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 15-0269 Kira Lengkeek (Claimant) and Canada Snowboard (Respondent) Attendees at hearing: For the Claimant: Michael-Tai Nguyen Shannon Lengkeek Kira Lengkeek For the Respondent: Fedora Mathieu Guy Poupart Robert Joncas ______________________________________________________________________ REASONS FOR DECISION 1. Introduction 1. This case concerns the Claimant’s appeal of a decision made by the Respondent and dated June 24, 2015 (the "Decision"), to not name her to the Halfpipe National Team, the Slopestyle Development Team, and the Slopestyle Next-Gen Team. As a result of not being named to these teams, the Claimant was not eligible to be nominated for carding for the 2015-2016 carding cycle under the Sport Canada Athlete Assistance Program (the "AAP"). 2. On July 11, 2015 the Claimant's mother, as authorized Representative for the Claimant, filed a Request on her behalf (the "Request"). Various materials were filed at the time and shortly thereafter in support of the Request. 3. On July 17, 2015 the Respondent’s legal counsel, as authorized representative for the Respondent, filed an Answer (the “Answer”) on its behalf. The Answer alleged that the Decision appealed by the Claimant was final and could not be appealed to the SDRCC. It challenged the jurisdiction of the SDRCC to hear this dispute, and asked that a Jurisdictional Arbitrator be appointed by the SDRCC to rule on this preliminary issue. It also asserted that the outcome of another case between another athlete and the Respondent might influence or be of importance in rendering a decision in this case on the merits. 4. On July 24, 2015 the Claimant’s legal counsel, as authorized representative for the Claimant, filed an Amended Request (the “Amended Request"). The Amended Request clarified the issues raised in the Request but did not substantively change the issues. No amended Answer was filed. - 2 - 5. On July 31, 2015 a Jurisdictional Arbitrator rendered her decision, finding that the SDRCC did have jurisdiction and that the case should proceed on the merits. Reasons for that jurisdictional decision were issued on August 10, 2015. 6. On August 3, 2015 there was a preliminary conference call to plan the course of these proceedings on the merits. The parties agreed that they wished to delay things to allow that other pending case to conclude, and thereafter proceed to a hearing on the merits during the week of August 10, 2015. The Arbitrator who initially was to decide the case was unable to accommodate that schedule, and so I was appointed Arbitrator. 7. On August 7, 2015 I conducted a preliminary conference call to plan the course of these proceedings on the merits. I confirmed that there were no objections to me being named as Arbitrator, and we agreed on a hearing date and deadlines for submissions in advance. 8. On August 11, 2015 the Claimant's legal counsel filed a submission on her behalf. On August 13, 2015 the Respondent's legal counsel filed a reply on its behalf. 9. On August 14, 2015 we proceeded to a hearing on the merits. At the close of the hearing, after each party had presented its evidence (including witnesses) and arguments, each confirmed having been given a fair hearing. 10. On August 21, 2015 I issued my short decision without reasons in accordance with Article 6.21(c) of the Canadian Sport Dispute Resolution Code (January 1, 2015) (the “Code"). The SDRCC advised the parties of my decision that same day it was issued. In my decision I ordered as follows: This is my decision pursuant to the Canadian Sport Dispute Resolution Code (January 1, 2015), arising from the hearing, which took place on August 14, 2015. The Claimant's Request appealed the Respondent's decision to not name her to the Halfpipe National Team, the Slopestyle Development Team, and the Slopestyle Next-Gen Team. It was alleged that by not being named to these teams, the Claimant could not obtain funding through the Athlete Assistance Program (carding), although she had allegedly met the carding criteria. After considering all of the evidence and arguments advanced, I have decided to dismiss the Request of the Claimant. Complete written reasons for my decision will follow within the timelines prescribed by the Canadian Sport Dispute Resolution Code. 11. The reasons for my decision are set out below. 2. Factual Background 12. The facts recited below are a summary setting out the most salient parts of the evidence. Even though not documented in these Reasons, however, in coming to my decision I have considered all of the evidence presented. 