IN THE MATTER OF AN ARBITRATION OF ADR-SPORT-RED

RE: SELECTION OF SWIMMERS FOR THE 2002 BY /NATATION

between

ANNAMAY PIERSE GORD VELDMAN DOUG WAKE (the “Appellants”)

and

SWIMMING/NATATION CANADA (the “Respondent”)

and

KURTIS MACGILLIVARY CHAD MURRAY KARLEY STUTZEL (the “Intervenors”)

ARBITRATOR: MICHEL G. PICHER

APPEARANCES:

For the Appellants Pierse, Veldman and Wake: David H. de Vlieger - Counsel

For the Appellant Veldman (in part): John Phillippe Schuman - Counsel

For Swimming/Natation Canada: Karen Spierkel - C.E.O.

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For the Intervenors: Kurtis MacGillivary: Dean Boles - Coach/Agent Chad Murray: Brian J. Murray - Counsel Karley Stutzel: Dr. Peter Vizsolyi - Coach/ Agent

A preliminary pre-hearing telephone conference was held on Thursday, June 20, 2002;

The exchange of pleadings and related documentation was completed on Friday, June 21, 2002;

The hearing was held by telephone conference on Saturday, June 23, 2002.

DECISION

This arbitration concerns the decision of Swimming/Natation Canada

(SNC) establishing the 2002 Commonwealth Games Team. The arbitrator was appointed by the order of the Chief Arbitrator under Rule RA - 15.2(d) of the

ADR-SPORT-RED Code, effective June 20, 2002.

It is common ground that the deadline for the SNC to submit the names of its team members to the Commonwealth Games is June 24, 2002.

It was therefore imperative to proceed expeditiously. To that end the arbitrator convened and conducted a pre-hearing conference by telephone commencing at

4:00 p.m. on Thursday, June 20, 2002. The purpose of the call was to establish 3 the procedure for the hearing, to ensure that all parties have, or be provided, the pleadings and related documentation and that all parties or their counsel or agents have notice of the hearing on the merits.

During the pre-hearing conference all of the appellants, the respondent and all of the intervenors were represented by the persons named on the appearance list of this decision. All participants indicated which pleadings or related documents they had or did not have, and pursuant to the arbitrator’s direction, undertakings were made by counsel and agents to provide the necessary documentation to all parties, either directly or through the Court Office.

The exchange of pleadings and related documentation was completed on Friday,

June 21, 2002. All parties, including the appellant athletes and intervenor athletes, were provided, through their counsel or agents, full notice of the hearing, including the teleconference access number and code, and were thereby given the opportunity to participate, either directly or through their counsel or agent.

Prior to the hearing, upon reading the pleadings, the arbitrator noted that counsel for G. Veldman, Mr. Schuman, requested as part of the remedial relief that swimmer Jennifer Carrol be de-selected from the team. There is no indication to the arbitrator that Jennifer Carrol has been notified of these proceedings, or was identified by counsel, either to the Court or to the arbitrator, as an affected party with a significant interest, within the contemplation of rule 4

RA-16.5. In the circumstances, having particular regard to the extremely short time involved, following preliminary submissions made at the outset of the hearing, the arbitrator rules that he does not consider that he has jurisdiction to direct the de-selection of swimmer Jennifer Carrol, in keeping with the rules of natural justice. Alternatively, if I have such jurisdiction, I would not exercise my discretion to make the order requested, given that counsel did not raise the obvious interest of Jennifer Carrol, who was at all material times unrepresented, during the pre-hearing conference.

At the outset of the hearing on the merits the arbitrator canvassed the parties as to any jurisdictional objections. All parties agreed that I have jurisdiction subject to two objections. On behalf of the intervenor Chad Murray,

Mr. Murray objected to the sufficiency of notice. On behalf of the intervenor Kurtis

MacGillivary, Mr. Gene MacGillivary, his father, likewise objected to the sufficiency of notice. He conceded, however, that his son, who is in Australia, was advised by him, via e-mail, of this proceeding.

