New Zealand: The dry side of the paddle: The importance for athletes and sports bodies to understand selection policies

A recent selection dispute which made its way to the New Zealand Sports Tribunal has highlighted the need for sports bodies, athletes, and the members of sports bodies to pay careful attention to selection criteria and procedures within their operative rules.

Zac Quickenden and Darryl Fitzgerald are elite kayakers within Canoe Racing New Zealand ("Canoe NZ"). They formed a pair in the Men K2 1000 division. They both competed in their 'Nationals' in the hope to be selected by their sport's national governing body for the Sprint World Cup series regatta to be held later in the year. However, no world class times were recorded at Nationals, and Canoe NZ's selection panel did not select Mr Quickenden and instead selected Zac Franich to partner Mr Fitzgerald.

Mr Quickenden appealed Canoe NZ's decision not to select him to the New Zealand Sports Tribunal ("the NZST").

On discovering his rowing partner had not been selected, Mr Fitzgerald was not prepared to commit to the selection, training and coaching management that Canoe NZ required in preparation for the World Champs, until Mr Quickenden's appeal had been heard. Canoe NZ gave Mr Fitzgerald a deadline to commit to the training plan but Mr Fitzgerald refused to commit within the timeframe. Ultimately, Canoe NZ made the decision that with one half of the K2 1000 pair unable to commit, they would have to scrap the boat and not send a Men's K2 1000 team to the World Champs. This is what they did. Mr Fitzgerald then appealed this decision to the NZST.

The NZST reviewed the two appeals separately. In Mr Fitzgerald's case, the NZST agreed with Canoe NZ. They found no evidence of actual bias, or a lack of opportunity for Mr Fitzgerald to satisfy the selection requirements, or that Canoe NZ hadn't followed their own selection policy. The NZST determined that Canoe NZ was operating within their selection policy when scrapping a boat because of one of the canoeist's persistent unwillingness to commit to Canoe NZ's specific requirements for that selection.

For Mr Quickenden, Canoe NZ argued that his appeal was made outside Canoe NZ's 48 hour timeframe for appeals to the NZST. Unfortunately for Mr Quickenden, the NZST accepted Canoe NZ's argument. This meant the NZST could not assess the merits of his non-selection and had to uphold Canoe NZ's decision. The Tribunal noted, however, that "it was a sad day for sport" when such strict procedural requirements prevented an athlete from being able to challenge his non-selection. This serves as a timely reminder that strict procedures and protocols within sporting bodies' rules and regulations must be observed even if failure to adhere may objectively create an injustice.

This point is hammered home following NZST's most recent decision involving another Canoe NZ selection dispute. Canoe NZ had decided not to select Andrew Roy for the Under 23 K1 200 Event at the World Champs. However, on appeal, the NZST overturned this decision saying that Canoe NZ's application of the selection criteria on that particular occasion was "too undisciplined and casual to be regarded as (a) reliable" basis on which not to select Mr Roy. The NZST ordered that Mr Roy be selected for the next World Champs. Given the similarity between Mr Quickenden's and Mr Roy's dispute, had Mr Quickenden lodged his appeal on time he may too have been able to compete at the upcoming World Champs.

The key lesson from the NZST decisions is the fundamental importance to adhere to the sport's bodies' rules and requirements, whether you are the sports' body decision makers or the athletes. The NZST will not likely overlook procedural requirements in favour of what may be, objectively, a fairer decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Jonathan Pow (formerly with Wynn Williams Lawyers)
 
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