Arbitration Award

CENTRE DE RÈGLEMENT DES DIFFÉRENDS SPORTIFS DU CANADA (CRDSC) SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC)

NO : SDRCC 11-0140

IN THE MATTER OF AN ARBITRATION BETWEEN:

HAO LI (CLAIMANT)

BADMINTON ALBERTA (RESPONDENT)

-AND-

JOSEPH DONALDSON

AND

HENRY WIEBE (AFFECTED PARTIES)

______

ARBITRATION AWARD

______

ARBITRATOR: STEPHEN L. DRYMER

28 FEBRUARY 2011

AWARD – SDRCC 11-0140: Li v. Badminton Alberta - and - Donaldson and Wiebe

I. INTRODUCTION

1. This case concerns a decision by the Appeal Committee of Badminton Alberta dated 1 February 2011 (“Decision”1) concerning the selection of the fifth and sixth (reserve) male team members to represent Badminton Alberta as members of Team Alberta at the 2011 Canada Winter Games (“CWG” or the “Games”).

2. The matter comes before me in accordance with the terms of a Mediation/Arbitration Agreement (“Med/Arb Agreement”) entered into by the parties and submitted by them jointly to the Sport Dispute Resolution Centre Of Canada (“SDRCC”) on or about 7 February 2011, which provides as follows:

A dispute has arisen stemming from the Alberta badminton team selection or the 2011 Canada Winter Games. The original team coach decision was appealed to Badminton Alberta. A Badminton Alberta appeal committee presided over the matter and provided a decision to the affected badminton players. The process of the appeal committee has been brought into question through a request for further appeal by one of the affected players. There being remaining uncertainty, under the policies of Badminton Alberta the President of Badminton Alberta has requested a mediation/arbitration process through the Sport Dispute Resolution Centre of Canada to provide a binding solution on all parties. The cost of engaging the Sport Dispute Resolution Centre of Canada for this mediation/arbitration will be borne by Badminton Alberta. All other parties to this matter will be responsible for any additional costs them may incur.

“A dispute having arisen, the undersigned parties hereby agree that the dispute shall be referred to and finally resolved by med/arb under the dispute resolution secretariat of the Sport Dispute Resolution Centre of Canada and pursuant to its Code of procedure (the Canada Sport Dispute Resolution Code, as amended from time to time).”

3. Given the nature of the dispute – team selection – and the urgent need to advise the Games organizers of Badminton Alberta’s final male team roster prior to the commencement of the

1 The Decision of the Appeal Committee is set out in a letter dated 1 February 2011 from Mr. Jeff Bell, Badminton Alberta’s Executive Director, to Mr. Donaldson, Mr. Li and Mr. Wiebe. All references in this Award to the “Decision” are to the Decision of the Appeal Committee as expressed in that letter.

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badminton competition, and in order to inform the athletes themselves of the final selection in sufficient time for them to travel to Halifax, the matter was heard with some urgency.

4. On 7 February 2011, the SDRCC acknowledged receipt of the parties’ Med/Arb Agreement and informed them that a Med/Arb Neutral would be appointed as soon as possible. That same day, the Executive Director of the SDRCC, Madame Marie-Claude Asselin, chaired an administrative conference call involving all of the parties and their representatives.2 A procedural timetable was agreed to during that conference call, providing for the filing of evidence and submissions by the parties as well as dates for a mediation session and an arbitration hearing (in the event that such a hearing would be required).

5. I was subsequently appointed as the Med/Arb Neutral in this matter.

6. As agreed, a mediation session took place the following day, 8 February 2011, commencing at 15:00 P.M. (EST). After intensive discussion with and between the parties, it became apparent to me that it was not possible for all parties to agree to a resolution of the dispute and that further discussion at that stage would be futile. I therefore declared the end of the mediation phase of the proceedings – though not without encouraging the parties to reconsider their positions over the ensuing days with a view hopefully to resolving the dispute among themselves prior to the arbitration hearing. In the event, no such resolution was reached and, in accordance with the timetable agreed by the parties, an arbitration hearing was held on 14 February 2011 commencing at 15:00 P.M. (EST).

7. Given the urgency of the matter, and as the parties had requested during the 7 February 2011 administrative conference call, and as they again expressly requested and agreed before me during the hearing, I issued my decision on 15 February 2011 with written reasons to follow in accordance with Article 6.21 of the Canadian Sport Dispute Resolution Code (“Code”).