The arbitrator appreciates the constraints of time in this matter. However, as noted above, and bearing in mind that the appeal process commenced after

May 24, 2002, all parties did receive notice, did participate in the pre-hearing conference, did have access to all pleadings and documentation and did have the opportunity to submit their own documents, as they did, and to make oral submissions during the hearing on the merits. In the circumstances, I am 5 satisfied that there has been compliance with the rules of natural justice and that the procedural objections cannot be sustained. However, bearing in mind that the

ADR-SPORT-RED process is in its development stages, it is to be hoped that in future document sharing and the identification of interested parties may be more expedited.

The first issue to address is the standard of review. While counsel for the appellants maintain that the decision of the Appeal Panel should be reviewed for correctness, and the intervenors argue for the higher standard of patent unreasonableness, I find it unnecessary to resolve that debate in the instant case. For the reasons related below, I am compelled to conclude that the decision of the Appeal Panel is, in any event, unsustainable on the language of the Selection Criteria to the point of being patently unreasonable.

The Selection Criteria, adopted and applied by the SNC Selection

Committee read as follows:

CRITERIA

CATEGORY A:

Swimmers who medal in an Olympic individual event at XVII Commonwealth Games Trials in Winnipeg, Manitoba AND whose performances equal or better the 2004 FINA “A” standard shall be automatically selected. Performances in the preliminaries and/or the semi-finals of the top three finishers shall be considered for selection.

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CATEGORY B:

Once Category A selections have been determined and finalized, swimmers who are medalists in an Olympic program individual event at the XVII Commonwealth Games Trials shall be ranked according to the 2001-2005 SNC Long Course Performance Ratings and shall be considered for selection up to a maximum of 12 men and 12 women inclusive of the Category A selections.

CATEGORY C:

Should positions remain open in the team complement, the SNC Selection Committee shall consider the first place finishers in an Olympic program event not selected in Category A or B. The swimmers shall [be] selected in rank order according to the 2001-2005 SNC Long Course Performance Ratings.

CATEGORY D:

Should positions remain open in the team complement, the SNC Selection Committee shall consider the second place finishers in an Olympic program event not selected in Category A, B or C. The swimmers shall be selected in rank order according to the 2001-2005 SNC Long Course Performance Ratings.

CATEGORY E:

Should positions remain open in the team complement, the selection committee shall consider the third place finishers in an Olympic program event not selected in Category A, B, C or D. The swimmers shall be selected in rank order according to the 2001-2005 SNC Long Course Performance Ratings.

CATEGORY F:

Additional swimmers may be considered for selection at the discretion of the SNC Selection Committee and SNC National Coach – Director High Performance Services.

RELAYS:

Relays shall be made up from the team complement at the discretion of SNC National Coach – Director High Performance Services

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In making the initial team selection, the Selection Committee concluded that it was not restricted to filling team positions by selecting all swimmers within one category before proceeding to consider and include swimmers from a lower category. As National Team Head Coach, Dave Johnson, put it, “A strong third could be selected over a weak second place finisher.” As the Selection

Committee initially viewed the document, subject to the mandatory selection of athletes in Category A, the Committee retained the discretion not to fill the balance of the team by the automatic sequential application of the following categories. In other words, the Committee could decide not to select all eligible swimmers in Category D and, instead, could select only some swimmers from

Category D and then move on to Category E. The application of that approach led to the selection of the appellants over the intervenors.

The intervenors protested to the Appeal Panel which allowed their appeal.

Essentially, the Appeal Panel ruled that the Selection Committee did not have any discretion to select swimmers from Category E over swimmers from

Category D.

The decision of the Appeal Panel, dated May 13, 2002, reads, in part, as follows:

DECISION OF THE COMMONWEALTH GAMES SWIMMING TEAM

SELECTION – APPEAL PANEL

... 8

ISSUES

The issue for the appeals of the First Appellants is whether the Committee properly applied the selection criteria when it selected certain third place finishers at the Commonwealth Games trials ahead of second place finishers.

...

DECISION

A. APPEALS OF KARLEY STUTZEL, CHAD MURRAY AND KURTIS MACGILLIVARY

The First Appellants did not take issue with any of the selections made under Categories A, B, C, and F. The First Appellants argued that the selection criteria were clear and required all Category D swimmers to be selected before any Category E swimmers can be selected. The First Appellants submitted that the Committee erred in applying the selection criteria when it selected Category E swimmers and left them, as Category D swimmers, off the team.

