And Squash Canada As a Result Of

SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC)

No: SDRCC 10-0125

FREDERICK REID (CLAIMANT)

AND

SQUASH CANADA (RESPONDENT)

Before:

Graeme Mew (Arbitrator)

Appearances and Attendances:

Cathie Reid (Agent for the Claimant)

Hilary Findlay (Counsel for the Respondent)

Also Present:

Robert Wyma (President, Squash Canada) Joe Besso (High Performance Chair, Squash Canada) Yvon Provençal (National Coach, Squash Canada)

Heard by way of telephone conference on: 9 and 16 September 2010

AWARD

1. Fred Reid is a 20 year-old professional squash player. He is a part-time student at Ryerson University. He is currently ranked number 176 in the Professional Squash Association (“PSA”) world rankings.

2. A dispute has arisen between Mr. Reid and Squash Canada as a result of:

a) The allocation by Squash Canada of “Cards” to Squash Canada athletes pursuant to Sport Canada’s Athlete Assistance Program (“AAP”) which, Mr. Reid alleges, discriminates against him as a student with limited resources; and.

b) A decision, notified to Mr. Reid and other athletes representing Canada at the 2010 World University Squash Championships in Melbourne, Australia, that athletes selected by Squash Canada to participate in the Championships would be required to pay an athlete contribution of $1,000.

3. Mr. Reid has already appealed these decisions through the internal appeal process of Squash Canada. An Appeals Officer of Squash Canada concluded that neither of the appeals advanced by Mr. Reid met the enumerated grounds for appeal provided for in s.4 of the Squash Canada Appeals Policy (the “Appeals Policy”) in force at the time.

4. Mr. Reid now brings a further appeal to the Sport Dispute Resolution Centre of Canada pursuant to s.9 of the Appeals Policy which provides that where an Appeals Officer does not allow an appeal, the matter may be referred to the SDRCC.

5. The corresponding provision of the Canadian Sport Dispute Resolution Code (the “Code”) provides, in the case of disputes involving a national sport organisation (“NSO”), that a Person can apply to the SDRCC for the resolution of a Sports- Related Dispute if that Person has exhausted any internal dispute resolution procedures provided by the rules of the applicable sport organisation (s.3.1(b) of the Code).

6. The grounds for appeal specified by the Appeals Policy are as follows:

An appeal may only be based on one or more of the following grounds: a) the decision-maker did not have the authority or jurisdiction to make the decision. b) the decision-maker failed to follow the procedures set out in the relevant by-laws or policies of Squash Canada c) there is a reasonable apprehension that a decision-maker is biased. d) the decision-make made a decision for which there is little or no supporting evidence.

7. The Code provides, by s.3.1(b) that:

“Unless otherwise agreed or set out herein, and if the dispute involves a NSO, where a Person applies to the SDRCC for the resolution of a Sports-Related Dispute, the Person must first have exhausted any internal dispute resolution procedures provided by the rules of the applicable NSO.”

8. The scope of review available to an SDRCC arbitrator is governed by section 6.17 of the Code which provides:

“The Panel shall have full power to review the facts and the law. In particular, the Panel may substitute its decision for…the decision that gave rise to the dispute…and may substitute such measures and grant such remedies or relief that the Panel deems just and equitable in the circumstances.”

9. The hearing was preceded by extensive written communications between the parties, much of which formed part of the evidentiary record at the hearing. In particular, witness statements were tendered from a number of individuals some of whom, tendered their statements anonymously (although, with the 4

concurrence of the parties, the arbitrator was provided with the identity of the “anonymous witnesses”). Oral testimony was provided by Robert Wyma, Joe Besso and Yvon Provençal on behalf of Squash Canada. Fred Reid did not give evidence or otherwise participate at the hearing. He was, however, represented throughout by his mother, Cathie Reid.

10. The hearing took some seven and a half hours and, as alluded to already, a substantial documentary record was developed.

11. In coming to my decision and preparing these reasons, I have attempted to confine myself to the issues raised in the claimant’s request and the evidence relevant to those issues. While I have considered all of the evidence and arguments presented by the parties, I would observe that there was a great deal of evidence which did not bear directly on the issues which I have jurisdiction to deal with.