8. Having considered the parties’ written and oral submissions as well as the evidence presented and the case law cited by them, I ordered as follows in my decision:

2 Badminton Alberta was represented throughout these proceedings by its Executive Director, Mr. Jeff Bell and its President, Mr. John Osborne. Mr. Joseph Donaldson was assisted throughout by his father, Mr. David Donaldson. None of the parties was represented by counsel.

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The appeal by Mr. Li is upheld.

The decision of the Appeal Committee of Badminton Alberta dated 1 February 2011 is set aside.

The decision of the Selectors (Jeff White, Coach; and Beth Richardson, Manager) is reinstated.

Hao Li shall be selected by Badminton Alberta as the 5th male team member and Joseph Donaldson shall be selected by Badminton Alberta as the 6th (reserve) male team member to compete for Team Alberta at the 2011 Canada Winter Games.

None of the parties requested an award of costs, and I accordingly make no such award.

Written reasons to follow in accordance with Art. 6.21 of the SDRCC Code.

9. The reasons for my decision are set out in the present Award.

II. FACTUAL BACKGROUND

10. On 23 December 2010, the two “Selectors” appointed by Badminton Alberta to select members of Team Alberta to compete at the CWG – Mr. Jeff White (Coach) and Ms. Beth Richardson (Manager) – selected Mr. Hao Li and Mr. Joseph Donaldson, respectively, as the fifth and sixth (reserve) male team members. This decision was communicated to Badminton Alberta’s Executive Director, Mr. Jeff Bell.

11. The selection of Mr. Hao as, in effect, the final member of the team, and of Mr. Donaldson as a reserve member, occurred at the conclusion of a two-day camp held on 21-23 December 2010, one of many camps and/or tournaments or other competitions on the basis of which the Selectors determined the overall team.

12. In fact, the Selectors had come to the conclusion that the best and fairest way to determine the number 5 and number 6 (reserve) male spots on the team would be to hold a “three way playoff” involving Mr. Li, Mr. Donaldson and Mr. Wiebe.

13. The evidence is that the Selectors arrived at this conclusion on the basis of their analysis of the athletes’ results from various tournaments during the previous year and their determination that those results, when viewed alongside other factors to be taken into

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consideration, did not provide a clear-cut indication which of the three athletes best merited selection to the team. In particular, the Selectors determined that direct comparison of previous competitive results was not conclusive given the variability of the levels of competition, tournament age restrictions and other factors involved. After considering the matter, the Selectors decided that the best and fairest means of making the required selection for the final spot(s) on the team would, as mentioned, be to allow the players themselves to determine their own fate “on the court”, rather than by sterile and inconclusive debate “by committee”.

14. The three athletes were duly notified, a playoff was held the following day in the form of a round robin, and the results of that playoff led to the Selectors selecting Mr. Li as the fifth team member and Mr. Donaldson as the sixth (reserve) member.

15. By letter dated 11 January 2011, Mr. Donaldson submitted a formal written appeal to Badminton Alberta related to the selection, specifically contesting his selection as a reserve (or alternate) as opposed to an active member of the team.

16. The matter was considered by Badminton Alberta’s Appeal Committee, which, as mentioned, issued its Decision on 1 February 2011.

17. As stated in the Decision, the Appeal Committee considered the matter on the basis of “a package of material from the Appellant [Mr. Donaldson] and a secondary package from Badminton Alberta containing all materials as distributed by the Association [i.e. Badminton Alberta] to the potential team members over the past 12-18 months”. No attempt appears to have been made to contact Mr. Li or to allow him to submit similar materials to the Appeal Committee.

18. The reasoning and conclusions of the Appeal Committee are set out as follows in the Decision:

The result of the Appeal Committee was that the Appeal was upheld because: 1) The decision making process did not follow the stated guidelines or procedures outlined by the association as contained in the Four Year Team Alberta – Canada Games Plan, and 2) That the decision making process was flawed in that important objective information was

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not considered by the decision making group and, as a result, the decision made was unreasonable or unfair.

As it was not the job of the Appeal Committee to reselect the team, the Appeal Committee recommended that the original Selectors revisit the published criteria and complete the process of team selection according to the published guidelines.

The noted Team Selection camp planned for May-July 2010 time period did not occur and therefore could not have any bearing on the final selections.

As the Selectors could not make a decision using the vast array of tournament results, due to a variety of results in singles, doubles and mixed doubles across a wide spectrum of age categories: open, u19 and u23, they were instructed to narrow the scope of the review. The Selectors then viewed results only in singles involving head-to-head encounters among the three athletes in open tournaments during the time period of October 01, 2009 to July 31, 2010. The results were as follows: Donaldson vs. Wiebe (2-1 in favour of Donaldson), Donaldson vs. Li (1-0 in favour of Donaldson), Li vs. Wiebe (no results).

