SPORT DISPUTE RESOLUTION CENTRE OF CANADA CENTRE DE RÈGLEMENT DES DIFFÉRENDS SPORTIFS DU CANADA

No.: SDRCC 15-0281

IN THE MATTER OF AN ARBITRATION

BETWEEN: Natasha Wodak (Claimant)

AND

Athletics Canada (Respondent)

AND

Georgia Ellenwood Tim Hendry-Gallagher (Affected Parties)

ARBITRATOR: Ross C. Dumoulin

APPEARANCES:

For the Claimant: Robert Lonergan, Meredith MacGregor, Counsel

For the Respondent: Jared MacLeod Operations Manager, National Team Programs, Athletics Canada

For the Affected Parties: Georgia Ellenwood: Dave Ellenwood Tim Hendry-Gallagher: Not represented at hearing

ARBITRATION AWARD March 3, 2016 - 1 -

1. This is an arbitration award rendered pursuant to paragraph 6.21(c) of

the Canadian Sport Dispute Resolution Code (2015) (the "Code"). I was

selected by the parties and appointed as arbitrator by the Sport Dispute

Resolution Centre of Canada (SDRCC) to hear and determine the present

matter.

2. The case pertains to a dispute between Ms. Natasha Wodak (the

"Claimant") and Athletics Canada (the "Respondent") concerning the granting

of funding under Sport Canada's Athlete Assistance Program (AAP). Two athletes, Ms. Georgia Ellenwood and Mr. Tim Hendry-Gallagher, were ultimately identified as potentially affected parties. Ms. Ellenwood's father, David

Ellenwood represented her at the arbitration hearing. Mr. Hendry-Gallagher did not attend and was not represented.

3. On February 17, 2016, a hearing by conference call was held pursuant to section 3.12 of the Code. The Panel informed the parties that the facts

contained in their previously filed documents and submissions would be

considered as accurate and as evidence unless contradicted at the hearing.

The parties were then given the opportunity to present further evidence and submissions or to elaborate upon or emphasize aspects of their previously filed submissions.

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THE FACTS

4. Sport Canada's Athlete Assistance Program (AAP) is a federal government grant program that provides direct financial assistance and tuition support to Canadian high performance athletes. The AAP seeks to relieve some of the financial pressures associated with preparing for, and participating in, international sport. The AAP financial assistance provides support to athletes in the form of a living and training allowance. The AAP support is referred to as "carding". Athletes who are approved for funding and are financially supported through the AAP are referred to as "carded athletes".

5. Athletics Canada's 2015-16 AAP Policy, Olympic Stream, and Carding

Criteria read in part as follows:

Under Sport Canada policy, AAP funding is designed to support athletes for the upcoming year who have: ...Been identified by Athletics Canada (AC) as progressing towards becoming a finalist at future IAAF Senior World Championships in Athletics or Olympic Games. (For the purpose of this document finalist is defined as - Top 8 – combined events and track – 100m to 800m, top 12 – field and 1500m, top 15 – 3000m Steeplechase, 5000m, 10,000m, Race Walk and )

6. The above-noted policy was developed by AC's National Team

Committee (NTC) and applies to the carding cycle beginning November 1,

2015 and ending October 31, 2016. Athletics Canada submits a list of nominations for carding that Sport Canada ultimately approves. The final decision on granting cards is made by Sport Canada. The policy states that - 3 - the "authority for final nominations for carding to Sport Canada rests solely with the NTC".

7. The Claimant, Ms. Natasha Wodak, is a 34-year-old athlete who competes in the 10,000 m run.

8. The AAP Policy states that in the fall of 2015, AC's National Team

Committee (NTC) will meet "to decide which athletes should be nominated for carding". It goes on to say that in making its decisions, "the NTC will consider athletes by proceeding through the following five steps in sequential order..." Steps 4 and 5 are described as follows in the policy:

Step 4 Athletes who achieved a relevant individual selection standard... a minimum of two times within the relevant qualification period AND who the National Team Committee believe demonstrates realistic potential to become finalists in an individual event at the 2017 IAAF World Championships OR win an individual medal at the 2020 Olympic Games.

Step 5 If there are any nominations remaining, all athletes in the Carding Pool who have not been nominated through any of the above 4 steps will be considered based on the factors outlined below - on an athlete’s realistic potential to become a finalist at a future Olympic Games or IAAF World Championships.

9. In a note relating to "become a finalist at a future Olympic Games", the said policy states that for an athlete to be recommended for carding, they must

"demonstrate realistic medal potential in an individual or relay events at either the 2016 or 2020 Olympic Games and the 2017 IAAF World Championships". - 4 -

The note goes on to state that for the NTC to be confident of this potential, athletes must demonstrate that they are "bridging the gap" to the podium in their event.