The Committee also argued that the selection criteria were clear. However, in the Committee’s view, all selections under Categories C, D, and E were discretionary. The Committee believed it had the discretion to select Category E swimmers over Category D swimmers if the Category E swimmers had higher ranking swims under the 2001 – 2005 SNC Long Course Performance Ratings (“Performance Ratings”).

The Panel undertook a thorough examination of the wording of the selection criteria. The wording of Categories C, D and E are identical but for one critical difference. Category C provides that “the SNC Selection Committee shall consider the first place finishers in an Olympic program event not selected in Category A or B.” Category D provides that “the SNC Selection Committee shall consider the second place finishers in an Olympic program event not selected in Categories A, B or C.” Category E provides that “the SNC Selection Committee shall consider the third place finishers in an Olympic program event not selected in Categories A, B, C or D.”

Each of the criteria in Categories C, D and E provide that “The swimmers shall be selected in rank order...”.

The First Appellants argued that the wording of the selection criteria required that selection be undertaken in a step process. That is, all 9

Category C swimmers be selected before any Category D swimmers and all Category D swimmers be selected before any Category E swimmers.

The Committee, on the other hand, focused on the wording in each of Categories C, D and E that “the SNC Selection Committee shall consider ...”. In the Committee’s view, the use of the words “shall consider” meant that the Committee would have the discretion to consider, but not select, any swimmer under the particular category. The Committee further suggested that the reference to selection in rank order only ensured that a lower ranking swimmer in the category could not be selected over a higher ranking swimmer in the same category.

Both the First Appellants and the Committee argued policy reasons for why their interpretation of the criteria was most reasonable. However, the Panel has chosen to place little weight on such policy arguments in coming to its decision. In our view, the Committee was given the jurisdiction to set the criteria as they wished, regardless of policy.

The Panel believes the wording of the selection criteria is clear and requires selection of all Category D swimmers before the selection of any Category E swimmers. The Panel finds that the Committee, acting honourably in making its selection, unfortunately misinterpreted the amount of discretion allowed under Categories D and E. In our view, although such discretion may have been intended, the wording of the selection criteria does not allow for such discretion.

Although representations were made both by the First Appellants and the Committee as to which interpretation would result in the “best team” the Panel has no jurisdiction to make a decision on that basis.

Therefore, the appeals of the First Appellants are allowed. The Panel refers this matter back to the Committee for re-selection of the Commonwealth Games swimming team on the basis that all Category D swimmers must be selected before any Category E swimmers may be selected.

On May 15, 2002, the Selection Committee reconfirmed its original selections. It appears that the members of the Committee concluded that

Category F was recognized by the Appeal Panel as reserving to them a residual 10 discretion in the selection process. On that basis the team’s composition remained unchanged.

It is common ground that that outcome troubled both the President and the

CEO of SNC, as it appeared to give little or no effect to the decision of the Appeal

Panel. The two officers joined in a conference call with the Selection Committee on May 21, 2002 to express their concerns. After they left the telephone meeting, the Selection Committee reversed its decision of May 15th and effectively de- selected the appellants in favour of the intervenors. In the arbitrator’s view, there can be little doubt that the Selection Committee felt bound to enforce the strict letter of the decision of the Appeal Panel in reversing itself, as it did on May 21,

2002. It may be noted that there was no notice to the appellants or to the intervenors with respect to that meeting.

At its meeting on May 21, 2002, the Swimming/Natation Canada Selection

Committee determined, in part, the following:

Marco informed the members that upon the request of SNC’s President and CEO he has been asked to reconvene selection committee members to hear their arguments and considerations.

Marco inquired of the Committee members if they had any questions. No one had any questions at this moment and in light of this Marco handed over the floor to Mr. Colburn.

Mr. Colburn stated following a phone call received the previous Thursday from the chair of the SNC Selection Committee giving him the result of meeting held the evening of May 15 he informed the members that he had a couple of concerns regarding the decision of Selection Committee had made at its previous meeting. He had listened to the tapes and had read 11

the minutes, and he understood the Selection Committee wanted to select the best team possible however he stated that it was his belief that the committee had not followed the direction recommended by the Appeal Panel and that the committee is obligated to do so. Mr. Colburn stated that the committee was in violation of the Appeal Panel’s decision and that it was looking at going about the selection of the team by choosing a back door approach by using Category F. The Appeal Panel had stated that the committee had used its discretionary power to select under Category F but to use this category to select 12 additional swimmers in his opinion was unreasonable. Mr. Colburn declared that SNC has stated that it is committed to follow the Appeal Panel’s recommendation/decision.

