SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC) CENTRE DE RÈGLEMENT DES DIFFÉRENDS SPORTIFS DU CANADA (CRDSC)

Nº. SCRCC 19-0386/7

WHEELCHAIR BASKETBALL MULTI PROVINCIAL APPEAL COMMITTEE WHEELCHAIR BASKETBALL CANADA (WBC) (CLAIMANTS)

AND

CANADA GAMES COUNCIL (CGC) (RESPONDENT)

AND

SEAN WILSON TEAM (TEAM NB) TEAM (AFFECTED PARTIES)

Appearances

For the Claimant Appeal Committee: Sian Blyth, Simon Cass, Karine Côté, Katie Miyazaki, Jen Sales, and Simon Unrau

For the Claimant WBC: Sean Liebich and Wendy Gittens

For the Respondent: Aaron Bruce and Jacob McInnis

For the Affected Party Sean Wilson: Jason Arseneault

For the Affected Party Team NB: Sally Hutt

Arbitrator: Jennifer Webster

Heard by way of telephone conference on 8 February 2019

REASONS FOR DECISION

1. The Claimants in these Requests for Arbitration (the appeals) challenge the decision of the Council that Sean Wilson is eligible for an age exception to compete for Team NB in wheelchair basketball at the 2019 Canada Winter Games. This decision was communicated on January 30, 2019 and reversed the CGC’s original decision, made on December 11, 2018, that Mr. Wilson was ineligible.

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2. On February 6, 2019, both Claimants submitted Requests for Appeal to the SDRCC. The Request submitted by the Appeal Committee (SDRCC 19-0386) was filed in accordance with the Canada Games Council Appeal Policy. A Request was also filed by WBC (SDRCC 19-0387) following an agreement between WBC and CGC to grant jurisdiction to the SDRCC to resolve the dispute. I was appointed as Arbitrator to hear these Requests by the SDRCC on February 7, 2019. A Preliminary Meeting was held by way of telephone conference on the same day. In this meeting, all parties present agreed to merge the two Requests such that they would be heard at the same time. It was further agreed that, since the Canada Winter Games are scheduled to start on February 15, 2019, these Requests required urgent consideration and a hearing was scheduled for February 8, 2019.

3. The hearing took place on February 8, 2019, and I delivered a Short Decision later that day in which I declined the appeals, with reasons to follow. These are the reasons for my Award.

Background

4. On November 6, 2018, the CGC received an age exemption request from Wheelchair Basketball Canada (WBC) for Sean Wilson to be eligible to compete at the 2019 Canada Winter Games as a member of Team New Brunswick. The age exemption request was made in accordance with the Wheelchair Basketball Technical Package for the Games. WBC recommended that Mr. Wilson not be eligible on the basis that his previous experience of competing at the Canada Winter Games in 2011 and 2015 disqualified him from the age exemption.

5. The CGC communicated its decision to Team NB by letter dated December 11, 2018. Although the CGC Eligibility Committee accepted that there was a team need for Mr. Wilson, the Committee decided that he was ineligible on the basis of his previous experience. Team NB appealed this decision on December 13, 2018.

6. In accordance with the CGC’s appeals policy, the parties entered into an informal resolution facilitation related to Team NB’s appeal. After the informal resolution process, the CGC Eligibility Committee changed its decision and recognized that Mr. Wilson was eligible to compete for Team NB in the 2019 Winter Games. This decision was communicated to Team New Brunswick in a letter dated January 30, 2019. The reasons for the decision were that the Eligibility Committee had “determined that they were unable to point to clear objective criteria identified in the wheelchair basketball technical package that indicated Sean Wilson had progressed beyond the train to train phase of Wheelchair Basketball Canada’s long term athlete development framework.”

7. In both Requests, the Claimants sought a ruling that Mr. Wilson is not eligible to compete for Team NB at the 2019 Canada Winter Games. In essence, each Claimant requested that the SDRCC reverse the CGC’s decision of January 30, 2019 and reinstate the original decision of December 11, 2018.

The Wheelchair Basketball Technical Package

8. The Wheelchair Basketball Technical Package for the 2019 Canada Winter Games addresses age and eligibility requirements as well as tournament formats and scoring procedures.

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9. Section 2 of the Technical Package identifies the competitors at the games as 12 athletes (male or female) in each team.

10. Section 3 of the Package outlines the provisions related to the age of the athletes as well as the age exemption provision at issue in this appeal. The entirety of this section reads as follows:

3. CLASSIFICATION:

Athletes 24 years of age or under. Born on 1st January 1995 or after.

Teams from PE, NT, YT, and NU are eligible to select up to four (4) players 25 years of age (born on January 1st, 1994 or after).