10. The AAP policy states as follows with regard to the factors to be considered:

In determining an athlete's "realistic potential to win a medal" and "realistic potential to become a finalist", as set out in the above steps, the NTC will consider the following factors:

 The AC Statistical Analysis "funnel" - Gold, Top 3, Top 5, Top 8 at the last 4 major Championships (2011, 2013, 2015 World Championships, and 2012 Olympic Games) and IAAF World Ranking in that time frame,  "Bridging the Gap" analysis - Athlete performance over the year(s) compared with international statistics,  The athlete’s ability to consistently repeat performances, particularly at peak times in the season (major championships and championship trials),  Training and competition plans,  International and major event performances (Olympic Games and World Championships),  Head to head performances at 1. National Teams, 2. National Championships and 3. NTL competitions ...

11. On October 2, 2015, the NTC met to decide which athletes should be nominated for carding. In attendance were the voting members of the NTC, as well as Mr. Jared MacLeod, the Operations Manager for Athletics Canada, and other non-voting persons. The minutes of the said meeting indicate under the title "Process": - 5 -

Step 4... NTC believes has potential finalist at 2017 World Champs or medalist at 2020 Olympic games Step 5 - nominations who have not been selected based on factors outlined - realistic potential to become a finalist at a future Olympics or WC. (funnel, bridging the gap analysis, ability to repeat performance, major championships, trials/head-to-head etc.)

12. Further on, after a reference to the Step 3 vote, the minutes read as

follows:

Step 4 - athlete achieved standard minimum of 2 times - NTC believes can become finalist in an individual event at WC 2017 or a medalist in 2020 (no relay)

...

International major events - Olympic and WC - all other events - Pan Am, NACAC and FISU 1 point if top 12, 2 point top 8 and 3 points if you got medal - additional point if you have Olympic standard - do we believe they will be a finalist in 2017 or medalist in 2020? - Follow score table and if there is any issues - talk about it - would have to go through every single athlete -

13. Immediately below the above wording is a list of athletes with a "yes"

or a "no" next to their name, or, in rare cases, a question or a question

mark. Because this list of athletes immediately follows the question "do we believe they will be a finalist in 2017 or medalist in 2020?" and the words

"would have to go through every single athlete", it is my finding that the

"yes" or "no" next to the athletes' names is the NTC's answer to the above

question for each athlete listed. Next to the Claimant’s name is a "No".

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14. The minutes later state the following with respect to the Claimant:

Natasha Wodak - 10000 m - Canadian Record - she has underperformed when it counts, if she doesn't make the final in 2016, she should not be considered for next year. move to step 5"

15. A note in the minutes pertaining to Mr. Taylor Milne, a 3000 m steeplechase athlete who had a "No" next to his name, indicates that he

"progressed quite well". The minutes later indicate that he was awarded a card under step 4.

16. Further on in the minutes, after a reference to Step 5, appear the following notes:

Ross v. Natasha Ross - Yes funnel, No Gap, Yes Repeatability, Yes Intl., Intl. Score 2 Natasha - No Funnel, Yes Gap, No Repeatability, Yes Intl., Score 2, - three years out (2:08.00 - recording) Not a 2017 or 2020 athlete - two major events and didn't do well. Must have a response for a potential appeal. Given age, a guy who is younger could be using a funding. Age difference according to the pathway, investing in the future performance. Review of Step 5 criteria - who is between the two has potential finalist in 2017. Investing in Ross for the future. Results - Natasha unfortunately - will she be ready for 2017 or 2020?

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17. It was the evidence of Mr. MacLeod that athletes were evaluated in

each of the above-noted five categories and given either a "yes" or "no"

resulting in a score and a "Y/N Ratio". Athletes were ranked by their score

and sub-ranked by their "Y/N Ratio". The Y/N Ratio only became relevant

as a tie-breaker when comparing athletes with the same score. One point

was given for each "yes", except in the international performance category. In

this section, athletes received points based on their results in Olympic events

on national teams this season. Three points were given for a podium finish,

two points for a top 8 finish and one point for a top 12 finish. An additional

point was given to those with an Olympic standard.

18. Mr. MacLeod furnished the following explanation with respect to the

scoring of the athletes:

19. Regarding the AC "funnel", athletes received a "yes" if they fit within

the "performance pathway" which was created by analyzing the career

progression of the top finishing athletes at the last four major championships.

Their performance progression and ages were then averaged to build the

pathway.

20. Athletes received a "yes" for "Bridging the Gap" if their development

was greater than the progression of the top 16 athletes in their event.

