By Dr. Jason Haynes, Lecturer in Sports Law, University of the West Indies, Cave Hill Campus, Barbados
The selection of athletes to participate in sporting events, especially where these events are of an international nature, is arguably one of the most controversial issues in international sports law today.
Matters relating to selection are not only contentious because of repeated allegations of bias or procedural impropriety on the part of administrators, but also because athletes may experience a loss of income, endorsements and scholarships, and a lost, one in a life-time opportunity to secure overall international exposure, if not selected or de-selected, which could have serious adverse implications competitively and even physically and emotionally.
Selection disputes raise interesting legal and ethical questions. These disputes arise in a range of sporting contexts, and are not limited merely to international competitions, like the Olympic Games, albeit that they are considerably magnified at these major events. These disputes, unfortunately, affect both professional and amateur athletes, and raise important policy questions regarding procedural fairness, transparency and accountability on the part of sports administrators. The Commonwealth Caribbean is no stranger to these types of disputes.
The leading Caribbean case in this area is Thema Williams v Trinidad and Tobago Gymnastics Federation (TTGF) et al.
This case concerned an elite Trinidadian gymnast, who was selected following the World Championship in Glasgow in November 2015, to represent Trinidad and Tobago at the Olympic Test Event (OTE) in Rio in 2016. The selection procedures provided, inter alia, that the selected athlete’s coach was required to contact the TTGF’s President and the Women’s Artistic Gymnastics (WAG) Chairperson within 24 hours of the occurrence of any injury which could affect the athlete’s ability to perform and/or any desire to withdraw. Subsequent to her selection, the Claimant entered into an Athlete’s Agreement (AA) with the TTGF, which governed their relationship.
At an event held in the USA in March 2016, the Claimant shocked her ankle, which caused it to be sore. Notwithstanding this, however, the Claimant, her coach, JG, and the Claimant’s massage therapist, NF, all travelled to Rio for the Claimant’s participation in the OTE. On the evening of April 15, 2016, an email was sent from the Claimant’s coach to the TTGF, which indicated that the Claimant had not done well at the podium event, and that efforts were being made to limit the intensity of her activities.
This email catalyzed a sequence of events which culminated in a decision made before midnight on April 15, 2016 to substitute the Claimant. After receiving the coach’s email, the defendants called the alternate’s coach and mother in order to arrange the replacement of the Claimant. Interestingly, the defendants did not contact the Claimant’s coach on the night in question nor the massage therapist to request an updated report on the Claimant’s fitness to participate. In fact, it was only after the defendants were satisfied as to the replacement arrangements that they attempted to contact, albeit unsuccessfully, the Claimant’s coach. The claimant’s coach was contacted by the TTGF; he was informed that the Claimant was to be replaced at the OTE by the alternate athlete, notwithstanding there being no medical report as to the claimant’s unfitness to participate fully.
The Court, in awarding damages on a loss of a chance basis, as well as exemplary damages for the oppressive manner in which the Claimant was treated, found that the defendants’ conduct amounted to a breach of contract because they had wrongly treated the coach’s email as a notification under Clause 7 of the contract, which dealt with the circumstances warranting replacement of the athlete. The defendants had wrongfully given disproportionate priority to contacting the alternate, and they had leapt into action in that regard even before the alleged consensus among TTGF’s Council Members was effected. Additionally, the Council Members allowed their entrenched biases against the claimant to cloud their judgment. They had acted with undue haste, thereby depriving themselves of the benefit of relevant information that might have been obtained from the Claimant’s coach, if they had inquired.
The Judge Frank Seepersad’s sentiments on the need for transparency in selection processes are instructive, and should serve as useful guidance for sports administrators the world over:
“Far too often, at every level of this society, persons charged with decision-making authority allow their personal views and biases to cloud and affect the exercise of their discretion. In adopting such a toxic approach to the discharge of decision-making responsibility, grave injustice is usually occasioned, as the best possible decision may not be effected. Persons in positions of authority must always be acutely aware of their entrenched and/or inherent biases and they must conscientiously endeavour to exclude bias from the decision-making process. Decisions must always be made objectively, in accordance with the evidence and by the impartial application of all the relevant criteria and considerations.”
Williams claimed $11 million, but was awarded $200,000, $50,000 for loss of opportunity to earn promotional income and $150,000 as exemplary damages.
The full judgment can be found here: https://www.trinidadexpress.com/news/local/thema-wins-case-but-loses/article_407dac74-f190-11e8-b038-83affae23703.html.
Jason Haynes may be contacted by e-mail at ‘email@example.com’