Mr. Colburn stated that Ms. Spierkel, CEO, Jan Meyer, Sport Canada Swimming Consultant and he were all concerned with the decision of the Selection Committee. The panel members were all very well respected people in the Sport Community and that it was not good from Swimming’s reputation to turn down the decision of the panel members. He informed the Committee members that they must take into consideration the decision of the Appeal Panel and name all 2nd place finishers before 3rd place finishers.

Marco inquired if there were any questions and then turned the floor to Ms. Spierkel.

Ms. Spierkel concurred with Mr. Colburn[‘s] remarks and informed the committee that she had relayed her concerns to Dave Johnson. She stated that SNC would have many battles to fight but doubts that this is the right decision. The committee needs to consider the impact it will have on SNC, on the reputation of the National Team Head coach, on the integrity of SNC and its leadership. There is no doubt what the Appeal Panel wants the committee to do. She will stand by the Selection Committee’s decision but disagrees with the existing decision. She is in complete support of Dave Johnson and the selection committee but the current decision is wrong for SNC. Under SNC policy the selection committee is obligated to follow the decision of the appeal Panel. Ms. Spierkel’s main concern is that SNC remains true to its own rules and thereby demonstrate its integrity by playing the rules it expects athletes and others to abide by.

Marco inquired if there were any questions. He then thanked Mr. Colburn and Ms. Spierkel for their time and asked that they now leave the call.

Mr. Colburn and Ms. Spierkel thanked the members for their time and requested Marco give them a call at the end of the meeting.

... 12

More discussion continued with the members and a motion was put forward.

Motion Moved by John Vadeika: The SNC Selection Committee adopts the recommendation of the Appeal Panel date May 13, 2001 and amended for 2002 to reflect that the Category D swimmers be ranked and selected ahead of the Category E swimmers.

Seconded by Brent Sailee Lisa Flood and Marco Veileux in favour

Decision unanimous

The result is that Gord Veldman, Annamay Pierse and Doug Wake are deselected from the team and that that Chad Murray, Kurtis MacGillivary and Karley Stutzel be selected to the XVll Commonwealth Games team.

When regard is had to the whole of the evidence, it is significant to note that no issue was taken with the good faith of the Selection Committee in its original application of the Team Selection Criteria. It is evident not only that the members of the Selection Committee believed that they had the discretion to select as they did, but that they did so with a view to establishing the strongest possible team. In that regard, the material before the arbitrator confirms the competitive accomplishments of the appellants relative to the intervenors. I am satisfied that in doing so they turned their minds to the merits of the individuals concerned and applied relevant and compelling factors to reach their decision.

The evidence also discloses that they utilized the separate discretion available to them under Category F to include two world class swimmers who otherwise would have been excluded because they did not fall within any of the other categories. 13

It is trite to say that a board of arbitration charged with reviewing the decision of an internal tribunal or committee should do so with extreme care and deference to the decision making body. That is particularly so in the field of competitive sport where the expertise of an NSO and its officers and coaches is an integral part of the decision making process, both with respect to establishing standards and applying them to the selection of athletes as team members.

Where, however, the decision of an internal body appears, on its face, to be so fundamentally flawed as to be untenable, a board of arbitration cannot decline to exercise its remedial jurisdiction. Indeed, that very possibility is at the root of the arbitration appeal system administered on a national basis among NSOs by

ADR-SPORT-RED.

I turn to consider the merits of the decision of the Appeal Panel, and the ensuing action of the Selection Committee. In doing so I stress that there is no issue as to the good faith exercised by all concerned, including the members of the Appeal Panel, the members of the Selection Committee and the President and CEO of SNC.