In keeping with the objective of targeting athletes within the Learn to Train (LTT) and Train to Train (TTT) levels of the LTAD, age exceptions may be provided to wheelchair basketball athletes born in 1994 whose athlete development level is consistent with LTT & TTT. The CGC and WBC recognize that an age-dependent criterion may not adequately reflect the entry of the athlete into wheelchair basketball. WBC's Domestic Committee in cooperation with the CGC will consider certain cases based on the criteria below. A Province may only receive one (1) age exception per gender for the 2019 Games and only if there are no other available athletes who meet the age category.

Age exception requests will be considered based on: 1. Provincial team need: a. Number of athletes b. Team fit c. Classification d. Past performance 2. Previous experience of the athlete

Please note, the intent of considering age exceptions is to help developing Provinces. It is NOT to allow higher seeds to improve their rosters leading up to the Games. Top five seeded teams (AB, QC, ON, SK, BC) will not be considered for age exceptions.

IWBF Classification system (1.0) through (4.5) with able bodied athletes classified as (4.5). The total number of points on the court not to exceed (15). The total number of classification points allowed on the court for a team goes up by one (1.0) for every female athlete that is on the court.

Grounds of Appeal

11. The Claimants advanced the following grounds in support of their appeals:

(a) the CGC’s eligibility ruling was unreasonable because Team NB did not have a provincial team need for the age exception;

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(b) the CGC’s eligibility ruling was unreasonable because the previous experience of Mr. Wilson established that he was at a level beyond LTT and TTT; and

(c) the CGC erred in considering irrelevant factors in making its eligibility ruling.

The Standard of Review

10. These appeals are conducted pursuant to the Canadian Sport Dispute Resolution Code. Rule 6.17 of the Code details the Scope of Review of an Arbitrator and provides:

The Panel shall have full power to review the facts and apply the law. In particular, the Panel may substitute its decision for:

(i) the decision that gave rise to the dispute; or (ii) in case of Doping Disputes, the CCES assertion that a doping violation has occurred and its recommended sanction flowing therefrom,

and may substitute such measures and grant such remedies or relief that the Panel deems just and equitable in the circumstances.

11. In Beaulieu v. Gardner, SDRCC 13-0214, Arbitrator Décary explained that the arbitrator in an appeal under the Code has a duty to be deferential and to apply a standard of reasonableness. He described the two general principles for arbitrators at paragraph 23:

The first one is that deference is owed to the sporting authority’s experience and expertise. It is neither the role nor the duty of an arbitrator to substitute his own appreciation of the appropriate solution unless there are valid grounds to do so. The second one is that the standard to be applied in determining what constitutes a valid ground, is the reasonableness of the decision. This is where it is helpful to compare the process with judicial review and seek guidance in judicial pronouncements that have defined what are the general grounds that entitle a reviewing body to intervene with the original decision and replace it with its own. It is in that context that my comments in Mehmedovic v. Canada SDRCC 12-0191/92 with respect to reasonableness should be read. Simply put, in sport arbitration, where deference to the experience and expertise of sport authorities is a starting point, the test is whether the outcome falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and of the policies at issue.

12. Rule 6.17 expressly empowers the Arbitrator with the authority to substitute his or her decision based on a review of the evidence and law. This authority is to be exercised within the context of the general principles described in Beaulieu of deference to the sporting authority and the application of a standard of review of reasonableness.

Provincial Team Need

13. The Technical Package identified two criteria to be considered when an age exception request was made. The first criterion was provincial team need. This criterion was divided into four sub-criteria of: (a) number of athletes; (b) team fit; (c) classification; and (d) past performance. The Claimants disputed that Team NB had established provincial team need

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based on these sub-criteria, while the CGC and Team NB maintained that the requirements of team need had been met.

14. New Brunswick is one of the provinces which is able to seek age exceptions under the terms of Section 3 of the Technical package. Team NB argued that, due to the small size of the province’s population, it struggled to field a full team for the Canada Games. At the time of the initial age exemption request for Mr. Wilson, Team NB had 9 athletes. The 9-athlete roster included two players who had been recruited from and approved as members of Team NB by WBC. Since the initial request for Mr. Wilson, the team size has increased to 11 athletes because WBC has approved an age exception request for a female athlete and another athlete has joined the team. The addition of Mr. Wilson would bring the complement to 12 athletes. If he were added to the team complement, he would not take the position of an age eligible athlete.

15. The parties in attendance at the hearing agreed that it was not necessary that a province field a full team of 12 athletes. Three other provinces will be competing at the Games with fewer than 12 athletes and Team NB competed at the most recent Junior National competition with a team of 9 athletes.

16. I find that there were valid grounds for the CGC to conclude that Team NB met the criteria in relation to the number of athletes due to the challenges identified in fielding a team and only partially addressed through the recruitment of athletes from P.E.I. and an age exemption for another athlete.

