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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 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: 3 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. 7 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.
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