12. Mr. Reid’s request for arbitration sets out the following grounds:

“1. The Claimant’s two recent appeals (May 13th & May 16th, 2010) for separate High Performance decisions made by the Respondent, Squash Canada that violate the athlete’s right to fairness; are contrary to operating in good faith of the Association’s underlying constitutional values/mandates and athlete agreement obligations to support the athlete, and; are contrary to underlying Sport Canada funding mandates and policy directives.

2. The Respondent’s denial of fair process to the Claimant through a lack of responding to documented conflict of interest concerns and allowing the Appeals Director to dismiss the objective appeals process (in a June 10th response to the Claimant), despite the facts and submissions by the Claimant indicating otherwise (multiple legitimate basis for both appeals). It is the Claimant’s 5

position that the Appeals Officer demonstrated bias and a clear conflict of interest that the Administration refuses to address, despite the documentation presented to the Operations Director on June 22.

3. The Respondent’s ongoing lack of accountability or transparency for documented legitimate athlete concerns and ongoing athlete rights policy violations that negatively impact on the Claimant’s athletic development (as well as the potential to affect all high performance athletes in the sport of Squash in Canada). The lack of accountability includes:

• an outstanding list of issues presented to the Squash Canada Board of Directors on Dec. 7th, 2009, followed up by: • a specific list of outstanding athlete rights violations documented to the Operations Director on May 1st • the specific May 13th & May 16th outstanding appeals • the Claimant’s outstanding June 13th ranking/National Championships seeding query to Technical Coordinator, Francis Boyer

4. Repeated, documented bad faith action by the Association towards responding to the claimant’s legitimate athlete concerns through abuse of power tactics and the retaining of Sport and Law consulting services to attempt to silence the claimant’s legitimate claims”

Background Facts

13. Squash Canada is a NSO which receives public funding through Sport Canada. It is governed by a board of directors consisting of representatives of the sport’s provincial sports organisations and two athlete representatives. Two thirds of 6

Squash Canada’s revenue comes from Sport Canada. The remainder is self- generated, primarily through tournament revenues and sponsorships. In men’s squash, there are three national squads. The Senior squad is made up of top senior squash players; the Junior squad is for younger players; the Espoir squad is an intermediate squad which acts as a bridge between the Junior squad and the Senior squad.

14. Fred Reid is now entering his third year as a member of the Espoir squad.

15. Athletes with Squash Canada have the opportunity to be beneficiaries of the Athlete Assistance Program (“AAP”) administered by Sport Canada. This programme is more commonly referred to as “carding”. The AAP is designed to give top Canadian athletes direct financial assistance and tuition support which enables them to better prepare themselves to represent Canada at the highest possible level internationally.

16. Within Squash Canada, the AAP is administered through the High Performance Committee (“HPC”). This committee makes all decisions related to athlete nominations, administration and management of the programme.

17. The 2010 Carding Criteria published by Squash Canada on 24 March 2009 states that the process relating to carding “involves evaluating the training environment, submitting the annual training plan, tracking and evaluating performance and establishing a compulsory reporting and monitoring process.”

18. The AAP has a stated objective of supporting athletes who finish, or who have the demonstrated ability to finish, in the top 16 in the world for individual sports and the top eight in the world for team sports. In squash, the World Team Championships is recognised as being the international event for measuring international results. Accordingly, Squash Canada’s funding as well as its allocation of cards through the AAP is based on the ability of squash athletes to contribute to a team that finishes in the top eight at the World Team Championships.

19. Squash Canada has been allocated eight cards in total, which have historically been evenly divided between men and women (cards are sometimes transferred to the other gender depending on qualification).

20. Eligibility for AAP support in squash is confined to members of the National Senior squad or the Espoir squad. There are a number of different types of cards, the details of which it is not necessary to recite. Suffice it to say that the categories of card include (1) International Senior card; (2) Domestic Senior card; (3) Domestic Development card; and, (4) Injury card.

21. Four male Canadian athletes are presently carded at the International Senior level. The criteria for eligibility for an International Senior card are World Team Championship top eight finish and top half of the field.

22. Because, in the current carding cycle, the Canadian women were not in the top eight teams, additional cards became available to male players. Ultimately, senior cards were awarded to two women and four men. Three men were awarded domestic senior cards (an additional “discretionary” card having been made available).

23. At this juncture Fred Reid’s PSA ranking, as previously stated, is 176. Mr. Reid was not awarded an AAP card for 2010.