13. As there was little in the way of conflict on the most important events, I generally have not attributed the evidence to specific witnesses. I felt it preferred to recite the facts in a coherent way, rather than focusing on precisely who said what in their testimony. - 3 - 14. The Claimant is 16 years old. She is a talented athlete in the sport of snowboard, in both the Slopestyle and Halfpipe disciplines. She has been competing for about 5 years. She competed in the World Junior Championships in China in the 2014-2015 season, and finished 5th in Halfpipe and 14th in Slopestyle. This was her only international competition for this season. Her overall performance was good but objectively behind the performance of those appointed to the High Performance Program (the "HPP") ahead of her. The HPP includes the National Teams for the disciplines, as well as any Developmental Teams or Next-Gen Teams. 15. The sport of snowboard has progressed significantly and continues to do so. Athletes improve and constantly introduce innovative and impressive tricks. Competitors learn these new tricks and are inspired and challenged to develop new tricks of their own. That cycle continues and the sport continues to evolve. 16. The Claimant has done very well in snowboard, and no doubt this is a credit to her own ability and hard work, as well as the support she has received from others, particularly her family. 17. As a National Sport Organization, the Respondent is party to an agreement with Sport Canada respecting athletes in snowboard who might qualify to receive financial aid (“carding”) with Sport Canada through the AAP. In order to obtain a carding nomination certain criteria have to be met, including specifically for our purposes here, the athlete must be named to the HPP. 18. The Snowboard National Teams (including Developmental Teams and Next-Gen Teams, if they exist) receive 98% of their funding from Sport Canada. This funding goes to develop the best athletes, and is linked to the Long Term Athletic Development model, which links back to the potential division of athletes in the HPP on the National Team, the Developmental Team or the Next-Gen Team. 19. Being named to the HPP in a particular discipline is a requirement but in and of itself does not qualify an athlete for carding. Other criteria must be met as well and so being named to the HPP is not by itself a guarantee of a successful application for carding. 20. Criteria for being named to the HPP are set by the Respondent. The intention is to have only the very best athletes who are going to compete successfully and represent Canada on the international scene. This is not about participation or reward for good work, but rather is intended to develop elite athletes who are able to win medals for Canada in international competition. 21. Eligibility and selection criteria for the HPP change from year to year. They are annually set by the Respondent through the efforts of Robert Joncas (the Director of the HPP) together with coaches and various other technical personnel who meet for this purpose. They review national and international statistics, all relevant information, and establish the criteria. 22. Performance in the present season determines selection for the HPP for the following season. Normally the eligibility/selection criteria for the HPP for the following season are set towards the very end of if not after the present season has concluded. This means that in most circumstances the specific criteria by which performances of the athletes are to be assessed, for the purposes of the HPP, are finalized after-the-fact. - 4 - 23. By this system then, athletes would conclude the 2014-2015 season not being aware of the specific criteria by which they were going to be assessed. The criteria would then be set by the Respondent (knowing what had already occurred throughout the 2014-2015 season), the athletes' performance in the 2014-2015 season then assessed as per that criteria and finally, eligibility and selection determined for the 2015-2016 HPP year. 24. There are exceptions to this timing of events, typically in Olympic years where obligations arising from the Olympics require teams to be named earlier. This means that criteria must be established at the start of or at the latest in the earlier part of the season, before most events have taken place, and then the athletes would compete and be selected as per those pre-set criteria. The Respondent described this as a real challenge, where everyone would "cross their fingers" in the hope that the eligibility and selection criteria proved to be correct, with the best athletes being selected to represent Canada at the Olympics. 25. The Respondent explained in detail why this after-the-fact process was much preferred to what was required in Olympic years. 26. Something called the Canadian Ranking List (the "CRL") is generated to rank Canadian competitive snowboarders.