The following selections were therefore made:

5th male team member – Joseph Donaldson 6th male (reserve) team member – Henry Wiebe

Hao Li becomes a non-team member.

The revised male team roster will be communicated to Pat Lechelt, Team Alberta Chef de Mission for immediate implementation.

19. This is the Decision that Mr. Li has appealed to the SDRCC, giving rise to the present proceedings.

III. THE PARTIES’ POSITIONS – IN BRIEF

20. Given that under Article 6.7 of the Code the onus of proof rests initially with Badminton Alberta to demonstrate that the Decision should stand (Article 6.7 is discussed in greater detail in the following section of this Award), Badminton Alberta presented its case first at the hearing, followed by Mr. Li and then by Mr. Donaldson and Mr. Wiebe. It is therefore in this order that I summarize below, very briefly, the parties' respective positions as presented in the arbitration.

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21. Badminton Alberta’s position is set out in writing in a detailed submission dated 9 February 2011, supported by many documents filed both with and prior to that submission. All of the materials filed by Badminton Alberta, and indeed its submissions during the hearing, make clear that both the Decision of the Appeal Committee and Badminton Alberta’s position in support of the Decision rest squarely on an interpretation and application of the Selection Criteria (“Selection Criteria” or “Criteria”) set out in a document entitled “Badminton Alberta Canada Winter Games Plan” (“Plan”). The Plan is actually a series of annual documents – e.g., “Year 2 (2007-2008)”, “Year 3 (2009-2010)”, “Year 4 (2010-2011)” – submitted yearly by Mr. White, Badminton Alberta’s High Performance Coach (and one of the Selectors) to the Chef de Mission of Team Alberta for the 2011 CWG.

22. Badminton Alberta (and before it, the Appeal Committee in its Decision) takes the position that the Selectors “did not follow stated guidelines or procedures [i.e., the Selection Criteria] outlined by the association [Badminton Alberta]”. It asserts that, according to the Selection Criteria outlined in the Plan, all selections to the 2011 CWG team were required to be made no later than the end of July 2010 and/or solely on the basis of results obtained between 1 October 2009 and 31 July 2010.

23. Badminton Alberta (and before it, the Appeal Committee) also claims that the selection made by the Selectors was flawed “in that important objective information was not considered by the decision making group [i.e., Mr. White and Ms. Richardson] and, as a result, the decision made [i.e., the original selection] was unreasonable or unfair”.

24. In support of Badminton Alberta’s position, Mr. Bell referred during the hearing to four decisions rendered in sport-related matters by various Canadian courts: Kane v. Canadian Ladies Golf Association (“Kane”),3 Garrett v. Canadian Weightlifting Federation (“Garrett”),4 (Kelly v. Canadian Amateur Speed Skating Association (“Kelly”)5 and Patrick v. Alberta Badminton Association (“Patrick”).6

3 (1992) 102 Nfld. and P.E.I.R. 218 (P.E.I.T.D.), 11 C.P.C. (3d) 260. 4 18 January 1990, unreported Alta Q.B. (Edmonton), Case No. 9003-0122. 5 (1995) 53 A.W.C.S. (3d) 750 (Ont. Gen. Ct. Div.). 6 10 February 1992, unreported Alta. Q.B. (Edmonton), Case No. 9503-02351.

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25. Mr. Li contests both of Badminton Alberta’s claims. He asserts that the Plan as it evolved over the years contains no such time-bound requirement and that it is the Appeal Committee, rather than the Selectors, that effectively failed to follow the relevant guidelines and procedures. He also contests the assertion, which he considers lacking any evidentiary support, that the Selectors failed to consider important objective information.

26. Mr. Donaldson, for his part, presented additional submissions and evidence in support of the position taken by Badminton Alberta. He further raised a number of points tending to illustrate, in his view, the unfairness of the Selectors’ use of a round robin playoff to select the fifth and sixth (reserve) spots on the team, as well as the correctness of the Appeal Committee’s Decision from the perspective purely of results or rankings. As Mr. Donaldson stated: “My overall rankings are higher than some members on the team roster and higher than those of Li and Wiebe at both the July and December 2010 selection datelines.” Although in no way determinative of the issues to be decided here, I note that in his 11 January 2011 appeal of the original selection made by the Selectors, Mr. Donaldson focused exclusively on the alleged impropriety of the round robin playoff and on his contention that his tournament participation and results right up to the date of his appeal had earned him a place on the team. It is only in the present appeal that, like Badminton Alberta, he suggests that the Selection Criteria required that all selections be made by 31 July 2010 on the basis of results between 1 October 2009 and 31 July 2010.