21. "Repeatability" was assessed by looking at the athlete's performance in his/her carded event over the course of the season. If the athlete was able - 8 -

to repeat top performances, specifically during the peak of the season, they

received a "yes".

22. To receive a "yes" for international performances, an athlete needed to

finish top 5 in an Olympic event on a national team. The only events that

were relevant to the athletes in Step 4 and Step 5 were the Pan Am games,

FISU Games and NACAC Senior Championships.

23. In the head-to-head category, an athlete needed to finish top 3 at

his/her respective national championship in an Olympic event to receive a

"yes". If the athlete did not compete in that event, he/she had to beat the top Canadians on a national team. If that were not applicable, the NTC would consider a top 3 finish at a NTL event.

24. Of the athletes placed under Step 5, Mr. Tim Hendry-Gallagher, a 25- year-old shot put athlete and one of the two affected parties, was ranked in

5th position with a score of 5 and a Y/N Ratio of 4/1. Ms. Georgia

Ellenwood, a 20-year-old heptathlon athlete and the other affected party, was ranked in 6th position with a score of 5 and a Y/N Ratio of 4/1. The

Claimant was ranked in 7th position also with a score of 5, but with a Y/N

Ratio of 2/3. Mr. Hendry-Gallagher and Ms. Ellenwood were nominated for

cards and the Claimant was not.

25. The Claimant appealed the decision of the NTC not to nominate her for

carding. In a decision dated October 27, 2015, Ms. LeeAnn Cupidio, the - 9 -

Designated Official under AC's Appeal Policy, determined that the Claimant’s

appeal be denied on the basis of insufficient grounds. The Claimant

subsequently filed a Request to initiate proceedings by the SDRCC to resolve

the dispute.

26. Mr. MacLeod presented the following breakdown of how the Claimant was

scored:

27. The NTC considered the Claimant's three 10,000m races on the track which consisted of the following:

 May 2, 2015: Payton Jordan Invitational, Palo Alto (not a major championship, but a high-level competition) - time: 31:41.59 (a Canadian record), 8th place;

 July 23, 2015: , - time: 33:20.14, 7th place (she finished behind one Canadian athlete);

 August 24, 2015: IAAF World Championships - time: 32:59.20, 23rd place (she finished behind one Canadian athlete).

28. The AC statistical analysis regarding the "funnel" shows whether or not

an athlete fits the performance tracking to a podium finish. The Claimant's best performance in 2015, a time of 31:41.59 in the 10,000m event, is

"inside the performance pathway 1 year out from becoming a finalist (top 15) at the 2016 Olympic Games". She was therefore given a "yes" in this category. - 10 -

29. According to Mr. MacLeod, while preparing the AC submissions for the

Claimant’s internal appeal, it was discovered that the "funnel" analysis was

flawed for the throws and distance events. In 2015, Athletics Canada changed the definition of a "finalist" to "top 15" for the 10,000m event. The funnel

was originally created two years ago with a finalist being set as top 8 across all events. The funnel was not updated when the definition of a finalist

changed. Therefore, if the Claimant’s time from this season were compared to the average top 15, she would be in the funnel to be a finalist for next season.

30. In an e-mail dated December 29, 2015, Mr. MacLeod suggested to the

NTC that the Claimant should therefore receive another point for fitting into the

updated funnel. Mr. MacLeod also suggested in the e-mail that the Claimant

"should remain in Step 5 because the minutes show the reason she was moved out of Step 4 was due to her lack of performance when it counted."

The members of the NTC agreed with Mr. MacLeod's above-noted suggestions.

The end result was that the Claimant's score was changed to a "yes" for the

funnel, which brought her score to 5.

31. At the hearing, Mr. MacLeod, who, as seen above, was in attendance at the NTC carding nomination meeting of October 2, 2015, expressed the

view that, regardless of her score regarding the funnel, the Claimant would

have been removed from Step 4 - the question that the NTC considered was

how she performed at major games. He was also of the opinion that the - 11 -

"yes" or "no" that appeared next to the athletes' names in the minutes of the said meeting were in answer to the question, does the NTC believe the athletes will be finalist in 2017 or medalists in 2020? Mr. MacLeod added that if the answer was no, the athlete in question was "kicked down" and discussed further.

32. The "bridging the gap" analysis compares an athlete's performance trends over several years with that of the podium finishers, top 8 and top 15 finishers at the last four major championships. The Claimant's improvement this year was greater than the improvement of the top ranked athletes. She was therefore given a "yes" in this category.

33. With respect to "repeatability", the Claimant's best performance occurred at the start of the season. Repeatability looks at an athlete’s ability to perform when it counts at major championships during the peak of the season.