24. The criteria for Domestic Senior cards can be summarised as follows:

a) If not carded at the International Senior level, the top Canadian male athlete within the top 55 on the PSA ranking will be awarded a Domestic Senior card. b) Remaining cards are allocated on the basis of a 12 month average PSA ranking from 1 January 2009 – 1 December 2009. A ranking of at least 135 is required to obtain a card initially (following that there are progressive yearly indicators that are used to determine continued eligibility for carding).

25. The PSA ranking system is based on 12 month average of events played. To establish a PSA, a player must play ten events. If between 10 and 13 events are played in a 12 month period, the last ten events are counted. Once a player has played in 14 or more events, the best 11 results in the past 12 months are counted. Yvon Provençal, the national coach of Squash Canada, stated that on average players play between 13 and 17 events each year.

26. There are PSA tournaments going on all year round throughout the world. All players who are PSA ranked can sign up for all tournaments. There are, however, criteria which limit who actually ends up participating in any given tournament. A tournament involves 16 players which will usually consist of the top 11 or 12 PSA ranked applicants. The final 4 places will be decided through a qualifying event in which there are, also, usually 16 players. There is a weighting system, in that tournaments which are harder to get into will generate more PSA ranking points for successful competitors. There is also a “wildcard” system whereby one player, who is usually local to the place of the tournament, is given a wildcard entry as one of the 12 automatically qualifying entrants. Indeed, some tournaments will have a certain number of spots in the qualifying tournament reserved for local athletes.

27. Fred Reid has not been granted any wildcard entries in 2010. He has, however, entered no less than 22 events, several more than some of his immediate peers. Mr. Provençal speculated that Mr. Reid may not have fully understood all of the nuances of the PSA system in terms of the best way to gain ranking points. Indeed, Mr. Provençal conceded that a player who does not have a comprehensive understanding of the PSA ranking system and/or have access to someone who is knowledgeable, would be at a disadvantage.

28. It was also acknowledged that the system is not perfect. For instance, Mr. Provençal noted that Fred Reid had finished higher at the national squash championships this year than another athlete who has an AAP card.

29. I did not have the benefit of hearing testimony from Mr. Reid. However, the evidentiary record contains a great deal of written correspondence between Mr. 9

Reid (or his representative) and Squash Canada. From this it is evident that Mr. Reid feels that, as a part-time student, with limited means, he is at a disadvantage to other competitors, who may have access to sources of funding and financial assistance not available to Mr. Reid, who are able to cherry pick tournaments to play in which yield the best possibilities of obtaining PSA ranking points. This can often involve travel to other countries or even other continents in order to play in a tournament.

30. Mr. Reid is not the only athlete who has concerns about the current AAP carding criteria. A number of witness statements were provided to me by other athletes and, in one case, the father of an athlete. These witnesses endorsed the following statement:

“That PSA/WISPA rankings are discriminatory to certain groups of athletes and contain inherent flaws that make them inappropriate as a primary selection criteria for Squash Canada AAP carding and National Representation selections without providing for companion criteria that allow for fair performance evaluation/measurement against other Canadian High Performance athletes.

Further, the use of ‘discretion’ as a criteria is subject to potential abuses of conflict of interest and is an unfair criteria if not accompanied by a provision for objective, transparent review and accountability which currently does not exist.”

31. There appears to be considerable support for the introduction, as part of the AAP carding criteria, of a requirement that to qualify for a card an athlete must have participated in a minimum number of core events between Canadian athletes. In this regard, I was surprised to hear that many of the elite Canadian squash players do not actually play each other very often.

32. Particulars of the types of conflict of interest issues that, it is said, could arise include the provision of limited local and wildcard spots to certain athletes over 10

others, thereby presenting a barrier to draw access for those athletes who are not chosen. For example, a case was cited of a situation where a wildcard entry had been given to the child of a tournament director.

33. Furthermore, as one athlete put it:

“PSA…rankings are subject to the abuse of being purchased, at least up to a certain level – beyond which you actually have to start wining matches. An athlete can have a higher ranking than another squad athlete without ever having beaten anyone on the PSA…tour or having played another Canadian player.

34. The athletes also suggest that PSA rankings do not allow for injury period breaks that do not negatively affect ranking.

35. There were also allegations that discretion is exercised without regard to principles of fairness. For example, one athlete stated:

“Wildcard allocation is at the sole discretion of the tournament director not Squash Canada. Other countries use wildcards more strategically than Canada.”