27. Like Mr. Donaldson, Mr. Wiebe also participated very actively in the arbitration. Although naturally tending to favour the selection reflected in the Decision of the Appeal Committee (on the basis of which he would be the sixth (reserve) team member) rather than the selection made by the Selectors, he nonetheless agreed with Mr. Li on several important points, including the fundamental issue of the nature and meaning of the Selection Criteria set out in the Plan (more on this below).

IV. ANALYSIS

28. Prior to turning to an analysis of the issues, I wish to state that I was particularly impressed by the poise, integrity and credibility of all of the parties and their representatives in these proceedings. Mr. Bell (on behalf of Badminton Alberta), Mr. Li, Mr. Donaldson and

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Mr. Wiebe all presented their evidence and submissions, and responded to my questions, with thoughtfulness and candour. I would add that they also all advocated their respective positions with intelligence and, indeed, a professionalism that would make any lawyer proud. I am grateful to them for this, and believe that it speaks very highly, in particular, of the three young athletes involved.

29. As I indicated to the parties during the hearing, and as I believe that all concerned came to understand clearly as the hearing progressed, the key issue here concerns the Selection Criteria as laid out in the Plan.

30. This is evident as well, from a purely procedural perspective, in the light of Article 6.7 of the Code. Article 6.7, entitled “Onus of Proof in Team Selection Disputes”, was specifically drawn to the attention of the parties both during the mediation session and at the outset of the hearing. It provides:

6.7 Onus of Proof in Team Selection Disputes

Where an athlete is involved in a proceeding as a Claimant in a team selection dispute, the onus will be placed on the Respondent to demonstrate that the criteria [i.e., the selection criteria] were appropriately established and that the selection decision was made in accordance with such criteria. Once that has been established, the onus of proof shall shift to the Claimant to demonstrate that the Claimant should have been selected in accordance with the approved criteria. Each onus shall be determined on a balance of probabilities

31. In other words, the first questions to be determined here are whether the Selection Criteria were appropriately established by Badminton Alberta and whether the selection decision that is under appeal – i.e., the Decision of the Appeal Committee – was made in accordance with those Selection Criteria. If the answer to either question is “no”, then the Decision must be overturned. Only if Badminton Alberta is able to demonstrate that the Selection Criteria were indeed “appropriately established” and that the Decision of the Appeal Committee is “in accordance with” the Selection Criteria, would the burden then shift to Mr. Li to demonstrate that he, rather than Mr. Donaldson, should have been selected in accordance with the Criteria. As explained below, Badminton Alberta was unable to meet its burden.

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32. The other provision of the Code that is worth noting in particular is Article 6.17, which concerns the role of the Arbitrator and the scope of his authority:

6.17 Scope of Panel’s Review

The Panel [in this case, the Arbitrator] shall have full power to review the facts and the law. In particular, the Panel may substitute its decision for

(i) the decision that gave rise to the dispute; or

(ii) in case of Doping Disputes […]

and may substitute such measures and grant such remedies or relief that the Panel deems just and equitable in the circumstances.

33. At the outset, it is imperative to note that, according to Badminton Alberta, other than the very generalised selection criteria set out in the (undated) document entitled “Team Alberta – Badminton Alberta Mission” (on which Mr. Wiebe in particular relied in support of his position), the only applicable selection criteria, and in fact the only Criteria applicable specifically to the selection of Team Alberta for the 2011 CWG, are those set out in the Plan.

34. To my genuine surprise, Mr. Bell stated during the hearing that, as far as he is aware, the Plan and the Selection Criteria were never distributed to any athlete or other member of Badminton Alberta, other than perhaps (Mr. Bell is uncertain even about this) a very small circle of administrators. Nor were the Criteria ever posted on Badminton Alberta’s web site or otherwise published or distributed to athletes or others. With what I, at least, perceived to be some embarrassment, but with unfailing candour, Mr. Bell further admitted that he is not even certain whether Ms. Richardson, one of the two Selectors, had ever been provided with a copy of the Selection Criteria. He stated that the only reason he knows that Mr. White saw the document was because Mr. White participated in its preparation and the Plan bears his (Mr. White’s) name on the cover.

35. Mr. Bell went on, in effect, substantially to corroborate Mr. Li’s and Mr. Wiebe’s allegations that the Plan was never intended to establish Selection Criteria, and did not in fact establish Criteria binding on Badminton Alberta, but was rather in the nature of a document addressed to the provincial government in support of Badminton Alberta’s

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funding applications. In response to my questions, Mr. Bell was unable to say exactly how or by what procedure the Selection Criteria would have been determined – though presumably Mr. White was involved in the drafting since the Plan, as mentioned, bears his name.

