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

NO: SDRCC 19-0406

ISABELA ONYSHKO (CLAIMANT)

AND

GYMNASTICS CANADA (GYMCAN) (RESPONDENT)

AND

VICTORIA WOO (AFFECTED PARTY)

Tribunal: Patrice Brunet (Sole Arbitrator)

Appearances:

For the Claimant: Janice Fowler

For the Respondent: Ian Moss Amanda Tambakopoulos

For the Affected Party: Michel Charron Maryse Ronda

REASONS FOR DECISION

I. INTRODUCTION

1. This arbitration was conducted under extraordinary time constraints since the Canadian Olympic Committee (COC) was expected to confirm the team composition a few days later, on Monday, June 17th, 2019 for the upcoming 2019 (also referred to as the Pan Am Games).

2. On May 29th, 2019, GymCan unofficially announced the selection of the team for the 2019 Pan Am Games. The top five athletes were selected. Victoria Woo (the "Affected Party") was named as the 5th athlete and Isabela Onyshko (the "Claimant") was named as the non-travelling reserve athlete, in 6th position.

3. On the same day, the Claimant’s representative filed a request for reconsideration with GymCan regarding the nomination of the athletes for the 2019 Pan Am Games.

4. On May 30th, 2019, GymCan’s Selection Working Group (the "SWG") reviewed the Claimant’s request for reconsideration but ultimately decided to maintain the nomination of the athletes on May 31st, 2019, as the information was initially released.

5. On June 10th, 2019, the Claimant filed an appeal to the SDRCC to seek a reversal of the decision in order to be named 5th athlete for the upcoming 2019 Pan Am Games. Because of the time constraints, all Parties agreed to bypass the internal appeal process and to proceed directly to the SDRCC.

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6. On June 11th, 2019, I accepted the appointment to act as Arbitrator in the present proceedings, under article 6.8 of the Canadian Sport Dispute Resolution Code (the "Code"). There were no objections raised by any of the parties.

7. On the same day, at 3:15 p.m. (EDT), a preliminary conference call was held between the undersigned Arbitrator, the Parties and the SDRCC staff. Considering the urgency of the case, both parties agreed to file their submissions concurrently on June 12th, 2019.

8. The Claimant sought a reversal of the decision made by GymCan’s SWG so that she could be named to the team, instead of the reserve team, with respect to the selection of the Women’s Artistic team for the upcoming Pan Am Games.

9. The hearing was held via conference call, on June 14th, 2019 at 11:00 a.m. (EDT).

10. On June 16th, 2019, I rendered my short decision whereby I dismissed the Claimant’s appeal and upheld the SWG’s decision.

11. The reasons for my decision are set out below.

II. THE PARTIES

12. Isabela Onyshko is a Canadian gymnast. She is currently a member of the Vancouver Phoenix Gymnastics’ Club. She was named as the reserve athlete for the 2019 Pan Am Games taking place in , .

13. Gymnastics Canada (GymCan) is the national governing body for gymnastics in Canada.

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14. Victoria Woo is a Canadian gymnast. She has been selected to the team in 5th and last position and would therefore stand to be named as a reserve athlete, should the Claimant be successful in the current appeal. This is why she has been granted Affected Party status under the present proceedings.

III. JURISDICTION

15. The Sport Dispute Resolution Centre of Canada (SDRCC) was created by Federal Bill C-12, on March 19th, 20031.

16. Under this Act, the SDRCC has exclusive jurisdiction to provide to the sports community, among others, a national alternative dispute resolution service for sport disputes.

17. All Parties have agreed to recognize the SDRCC’s jurisdiction in the present matter.

IV. POSITIONS OF THE PARTIES

18. This section summarizes the oral and written submissions of the Parties. Although this is not a detailed record, I carefully examined all submissions presented by the Parties.

A) The Claimant

30. The Claimant seeks to obtain a variation of the decision made by GymCan’s SWG. She asks that I review the SWG’s selection decision to name her to the Women’s team for the upcoming Pan Am Games.

1 The Physical Activity and Sport Act, S.C. 2003, c.2 4

31. She states that the 2019 Pan Am Games Women’s Artistic Gymnastics – Selection Process (the "Selection Process") was not properly followed. She claims that the SWG did not respect the published criteria, that they were not equitably applied for all athletes eligible in the Selection Process, and that there was demonstrated bias in the selection of the team.