In my view, the selection criteria, reproduced above, are reasonably clear and unequivocal. As with any such document, each part must be construed and interpreted in the context of the whole. I must accept the submission of counsel for the appellants that the Appeal Panel failed in that regard. The thrust of the 14

Appeal Panel’s decision is that the sequential selection of athletes downwards through the succeeding categories must be performed automatically and without discretion. Additionally, the Panel seemed to express the view that little weight should be given to “policy arguments”. In my view, both of those aspects of the

Appeal Panel’s decision caused a fundamental reviewable error. I am also troubled by their apparent acknowledgment of the fact that discretion “... may have been intended” coupled with their conclusion that such discretion could not be allowed on the wording of the document.

Firstly, it is well established that where two competing interpretations of a document are advanced, it is appropriate for the decision maker to have regard to the purpose or intent of the document as a whole. This is sometimes referred to as its underlying policy. The arbitrator has difficulty understanding and accepting the Panel’s disregard for policy arguments and is at a loss to understand its conclusion that “... the Committee was given the jurisdiction to set the criteria as they wished, regardless of policy.” I consider this statement a fundamental departure from established standards governing the interpretation of any public document, an error so grievous as to be patently unreasonable.

Secondly, I am compelled to share the view of the plain language of the document advanced by counsel for the appellants. The Selection Criteria document does speak expressly to the automatic selection of swimmers for the

Commonwealth Games Team. However, it does so only in the paragraph under 15

Category A. It there provides that persons who meet the standard contained therein “ ... shall be automatically selected.” In each of the ensuing categories, B through E, on the other hand, the document expressly states that the persons

“shall be considered” (Category B) or that “... the SNC Selection Committee shall consider ...” (Category C through E) persons meeting the respective standards in each of those categories. In a separate sentence, a mandatory provision is then introduced into each paragraph indicating that selection shall be in the rank order described, with the exception of Category B.

In the arbitrator’s view, the foregoing provisions cannot reasonably be construed to give the words, “shall be considered” or “shall consider” in Category

B through E the same meaning as the words “automatically selected” in Category

A. With respect, the only mandatory aspect reflected in Categories C through E is that where the Selection Committee decides to select swimmers from within that Category they must be selected in the rank order described. To say that

Category D contemplates that all second place finishers in an Olympic program event must be selected before any swimmers in Category E flies in the face of the plain language of the provision.

There is reason to believe that the Appeal Panel may have had reference to ancillary documents, including the International Rationale for SNC 2001 – 04

Draft lll, a document reviewed by the SNC High Performance Standing

Committee. Whatever may be the origin and content of that document, it is plainly 16 not the governing standard for team selection. Team selection is governed by the

Team Selection Criteria developed for that purpose by the Team Selection

Committee of SNC. It is that document alone which is controlling.

From a purposive standpoint, the interpretation of the Appeal Panel is also patently unreasonable. If the Selection Criteria must be applied strictly and in sequential order, it appears highly likely that the 40 positions on the team would be filled automatically. That would effectively read out Category F from the document, effectively depriving the Selection Committee and the SNC National

Coach from exercising the discretion expressly reserved to them within that provision. In my view, when the paragraph under Category F is read together with the whole document, including automatic selection under Category A and the obligation to “consider” under Category B through E, the overwhelming thrust of the document is to reserve some degree of discretion to the Selection

Committee as it proceeds sequentially through the categories in determining the makeup of the National Team.

In the result, and with the greatest respect, the arbitrator is compelled to conclude that the Appeal Panel gave to the Selection Criteria document an interpretation which it cannot reasonably bear. Its decision must be viewed as fundamentally flawed and patently unreasonable. I am also satisfied that the decision of the Appeal Panel was the sole basis for the reversal of position of the

Selection Committee made on May 21, 2002. 17

Because the conclusion of this decision is that the Appeal Panel’s decision must be struck down and because I am satisfied that the decision of the Appeal

Panel was the sole basis for the reversal of position of the Selection Committee made on May 21, 2002, as a matter of remedy it is therefore appropriate for the arbitrator to direct the reinstatement of the original team selection made on

March 24, 2002 by the Selection Committee.

The appeal is therefore allowed. The arbitrator finds and declares that the decision of the Appeal Panel dated May 13, 2002 is patently unreasonable and is therefore quashed. The arbitrator directs the respondent SNC to restore the original team selection made by the Selection Committee on March 24, 2002.

The decision herein is without costs, and jurisdiction is retained by the

Tribunal pursuant to Rule RA-22.

Dated at this 23rd day of June, 2002.

______Michel G. Picher Arbitrator