36. It will be recalled that the principal ground of the Decision that is under appeal here is that, as declared by the Appeal Committee in the Decision, “the decision making process [of the Selectors] did not follow the stated guidelines or procedures outlined by the association as contained in the Four Year Team Alberta – Canada Games Plan”. It is as a result of that finding that the Appeal Committee ordered the Selectors to “revisit the published criteria [in the Plan] and complete the process of team selection according to the published guidelines”. It goes without saying that if, as became clear at the hearing on the basis of the evidence presented, the Plan was not in fact drafted or adopted with the intention of formally establishing selection guidelines or procedures, and if the Selection Criteria were never in fact published or in any manner distributed or communicated to members of Badminton Alberta (including athletes, coaches, Selectors, etc.) – in other words, if the so-called Selection Criteria were intended merely as some sort of aspirational statement contained in a funding-related document addressed exclusively to Team Alberta’s Chef de Mission – the entire basis of the Decision falls away.

37. The critical importance of these facts, many of which were admitted, cannot be overstated. On their own they completely undermine any viable argument that, to quote Article 6.7 of the Code, “the criteria [i.e., the Selection Criteria] were appropriately established.”

38. Mr. Li’s appeal of the Decision could be decided on this point alone. However, I consider it useful to say something more about the correct interpretation of the Selection Criteria as they are found in the Plan, given that the parties themselves, and the Appeal Committee, devoted so much of their attention to this issue.

39. The evidence presented in the arbitration is unambiguous, and the wording of the Plan is clear. Contrary to Badminton Alberta’s claims and to the rationale for the Decision subsequently provided to Badminton Alberta by members of the Appeal Committee (I refer, for example, to a letter dated 30 January 2011 addressed to Badminton Alberta by Mr. W.A.

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Gilliland), the Plan does not state that “the team was to be selected by the end of July 2010” and it is plainly not the case that “the selection process concluded in July 2010 and there was no reason to assume that additional results would be used to determine the representative team”. I deal with each of these points in turn.

40. It is true that the earliest instalments of the four-year Plan provide some support for the idea that Badminton Alberta’s CWG team was to be selected by 31 July 2010. For example, the Year 2 (2007-2008) document clearly states that a “Final Team Selection Camp” will be held in July 2010, and that “[f]inal team selections will be made in July 2010” (p. 10 of 12). The document further refers to a tournament at Manhattan Beach, scheduled for August 2010, as “the first opportunity for TEAM ALBERTA 2011 to bond, train and compete together as a team” (Id.). And it states that a “Team Alberta High Performance Camp/Team Building Experience” planned for December 2010 will focus on competition among “the selected team representing Alberta at the 2011 Canada Winter Games” (p. 11 of 12). That said, it is also noted that the Year 2 document merely describes “the proposed Team Alberta schedule of events for years two, three and four leading up to the 2011 Canada Winter Games” (p. 3 of 12); it does not include a description or discussion of any selection criteria.

41. The Year 3 (2009-2010) instalment of the Plan reproduces the language of the Year 2 instalment regarding a “Final Team Selection Camp” in July 2010 (p. 9 of 14), the “first opportunity for TEAM ALBERTA 2011 to bond, train and compete together as a team” at Manhattan Beach in August (Id.), and the December 2010 camp focusing on “the selected team” (p. 10 of 14). The Year 3 document also includes, apparently for the first time in the evolution of the four-year Plan, a section entitled “Selection Criteria”. In that section it is further noted that “Badminton Alberta will host the final Team Alberta selection camp during July 2010 in Calgary” and that “[t]he July 2010 selection camp will … narrow the Team Alberta numbers to the Canada Games quota of 5 males and 5 females with alternates for both genders” (p. 12 of 14).

42. By the following year circumstances had clearly changed. And so had the Plan.

43. The Year 4 (2010-2011) instalment of the Plan envisages a “Team Selection Camp” – not a “Final” team selection camp – being held at some undetermined time between May and July

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2010 (p. 5 of 14). The Plan further explicitly states: “Short listed team selections (10/10 by gender) will be made by July of 2010” (Id.; emphasis added). In other words, by January 2010 it was no longer envisaged that (as in the Year 3 document) the “Final Team … [comprised of] … 5 males and 5 females with alternates” would be selected by July. Rather, the Year 4 Plan declared only that a “short list” would be selected at some point between May and July 2010, comprised of 10 male and 10 female players.