32. According to the Claimant, when documents are produced and circulated by a national sport organization (NSO), they are required to be clear and transparent and should be congruent from one document to another.

33. She claims that the documents produced by GymCan demonstrate that their position showed bias towards a few athletes during their selection for the Pan Am Games team.

34. The Claimant also submits that there was a real discrepancy in the number of competitions that the athletes participated in, and that were being considered and assessed by GymCan. In her opinion, the Selection Process did not specify the number of competitions to be assessed.

35. Finally, according to the Claimant, Section 5.1 of the Selection Process states that performances at major competitions is more important and that it needs to be taken into consideration when GymCan is selecting the team. In her appeal, she claims that there are inconsistencies in the selection process and seeks my review.

B) The Respondent

36. GymCan’s position is that there were no discrepancies, that the Selection Process met the published criteria and that the SWG’s decision should be upheld. They claim that the SWG properly applied the selection criteria as stated and that they made no error in the selection of the team. Their view is that the Claimant misinterpreted Section 5.1 Team Selection of the Selection Process.

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37. The Respondent states that the SWG has the authority to select the athletes for the 2019 Pan Am Games team, since they have the necessary technical expertise to make the best decision, in the best interest of the sport. The SWG members are volunteer technical experts in the sport of women’s artistic gymnastics and represent various technical groups within the discipline.

38. In choosing the right individuals, the Respondent explains that the SWG uses a Team Selection Assistant (TSA) software tool to provide an objective analysis of the variables that the SWG must consider when naming athletes to the team. GymCan has been using this software for many years and it has been well accepted by the Canadian gymnastics community in the team selection process.

39. The Respondent recognizes that, in any selection process, there will always be elements that require interpretation and a subjective analysis of situations that present themselves as unique. Nevertheless, it remains the prerogative of the SWG to make the decisions, and provide the interpretation in a logical and rational manner.

40. The Respondent states that it has made every effort to be transparent in its communication to members in respect to the selection criteria for the team selection.

C) The Affected Party

41. The Affected Party submits that the SWG’s decision should be maintained since she demonstrated stability throughout the season, which allowed her to obtain very good results in the selection competitions. For these reasons, she claims that she deserves her place in the 2019 Pan Am Games team.

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V. THE APPLICABLE LAW

A) The SDRCC Code

6.7 Onus of Proof in Team Selection and Carding Disputes

If an athlete is involved in a proceeding as a Claimant in a team selection or carding dispute, the onus will be placed on the Respondent to demonstrate that the criteria were appropriately established and that the selection or carding decision was made in accordance with such criteria. Once that has been established, the onus of proof shall shift to the Claimant to demonstrate that the Claimant should have been selected or nominated to carding in accordance with the approved criteria. Each onus shall be determined on a balance of probabilities. [Emphasis added]

B) The 2019 Pan Am Games Women’s Artistic Gymnastics – Selection Process

1.0 INTRODUCTION

The purpose of this document is to set out the process and criteria that will be used by the selection working group (SWG) of the Women’s Artistic Gymnastics (WAG) Program of Gymnastics Canada (GymCan) to select and nominate athletes and coaches to the Canadian Olympic Committee (COC) for the (PAG), Lima Peru. GymCan is responsible for the sport internal selection process and for the nomination of athletes and coaches for final approval by the COC. […]

5.0 SELECTION OF ATHLETES

5.1 TEAM SELECTION

The selection process has been developed to select the athletes with the

7 greatest potential to meet the stated objectives. Demonstrated potential will be assessed based on results obtained at Senior domestic and FIG international competitions between October 27, 2018 and May 27th, 2019.

Selection to the delegation will be based on the following criteria:

1. Demonstrated potential to contribute to the strongest team score to place Canada in the top 3. 2. Demonstrated potential to win a medal in an all-around final. 3. Demonstrated potential to win a medal in an apparatus final. […]

The selection working group will analyze results using the team selection assistant and scores from the competitions listed in the time-frame above. The team selection assistant allows the SWG to analyze the scoring potential of different teams.

Scores that could be considered include: - Best score - Average of top scores - Nationals - Top International competitions

The following will also be taken into consideration:

1. Frequency of obtaining the highest scores 2. Date of competition or camp (more recent performances is more important) 3. Performances at major competitions (WC, AA World Cups) is more important

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5.2 RESERVE ATHLETES

The SWG may identify reserve athletes for the 2019 PAG team based on the criteria above, although there is no obligation to name a reserve.

