The easy allegation that
By: Nicholas Lawrence
Published: 15/03/2018
Regardless of how they were appointed, most selectors will have allegations of bias levelled at them in some form during their tenure.

This is simply a reality of the modern world we live in, where competition is fierce and the stakes in sport (both amateur and professional) are high.

This article will look at the allegations of bias that have arisen in the New Zealand Sports Tribunal (Tribunal) and Court of Arbitration for Sport (CAS) to explore how they tend to be decided and the differences between actual and apparent bias.

As will be shown, only on very rare occasions are selection appeals based on bias successful.

A high standard of proof

The standard of proof required for selection appeals alleging bias is very high, primarily because selection decisions are inherently subjective.  Selectors are chosen because they are deemed to be the people who are able to best exercise their discretion.

To successfully appeal a selection decision affected by bias, an appellant will have to:
  1. prove actual bias; or
  2. if apparent bias is a valid ground of appeal (through its inclusion in National Sporting Organisation (NSO) rules or selection agreements) then an appellant will need a direct piece of evidence which infers a pre-disposition of the selector(s), supported by other examples of the likelihood of bias.

What is bias?

Bias is partiality; a tendency to be less than disinterested.[1] 

In a selection decision context, bias is when a selector is pre-disposed towards favouring one candidate over another, before taking into account all the other selection criteria.

It is largely agreed that there are two kinds of bias: actual bias and apparent bias (presumed bias being a subset of apparent bias).[2]  Actual bias is when a decision maker acts in a way that precludes him or her from effectively exercising the discretion required of such a decision maker.  "Actual bias only exists where the decision maker has pre-judged the case against a party or acted with such partisanship or hostility as to show that the decision maker had his or her mind made up against the party and was not open to persuasion in favour of the party".[3]

Apparent bias is when there is no actual bias but there exists other reasons (e.g. family connections) why a decision maker is pre-disposed towards making a decision in a certain way.

How do you prove bias?

Proving bias is the most difficult part of the selection appeal process.  The Tribunal and CAS do not treat allegations of selection bias lightly; this can be seen in the Tribunal's policy to only allow selection appeals based on actual bias in the absence of NSO rules or agreements to the contrary.[4]

Whether actual bias exists is an "objective inquiry which requires an assessment of the state of the mind of the decision maker, which is an objective inquiry to ascertain what the decision maker said and did."[5]

To put it simply, there must be direct evidence that the selector(s) had already 'made up their mind' before they made the relevant selection decisions.  As will be explained below, in the absence of direct proof of bias the Tribunal and CAS will not set aside a selection decision.

In the absence of NSO rules or selection agreements to the contrary, selection decisions can only be overturned in New Zealand if there is actual bias.  This is a strict rule.  In Daisy Thomas v Surfing New Zealand[6] (the leading case in New Zealand sports law concerned with selection decisions), the Tribunal found there was no ability for the appellant to argue apparent bias even when the NSO accepted that there was.

Unfortunately for appellants, there are not many NSO rules or selection agreements which provide for a selection decision to be overturned based on apparent bias.  However, despite this, apparent bias is discussed regularly in Tribunal decisions.

There are a number of common allegations that are relied upon in selection appeals to the Tribunal that can be discussed here.  Before appealing an athlete should recognise that:
  1. Allegations of negatively charged conversations with a selector or hearsay evidence of a selector's comments, without conclusive evidence that they occurred, will not be enough to convince the Tribunal that there was apparent bias.[7]
  2. An appellant cannot rely on the existence of a national, high performance or any other sort of 'team' to allege bias.[8]  If that team is one which is organised in the normal development of the sport then its existence will not automatically mean those associated with it will be biased towards its members.  Once again, there needs to be conclusive evidence of a likely bias before the Tribunal will begin to view such a team as leading to the potential for bias to occur.
  3. "The simple fact of association through coaching will not usually meet the test of 'apparent bias' required by law ".[9]  Especially in New Zealand where there are limited numbers of participants in any given sport, an association, even a strong one, will not be enough to prove apparent bias.  Once again, direct evidence that bias existed will be needed.[10]  That, along with the existence of other supporting factors like a close coaching relationship may be enough to persuade the Tribunal to set aside a selection decision due to apparent bias.
  4. A sporting body's act of funding some athletes and not others will not automatically give rise to an allegation of bias if a reasonable and logical explanation for the difference in funding can be given.[11]  It is common knowledge that sports organisations have limited funds; there will never be enough to fully satisfy everyone in the sport.  The Tribunal recognises this problem and therefore an appellant will need to have direct evidence of the likelihood of bias and associate this with the lack of funding to bolster their allegation of apparent bias.
  5. Evidence of a previous disagreement between a selector and an athlete will not be enough on its own to give rise to a finding of apparent bias.[12]  If the disagreement is complicated and unable to be easily deciphered by the Tribunal, it is unlikely that it will attempt to do so.  The Tribunal is likely to admit it is not in a position to adjudicate on the rights and wrongs of the dispute, and will simply acknowledge that it occurred.[13]  Only if the dispute leads to the likelihood of bias, and there are other supporting factors that would lead a reasonable observer to doubt the independence of the selector, will the Tribunal seriously consider setting aside the selection decision on the basis of apparent bias.
What Tribunal and CAS decisions show are that appeal bodies are extremely unlikely to set aside a selection decision unless it is completely confident there has been an element of bias involved in the decision.  It will not accept allegations of bias if these are supported by hearsay evidence.

