctioned or not, authorisation was required. Further, it was put that the authorisation of 2011 must be read as limited to competitions in that year, as evidenced by the fact that a further authorisation was sought in The lack of authorisation specifically referring to 2013 events, or to the Hershey Open in particular, has the effect of her competing being unauthorised. This, it is contended, results in automatic ineligibility, which does not require a decision of ISU or ISA to come into effect. The submission was that once having breached Rule (i), Brooklee is and will remain ineligible and this breach will not be capable of remedy. 20. The Respondent ISA made submissions which were adopted by the Affected Party, Brooklee Han. First it was submitted that the question of whether Rule 102 (2) (i) applied to the Hershey Open should be determined by reference to the ISU Eligibility Rules as a whole. Rule 102 (1) (a) (ii) establishes the purpose of the Rules and that purpose is clearly related to the adequate protection of the economic and other interests of the ISU. Therefore, the argument goes on to propound that Rule 102 (2) (i) should be restricted in its operation to events which might work contrary to the economic and other interests of the ISU, in particular, events operating outside the control of the ISU and its Member federations, of which the Hershey Open was not one. Secondly, the Respondent also contended that it was not entirely clear that the Hershey Open was covered by Rule 102 (2) (i) as it was a Local Competition under the definition of various Competitions in Rule 108 and Article 38 of the Statutes, and therefore governed by the Rules of a Member (Rule 108(16)). 21. Thirdly the Respondent contended that if Rule 102 (2) (i) applied to the Hershey Open, the lack of authorisation could not lead to automatic ineligibility without an appropriate determination to that effect. Rule 102 (7) (b) invested in the ISU Council the power to determine eligibility, and without a decision of the ISU Council the Affected Party remained eligible under Rule 102 (1). Moreover, the Respondent ISA as the relevant ISU Member had considered the issue under Rule 102 (8) consistent with the spirit and intent of the ISU Rules, and of Rule 101 (1) (a) (ii) in particular and had come to a conclusion that she was not ineligible, as communicated in the of 28 November. 22. Finally, the Respondent and the Affected Party submitted that the letter of June 30, 2011 provided the relevant authorisation under Rule 102 (2) (i) for Brooklee Han to compete in the Hershey Open. CONCLUSIONS 23. In my view the correct interpretation of ISU Rule 102 (2) (i) is that it does apply to competitions such as the Hershey Open. In its terms the provision is not restricted to international competitions. Whilst the use of the term ISU activities and competitions in Rule 102 (2) does not fit well into the definitions of various skating events and competitions Page 6

7 contained in Article 38 of the Statutes and Rule 108, to restrict the operation of Rule 102 (2) to unsanctioned events would be to ignore the natural breadth of the words in a Skating competition, exhibition or tour in any of the sport disciplines of the ISU. Moreover, paragraphs (ii) and (iii) of Rule 102 (2) deal specifically with unsanctioned events and competitions conducted by persons who are not approved by the ISU, and therefore the inference is that paragraph (i) extends in its terms beyond these events and competitions. This distinction is supported by the different provisions for re-instatement of ineligible persons under Rule 103, where a person who is ineligible under paragraph (i) of Rule 102 (2) is treated differently from one who is ineligible under paragraphs (ii) or (iii). The latter in fact may not be reinstated. Also, it is clear that the Members of ISU, including ISA treat Rule 102 (2) (i) as requiring authorisation by the skater s federation for the skater to participate in another Member federation s events. The circular from the British federation which is in evidence makes this clear, as does the practice which the ISA has followed in requiring authorisation to be granted where an Australian skater wishes to compete overseas. There is no evidence or explanations from the ISU to suggest that the Member federations are incorrect in this understanding. 24. However, in my view, Brooklee Han was authorised by the ISA to skate in the Hershey Open in August First, the authorisation granted in 2011 was, on its terms, unrestricted, and there is no evidence to suggest that it was revoked or expired. The circumstances surrounding the provision of a further more restricted letter of authorisation in 2012 do not detract from the unrestricted authorisation granted in Secondly, apart from the express terms of the 2011 letter, this conclusion is also implicit from the fact that ISA was informed in March 2013 of her intention to skate in the Hershey Open in August, and the question of authorisation (or any lack thereof) was not raised then. Thirdly, the assertion by ISA through its Counsel in this case, that she was authorised and is eligible, is not without significance. The of 28 November 2013 from the ISA makes it clear that this is the ISA s view. 25. It is also my view that the submission that ineligibility would be automatic upon Brooklee Han competing in the Hershey Open, if she were not authorised to do so, lacks support from the Rules themselves and from the evidence. Rule 102 (2) itself refers to the power of the ISU Council to declare a person ineligible, and Rule 102 (7) describes the mechanism for this to occur, where the ISU Council can rule upon an alleged (my emphasis) breach of the eligibility Rules. There is, as would be expected, provisions for the person concerned to be notified and given the opportunity to be heard before a ruling is made by the Council. This is inconsistent with the notion of automatic ineligibility. The only case of ineligibility referred to in the hearing of this case was one of Evgeni Plushenko, which was a case where the Olympic gold medallist lost his eligibility having skated in exhibition shows without prior permission from the Russian figure skating federation. The ineligibility was effected through a ruling from the ISU. Sub-rule (8) of Rule 102 also empowers the Member concerned to consider matters concerning eligibility not otherwise foreseen in the ISU Rules...in a manner consistent with the spirit and intent of the ISU Rules. Although no details were provided in evidence of the decision made by the ISA Board of Management referred to in the of 28 Page 7

8 November, it is apparent that the ISA has duly considered the Affected Party s eligibility in this case, and made a decision that she is eligible. Page 8

9 DECISION The Court of Arbitration for Sport Rules: 1. The Eligibility Question referred to the Court is answered as follows: Brooklee Han is an eligible person within the meaning of the ISU Regulations and is eligible to be nominated by the ISA to the Australian Olympic Committee for the 2014 Winter Olympic Games in Sochi. 2. The question of nomination is referred back to the Respondent for determination with the applicable nominationn criteria. 3. In accordance with the agreement between the parties, the CAS costs shall be paid in equal shares by the Appellant, the Respondent and the Australian Olympic Committee. Otherwise there is no order as to the costs incurred by the parties. Delivered in Sydney on 27 th December 2013 THE COURT OF ARBITRATION FOR SPORT Mr John Boultbee AM Sole Arbitrator Page 9