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Why all athletes and national sporting organisations should get specialist advice before embarking on selection appeals
13/03/06 by Michael Smyth
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“The Tribunal has considerable sympathy for Mr Mudford. The decision to decline the jurisdiction was made reluctantly but, in the Tribunal’s view, was inescapable on the facts of this case. Mr Mudford has been denied a right of appeal which the NZOC gave him because of administrative errors, both by the NZOC and the New Zealand Shooting Federation. Technically there was a breach of contract by NZOC. This was partly compounded by NZOC posting on the web the nomination criteria for shooting, which had a reference to the NZOC Nomination and Selection Criteria. We can understand that Mr Mudford could have been misled by the posting of this document and the failure to place the selection criteria on the web … the fact that he was misled by both NZOC and NZSF is at the end of the day, irrelevant from a legal point of view.”
In light of this decision how can you be sure that any selection criteria you undertake is the right one? After thousands of hours of training to be selected for a big event, how can you be sure that you will be afforded a fair hearing if you have a grievance?
How Jarrod Mudford was denied his right of appeal
Jarrod Mudford was a member of the New Zealand Shooting Federation (NZSF) High Performance Squad and therefore eligible to be selected for the Men’s Trap Event at the 2006 Commonwealth Games in Melbourne. The selection criteria for shooting set out scores which the NZSF High Performance Coaching Panel would use to make an assessment of an athlete’s ability. In this sport these scores were commonly referred to as Minimum Qualifying Scores (MQS). For the Men’s Trap Event the Minimum Qualifying Score was 118.
The selection criteria also set out that all athletes putting themselves forward for selection must undergo a series of three trial events. The scores at these trial events would be used to determine a ranking, which would also go towards making a selection. Only two athletes were eligible to be selected for the Games Team.
At the end of the trials, Mr Mudford was joint second with another shooter. However, of the two shooters, Mr Mudford was the only one to have shot the MQS. A shoot-off was held to determine the final ranking. Going into the shoot-off, Mr Mudford believed that he would be selected regardless of the result, since of the two shooters he was the only one to have shot the MQS. As matters transpired, Mr Mudford lost the shoot-out and was ranked third.
The NZSF subsequently notified Mr Mudford that he was not going to be nominated to the NZOC to be a travelling member of the Games Team. Mr Mudford sought to challenge this decision, on the grounds that the selection criteria had not been properly followed by NZSF. However, despite doing everything he possibly could do advance his Appeal, he was denied a Hearing before the Sports Disputes Tribunal of New Zealand (SDT).
Why Jarrod Mudford was denied his appeal right
In the middle of 2005, Jarrod Mudford signed an Athlete Nomination Form, in which he agreed to be bound by selection criteria for the Commonwealth Games, published by the NZOC. The Athlete Nomination Form was very confusing. It said as follows:
I have been provided with access to a copy of the NZOC Nomination and Selection Criteria for the 2006 Commonwealth Games (including the nomination criteria for my sport) via the NZOC website, www.olympic.org.nz. I agreed to comply with and be bound by the terms of the NZOC Nomination and Selection Criteria.
It then went further to say:
“I will abide by the Terms and Conditions of the NZOC Nomination and Selection Criteria and in particular, acknowledge my Right of Appeal and the process of such Appeal in relation to my nomination/non-nomination or selection/non-selection to the Team. I acknowledge that the process for such Appeal overrides any Right of Appeal I might otherwise have under the rules, policies, regulations or by-laws of the New Zealand Shooting Federation Incorporated”.
Despite what that Agreement said, the NZOC failed to publish on its website its Nomination and Selection Criteria which contained the process for lodging an Appeal. What it did do was to publish the Nomination and Selection Criteria for each individual sport. The criteria, which applied to shooting, said this about the Appeals process:
“This would be in accordance with the NZSF policy until the nominees are forwarded to the NZOC, thereafter the NZOC policy will apply”.
Rather unhelpfully, this document was entitled “NZOC Nomination and Selection Criteria – 2006 Melbourne Commonwealth Games”.
Therefore, as far as Mr Mudford was concerned, this document was the only document which set out how he should Appeal. Along with several other athletes, Mr Mudford lodged an Appeal with the NZSF.
The NZSF Policy
The NZSF Policy was contained in the NZSF Constitution. It said that where a party was aggrieved as to their non-nomination or non-selection for an event, they could lodge an Appeal with the NZSF Board of Appeal. To do so a fee of $500 must be sent with the Appeal. This is what Mr Mudford did and his Appeal was heard before a Board of Appeal hearing on 28 January 2006. Following the Hearing, Mr Mudford felt that he had not been given a fair Hearing, and in particular, he alleged that there were a number of breaches of natural justice which would entitle him to lodge a further Appeal under the NZSF Constitution with the SDT. Under the NZSF Constitution, Mr Mudford had 10 working days in which to do so. It only subsequently became apparent that the NZSF Appeal’s Policy did not apply.