17. All parties in attendance at the hearing accepted that an age exemption for Mr. Wilson would meet the team fit factor with respect to provincial need.

18. The third sub-criteria in relation to team need involves classification of athletes using the IWBF Classification system. The parties agreed that Mr. Wilson, as an able-bodied athlete, is classified as 4.5. Team NB already had three athletes with the classification as 4.5. A team can only have players with a point total of 15 on the court at any one time. Because of these limits on the point total and the presence of three other players classified as 4.5, the addition of Mr. Wilson would be unlikely to assist Team NB with its strategies or rest opportunities. I accept the Claimants’ argument that Team NB did not have a provincial team need for a player of Mr. Wilson’s classification due to the classifications of other players on the team’s roster. The sub-criteria of classification did not support an age exception based on team need.

19. The fourth sub-criteria is identified as past performance. The Claimants argued that the performance of Team NB at the most recent Junior Nationals demonstrated that they did not have a team need. Their record at Junior Nationals was four losses and two wins and they finished sixth overall. Team NB contended that the performance at Junior Nationals supported the sub-criteria in relation to past performance because two of the losses were by significant margins. In addition, the team had experienced significant fatigue in the Junior National competition, particularly as the team had competed with a complement of nine athletes. The Claimants provided Official Scoresheets involving Team NB games in the 2011 and 2015 Canada Games, when Mr. Wilson was competing as a member of the team. In each of the games recorded on the Official Scoresheets, Team NB was the losing team. The results provided from the 2011 and 2015 Canada Games, as well as Team NB’s Junior Nationals record, would support the team’s argument that past performance supports provincial team need for the age exemption.

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20. In reviewing the arguments and evidence in relation to provincial need, I find that it was reasonable for the Respondent to conclude that Team NB met the criteria for provincial team need. Team NB had a need to increase the number of athletes to work towards fielding a full team, there was a team fit in the addition of Mr. Wilson, and the team’s past performance showed that the province was still developing in the sport in relation to the other provinces. Although the classification sub-criteria could weigh against the other three factors, the Respondent’s conclusion on team need was reasonable in considering all the circumstances presented by Team NB.

Previous Experience of the Athlete

21. Sean Wilson competed as a member of Team NB in the 2011 and 2015 Canada Games. He was among the top ten players in terms of points scored per game in both of these Games. According to the language of the Technical Package, the age exemption may be provided to athletes whose development levels are at the Learn to Train (LTT) and Train to Train (TTT) levels. The Claimants submitted that Mr. Wilson’s previous experience would make him ineligible for an age exception because he would have transitioned beyond the Train to Train (TTT) level.

22. WBC provided two documents about the Athlete Development Model - the LTAD Overview and the Technical Appendix. In these documents, the levels are described with reference to playing skills and developmental characteristics.

23. The Appeal Committee submitted into evidence a series of videos to establish that Mr. Wilson was at the Train to Compete level. These videos were short clips of Mr. Wilson competing in wheelchair basketball competitions in 2013 and 2014. The video clips were accompanied by an analysis sheet which outlined how Mr. Wilson’s performance in each clip demonstrated a skill that was recognized as within the Train to Compete Level. In addition, these video clips were reviewed by Paul Bowes, a wheelchair basketball coach since 1988, who provided a statement that the video clips showed an athlete in the Training to Compete level of the LTAD model. Mr. Bowes was unable to participate at the arbitration and, therefore, none of the other parties had an opportunity to ask him questions either about his opinion or the foundation for this opinion. I would give Mr. Bowes’ opinion less weight because the opinion is based on a series of video clips of Mr. Wilson’s performance more than five years ago and not based on his observation of Mr. Wilson during an entire game, either in the past or more recently.

24. The Claimants argued that Mr. Wilson’s previous experience showed that he was an impact player for Team NB in the previous Games. They submitted statistical evidence in relation to his performance at the Games which favourably compared him with athletes who have subsequently become members of the national wheelchair basketball team. The performance statistics and videos were evidence, according to the Claimants, that Mr. Wilson was at the Train to Compete level and that he would have continued to progress in athlete development in the years since his participation in the 2015 Canada Games.

25. Team NB argued that Mr. Wilson should not be deemed ineligible on the basis of his previous athletic experience. They submitted that the videos and statistics were out of date because they related to his experience as an athlete from 2011 to 2015, and that an evaluation of the previous experience criterion should involve a current evaluation of his level in the LTAD framework. Mr. Wilson had stopped playing wheelchair basketball after the

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2015 Games. The evaluation of his experience should recognize that he has not participated in the sport for a number of years and that this has had an impact on his level. The Claimants acknowledged that athletes do not have a linear progression through the LTAD and that there is a holistic approach to determining an athlete’s level. It was Team NB’s view that there was no evidence that Mr. Wilson had progressed through the levels or that he was currently at a level beyond Train to Train.

