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In the Matter of an Arbitration of Adr-Sport-Red

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In the Matter of an Arbitration of Adr-Sport-Red IN THE MATTER OF AN ARBITRATION OF ADR-SPORT-RED RE: SELECTION OF SWIMMERS FOR THE 2002 COMMONWEALTH GAMES BY SWIMMING/NATATION CANADA between ANNAMAY PIERSE GORD VELDMAN DOUG WAKE (the “Appellants”) and SWIMMING/NATATION CANADA (the “Respondent”) and KURTIS MACGILLIVARY CHAD MURRAY KARLEY STUTZEL (the “Intervenors”) ARBITRATOR: MICHEL G. PICHER APPEARANCES: For the Appellants Pierse, Veldman and Wake: David H. de Vlieger - Counsel For the Appellant Veldman (in part): John Phillippe Schuman - Counsel For Swimming/Natation Canada: Karen Spierkel - C.E.O. For the Intervenors: Kurtis MacGillivary: Dean Boles - Coach/Agent Chad Murray: Brian J. Murray - Counsel Karley Stutzel: Dr. Peter Vizsolyi - Coach/ Agent A preliminary pre-hearing telephone conference was held on Thursday, June 20, 2002; The exchange of pleadings and related documentation was completed on Friday, June 21, 2002; The hearing was held by telephone conference on Saturday, June 23, 2002. The Chief Arbitrator directed interpretation and clarification of the award on June 26, 2002. SUPPLEMENTARY DECISION In the decision herein dated June 23, 2002 the Arbitrator retained jurisdiction through the application of Rule RA-22. The retainer of jurisdiction is reflected in the final paragraph of the award which reads as follows: The decision herein is without costs, and jurisdiction is retained by the Tribunal pursuant to Rule RA-22. The remedial determination made by the Arbitrator was to quash the decision of the Appeal Panel, confirming that the Selection Committee did have the discretion to name the appellants to the 2002 Commonwealth Games Team. In that regard, the penultimate paragraph reads, in part: ...The arbitrator directs the respondent SNC to restore the original team selection made by the Selection Committee on March 24, 2002. SNC now seeks clarification of the award. By the application of Rule RA- 22 the Chief Arbitrator has reviewed the request and directs that I provide interpretation and clarification. This supplementary award is therefore issued for that purpose. The request of SNC results from what it perceives as a problem arising from the result of the award herein as well as the award issued prior to the hearing of this appeal by Arbitrator J.G. Clément in the appeal of swimmer 2 Nadine Rolland. It is common ground that the team is to be comprised of 40 athletes. SNC needs clarification as to the effect of both awards, which could be interpreted as directing the selection of a total of 41 athletes. For the purposes of clarity, this Arbitrator dealt with the substitution of the three appellants over the three intervenors. No information was provided to me by the parties concerning a possible numerical conflict. I was advised only that another swimmer, Nadine Rolland, was the subject of an appeal before another arbitrator. There was no indication as to whether the Rolland appeal concerned a possible substitution of athletes, as this appeal did. I have now had the benefit of reading the award of Arbitrator Clément. The intent of my award was to confirm that the Selection Committee of SNC at all material times had the discretion and continues to have the discretion to name any of the appellant athletes to the Commonwealth Games Team. That discretion continues to obtain at the present time. It is, of course, subject to the constraint of the limit of 40 swimmers for the Team. In the result I find and declare that the Selection Committee has the discretion to choose any three successful appellant athletes for inclusion on the team. In light of the framework of the documents before me it also has the jurisdictional obligation to do so. 3 The matter is therefore remitted to the Selection Committee of SNC to make the selection of three swimmers from among the appellants in accordance with the awards who were judged to be eligible for selection by the operation of the Committee’s discretion. The Selection Committee is therefore directed to proceed forthwith to complete its selection for the final three places on the Team. The Arbitrator continues to retain jurisdiction under Rule RA-22. Dated at Toronto this 26th day of June 2002. _______________________________ Michel G. Picher Arbitrator .
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