Why the NZSF Policy did not apply
Unbeknown to Mr Mudford there was another document entitled NZOC Nomination and Selection Criteria, which contained the Appeals process in the event that an athlete was not happy with their non-nomination for the Commonwealth Games Team. This document stated that in order to lodge an Appeal, it must be done within 48 hours of the official announcement of athletes representing New Zealand. The official announcement for the New Zealand Shooting Team was made on Friday the 3rd of February 2006. That meant that Mr Mudford had to lodge his Appeal by the following Sunday (when the NZOC offices were closed). The following day was also a holiday, being Waitangi Day. Mr Mudford lodged his Appeal with the SDT on Tuesday the 7th of February 2006.
At a Preliminary Hearing held in Auckland, the SDT ruled that it had no jurisdiction to hear Mr Mudford’s Appeal because the appeals process, as set out in the NZOC Nomination and Selection Criteria, had not been followed, in particular the time limit had not been adhered to.
To most people this would seem manifestly unfair.
Why the decision was “unfair” but “legal”
When Mr Mudford signed the Athlete Nomination Form he became bound by contract to the NZOC. In doing so, he agreed to be bound by the NZOC Nomination and Selection Criteria. The Shooting Federation argued that even though Mr Mudford did not know of the Appeals procedure (the NZOC having failed to publish it and the NZSF having failed to circulate it), he was still bound to comply with the process. As Counsel for Mr Mudford, I argued that:
1. the NZOC Nomination and Selection Criteria did not form part of the contract between the parties, since it was not adequately brought to Mr Mudford’s attention at the time the contract was made;
2. that since both the New Zealand Shooting Federation and the NZOC had misled Mr Mudford in following an Appeals procedure which was not valid, they both waived their right to rely on strict interpretation of the procedure outlined in that document;
3. in any event, the Athlete Nomination Form is ambiguous and therefore in construing that document it should be construed against both the NZSF and the NZOC and therefore Mr Mudford should not be denied his Right of Appeal.
Opposing Counsel argued that since he had signed the Athlete’s Nomination Form, he was bound by the terms of the Appeal process regardless of whether or not it had been published, or whether or not he knew about it. The Tribunal found in favour of the NZSF and refused to hear the Appeal: his signature on the document was conclusive.
How this could have been avoided
The only way Mr Mudford could have assured he had his Hearing before the SDT, was to have known about the Appeals procedure when he first lodged the Appeal. No criticism can be laid at Mr Mudford because it was never published by the NZOC or the NZSF. He was not to know the legal significance of what he was signing some 8 months before the Appeal. The only way he could have known was to obtain specialist legal advice at the time he lodged his Appeal. Unfortunately, I was only instructed after the Appeal to the SDT had been lodged. The consequence for Mr Mudford is that he has lost an opportunity to represent New Zealand at the Commonwealth Games.
There were also consequences for the New Zealand Shooting Federation
Although the New Zealand Shooting Federation won the Appeal, the decision could have damaging effects. The SDT were critical of the way both the NZSF and the NZOC had misled Mr Mudford. They said in plain terms that the Board of Appeal Hearing before the NZSF should not have taken place and that therefore Mr Mudford should be refunded his $500 application fee. No doubt, the Board of Appeal Hearing was run at great expense to NZSF and there were four athletes who had Appeals heard that day. I understand each of the four athletes is asking for a refund of their application money. In addition, the NZOC and the NZSF have had to cope with adverse publicity.
So whilst an amateur organisation, it would have paid for NZSF to seek legal advice at the time the Appeals were lodged, rather than leaving it until the matter proceeded to the SDT.
Sport should be about fairness, not legal technicalities
There will be many that say that sports should be about fairness and not legal technicalities. With that sentiment I agree, but unfortunately, outside of doping, there is no specific code for sport and therefore the relationships between athlete’s bodies, sporting bodies and event organisers is governed by the normal rules of contract. That being the case, normal application of legal principles would apply.
However, with many sporting bodies having limited funds, and the same being true of many athletes, there will not be many who will welcome the intervention of lawyers. What the Mudford case demonstrates is that advice received at an early stage of a sporting dispute, may help to achieve transparency and fairness and ultimately save costs in the long run.
So if you don’t want to be caught up in legal technicalities, and have administrative failures costing you selection or unnecessary legal costs, the lesson seems to be to get legal advice at an early stage.
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