SDRCC/CRDSC 04-0017 Ordinary Division

CHRISTILOT HANSON BOYLEN

Claimant v.

EQUINE CANADA

Respondent

and

ASHLEY HOLZER

and

EVI STRASSER

Affected Parties

before

Richard W. Pound, Q.C. (sole arbitrator)

Present:

Christilot Hanson Boylen (Claimant) Paul J. Conlin (representative of Claimant) Hilary Findlay and Rachel Corbett (representatives of Respondent) John Harris (Chair of Dressage Canada Board) Kim Goodyear (Chair, Dressage Canada High Performance Committee) Magali Fournier, Fournier Associés, SENC, for Evi Strasser (Affected Party) Brian Ward, for Ashley Holzer (Affected Party)

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This matter arises from a Request for Arbitration, pursuant to Section RA-7 of the “new” ADR-sport-RED Code, (effective as and from June 1, 2004) (the “Code”) filed on the Claimant’s behalf on July 7, 2004. I was appointed sole arbitrator by L. Yves Fortier, acting in his capacity as Co-Chief Arbitrator.

Preliminary Matters

This matter pertains to selection of athletes for Canada’s Olympic team in the Athens Games, to be held in August 2004. I am advised that the decision in the matter must be communicated to the parties prior to noon on July 12, 2004 so that the necessary entry forms can be submitted to the Canadian Olympic Committee (“COC”), which will determine whether the proposed team meets the selection criteria established by agreement between the COC and the Respondent and, in turn, advise the Athens Olympic Organizing Committee of Canada’s official entries.

In matters of this nature, it is the Claimant that has the greatest sense of urgency, since it is the Claimant who seeks alteration of a decision already taken. The other parties have not necessarily prepared for such proceedings, since they are initiated by the Claimant, and they may have difficulty in retaining counsel, should they elect to participate in the proceedings with professional assistance. The Respondent has retained counsel, as have the Affected Parties. In order to respond appropriately to the urgency of reaching a decision, I had intended to have a hearing by telephone conference at 4:00 p.m. on Friday, July 9, 2004.

Counsel for the Respondent indicated that she would need until 5:00 p.m. the same day to assemble the documentary material in possession of the Respondent and to 3 answer the Request for Arbitration. After consultation with me, the Dispute Secretariat granted such a delay and the hearing was re-scheduled for 9:00 a.m. on Saturday July 10, 2004. Subsequent to this, the Affected Party, Evi Strasser (“Strasser”) filed an answer to the Request for Arbitration through her attorneys, Fournier Associés, SENC, but requested a further delay, to the evening of July 10, July 11 or July 12, 2004, due to the absence from the country of Pierre Fournier. Having reviewed the contents of the Answer and, in view of the short delays involved between the time of hearing and the need for a decision, I declined to postpone the hearing any further. The other Affected Party, Ashley Holzer (“Holzer”) did not retain counsel until late on Friday, July 9, 2004 and an answer was not filed until the evening of the same day.

Counsel confirmed their authority to act in this matter and both the Claimant and representatives of the Respondent participated in the hearing.

Background

This matter arises in the context of the selection of competitors to be entered in the dressage discipline of the equestrian competitions at the forthcoming Olympic Games in Athens, Greece, scheduled to be held between August 13 and August 29, 2004.

The Claimant is a well-known and experienced dressage competitor, having been continuously active in the sport since the 1964 Olympic Games in Tokyo. She has participated in several editions of the Olympic Games since 1964, including Mexico City in 1968, Munich in 1972, Montreal in 1976, Los Angeles in 1984 and Barcelona in 1992. She did not compete in the 1980 Games in Moscow (boycotted by Canada) or in 1988, 1996 or 2000 (Canada did not qualify). She wishes to be selected as part of the 2004 4

Olympic team, at least as a reserve team member. The Respondent has not selected her for either position. The Claimant asserts that the Respondent’s Selection Committee:

1. arbitrarily refused to consider the extraordinary or unforeseen circumstance criterion included in the selection criteria; 2. was discriminatory to her on the basis of her residence (she lives in Germany); 3. was discriminatory on the basis of the sex of her horse (Canadian regulations governing the entry of her mare to Canada were much stricter than those covering geldings); and 4. was motivated by bias toward her as an outspoken opponent of the rigidity of the selection criteria for the 2004 Olympic dressage team.