The Claimant did not accomplish that in the 2015 season, therefore she was given a "no" in this category.

34. As to the "international" category, to get a "yes", an athlete needed to finish top 5 at a major championship in an Olympic event. The Claimant failed to do this. She was therefore given a "no" in this category. With respect to points, she received two points for finishing 7th at the Pan American Games and she received a "bonus point" for achieving the Olympic standard.

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35. To receive a "yes" in the "head-to-head" category, an athlete needed

to place top 3 at his/her discipline’s national championships or beat his/her

top Canadian competitors on a national team. If neither of those were applicable, performances at NTL meets were considered. The Claimant did not

compete at the 10,000m National Championships. She was beaten by a top

Canadian at both the Pan American Games and World Championships and she

did not race in a NTL event. She was therefore given a "no" in this

category.

36. Mr. MacLeod presented the following analysis of how Mr. Hendry-

Gallagher was scored:

37. Funnel: "Tim's best performance of 19.35m falls within the funnel for

performance tracking 4 years out from becoming a finalist in 2019 and 5 years

out from a podium finish at the 2020 Olympic Games". He was therefore

given a "yes".

38. Bridging the gap: "Tim had an injury last year and did not compete but

threw a personal best this year. The event progression of the top 16 athletes

since 2012 is +0.08% while Tim's improvement in the same time frame is

+0.17% showing he is in fact bridging the gap. [A chart shows that the NTC

considered the 1st, 2nd, 3rd, 5th to 8th, and 12th to 16th world ranked athletes

and their progression since 2010 compared to the progression of Mr. Hendry-

Gallagher over that same period.] A longer time frame was analyzed since his - 13 -

previous PB was from 2012 and he was injured last year". He was therefore

given a "yes".

39. Before the hearing, an error with respect to Mr. Hendry-Gallagher's 2012

results was brought to the attention of the Panel by Ms. Marissa Caldwell who

was assisting him in preparing for the hearing. The error is that in 2012, Mr.

Hendry-Gallagher had a season best of 19.01 m, and not 19.31m as first

recorded. An error was made by the officials at the July 11, 2012 Toronto

International Track and Field Games when they recorded a distance of 19.31m.

In fact, on that day, his best throw was 18.88m. When the incorrect distance

was posted on athletics.ca, Mr. Hendry-Gallagher contacted Athletics Canada

and had the mistake corrected. His best result in 2012 was the 19.01m he

recorded at the York University Twilight Meet #2 on June 19, 2012. This

correction increases the extent of his improvement from 2012 to 2015.

40. Repeatability: "Tim's top performances are clustered relatively close and

he performed well during the peak time of the season. His performance at the

Pan Am Games was one of his worst for the year, but he threw well at the

national championships and in August ending his season with a new personal

best”. A chart indicates the following results obtained by Mr. Hendry-Gallagher

in 2015: he threw an 18.05m and placed 1st at the Windsor Open on May

23, 2015; he threw an 18.99m and placed 1st at the Windsor AO

Championships on June 14, 2015; he threw a 19.12m and placed 2nd at the

Edmonton Canadian Championships on July 5, 2015; he threw an 18.24m and

placed 10th at the Pan American Games in Toronto on July 21, 2015; he - 14 -

threw an 18.90m and placed 1st at the Ninove Memorial in Belgium on August

1, 2015; and he threw a 19.35m and placed 1st at the Kessel-Lo Meeting in

Belgium on August 8, 2015. He was therefore given a "yes".

41. International: "Tim finished 10th at the Pan Am Games, earning 1 point for international performance. However, to earn a YES in this category, the athlete needed to finish in the top 5 at the Pan Am Games, FISU Games or

NACAC Senior Championships". He was therefore given a "no".

42. Head-to-head: "At the Canadian Championships in Edmonton, Tim

finished second". He was therefore given a "yes".

43. Mr. MacLeod presented the following analysis of how Ms. Ellenwood was

scored:

44. Funnel: "In Step 5... we’re looking at performance tracking to be a

future finalist in a major games/championships. Georgia’s best performance

this year - 5786 which puts her in the funnel 4 years out from being a

finalist (top 8) at the 2019 World Championships”. She was therefore given

a "yes".

45. Bridging the gap: "...compares an athlete's performance trends over

several years with that of the podium finishers, top 8 and the top 16 finishers

at the last 5 major championships. Georgia's improvements this season were - 15 -

greater than the World's best heptathletes, therefore she is bridging the gap"

and was given a "yes".