44. There is more. Under the heading “Tournament Play Summer 2010”, the Year 4 instalment of the Plan states: “Competitions will be determined based on the short listed athletes eligible for Canada Winter Games play” (Id.; emphasis added). Gone is the reference (as in Year 3) to the Manhattan Beach tournament as a chance for “TEAM ALBERTA 2011 to bond, train and compete together as a team”. And although the language concerning the end-of-year “Team Alberta High Performance Camp/Team Building Experience” remains, the planned date of that camp is no longer certain and is stated to be envisaged for some to- be-determined date between December 2010 and February 2011.

45. Not only did the description of the various tournaments change between Year 3 and Year 4. So too did the actual Selection Criteria set out in the Plan change. Gone altogether from the Year 4 Selection Criteria is the declaration (in the Year 3 document) that “Badminton Alberta will host the final Team Alberta selection camp during July 2010 in Calgary”. Gone too is the statement that “[t]he July 2010 selection camp will … narrow the Team Alberta numbers to the Canada Games quota of 5 males and 5 females …”.

46. When I asked Mr. Bell to explain why these significant changes were made to the Plan by Badminton Alberta, and why the Selection Criteria appeared for the first time only in Year 3, he said that he did not know. When I asked him to show me where, according to Badminton Alberta, one could find even in the early instalments of the Plan a clear statement that the selection of the CWG team was required to be made by July 2010 or solely on the basis of results as of that date, he answered that there is no such “clear statement”. In any event, the Plan as revised over time speaks for itself. For reasons unknown, or at least not explained, Badminton Alberta clearly saw fit to revise the Plan, specifically by removing most of not all of the statements on which Badminton Alberta

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relies suggesting (according to Badminton Alberta) that the selection of the team was required to be made and would in fact be made by 31 July 2010. In doing so, Badminton Alberta made clear that, at least according to the Plan and Selection Criteria, the team was not required to be and would not in fact be selected by that date.

47. In sum, the Appeal Committee’s interpretation of the Selection Criteria as reflected in the Decision is incorrect. I stress that in determining the correct interpretation of the Criteria it is insufficient for the Appeal Committee in the Decision merely to assert what it considers to be the true meaning and intention of the rules in question. Similarly, for Badminton Alberta to satisfy its burden in this arbitration it is insufficient merely to rely on the views of the Appeal Committee. What is required is to demonstrate, on the basis of the wording itself of the Plan and Selection Criteria, and/or the intention of the drafters of the Plan and Criteria as revealed for example by statements or conduct, that the proposed interpretation is correct. Here, as mentioned, I have found that the plain wording of the Selection Criteria indicates that Badminton Alberta’s interpretation is incorrect. I have also found – indeed it is admitted – that there is no extraneous evidence to support Badminton Alberta’s interpretation; there exists no evidence whatsoever of the intention of the drafters other than the wording of the Plan and Criteria themselves, and that that wording, as mentioned, actually demonstrates that Badminton Alberta’s interpretation is incorrect. I would go further and say that that interpretation is unreasonable having regard to the entirety of the evidence.

48. There is a further reason why the Decision is not only incorrect in law (i.e., in its interpretation of the applicable Criteria), but unreasonable on the facts. As mentioned above, the Decision and the position of Badminton Alberta are based on the reasoning that “the selection process concluded in July 2010 and there was no reason to assume that additional results would be used to determine the representative team”. The facts, however, make plain that this was not the case. First, the evidence is that the purported selection camp planned for July 2010 never took place. In other words, even if it were true that, when the Year 4 Plan was prepared and sent to Team Alberta, in January 2010, it was still the intention to select the team by the end of July 2010 (which I have found is not the case), the camp at

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which the team selection was originally intended to be made did not take place and no selection was in fact made by that date.

49. The Selectors themselves actually notified all concerned at the time, including their masters at Badminton Alberta, that the selection process was ongoing through the fall and winter of 2010. I refer, in particular, to the so-called “short list letter” dated 28 September 2010 in which Mr. White and Ms. Richardson wrote (in part):

Dear Short Listed Team Alberta Athletes:

The following athletes have been identified as Badminton Alberta’s short list of athletes eligible to compete at the Halifax 2011 Canada Winter Games. The List has been determined based on training and competition highlights beginning at the December 2009 Christmas Camp through to the most recent Badminton Alberta Yonex series event.

