Sport Dispute Resolution Centre of Canada (Sdrcc) Centre De Règlement Des Différends Sportifs Du Canada (Crdsc)
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SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC) CENTRE DE RÈGLEMENT DES DIFFÉRENDS SPORTIFS DU CANADA (CRDSC) NO: SDRCC 16‐0297 OLIVIA MEW (CLAIMANT) AND SAIL CANADA (RESPONDENT) DECISION Appearances: Jordan Goldblatt On behalf of the Claimant Olivia Mew Robert Mew Adam Klevinas On behalf of the Respondent Todd Irving (President) Phil Gow (Chair, Athlete Development Committee) Ken Dool (High Performance Coach) 1. On June 17, 2016, I was appointed by the SDRCC as an Arbitrator under section 6.8 of the Canadian Sport Dispute Resolution Code (the “Code”) to hear Olivia Mew’s request for arbitration (the “appeal”) of Sail Canada’s decision not to select her to the 2016 Canadian Olympic Sailing Team. 2. This appeal was conducted on an urgent basis by telephone conference call on June 20, 2016, with a decision to be issued by June 21, 2016, as June 22, 2016 was the last date Sail Canada had to advise World Sailing whether it would accept or turn down the additional quota spot offered for the 2016 Olympics. 3. I issued my decision to deny Ms. Mew’s appeal on June 21, 2016, with reasons to follow. These are my written reasons. 4. Although I have carefully considered all of the evidence, I will refer only briefly to much of it in this decision. BACKGROUND 5. Ms. Mew is a competitive RS:X wind‐surfer and a member of Sail Canada National Sailing Team – Development Team. 6. Sail Canada is the national governing body for the sport of sailing. Designated by the Government of Canada as a National Sport Organization representing the sport of sailing, it represents all participants, including recreational sailors and high performance athletes, at club, provincial, national and international levels. 7. In 2015, Sail Canada’s Board approved the selection policy for the Canadian Olympic Trials for Sailing at the 2016 Olympic Games (“the Policy”). 8. On May 31, 2016, Ms. Mew was informed that she had not been selected to represent Canada at the 2016 Olympics in the RS:X category. 9. Ms. Mew does not dispute the substance and reasonableness of the criteria established in the Selection Policy. Rather, she contends that the selection decision was not made in accordance with the criteria. 10. The burden is on Ms. Mew to demonstrate, on a balance of probabilities, that the decision not to select her was incorrect. The Policy 11. The relevant portions of the policy, as amended, are as follows: Selection to the 2016 Canadian Olympic Team in Sailing is a two‐part process including qualifying the country via the ISAF Qualification System – Games of the XXXI Olympiad, Rio 2016 – and the Sail Canada Internal Nomination Process. … 2016 Canadian Olympic Sailing Team Nomination Criteria Classes must meet ISAF country qualification requirements before individual athletes sailing those classes can be considered for nomination to the 2016 Olympic Team. Classes that have met the international criteria for nomination but where no athlete has met the internal criteria may not be nominated to the Olympic team. Internal Nomination Performance Standards: Nomination to the 2016 Olympic Sailing Team will be based on athlete assessment against the following performance criteria: 1. Demonstrated Podium Potential at nomination events. 2. Consistent Medal Race Performance at nomination events. 3. Consistent Top 16 overall (or top 50% for fleets of less than 32 boats or boards) performance in final standings at nomination events. 4. Consistent Top 25% of overall fleet performance in final standings at nomination events or Top 50% at world Cup Events (if fleet is restricted to 40 boats or less) 5. Rising Star Criteria Athletes with performances achieved at or below the “Criteria 4” standard set out above, may be nominated to the Olympic Sailing Team at the discretion of the ADC [Athlete Development Committee] in consultation with the HPD [High Performance Director of Sail Canada] and HP [High Performance] Coaches, but athletes eligible under the Rising Star category may be considered for nomination ahead of these athletes. Such decisions will weigh factors such as commitment to a long‐term program and evaluation against an age group cohort along with results achieved. (See “Rising Star Criteria”, below). Nomination Events: Athlete performances will be evaluated utilizing scores achieved at the events listed below. It is not the expectation or desire that athletes attend all of the designated events but rather that they follow a coach approved program targeted to achieve personal performance potential. 