Not surprisingly, the Respondent denies having made its decision on any of the improper considerations suggested by the Claimant. Its position is that it made its selections in accordance with the established selection criteria for the 2004 Olympic team and that the Claimant was fully aware of both the criteria and process. Her failure to adhere to that process and, in particular, to certain mandatory provisions in the process was her own fault and the selection process should not be subverted in consequence thereof. The Respondent asserts that it made arrangements to enable the Claimant to comply with the selection process, but that the Claimant failed to take advantage of them.

Affected Parties and Challenge

Strasser’s counsel urges me to decline jurisdiction in the matter, on the basis that the Claimant has agreed to abide by the rules set forth in the selection criteria established by the Respondent. She then goes on to argue that the extraordinary, temporary unforeseen circumstances relied on by the Claimant did not qualify as such and adds that her client has respected and met all criteria set out by the Respondent. 5

I have accepted jurisdiction in the matter because of the substantive issues raised by the Claimant. The whole purpose of resort to arbitration in matters such as this is precisely because athletes cannot be said to have abandoned their rights to insist on proper application of selection criteria and a selection process simply by acknowledging that such criteria and process are applicable in a particular circumstance. If a selection committee misdirects itself, interprets the rules unreasonably, refuses to consider all of the relevant circumstances or deliberately breaches the rules, it is essential that an athlete so dealt with has a recourse available to her.

The other Affected Party, Holzer, basically adopts the position of the Respondent, saying that the Claimant was well aware of the selection criteria, including the mandatory competitions, and that she simply did not organize her affairs in a timely fashion to enable her to compete in them.

The Selection Criteria

There is no issue between the parties as to the selection criteria and process applicable for selection of the 2004 Olympic Games dressage team. These were adopted by the Respondent and negotiated with the COC as appropriate for inclusion on the Canadian Olympic team. Final responsibility for selecting the Canadian Olympic team rests with the COC as the IOC-recognized national Olympic committee in Canada. That is why each national federation (such as the Respondent) negotiates a selection process with the COC which both parties to such agreement acknowledge will meet the overall selection criteria for a Canadian Olympic team. This process has been designed to bring some certainty for athletes, coaches and administrators as to the expectations for performance standards, to confirm a process that will enable performances to be 6 evaluated and to avoid last-minute disputes with the COC as to whether athlete performances meet those standards.

The selection criteria and process applicable in this matter are not in dispute. Nor is awareness of the established criteria and process by any party in this matter. That said, because of the nature of the sport, the combination of rider and horse, the health and transport of horses, the quarantine regulations applicable to horses moving from country to country and the particular character of equestrian competitions, the criteria and process are quite complex. Nomination of the 2004 team is a two-stage process: qualification, followed by pre-Games inspection and final selection. The final qualification date is midnight July 11, 2004. Nominations must be submitted to the COC for approval by noon on July 12, 2004. This is the deadline that applies in this matter.

Complexity in this matter is not confined to the sport, but extends to the internal organization of the Respondent, which undertook a significant reorganization starting in 2000. The Canadian Equestrian Team (“CET”) is a standing committee of the Canadian Equestrian Council of the Respondent, Equine Canada. Within CET, the disciplines include dressage, which operates on a practical basis under the name Dressage Canada which has its own board of directors. There is a Dressage Canada High Performance Committee (“HPC”) which prepares the qualification and selection criteria for, inter alia, the 2004 Olympic Games. The HPC also appoints the Dressage Selection Committee (“DSC”), which is comprised of an FEI (the international federation) judge, an FEI veterinarian and two HPC designates, one of whom must be an FEI rider. This latter individual is voted on by the riders themselves. The other member is appointed by the HPC. The FEI veterinarian does not vote in decisions taken by the DSC. The duties of the DSC

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… will include, but not be limited to, ruling on contentious issues involved in the Selection Process; ensuring that all scores are accurately tabulated; being responsible for the selection of substitutes; informing the HPC of the final Team Selection. The DSC will preside at the mandatory horse inspection at a place or places to be named.

No issue regarding either the appropriate composition or competence of this structure was raised before me.