36. A number of the witnesses spoke in terms of barriers to access.

37. The allegations of bias and/or conflict of interest on the part of the Appeals Officer were not substantiated. It was alleged in submissions that the Appeals Officer was a former President of Squash Canada. There was no evidence on this point, but even if the submission was correct that would not automatically result in reasonable apprehension of bias or of conflict of interest.

38. The second limb of Mr. Reid’s appeal, namely the imposition of a $1,000 participation levy imposed on Mr. Reid as a Canadian participant at the recent World University Student Games in Melbourne, Australia. This decision was also 11

characterised as “barrier to access” and, hence, a requirement that could be seen as discriminatory against less well financed athletes.

39. On 8 December 2009 an e-mail went out to various squad players advising that the 2010 World University Championships would be played between 10 July and 18 July in Melbourne, Australia and that Squash Canada would be sending a team of 1 coach, 3 male athletes and 2 female athletes. The e-mail continued:

“The event is not a fully funded Squash Canada event. Squash Canada will pay for the athletes entry fees, accommodations and meals, whereas the athlete is responsible for their own travel to and from Australia and any required travel documentation (visa’s). Also, any fees associated with the entry forms will be the responsibility of the athletes (University/College registrar’s signature, passport photos, etc.).”

40. On 15 March 2010 a further e-mail was sent out to those who had, in response to the earlier e-mail, indicated their interest and eligibility for the 2010 World University Squash Championships. The letter continued:

“Due to the a change in the FISU (governing body for university sport) payment structure (from US dollars to Euros) and the current constraints on the Squash Canada budget it has become necessary for Squash Canada to introduce a required athlete contribution at this time to cover expenses that Squash Canada is unable to cover. As such, the required athlete contribution for selected athletes for the 2010 World University Squash Championships will be $1000.00 CAN. Each athlete is also responsible for their own travel costs to and from the event. In the past, athletes have been quite successful in raising funds through their Universities (athletic departments, student unions), their home clubs, and their provincial associations. 12

Sending a team to the 2010 World University Championships costs Squash Canada roughly $13,000.00 CAN. This includes the following:

• Athletes fee of 60 euro per day (5 athletes x 11 days)

• Athletes entry fee of 20 euro (5 athletes)

• Athletes CIS fee of $110 CAN for CIS students and $220 CAN for non CIS students (5 athletes)

• Coaches Travel, equally roughly $2,400 CAN (1 coach)

• Coaches fee of 60 euro per day (1 coach)

• Coaches entry fee of 20 euro (1 coach)

• Insurance ($60 CAN per person)

• Uniforms ($200 per person)

Without the athlete contribution Squash Canada would not be able to send a team to the 2010 event.”

41. Mr. Wyma provided evidence with respect to Squash Canada’s finances. He indicated that Squash Canada is on a four-year funding cycle with Sport Canada. There was an annual reduction of $50,000 in Squash Canada’s budget commencing 2008-9. This led to the Board, in December 2009, asking staff to look at the budget and seek out reductions. Squash Canada incurred an operating loss for the year ended 31 March 2009 and a $16,000 loss is anticipated for the year which ended 31 March 2010.

42. Mr. Wyma was asked about a “Patrons’ Fund” which exists to support squash objectives. There is about $110,000 in the fund. Mr. Reid had apparently made a successful appeal in respect of an earlier funding decision involving the Patrons’ Fund. Following this, the Patrons’ Fund, which is described as being administered by a committee at arms length to the board of Squash Canada, suspended its operations pending a review of its terms of reference. A special 13

committee was struck and its report is still pending. Mr. Wyma rejected the suggestion that funding for Mr. Reid’s needs should be provided by the Patrons’ Fund at this time.

Findings of the Appeals Officer

43. Although I am entitled, pursuant to the Code, to review the facts and the law and, if I consider it appropriate to do so, to substitute my decision for the Appeals Officer’s decision, I nevertheless consider it appropriate that I take into account his decision and his reasoning therefor.

44. The Appeals Officer found that none of the grounds for appeal specified by the appeals policy (set out in paragraph 4 of this decision) had been made out.