2015 Olympic Class World Championships 2015 Olympic Class European Championships 2015 Olympic Class World Cup Events – Hyeres, Weymouth & Portland 2015 Test Event 2016 Olympic Class World Championships 2016 Olympic Class World Cup Events – Miami, Hyeres, Weymouth & Portland 2016 Olympic Class European Championships 2016 Princess Sofia (Palma) Regatta and Holland Regatta … Where two or more teams meet these standards in a single class, nomination will be based on a comparison of each team’s performances over time at the nomination events, including results, consistency, improvement trajectory, and the quality and depth of fleet at each event. Where no team has achieved the performance standards, a nomination may be made at the discretion of the ADC in consultation with the HPD and HP Coaches, with strong consideration given to teams that meet Rising Star criteria. Rising Star Criteria: Athletes or teams, having formally committed to 2020 programming … and having demonstrated international performance that illustrates the ability to perform at the 2016 Games but which do not meet the first three Internal Nomination Performance Standards, may be nominated under the Rising Star criteria. Performance criteria may include, but are not limited to, performances at the events listed above under “Nomination Events” and such additional events as: Eurosaf Events, Youth World Championships, North American Championships, age group world championships or performance in an Olympic Class in which the athlete has not been nominated as the Olympic representative. When considering the additional events, performance across all Olympic Classes or Youth World Championship classes, where appropriate, will be included. EVIDENCE 12. On May 30, 2016, the Athlete Development Committee (“ADC”) met to select the athletes for the Olympic team. Present at the meeting were members of Sail Canada’s coaching staff and its High Performance Director. The committee members discussed the performance of the athletes in each class. The ADC determined that Ms. Mew had not met any of the first four tiers of qualification, a determination Ms. Mew does not challenge. The ADC also determined that Ms. Mew had not met the criteria set out in the Rising Star category. 13. The ADC informed Ms. Mew of its decision by way of a letter dated May 31, 2016: The Committee discussed the results spreadsheet previously distributed by Ken [Dool], results in regattas outside the Nomination Events, and comments from the coaches including details of performance at the recent Delta Lloyd regatta. Olivia did not achieve any tier of the selection criteria nor had shown the potential to do so. The committee considered her against rising star criteria and determined that she has not demonstrated the ability to perform at the Rio games, and the coaches commented that she is not at a stage of development whereby the Olympic regatta would be beneficial to her future progress. The committee decided unanimously to recommend that Canada should not nominate an athlete in Women’s RSX at the 2016 Olympics. [reproduced as written] 14. Attached to the decision letter was a spreadsheet outlining Ms. Mew’s performance against the criteria. The spreadsheet listed 11 events, the world ranking of the competitors at each event, and Ms. Mew’s results at the three events at which she competed. Those results were: 57/59 at the 2015 World Championships, 31/36 at the 2016 Miami event and 30/31 at the 2016 Holland event. 15. Mr. Gow said that, in addition to the three events identified above, the ADC considered Ms. Mew’s results in three other events in the context of the Rising Star category: the 2014 and 2015 North American Championships and 2015 Cork event. Ms. Mew did not place in the top half of the competitors in any of these events. 16. Mr. Gow said that the committee did not consider Ms. Mew’s placing at a regatta held in Weymouth in June 2016 because it had taken place after the deadline, and it was “beyond the point where consistency was a possibility.” Furthermore, he added that the Weymouth regatta had only an 8‐boat fleet which was not representative of a world‐class event. 17. Mr. Dool attended the Holland regatta and observed three of Ms. Mew’s races out of personal interest. He acknowledged that Sail Canada had not contacted any of Ms. Mew’s personal coaches to solicit information about her ability or potential prior to making its decision. 18. In support of her appeal, Ms. Mew submitted a letter from Farrah Hall, an elite‐level American RS:X Olympic‐class windsurfer who Ms. Mew hired to coach her at the Holland and Weymouth events. Ms. Hall’s letter stated, in part, that Ms. Mew “demonstrated a great ability to learn and improve her racing on many levels...,” that she “…improved her performance [daily]…,” and that in the Holland event, Ms. Mew worked on “technique and simple strategies, which she understood by the end of the regatta.” Ms. Hall further stated that Ms. Mew demonstrated her best racing at the Weymouth event. ARGUMENTS 19. The arguments of the parties may be summarized as follows. It is not intended to be a comprehensive recitation of every point made by each of the parties. Claimant 20. Ms. Mew argues that as this appeal is, in essence, an appeal from the committee’s decision, the standard of review is correctness, in accordance with the standard set out in Sail Canada’s appeal policy.