The basis for the adoption of the particular selection criteria for the 2004 Games reflected the considered judgment of those concerned with selecting the best possible Olympic team. One element of the criteria is a head-to-head competition between all qualified rider/horse combinations, which was a mandatory requirement for all athletes except for those who may have earned a bye. The head-to-head competitions in Canada were considered by the Respondent to be the best method of achieving improved performance by Canadian teams in international events. The Respondent noted that all nine dressage teams participating in the Athens Games were using the same method. When Canada did not do this, it failed to qualify for the 2000 Olympics and when it did use the method, its teams performed particularly well. The Respondent went through a significant reorganization in 2000, one objective of which was to improve competitive performance, which had declined in recent year. Dressage Canada, for example, had failed to qualify for the 2000 Olympic Games. A strategic plan, looking as far forward as 2012 is now in place and is being pursued. The Respondent has noted considerable improvement in performance on the international scene and has set the performance “bar” deliberately high. I do not purport to express any expert opinion on the process, but observe that those responsible for its adoption, and who know the sport intimately, were convinced that it was the best selection method. That expertise, and the plans designed to achieve the desired results, deserve considerable deference from any arbitrator, especially absent the slightest evidence of any bias against anyone. On that basis, I find that the establishment of selection criteria and the related process for team selection were within the competence of the 8

Respondent to adopt and that the outcome of that process was not motivated by any bias toward the Claimant.

The selection criteria and process were known to all riders, including the Claimant. There was not uniformity of opinion on the matter among all the riders and several of them, once a draft policy had been circulated in the fall of 2003, objected to it, specifically by means of a letter addressed to the Respondent. The objections were considered by the Respondent, but not accepted, and the selection criteria and process now in force were adopted by the Respondent. The Claimant, despite her personal reservations regarding the criteria and policy, nevertheless signed an agreement in March 2004 with the Respondent in which she acknowledged and accepted them for purposes of the 2004 team selection.

Qualification for the final selection required the submission of 3 Grand Prix scores at different competitions between April 1, 2003 and June 14, 2004, only one score of which could be from 2003. Rule 2.2.c.ii provides:

Of the three (3) scores submitted, a maximum of one score may be from a 2003 CDI*** or CDI-W and a minimum of two scores must be from competitions in 2004, one of which must be a CDI*** or CDI-W. [emphasis included in Rule]

CDI*** means Concours Dressage International 3-Star competitions, in which there are 5 judges and the course ridden is the Grand Prix course followed by either a Special or a Freestyle course, and CDI-W means is a Concours Dressage International World Cup event. Rule 2.2.c.iv provides:

Riders that do not compete in EC [Equine Canada, the Respondent] national dressage competitions for scores, must achieve their three scores from CDI*** or CDI-Ws within the timeframe noted above.

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The Claimant had achieved the necessary scores to qualify for the final selection portion of the process. Final selection standings are dealt with in Rule 2.3, of which paragraph b. provides:

The final selection will consist of two head-to-head Grand Prix tests at separate CDI*** competitions. The first Grand Prix test to be ridden at the CDI*** York, June 18-20, 2004. The second and final Grand Prix tests to be ridden at the CDI*** Blainville, June 29-July 4, 2004. The panel’s final result will count. Marks from individual judges will not count. Riders must also compete (providing they are qualified) in either the Grand Prix Special or the Grand Prix Freestyle at each of the CDI*** competitions.

This is a central portion of the selection process. Unless a rider/horse combination had scored high enough to obtain a bye into the final selection phase, it was mandatory that all riders seeking selection participate in the two competitions. It is common ground that the Claimant had not scored high enough in designated competitions to achieve such a bye, so she remained subject to mandatory participation in the head-to-head events at York and Blainville on the dates specified in the rule. She did not compete in either of those competitions and was not selected as a member of the team, or as a reserve, that the Respondent proposed to submit to the COC for approval. The matter was effectively concluded on June 30, 2004 when the Respondent refused to exercise its discretion in her favour, to exempt her from participating in the mandatory events. She launched her Request for Arbitration on July 7, 2004.

Rule 2.5.p was invoked by the Claimant as the basis for her Request for Arbitration. It reads as follows:

An accident or some other extraordinary, temporary unforeseen circumstances that might impede participation in a qualifier competition may be taken into consideration by the DSC, with respect to selecting the OG Team and reserves and may be given whatever weight the DSC deems appropriate. Where such extraordinary temporary unforeseen circumstances exist, the DSC reserves the right to make substitutions to the OG Team and reserves following the initial selection of the OG Team and reserves. Further, if a horse or rider becomes unable to perform after being named to the OG Team and reserves and prior to departure for 2004 OG, the DSC reserves the right to make a substitution, in accordance with section 2.4.b of this criteria. [Emphasis added]

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She claims, inter alia, that the decision of the DSC (and ultimately, in the sense of legal responsibility, the Respondent) was discriminatory to her on the basis of her residence and on the basis of the sex of her horse, because she lived in Germany and the Canada regulations governing the entry of her mare to Canada were much stricter than those governing geldings.