The reserve athlete will not have the status or privileges of a team athlete and will not travel with the team to the Games. It is mandatory for this athlete to attend the team preparation activities.

GymCan will make every effort to ensure that the first reserve athlete is nominated to the COC and PASO.

VI. DISCUSSION

42. Under article 6.7 of the Code, the Respondent had the onus to demonstrate that its selection criteria were reasonable and properly established and that the selection decision was made in accordance with such criteria. Although the Claimant wished for a different selection decision to have been made, she did not contest the criteria itself nor the tool known as the TSA. Therefore, the onus then shifted on the Claimant to explain that the application of the criteria should have generated a different decision.

43. It is well established in lex sportiva that deference should be granted to the NSO in the establishment, application and final decisions of its selection criteria. There is a positive presumption that administrators and volunteers in the sport are best placed to achieve sound policy drafting and team selection decision-making.

44. I have reviewed the application of those principles and am satisfied that the selection criteria and team selection decision have been made using best practice principles.

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45. I recognize the expertise and experience of GymCan’s SWG. Its members are best placed to decide which eligible athletes will form the team competing at the Pan Am Games and I am satisfied that the Selection Process was applied properly.

46. However, I could not avoid but notice that the Claimant may have been misled by the numbering of the criteria in article 5.1 of the Selection Process: during the hearing, she explained that the numbers represented, to her, an order of priority among the 3 criteria. However, upon my request for clarification from the Respondent, it was made clear that the numbering did not refer to any order of priority. Bulleting the criteria, in no particular order, would have served the same purpose. I am satisfied that the criteria are in no particular order and perhaps this should be clarified in further versions of the selection policy.

47. The Claimant had to demonstrate that she should have been selected on the 2019 Pan Am Games team in accordance with the approved criteria.

48. Having considered the evidence provided before me, I find that the Claimant did not meet her onus of proof. I could not find anything egregious in the Selection Process, its application and the outcome that would allow me to intervene and substitute my own decision to the one taken by the experts in the sport.

49. Of course, one could tweak the criteria in one way or another, and the outcome may produce slightly different results. But this is the task of the SWG, not mine.

50. In the conduct of this short but comprehensive arbitration, I also wanted to emphasize that:

a. both the Claimant and the Affected Party are extremely talented, and they both deserve to be on the team, and

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b. the Claimant has nevertheless been selected, albeit, to her chagrin, as an alternate, to the Pan Am team which is in and of itself an extraordinary accomplishment.

51. Other iterations could have been entertained with the Team Selection Assistant (the "TSA") software tool used by GymCan. However, I am satisfied that the tool has been used properly; it is recognized by the experts in the sport as the best tool available, in a sport that needs to consider a number of subjective factors. The SWG decision was made using the TSA, and in the circumstances, it was the best decision possible.

52. I also analyzed whether the selection decision was contaminated with bias but could not find any factual element that supported this claim, as bias is commonly understood in a sports selection process. The Claimant also admitted, during the hearing, that she did not mean to imply that there was a secret alliance, or favourable pre-judgement towards a specific athlete based on relationships or other biased views as they are commonly understood. She did not mean to attack the integrity of the SWG, and I did not understand it otherwise.

53. As a result, I am satisfied that Victoria Woo, the Affected Party, came ahead in eight out of ten different scenarios and should remain the selected athlete to the team, as recommended by the SWG.

54. Since I am satisfied that the criteria have been met, while other scenarios may have been legitimately raised, it is not appropriate for me to intervene in the SWG’s decision.

55. On a final note, I wish to thank all parties for their professionalism, for the preparation of their submissions within very short timelines and for their flexibility in the conduct of this arbitration with some elements of translation. I

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recognize that both athletes, Isabela Onyshko and Victoria Woo, are probably very close in skills to one another, but I trust the right decision was made by GymCan to field the best available team, including the reserve athlete, for the upcoming Pan Am Games.

VII. CONCLUSION

The Claimant’s appeal is dismissed and the decision of the SWG is upheld.

I retain jurisdiction and reserve the right to hear any dispute relating to the interpretation or application of the present decision.

Signed in Montreal, this 25th day of June 2019.

______Patrice Brunet, Arbitrator

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