[…]

The above listed athletes [among whom Mr. Donaldson, Mr. Wiebe and Mr. Li were listed] will vie for the remaining 5 spots per gender that will comprise Team Alberta. The fall 2010 program for these athletes will include […]. Badminton Alberta is also planning to cost share tournament and team building opportunity at the 2010 USBDF Winter Junior International at the Orange County Badminton Club from December 17- 22, 2010. This tournament will be an important evaluation mechanism for final team selection.

There may also be a camp opportunity between Christmas and New Years should more attention to selection be required. […]

[Emphasis added]

50. This letter was sent by email to the short listed athletes and to Mr. Bell of Badminton Alberta. There is no record of anyone at Badminton Alberta ever questioning or objecting to the procedure described in the Selectors’ 28 September 2010 letter. As confirmed by Mr. Bell, Badminton Alberta never sought to tell the Selectors, for example, “Hold on! The selection was meant to be completed in July”. And of course, none of the athletes protested. Why would they? They had never seen the Plan and, according to Mr. Bell, had never been told anything by Badminton Alberta about the process for selection of the team other than what Badminton Alberta’s Selectors told them.

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51. The 28 September 2010 letter was followed by a further email from the Selectors, dated 11 November 2010, in which Mr. White noted that “I have been following your recent competitive play via tournament software and I am pleased to see that everyone is continuing to train with the hope of making the final Team Alberta selection” (emphasis added). The letter goes on to inform the athletes that Badminton Alberta will not be sending a defined team to the Orange County event in December 2010 and that, as a result, “Badminton Alberta will have the final Canada Winter Games selection camp at the Glencoe Club December 21-23” and that “[f]ollowing the December camp the final team selection will be made” (emphasis added).

52. This letter too was copied to Badminton Alberta without prompting any protest or objection or questions from the organisation.

53. To conclude on this point, contrary to the assertion of the Appeal Committee and of Badminton Alberta, the selection process did not in fact conclude in July 2010 and there was in fact very good reason for everyone concerned – the players, coaches Badminton Alberta administrators – to understand that results after July 2010 would be used and were in fact being used to determine the team. I find that, in the circumstances, for the Appeal Committee to have found otherwise is unreasonable.

54. It remains to consider two final points. The first is the contention by Badminton Alberta and Mr. Donaldson that the use by the Selectors of a round robin playoff to select the fifth and sixth (reserve) members of the team was itself not permitted by “the stated guidelines or procedures” or that it constituted an unauthorized “deviation from the Year 4 Plan”. It bears repeating: I have already found that there were no duly established and published procedures and that the Appeal Committee’s reliance on the Selection Criteria to overturn the decision of the Selectors was both incorrect in law and unreasonable in the circumstances; I am simply exploring here other aspects of Badminton Alberta’s interpretation of the Selection Criteria. That said, I find no support whatsoever in the Plan itself (even assuming it established binding selection criteria) for the argument that the Selectors did not have the authority to employ a round robin to select the final spots on the team; and Badminton Alberta was unable to provide such support during the hearing.

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55. The Selection Criteria (such as they are) confer a certain degree of discretion on the Selectors. Tournament results are highly relevant, but they are not the only basis on which selections are to be made. Mr. Bell himself acknowledged during the hearing that fairly selecting a badminton team is a complicated matter, involving a complex determination of numerous factors both objective (though even there, difficult of direct comparison) and subjective. Nor is there any evidence that the Selectors acted arbitrarily or in bad faith. As explained above, the Selectors determined that direct comparison of previous results for the three athletes concerned was not conclusive given the variability of the levels of competition, tournament age restrictions and other factors involved. And so, after considering the matter, the Selectors decided that the best and fairest means of making the required selection would be to allow the players themselves to determine their selection to the final spot(s) “on the court”. Nothing in the Selection Criteria indicates that in the application of the Selection Criteria and the exercise of the discretion accorded them the Selectors did not have the authority to do so.

56. The second point to consider is the assertion by the Appeal Committee and Badminton Alberta that the decision making process employed by the Selectors was flawed “in that important objective information was not considered by the [Selectors] and, as a result, the decision made was unreasonable or unfair”.

57. Simply put, there is no evidentiary basis for this claim. When I raised the matter during the hearing, I was referred by Badminton Alberta to a document provided to it by Mr. White and to another document provided to it by Ms. Richardson in the course of these proceedings, both showing tournament results. I was told that the document provided by Mr. White was incomplete, thereby demonstrating the so-called lack of “important objective information” used by the Selectors. However, when I asked if Mr. Bell knew whether or how this document may actually have been used by the Selectors in making the selection, he admitted that he did not know. In any case, even if Mr. White’s list may not be as complete as Ms. Richardson’s, and even if one assumes that Mr. White’s list was actually used in the selection process, one might still reasonably conclude that, with both lists in hand the Selectors apparently did possess all of the objective information required to make a fair and reasonable team selection. In the end, it matters not. We are not here to assume or to

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speculate, and it does a disservice to the athletes to suggest that this arbitration could turn on unsubstantiated allegations of this sort.