I do not accept this position. It was the Claimant’s decision to live in Germany. As someone who has been involved in equestrian competitions on an international basis for almost 40 years, it stretches credulity to the breaking point to suggest that she would have been unaware of the factors affecting transportation and quarantine of horses, whether mare, gelding or stallion. There are well-publicized rules governing such matters and established routine procedures for obtaining the required permits. These are known by riders, owners, veterinarians, transporters and agents engaged for the purpose. They are not extraordinary, temporary or unforeseen aspects within the equestrian world, but, rather, the day-to-day considerations that are always present, especially in international equestrian competitions where horses must be moved from country to country and even continent to continent.

It seems to me that the case comes down to this: the Claimant did not agree with the selection criteria when they were drawn up, and made her position clear, as did certain other riders, among whom was one of the Affected Parties in this arbitration. Despite the athlete protests, and for reasons that appear to be eminently reasonable, the Respondent preferred to adopt the selection criteria that are in issue here. The Claimant understood that her position had been unsuccessful and agreed to the selection criteria and process, which, among other elements, involved (absent a bye) two mandatory head-to-head competitions in Canada, the dates of which were fixed and known several months in advance – more than enough to make any necessary travel and quarantine arrangements. Other Canadian riders training and competing in Europe were able to do so. The Claimant’s resistance to the selection criteria remained unabated and she 11 made several attempts with the DSC (contacting the rider representative) to negotiate her way out of having to comply with them, but to no avail. When it became apparent that there would be no alternative but to take part in the Canadian competitions, she did not take advantage of arrangements made for her by the Respondent,1 but left everything to the last moment and, ultimately, for a variety of expressed reasons, including expense, did not travel to Canada for participation in the mandatory competitions. She now seeks to invoke her own failure to act in due time to comply with the selection criteria as an “extraordinary, temporary unforeseen circumstance” and requests that she be added to the Olympic team. The Respondent has declined to accede to that request. I believe such a decision was within its discretion to make.

The real question that must be determined is the standard of review that should apply to any decision of this nature. The range seems to me to vary between correctness (at the high end of my capacity to intervene), reasonableness and patent unreasonableness (at the low end of my capacity to intervene). The Claimant argues that Rule RA-15 of the Code2 clothes me with the ability to substitute my judgment for any decision taken by the Respondent in this matter and that, so long as the decision of the Respondent regarding the exercise of its discretion was wrong, I am entitled to substitute my judgment for the Respondent’s. Where criteria are totally objective, I am, urges the Claimant, in an “equal” position to the selection committee and can, therefore,

1 The Claimant says she was unaware of such arrangements. The Respondent asserts that they were made and were communicated to the Claimant’s agent for travel and quarantine matters. The Claimant also says that the proposed arrangements would not have been satisfactory, since the applicable rules for the importation of a foreign horse allowed for entry only seven days prior to the competition and the proposed arrangements would have had her horse in Canada more than seven days prior to the competition. I point out these facts simply to show that the difficulties regarding these matters were well-known and had been considered in the course of the weeks and months leading to the mandatory head-to-head competitions. In the final analysis, however, getting the horse to Canada was not the responsibility of the Respondent, but of the Claimant.

2 Scope of Panel’s Review in Appeal Proceedings The panel shall have full power to review the facts and the law. In particular, the panel may substitute its decision for the decision that gave rise to the Sports-related dispute and may substitute such measures and grant such remedies or relief that it deems just and equitable in the circumstances. 12 add the Claimant to the 2004 Olympic team on the basis of the scores she had achieved in other competitions. The Respondent argues that the proper standard is that of reasonableness and that simply because I might have exercised discretion differently from how it was exercised by the Respondent, I owe considerable deference to the expertise reflected in the Respondent’s constituted committee. The Affected Parties (other than Strasser, who initially suggested that I should decline jurisdiction altogether) essentially support the Respondent’s submissions in that regard.

