Rio 2016 - Disputes Tribunal Chairman critical of Yachting NZ inaction

by Richard Gladwell, Sail-World.com NZL on 2 Jun 2016 The Chairman of the New Zealand Sports Disputes Tribunal, Sir Bruce Robertson, has criticised Yachting New Zealand over its lack of communication with two sailors who the national body failed to nominated for the 2016 Olympic team.

A former Judge of the Court of Appeal and Chairman of the NZ Sports Dispute Tribunal, Sir Bruce stated at the Hearing and at the opening of his formal decision:

'I have concerns about the inadequacy of communication by YNZ to both athletes. While the selection policy is drafted to provide huge discretion to YNZ, this does not obviate its obligations to abide by the rules of natural justice and to ensure basic fairness in its implementation.'

'While the selection policy is drafted to provide huge discretion to YNZ, this does not obviate its obligations to abide by the rules of natural justice and to ensure basic fairness in its implementation.

'In particular, athletes in contention for nomination should be aware of what information they are being judged by and be given a reasonable opportunity to provide feedback on this. I am not sure the athletes were given this opportunity or that the individual circumstances of the athletes in question and how they would perform at the Rio Olympics venue were adequately assessed in arriving at their decisions.'

He went on to say that 'individuals must never be just widgets in a machine like process' - an apparent reference to the statistical model used by Yachting New Zealand, and known as 'The Funnel' on which Sir Bruce commented that the selectors appeared to be 'heavily reliant'.

While Sir Bruce could not find sufficient grounds to intervene and engage in the usually fraught process of overturning a decision made by Yachting New Zealand selectors, he again expressed his concern over communication with the sailors later in the ten page written Decision, which backed up a verbal decision given on Monday night.

'As troubled as I am by the lack of consultation, support, and communication with the athletes by YNZ, on the basis of the information presented to me, I am not satisfied that this inadequacy meets the high threshold to justify intervention and overturning the YNZ nomination decisions on either appeal.'

In 2004 three cases were taken against Yachting New Zealand by sailors over various selection issues. The cases were heard by the Sports Disputes Tribunal, then in its infancy, and the Tribunal made the fundamental error of revisiting the merits of the selections, ruling in favour of two of the sailors, and against the third (who had not sailed in a selection regatta). Yachting New Zealand took the cases to the Court of Arbitration for Sport, who agreed that the Tribunal could only in exceptional circumstances revisit the selections, and upheld the Yachting New Zealand original decision.

Of seven Appeals against non-selection for Olympic teams, the Sports Disputes Tribunal has upheld three complaints.

The Decision contains extracts from the Yachting New Zealand Olympic Selection Policy, which has previously been confidential.

The objective of the policy is to select Medal-capable sailors only despite New Zealand being one of only three countries to have qualified in all ten events in the first round of qualification. The other two countries Great Britain and France have each nominated team in all ten events. New Zealand will now be represented in just seven events, and will not have an entry in the Mens or Womens Windsurfer which have yielded six medals from seven Olympiads.

Yachting NZ Selection policy has two selection options and is summarised as: YNZ will nominate to the NZOC those sailors they consider to have the best medal prospects at the 2016 Rio Olympic Games. YNZ also reserves the right to nominate to the NZOC, those outstanding sailors YNZ considers to have good medal prospects at the 2020 Tokyo Olympic Games, provided that those sailors shall still meet the NZOC Selection Policy, including, but not limited to, being capable of achieving a top 16 performance at the Rio Olympic Games

Clause 5c of the Policy stipulates that the sailors must have finished in the top ten places in at least one Olympic Class World Championship event in the period between 1 September 2014 to 1 May 2016 (inclusive) in the class they intend to sail in at the 2016 Olympic Games

The point of argument was whether that meant the top ten overall places in a World Championship, or the top ten countries on the basis that each nation was only allowed one entry per event at the Olympics.

Many countries instead of focussing on competing in all classes at the Olympics, run intensive programs in a few and have multiple competitors in a regatta and in almost every event there are multiple nationalities in the top ten overall.

Sara Winther in the Womens Singlehander (Laser Radial) had placed 11th overall in the 2014 and 2016 World Championships (10th country in both cases), but was ruled out by Yachting NZ as these were not top ten overall places. Natalia Kosinska finished 11th country place in the 2016 RS:X Womens World Championships, and was also ruled to have not met the YNZ criteria.