58. Finally, because they were referred to by Badminton Alberta, I make the following brief observations concerning the four decisions cited by Mr. Bell. Here again I do so purely for the sake of additional clarity and understanding, and not because it is necessary to do so in order for me to decide the case, given my finding that the Selection Criteria were not properly established.

59. The Kane case involved a finding that the sport organisation in question broke its own existing, duly established rules and guidelines by applying criteria that had never been approved or implemented by the organization. As stated above, that is not the situation here. I have found that the Selectors properly and reasonably applied the Selection Criteria (such as they were) as they appeared in the Plan, including in the exercise of their discretion as regards the holding of a playoff. It is, rather, the Appeal Committee that erred in incorrectly and unreasonably interpreting and applying those Criteria.

60. In Garrett, the athlete was actually notified of his selection to the national team before being told – virtually at the 11th hour – that he was no longer on the team but could compete in a playoff (a “lift-off” in that case) for the spot previously granted him. In addition to finding that this decision was arbitrary (i.e., not based on any rule or guideline) and made without proper authority, the Court noted that the decision was influenced by bias. Those circumstances are clearly different from those that prevail here. The Selectors in the present case acted throughout in accordance with the Selection Criteria as they appeared in the Plan, and exercised reasonably, after due consideration, the authority accorded them under those Criteria. Nor is there any allegation of bias in this case.

61. In Kelly, the sport organisation also changed its established selection criteria late in the day, which in that case was found to constitute a breach of the contract between the organisation and its athletes. Again, the Selectors in this case did no such thing. They properly and reasonably set about making the selections in question on the basis of the Criteria as they appeared in the Plan, and in the reasonable exercise of the authority conferred on them by the Criteria.

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62. And in Patrick, a case that Badminton Alberta knows well, the decision seems to have turned on the fact that the criteria at issue were not only improperly changed by the organisation but not communicated to the athletes. Here, on the contrary, there was no such change – the Selectors reasonably applied the Criteria as set out in the Plan (such as they were) – and if anyone at Badminton Alberta can be said to have communicated regularly with the athletes regarding the basis on which the CWG team would be selected, it was the Selectors themselves. It would, moreover, be perverse to suggest (not that this was Badminton Alberta’s point) that Badminton Alberta’s failure to establish and communicate properly its Selection Criteria should have the effect of invalidating the Selectors’ selection in favour of the selection mandated by the Appeal Committee based on its (incorrect) interpretation of the (improperly established, if not non-existent) Selection Criteria.

V. CONCLUSION

63. Although I do not refer in this Award to every aspect of the parties’ submissions and evidence, in reaching my conclusions and in making my decision I have considered all of the evidence and arguments presented by them in this proceeding.

64. As explained above, I find that Badminton Alberta has failed to meet its onus to demonstrate that the Selection Criteria on which it relies were appropriately established and that the Decision of the Appeal Committee was made in accordance with those Criteria. I find that the Selection Criteria were not appropriately established. I also find that, even assuming that the Selection Criteria were properly established, the Appeal Committee interpreted the Criteria incorrectly and applied them unreasonably. Finally, I find that the Selectors acted in accordance with the Criteria in making the selections that they did.

65. In the circumstances, the Decision must be overturned and the selection made by the Selectors reinstated.

66. As regards the costs of the proceedings, I refer to the parties’ Med/Arb Agreement, which provides: “The cost of engaging the Sport Dispute Resolution Centre of Canada for this mediation/arbitration will be borne by Badminton Alberta. All other parties to this matter

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will be responsible for any additional costs them may incur.” As a result, none of the parties requested that I order the payment of costs by one party in favour of another.

67. FOR ALL OF THE FOREGOING REASONS, I DECIDE AND ORDER AS FOLLOWS: 7

The appeal by Mr. Li is upheld.

The decision of the Appeal Committee of Badminton Alberta dated 1 February 2011 is set aside.

The decision of the Selectors (Jeff White, Coach; and Beth Richardson, Manager) is reinstated.

None of the parties requested an award of costs, and I accordingly make no such award.

28 February 2011

______Stephen L. Drymer Arbitrator

7 As noted above, the decision as communicated to the parties on 15 February 2011 included the following final paragraph, which is omitted here: “Written reasons to follow in accordance with Art. 6.21 of the SDRCC Code.”