I believe the correct standard in these circumstances to be that of reasonableness and would be reluctant, absent full argument on more explicit facts, to set the standard at a level of patent unreasonableness before I could intervene. Similarly, I believe that sufficient deference is warranted to decisions made by expert bodies, absent clear misdirection, that mere correctness is too low a standard for overturning such decisions. I do not believe that Code Rule RA-15 was intended to clothe me with the power suggested by the Claimant, but rather that it is largely procedural in nature, enabling an arbitrator, once the applicable standard of review has been satisfied, to make the order necessary to cause the proper outcome, without the need for further action by the parties.

I deal now with the matter of the discretion of the Respondent to exempt the Claimant from compliance with the mandatory elements of the selection criteria and process. Was it reasonable, or at least not unreasonable, therefore, for the Respondent not to exercise the discretion provided in Rule 2.5.p in the circumstances before it? The evidence before me, which was not challenged, was that the rule is intended to deal primarily with cases of accidents suffered by a horse or a rider, including periods of lameness that would improve with time and rest. Since the reorganization of the Respondent in 2000, the rule has been applied only once, in the case of an outstanding horse, injured at the time, that everyone agreed should be on the particular team being selected. The context in which the Respondent was being requested to exercise its 13 discretion in this case had nothing to do with illness or accident affecting either the Claimant or her horse. All that was in play were the normal quarantine rules and the logistics of transporting the horse from Germany to Canada. The further context was a selection process that included (if no bye had been earned) a mandatory participation in the two Canadian head-to-head events on the dates and at the places specified in the process. This was a process deliberately adopted by the Respondent as a means of getting the best international results and one to which it was committed, encouraged no doubt, by the improvement in the international ranking of Canadian teams. In my view, these considerations afforded sufficient reasonable grounds for the DSC not to exercise its discretion in the Claimant’s favour.

The Claimant also alleged that the Respondent’s decision was motivated by bias towards her as an outspoken opponent of the rigidity of the selection criteria. I have seen no evidence whatsoever to support such an allegation. The same Respondent selected for the 2004 team one of the Affected Parties, who was also a signatory to the letter referred to by the Claimant, and at least one other rider who had also signed the same letter. Counsel for the Claimant ultimately took issue only with the final decision of June 30, 2004, which was made on the same day as the final request for exemption, and asserted that the speed with which the decision was taken showed that no consideration had been given to the factors that might tend to a favourable exercise of discretion. This, he suggested, showed that it was an arbitrary decision and he further suggested that its arbitrariness was motivated by the Claimant’s opposition to the selection process.

Apart from the lack of an evidentiary foundation to show any bias, this was the final chapter in an ongoing saga, despite the acceptance of the selection process in the March 15, 2004 agreement between the Claimant and the Respondent. There had been constant communication and, by the end of April, the Claimant knew for certain that she would not qualify for a bye into the final selection process (or, at the very least, 14 could not be sure and would, accordingly, have to prepare to be in Canada for the head- to-head competitions). It was also in the midst of, or on the eve of, the final of the two mandatory competitions and the Claimant had already failed to participate in the first one. It is hardly surprising that the Respondent was in a position to respond quickly in those circumstances; indeed it would have been surprising had it not been able to do so.3 I reject, therefore, the allegation of arbitrariness and bias in the circumstances. The Respondent noted during the hearing that any Canadian team might well benefit from the presence of a rider of the Claimant’s ability and experience, but that it was not in a position to make exceptions to a process that had been established and agreed with all the other riders and with the COC, in addition to the fact that it firmly believed that such a process resulted in better teams because in the head-to-head competitions, the selectors could see all of the rider/horse combinations in action and make better decisions on team selection. I am persuaded that the Respondent would have much preferred to have had a chance to see the Claimant in such competitions and, perhaps, to be able to select her, but could not interpret the rule invoked by the Claimant in the manner sought.

I conclude, therefore:

1. that the Claimant’s request must be rejected and

2. that unless a party gives notice within 48 hours of the release of this award that she or it wishes to address the question of costs, I award no costs, each party to be responsible for her or its costs in this matter.

3 This was a unanimous decision of the voting members of the DSC, including the rider representative. A suggestion was made by the Claimant that the FEI veterinarian member of the DSC favoured her position. I express no opinion on such suggestion and simply observe that, under the selection criteria and process, the veterinarian is, specifically, not a voting member of the DSC. 15

I reserve my jurisdiction under the Code to deal with any matters arising from this decision and its interpretation.

Montreal, July 11, 2004

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Richard W. Pound, Q.C. Arbitrator