26. The CGC determined that Mr. Wilson was eligible for the age exception because they were unable to “point to clear objective criteria identified in the wheelchair basketball technical package that indicated Sean Wilson had progressed beyond the train to train phase of Wheelchair Basketball Canada’s long term athlete development framework.” (Eligibility Ruling Letter of January 31, 2019) The CGC was not able to conclude that, on the basis of Mr. Wilson’s previous experience, he was beyond the TTT level. They could not find guidance in the Technical Package for the criteria against which to evaluate Mr. Wilson’s previous experience. Without evidence or criteria to establish that Mr. Wilson had moved beyond the TTT level, the CGC was not prepared to deny the age exception.

27. I conclude that the CGC followed a reasonable approach to its evaluation of Mr. Wilson’s previous experience and his level in WBC’s long term athlete development framework. The Technical Package did not enumerate sub-criteria in relation to previous experience as had been outlined for the team need criteria. Nor did the Technical Package provide any criteria for the evaluation of prior experience in the context of an age exception request. There was no evidence provided to the CGC at the time of its decision to establish that Mr. Wilson was currently beyond the TTT phase of the LTAD. The evidence submitted at the arbitration about Mr. Wilson’s level in the LTAD framework was related to evaluations of his past performance from 2011 to 2015 and did not establish that, when viewed in its totality, his previous experience placed him at a level beyond TTT.

Section 4.2 of the Technical Package

28. When the CGC considered the interpretation of the previous experience criteria, it reviewed the application of section 4.2 of the Technical Package. This section identifies that athletes are excluded from the Games who are:

• Senior National Team athletes; • Athletes who do not meet the date of birth requirements as determined in section 3 of the technical package; • Athletes that have held an SR1 or SR2 card (as defined by Sport Canada’s Athlete Assistance program) at any time; • Athletes who have previously competed at the following events: • Senior World Championships • Olympic Games • Paralympic Games • Commonwealth Games • Pan Am Games • Parapan Am Games

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26. Section 4.2 also provides that “athletes who hold a C1 card (as defined by Sport Canada’s Athlete Assistance program) or are in their first year of Senior National Team status may be deemed eligible on a case by case basis.”

27. The Claimants asserted that the exclusions in section 4.2 are irrelevant to the evaluation of Mr. Wilson’s previous experience because, as an able-bodied athlete, he is not eligible to compete as a national team athlete or to compete in the events listed. Because the CGC considered irrelevant factors, the Claimants argued that the decision should be reversed.

28. There are clear and objective criteria for the exclusion of athletes identified in section 4.2 of the Technical Package. The CGC was looking for objective criteria that it could apply to its consideration of Mr. Wilson’s previous experience and reviewed section 4.2 as part of this process. I do not find that the CGC’s review of section 4.2 amounted to a consideration of irrelevant factors in its decision. Section 4.2 is relevant as a list of exclusions, including exclusions based on an athlete’s prior competition in certain designated events. In the list of previous competitions, an athlete’s participation at the Canada Games is not identified as an exclusionary criterion. If it had been, this would have ended the analysis in relation to the effect of Mr. Wilson’s previous experience on the age exception request. It was relevant for the CGC to review and consider the exclusions in section 4.2 as part of the context for its evaluation of Mr. Wilson’s previous experience. The CGC was explicit in its Eligibility Ruling that there were no clear objective criteria that it could apply to evaluate Mr. Wilson’s previous experience and, based on this statement, I conclude that the CGC did not apply the exclusionary criteria in section 4.2 to determine the question of Mr. Wilson’s eligibility.

Conclusion

29. The language of the Technical Package directed that age exception requests be considered on the basis of two criteria. The language in the Package does not provide direction as to the weighting and evaluation of the criteria or that a request must meet all the criteria. The CGC considered provincial team need and the previous experience of the athlete when presented with the age exception request for Mr. Wilson. I have reached the conclusion that the CGC made a reasonable decision on the basis of its consideration of the criteria outlined for age exemptions when it determined that Mr. Wilson was eligible to compete at the 2019 Canada Winter Games. Team NB had a provincial team need and the evidence did not establish that the athlete’s previous experience placed him at a level beyond Train to Train. The Claimants’ requests to reverse the CGC’s decision are denied. I would like to express my gratitude to all the persons involved in these appeals for their collaboration and efforts to ensure that the appeals were addressed in a manner that respected the urgency of the issue.

Signed in Toronto, this 12th of February, 2019

Jennifer Webster, Arbitrator

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