Put simply, if it comes down to a he-said she-said kind of argument, the Tribunal or CAS will be unwilling to decide the matter.

What an appellant needs to successfully argue apparent bias, is conclusive evidence inferring a selector has a predisposed mind, coupled with a number of other circumstances that support the allegation.

An email, a letter or an undisputed set of events that directly show a predisposed mindset will put the Tribunal on notice that bias could possibly have affected the selector's decision. The reasonableness of the further supporting circumstances will then allow the Tribunal to decide if the selector's mind was affected by bias when making a selection decision.  If there is no other logical explanation for the supporting circumstances and there is evidence that bias is likely, the Tribunal and CAS will be more willing to find the decision was affected by bias.
 
What will the Tribunal/CAS do?

The final hurdle appellants need to consider is whether or not the level of bias is such that the Tribunal will be willing to set aside the selector's decision and make the selection decision itself, or if it will favour reverting it back to the sporting body to decide once again (usually with instructions on how to proceed).  No athlete particularly wants a selection decision, which they feel is affected by bias, to be referred back to the selectors or organisation that made the decision being appealed against.

While a decision by the Tribunal to select the athlete (instead of referring it back to the selectors) is usually the ultimate goal of an appellant, it does not happen often.  This is because selection decisions are not often set aside based on bias, but usually a combination of things amounting to a failure to adhere to proper processes.  Those processes can be fixed with strict instructions from the Tribunal.  Bias usually cannot.

If there is one piece of advice to appellants, it is that without at least one piece of direct evidence proving a pre-disposition of the selector's mind (or a strong inference of pre-disposition), it will be very difficult to successfully argue the selector's decision was affected by bias.

Checklist

Here is a checklist that might be helpful for an appellant to follow when looking to challenge a selection decision affected by bias:

1.         Do I have direct evidence that the selector was pre-disposed towards a certain selection? This can be either:
  1. written evidence (e.g. email, letter); and/or
  2. events that are undisputed by either side.
2.         Are there other circumstances that look particularly suspicious given the existence of the above evidence?

3.         If I was the selector, what would my argument be in response to the allegations?

4.         Is the evidence and/or suspicious circumstance able to be negated by the selector simply by disagreeing with my claims?

5.         If I combine the evidence with the supporting circumstances, does it paint a picture of bias that any person completely uninvolved with the dispute would recognise?
 
[1] Spiller, Butterworths New Zealand Law Dictionary, Sixth Edition (Wellington, LexisNexis NZ Ltd, 2005).
[2] Smith, The New Zealand Judicial Review Handbook (Wellington, Brookers Ltd, 2011) 615.
[3] Mitchell Iles v Shooting Australia CAS (Oceania Registry) A1/2016.
[4] Rule 42(e)(iii) of the Rules.
[5] Mitchell Iles, 14.
[6] (SDT/09/06, 9 April 2006).
[7] For example, in Miller the appellant accused the selector of previously informing her that he had the power to eliminate her from being eligible for the Olympics if he so wished, in favour of an athlete he coached.  The selector argued this conversation was taken out of context and in the absence of hard evidence to the contrary the Tribunal was not able to rely on the appellant's narrative.
[8] Bias v Cycling New Zealand (ST 08/15, 3 July 2015); Maria Belen Simari Birkner v Comite Olimpico Argentino (COA) & Federacion Argentina de Ski y Andinismo (FASA) 13 February 2014 Arbitration CAS ad hoc Division (OG Sochi) 14/003.
[9] Thomas v Surfing New Zealand (SDT 09/06, 19 April 2006), [65].
[10] Hunter-Galvan v Athletics New Zealand Inc (ST 07/08, 20 June 2008), [102] – [104].
[11] Winther v Yachting New Zealand (ST 04/16, 1 June 2016), [24] – [25].
[12] Her-Lee v Table Tennis New Zealand (ST 08/14, 2 July 2014), [21].
[13] Ibid.
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