46. Repeatability: "Georgia's best performances occurred relatively early in the

season (May and June). However, she competed well at the FISU games

and therefore showed the ability to perform when it counts. In addition, her

performances were relatively close, which shows repeatability.” A chart

indicates the following results obtained by Ms. Ellenwood in 2015: on May 16,

2015 at the East Lansing Big 10 Championships, she obtained a score of

5714 points and placed 3rd; on June 11, 2015 at the Eugene NCAA Division 1

Championships, she received a score of 5786 and placed 10th; on July 11,

2015 at the Guangju Universiade (FISU Games), she achieved a score of

5665 and placed 5th. She was therefore given a "yes".

47. International: "Georgia finished 5th at the FISU games, which earned her

2 points for international performance.” She was therefore given a "yes".

48. Head-to-head: "...Georgia did not compete at the national combined events championships and she didn't compete against the best Canadian athlete on a national team... Lastly, there were no NTL meets that contested the

heptathlon." She was therefore given a "no".

49. The Claimant, Natasha Wodak, explained at the hearing that she was

very ill at the Pan American Games. She acknowledged that her performance

at the World Championships "was not my best race". - 16 -

THE POSITIONS OF THE PARTIES

Athletics Canada:

50. In his submissions on behalf of Athletics Canada, Mr. MacLeod relied

upon and reiterated many of the facts summarized earlier in this decision.

51. Mr. MacLeod submitted that the ranking system was established to allow

the NTC to numerically compare athletes using the five criteria listed in AC’s

AAP Policy. The criteria were still utilized, but awarding points gave the

comparison a structure.

52. Mr. MacLeod emphasized that, with respect to the factor of repeatability,

although the Claimant ran a great 10,000m Payton Jordan race on May 2,

2015 and broke the Canadian record, as stated in the carding criteria, more

weight was given to performances during the peak time of the season. In Ms.

Wodak's case, that meant considering her 10,000m races at the Pan Am

Games and World Championships. The NTC felt that these performances were not up to par with how she performed in May, which was her only strong performance in the 10,000m and was relatively early in the season.

53. The Payton Jordan race is international, but not a major championship like the Pan Am Games or FISU Games (the World University Games). The

NTC regards performances at major championships very highly, as they are indicative of an athlete's ability to perform under pressure when it counts. They are a big factor in determining the realistic potential for the athlete to finish as - 17 - a finalist or medalist at future major international competitions. However, most of the athletes in Steps 4 and 5 do not have Olympic or World Championships experience, so it would not have made sense to restrict the analysis to only those events. The NTC did not restrict the repeatability factor to major championships and championship trials, even though they are in brackets.

These were merely examples of events during the peak of the season that would be considered.

54. It was argued that, with respect to bridging the gap, making the correction to Mr. Hendry-Gallagher's seasonal best from 2012 results in a bigger improvement in his performance compared to improvements made by the world's best throwers from 2012 to 2015.

55. Mr. Hendry-Gallagher had many strong performances, placed well at the national championships and threw a personal best late in the season, showing the ability to perform when it counts, an important factor of repeatability.

56. The NTC looked at how an athlete placed compared to how he/she was ranked going into the World Championships.

The Claimant:

57. Mr. Lonergan submitted on behalf of the Claimant that the NTC made its carding decision on the basis of a mistake in the funnel statistical analysis, the results of which it was required to consider. That error, now acknowledged by - 18 -

AC, undermines the validity of the decision of the NTC not to nominate the

Claimant. The NTC was required to consider the corrected funnel analysis at

Step 4 and then vote. The funnel had to be accurate in order for the vote to be reasonable. It made a difference in the decision of the NTC. AC has therefore failed to demonstrate that the criteria were properly established. AC now invites the Tribunal to conduct a new Step 5 analysis by ranking the performances of Ms. Wodak in comparison with those of the affected parties and conclude that the Claimant should not be nominated for carding. The

Tribunal has no jurisdiction to accept that invitation.

58. It was further argued that the NTC employed a ranking system which did not form part of the carding criteria and was, to a certain extent, arbitrary and unreasonable. It thereby effectively revised the carding criteria which it was not entitled to do. The ranking system could not be treated as binding and the

NTC was not entitled to apply it blindly. The NTC was required to ask itself whether the ranking system could be applied fairly in deciding whether to nominate Ms. Wodak. By applying this unpublished ranking system without regard to the above considerations, the NTC improperly fettered its discretion.

59. If AC were to apply its ranking analysis, Mr. Hendry-Gallagher would be ranked lower than Ms. Wodak and, accordingly, Ms. Wodak should be nominated. This is because, in error, AC concluded that Mr. Hendry-Gallagher earned a "yes" for "bridging the gap". Counsel submitted a chart showing that the 16th IAAF world ranked athlete's performance in 2015 represents a

0.290% increase over the 16th IAAF world ranked athlete's performance in - 19 -

2012, whereas Mr. Hendry-Gallagher's performance only increased by 0.207%

over the same period.