Sir Bruce decided that the word places should be given their plain English meaning and not the NZ Olympic Committee context.

'While Ms Winther was exceedingly close to achieving this at the 2016 World Championships, YNZ was entitled to have a cut-off point for this eligibility criteria,' says the Decision.

Bias claimed by the sailors
Both sailors alleged bias, or apparent predetermination of the selection outcome, on the part of Yachting New Zealand, and that their performances in the latter part of 2015 and 2016 were partially the result of not being selected by Yachting New Zealand to attend the 2015 Olympic Test event in Rio de Janeiro. Kosinska had finished 9th in the Womens Windsurfer and Winther 11th in the Womens Singlehander at the 2014 Olympic Test Event, and as it transpired would have come up against the 2016 Olympic field at the 2015 Olympic Test event had they been selected.

Further they pointed to a chart on the the International Sailing Federation website in June 2015 which rated the three events - RS:X Mens, RS:X Womens and Laser Radial as only 'likely' confirmations of the qualified events, while the other seven classes were all ranked as 'confirmed'. When this was raised in the Hearing by Aaron Lloyd acting for the sailors, Yachting NZ 'denied any involvement in the preparation of this report'. However given that it reported on all ten events across 62 countries it is hard to believe that ISAF would have concocted this information and published it on a public website.

Sir Bruce commented on that point. 'Both athletes viewed the decision by YNZ to not send them to the 2015 Rio test event as a serious blow to their Olympic campaigns on a number of levels. I accept with the benefit of hindsight that this was the beginning of the end for the two sailors. Concerns were raised over the selection process for that test event which may well have given rise to an arguable appeal before the Tribunal, but this was not formally pursued.'

He rejected the notion that the sailors should be given compensation by YNZ some nine months later, 'because of a questionable approach by YNZ at that time.'

Heavily reliant on 'The Funnel'
For its decision making process Yachting New Zealand seemed to rely very heavily on a statistical predictor as to medal winning capability known as 'The Funnel'. This very objective method was contrary to the subjective orientation of the policy which was designed to give selectors flexibility following the 2004 selection issues.

Sir Bruce commented: 'I considered whether I should set aside the decisions and require the selectors to comprehensively assess the personal circumstances of each sailor in more detail and not to be so heavily reliant on the material available from the Funnel. However having carefully weighed all the information which was now presented I concluded that realistically this would not lead to a different outcome.'

According to the Decision, Yachting NZ's CEO told the Hearing that none of the selectors had personally observed competitors at regattas for which they were selecting, saying they would have 'general knowledge .... through their network'. Additionally the selectors would have been provided with verbal feedback to the selectors about the sailors' results by the High Performance Director.

However Sir Bruce noted that for the 2016 Worlds, the selectors were initially only given a written coach report, from Allan Coutts, who was not at the regatta as Sara Winter's coach, and that conflicted with a report from her coach at the Worlds, Rachel Basevi, a former national champion in the Laser Radial who viewed Sara Winther much more favorably.

The conflicting reports from two Yachting New Zealand coaches were only revealed in the preliminary Hearing stage, and it was at that point that Rachel Basevi's report was sent on to the selectors for reconsideration of their decisions.

After making these observations Sir Bruce added that he was troubled 'by the lack of consultation, support and communication with the athletes by YNZ'.

Sir Bruce concluded his written Decision saying:

'Appeals about non selection or non nomination are by their nature difficult and emotion charged. Selectors and national sporting organisations must be constantly vigilant to ensure that processes are inclusive and transparent. Sailors (and all other athletes) must be fully aware of what is being considered and have proper opportunity to challenge and respond.'

'Individuals must never be just widgets in a machine like process. They are invariably women or men who have given their all to achieve participation at the pinnacle of their sport. While there must be consistency of approach and realism about limited resources the need for sensitive and sensible communication at all times cannot be minimised.'

The three places given up by Yachting New Zealand will be reallocated by World Sailing on June 22, 2016 to sailors from other countries who were unsuccessful in qualifying for the Rio Olympics from the later Qualification round at their respective 2015 World Championships.