45. With respect to the carding criteria appeal, the essence of the Appeals Officer’s reasons is captured by the following extract from his decision:

“If your appeal related to the manner in which the carding criteria were applied or interpreted, then I would possibly take the position that you could proceed with a valid appeal. A case could be made that the criteria were not applied following proper procedures, or that the carding decision did not reflect full or correct information. However, it is my view that the establishment of the criteria themselves are not open to appeal, for the reason that such an appeal does not meet the grounds of Section 4 of the Appeal Policy:

46. The Appeals Officer went on to note that there was no evidence of bias against Mr. Reid or that Mr. Reid had been singled out for different treatment.

47. With respect to the athlete levy of $1,000, the Appeals Officer concluded that a budgetary decision by Squash Canada to have athletes make a financial contribution in order to participate in a team or at an event is clearly within the jurisdiction of Squash Canada to make. The Appeals Officer found no evidence 14

of bias or prejudice against Mr. Reid. In the Appeals Officer’s view, the decision of Squash Canada was a purely operational or budgetary matter. The Appeals Officer felt that the Board of Squash Canada had:

“…considered all appropriate information in making its decision: existing budgets, a projected budget deficit for the High Performance Program, needs and costs of the FISU team as mandated by other entities and which are outside of our control (uniforms, an accompanying coach, team accommodations in one location, etc.), as well as the past practice of having athletes contribute to team costs.... The decision to levy a modest athlete fee was a measured and appropriate response in light of all of this information.”

Discussion

48. It is clear that Mr. Reid is not alone in expressing concerns about the carding criteria employed by Squash Canada. From a policy-making perspective, Squash Canada may well wish to take into account the views that have been expressed by its athletes.

49. That said, I am not persuaded that the evidence presented establishes that Mr. Reid has been singled out. The fact that his economic circumstances may be different to those of other squash players (although there was very limited evidence of Mr. Reid’s financial position) does not translate into discrimination against him merely because there is a cost associated with participating in his sport. Squash is no different to many sports in which athletes (and often their families) have to make considerable financial sacrifices in order to progress. In an ideal world this might not, perhaps, be necessary. But in the current environment, Mr. Reid and his fellow Canadian athletes are, despite their personal financial hardships and sacrifices, still probably better situated than many of their contemporaries in other countries.

50. Accordingly, while I do not wish to be seen as diminishing the validity of many of the points which were made on behalf of Mr. Reid, I cannot conclude that he has been discriminated against. Nor has bias or bad faith been established.

51. Cathie Reid has been a tenacious advocate on behalf of her son and has, along the way, ruffled some feathers. I have found, however, that no discrimination of any sort against Mr. Reid, in any legal sense of that word, has been proved. That might be difficult for Mr. Reid and Cathie Reid to accept, given the skepticism which they appear to have developed in respect of anything said or done on behalf of Squash Canada. Again, this is unfortunate, and could, perhaps, have been avoided, or at least ameliorated, by more effective and more open communication between Mr. Reid and Squash Canada.

52. I was encouraged to hear that Mr. Reid had recently met with Mr. Provençal and would expect that Mr. Reid and Squash Canada would benefit from a continuation of such efforts to communicate positively and constructively. It may well be that Mr. Reid’s participation in qualifying events could be better managed so as to enhance his chances of improving his PSA ranking.

53. Similarly, the levy for participation at the World University Student Games, while it no doubt came as a disappointment to Mr. Reid, nevertheless strikes me as a proportionate response to an economic reality. While I accept Ms. Reid’s argument that there may have been other potential sources of funding which would have avoided the need to impose a $1,000 levy on the athletes, those sorts of decisions are the matters that boards of directors are required to deal with. Their decision was a reasonable one. There is no evidence that it was improperly motivated. It was a proper operational decision. It was not discriminatory or otherwise improper in any legal sense.

Decision

54. For the reasons set out, I would dismiss Mr. Reid’s appeal. He is, by all accounts, an accomplished athlete with a good future in the game. While the outcome of these appeals may be disappointing to him, I hope that it will be 16

possible for both him and Squash Canada to put these issues behind them and to move forward in a positive fashion.

Costs

55. Although, pursuant to s. 6.22(b) of the Code, I have discretion to award costs, my provisional inclination is to order that each side bear its own legal costs. However, I am prepared, if either party wishes me to do so, to consider their submissions on costs and would ask that such submissions be filed with the SDRCC by no later than 5:00 p.m. on Friday 8 October 2010.

29 September 2010

______Graeme Mew, Arbitrator