60. Counsel challenged AC’s finding that Mr. Hendry-Gallagher's best

performance of 19.35m falls within the funnel for performance tracking one year

out from becoming a finalist (top 12) at the 2016 Olympic Games. It was

argued that the Olympic Standard in the shot put is 20.50m, therefore Mr.

Hendry-Gallagher must improve his performance by 1.15m simply to qualify for

the Olympics. This demonstrates that AC’s conclusion that he is tracking one

year out from making the final is unreasonable. Furthermore, the chart

submitted by AC regarding the performance pathway for the men's shot put,

even taking into account the note stating "Finalist in Shot Put is top 12 -

19.55m", Mr. Hendry-Gallagher would have to improve 20cm in a year after

only improving 4cm in the past three years. There does not appear to be

any objective basis for awarding him a "yes".

61. Mr. Lonergan submitted that the analysis on repeatability presented by

AC for Mr. Hendry-Gallagher is missing several of his performances and when

these are added, his performances are considerably less "clustered relatively

close". Also, his performance at his only national team event, the Pan Am

Games, was one of his worst performances of the year. Under the same

evaluation placed on the Claimant, repeatability looks at an athlete's ability to perform when it counts at major championships during the peak of the season.

Therefore, he also should have received a "no" in this category.

- 20 -

62. It was Mr. Lonergan's contention that Ms. Wodak would have received a

"yes" for repeatability if her performance graph had been flatter and that she

could have achieved this by simply running slower in May 2015. Consideration

of repeatability in this manner is unreasonable, if not absurd.

63. Mr. Lonergan compared the Claimant's results to those of Mr. Taylor

Milne, a steeplechase athlete who was awarded a card under Step 4. He

emphasized the similarities of their results at the IAAF World Championships.

64. Counsel therefore urged the Panel to find that Athletics Canada has not

met the onus imposed upon it by section 6.7 of the Code and that the

decision not to nominate Ms. Wodak was manifestly unreasonable. It was

asked that the decision be set aside and that AC be directed to nominate the

Claimant for carding or, alternatively, that AC be directed to reconvene the NTC

and that it, in turn, reconsider the decision on whether to nominate Ms. Wodak

for carding properly applying the selection criteria beginning at Step 4.

The affected parties:

Mr. Tim Hendry-Gallagher:

65. The written argument filed on behalf of Mr. Hendry-Gallagher submits that he is just coming into the prime of his career as a 25-year-old athlete.

He peaked in July and August of 2015 near the end of the season with his three best performances. At the Pan Am Games, he improved upon his ranking of 11th by finishing 10th. With the exception of those Games, he had a - 21 -

very strong competition season improving significantly from mid-June to early

July to early August when he recorded a new personal best of 19.35m. He

had only recently returned to competition after struggling with a recurring injury.

With a full off-season to train and prepare, he is poised for a great 2016

season.

66. In 2012, Mr. Hendry-Gallagher actually had a season best of 19.01m

and not 19.31m. In this light, it can be demonstrated that he is in fact

bridging the gap: his rate of improvement from 2012 to 2015 was 1.757%,

compared to only 0.290% for the World top 16 athletes. He has a greater

likelihood of long-term improvement than does the Claimant. This makes him

the most appropriate choice to be nominated for a card.

Ms. Georgia Ellenwood:

67. In a written brief by Mr. Michaël-T. Nguyen, it was submitted on behalf

of Ms. Ellenwood that Athletics Canada is a multi-disciplinary organization that is mandated to manage approximately 50 events, each of which has its own technicalities, a number of events, tries, rules, rankings and methodologies.

Arbitrator Pound was quoted in Dave Richer v. CCPSA, SDRCC 15-0265.

68. Counsel argued that the flexibility in the selection criteria referred to in

the above-noted decision is found in AC's AAP Policy in Steps 4 and 5, where the NTC must undertake an evaluation of each applicant's "realistic potential". The AC and the NTC have elaborated a selection policy with five - 22 - steps that are to be followed in sequential order. Each of these steps contains an objective element (e.g., top 16 finish at the 2015 IAAF World

Championships) and a subjective element (e.g., "realistic potential" to become a finalist).

69. It was submitted that the NTC remains the validly constituted expert body which has been delegated the mandate of nominating athletes for carding. Its decisions should stand, barring any exceptional circumstances, such as bad faith or bias, none of which exist in the present case.

70. Mr. Dave Ellenwood also observed that the carding criteria allow for discretion in the process and that it is exceedingly difficult in track and field to apply such criteria. He characterized the task of the NTC as comparing

"apples and oranges".

DECISION

71. Section 6.7 of the Canadian Sport Dispute Resolution Code (2015) states that if an athlete is involved in a proceeding as a Claimant in a carding dispute, the onus will be placed on the Respondent to demonstrate "that the criteria were appropriately established and that the... carding decision was made in accordance with such criteria."

72. The first issue is therefore whether Athletics Canada satisfied its onus of demonstrating that the carding criteria were appropriately established. After a - 23 -

review and consideration of all of the evidence and submissions presented by

the parties in this matter, it is the finding of this Panel that AC did satisfy this

onus. The carding criteria state, with respect to Step 5, where the Claimant

was ultimately placed, that all athletes in the Carding Pool who have not been

nominated through any of the four preceding steps will be considered on their

"realistic potential to become a finalist at future Olympic Games or IAAF World

Championships.” This overriding criterion strikes me as appropriate. The

carding criteria then go on to enunciate the following factors, or characteristics

of athletic performance, which this Panel also considers to be reasonable and

appropriate:

 the athlete's performance compared to the career progression of the top finishing athletes at the four major championships over the last five years;

 bridging, (i.e., narrowing), the gap between the athlete's performances over recent years and that of the top 16 athletes of the world in their event;

 the athlete's ability to consistently repeat top performances, particularly at peak times in the season and at major championships;

 the athlete's performances at international and major events;

 the athlete’s head-to-head performances during the season compared to those of the top Canadian athletes at National Championships, on a National Team and at NTL events

73. In my view, the ranking system utilized by the NTC was simply a means of applying the carding criteria. It did not contradict the criteria. This - 24 -

Panel is in agreement with the submission by Mr. MacLeod to the effect that the ranking system was established to allow the NTC to numerically compare athletes using the five criteria listed in the carding document, AC’s AAP Policy.

As outlined below in this award, I do not find that the ranking system, or the manner in which it was applied, was arbitrary or unreasonable.

74. The Panel does find that Athletics Canada could have been more transparent and complete with respect to the ranking system in order to give the athletes a better idea of how they would be scored. For example, AC could have specified that to receive a "yes" for international performances, an athlete needed to finish top 5 in an Olympic event on a national team. For the head-to-head category, AC could have provided in its carding criteria document that an athlete needed to finish top 3 at his/her respective national championship in an Olympic event to receive a "yes", or had to beat the top

Canadians on the national team, or have a top 3 finish at a NTL event.

However, in my judgment, in light of the otherwise substantial amount of detail contained in the carding criteria document relating to the Steps and factors, the above-noted shortcomings are not sufficient to find that AC has not met its onus of proof under section 6.7 of the Code.

75. The second issue is whether Athletics Canada satisfied its onus of demonstrating that its carding decision was made in accordance with the 2015 carding criteria. A review of the evidence presented by the parties prompts the

Panel to find that AC has satisfied this onus.

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76. An error was made with respect to the funnel analysis: the funnel was

not updated when the definition of a "finalist" changed to top 15 for the

10,000m event. The error was corrected. However, the correction was not

made until after the October 2, 2015 NTC meeting to decide which athletes

would be nominated for carding.

77. The minutes of the said meeting show that the basis of the NTC

decision to move the Claimant from Step 4 to Step 5 was that she had, in

their own words, "underperformed when it counts" which appears next to the

Claimant's name. The said minutes later specify with respect to the Claimant,

"Not a 2017 or 2020 athlete - two major events and didn't do well", which

is a reference to her relatively poor performances at the Pan American Games

on July 23, 2015 and at the IAAF World Championships on August 24, 2015.

The NTC was answering its own question regarding the Claimant outlined in the

minutes, "do we believe they will be a finalist in 2017 or medalist in 2020?"

And, as seen above, its answer was "no".

78. The above findings are supported by the suggestion to the NTC made

by Mr. MacLeod in an e-mail dated December 29, 2015 that the Claimant

"should remain in Step 5 because the minutes show the reason she was

moved out of Step 4 was due to her lack of performances when it counted."

Mr. MacLeod was in attendance at the NTC meeting and therefore a witness to

its deliberations. The above findings are also supported by the fact that the

voting members of the NTC agreed with Mr. MacLeod's suggestion. The

evidence does not establish that the funnel analysis had much bearing, if any, - 26 -

on the NTC decision to move the Claimant to Step 5. The Panel is

convinced that, regardless of her score for the funnel, she would have been

removed from Step 4 - the question that the NTC considered was how she

performed at major games.

79. As a result of the correction to the funnel analysis, the Claimant’s score

was changed to a "yes" for the funnel. She was thereby given proper credit

for her results.

80. On the subject of carding criteria and selections, the caselaw has

developed an approach of arbitral deference towards the decision-makers.

Arbitrator Pound had this to say on the topic in Dave Richer v. CCPSA,

(SDRCC 15-0265) at page 11:

Selection criteria need to contain some reasonable flexibility... The more difficult choices occur when there may be some element of judgment required regarding performance standards... The default position in such cases, absent reviewable error or proof of bias, is that those responsible for selection decisions are generally the most knowledgeable and experienced persons available, who attempt in good faith to produce the best outcomes in the particular circumstances.

81. And again, in Palmer v. Athletics Canada (SDRCC 08-0080), Mr.

Pound observed that "...arbitrators are loathe to interfere with decisions reached

by responsible sports authorities, who are presumed to have the knowledge and

experience to make decisions in relation to the sport."

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82. In Penny Rowland v. Equine Canada (SDRCC 07-0059), this Panel noted with respect to selection decisions that the weighing of all the factors "is not a 100% exact science."

83. As did Mr. David Ellenwood, the Panel would also equate the task of the NTC to comparing "apples and oranges". Indeed, in the discipline of track and field, there is a veritable fruit salad of athletic endeavours that are most difficult to compare.

84. With the above-noted caselaw and facts in mind, a consideration of the evidence regarding how the Claimant and the other athletes were scored leads the Panel to find that the carding decision of the NTC was made in accordance with the carding criteria. It considered the Claimant’s three

10,000m races on the track in 2015. She ultimately received one point for the funnel, thus receiving proper credit for her excellent performance at the

Payton Jordan race on May 2, 2015. She also received one point for

"bridging the gap" between her and the top 16 finishers at the last four major championships. This again was in recognition of her record-breaking performance at the Payton Jordan.

85. It was not unreasonable to give the Claimant a "no" for "repeatability".

She did not perform well during the peak of the season at two major championships, i.e., the Pan American Games and the World Championships.

She testified that she was very ill at the Pan American games, but without

knowing whether other athletes may have also been ill, had the flu, were - 28 -

recovering from an injury, etc., the Panel cannot consider this fact. Such are

the vagrancies sport competition.

86. The Claimant did not meet the requirement of a top 5 finish in a major

championship, therefore a "no" for the "international" category is consistent with the ranking system. She did receive two points for finishing 7th at the Pan

American games and a bonus point for achieving the Olympic standard. Since

the Claimant did not compete at the 10,000m National Championships and was

beaten by a top Canadian at both the Pan American Games and World

Championships, it was not unreasonable to give her a "no" in the head-to- head category.

87. With respect to Mr. Hendry-Gallagher, the NTC applied the funnel analysis criterion in determining that his best performance of 19.35m fell within the funnel. It should be borne in mind that this determination was made in the context of Step 5 which states that the remaining athletes will be considered based on their "realistic potential to become a finalist at a future

Olympic Games or IAAF World Championships", with no date specified for those Games or World Championships. Athletes receive a "yes" for the funnel if they fit within a performance pathway created by analyzing the career progression of the top finishing athletes at the last four major championships.

88. It is exceedingly difficult to sit here and judge, without the technical knowledge and experience of the NTC members, whether a shot put athlete is on a pathway comparable to the progression of top finishing world-class - 29 -

athletes, or has the realistic potential to be a finalist or medalist at some point

in the future. This is where the above-noted deference comes into play and

an arbitrator may presume that the sport authorities responsible for such

decisions are generally the most knowledgeable and experienced persons

available to make these types of judgments.

89. This Panel finds that a thorough analysis was made of the performances

of the Claimant, the affected parties and many other athletes in many different

track and field sports, including Mr. Taylor Milne, a steeplechase athlete.

Although his results were similar in some respects to those of the Claimant,

there was no evidence of his performance, if any, at the Pan American

Games. The evidence did show that the Claimant did poorly at that event and

that it was one of two major championships during the peak of the season

where her performance declined substantially from her results at the Payton

Jordan Invitational.

90. In Mr. Hendry-Gallagher's case, the evidence showed that the points he

received for bridging the gap, repeatability and head-to-head competitions were

based on a thorough consideration of his impressive results and improvement at

the peak time of the season and, where appropriate, of the progression of the

top 16 athletes since 2012.

91. The Panel finds that it was not unreasonable or inappropriate for the

NTC to regard performances at major championships very highly because they

are indicative of an athlete's ability to perform under pressure when it counts.