The CAS’s baseline position in selection disputes is John Winneke’s well-known obiter dictum in an award of 1996 stating:
The dispute concerning the selection of an athlete rather than another for a particular event at the Olympic Games is not one where the Court of Arbitration for Sport is being requested to make a choice as to which of two athletes is better or which is more likely to win a medal at the Games. They are matters for those properly qualified to make such a choice. Rather, this is a dispute about whether selection procedures have been properly and fairly exercised by the body invested with the power of making the choice.
Footnote 58
The scope for review in selection cases is thus in principle a narrow one and is focused on the selection process rather than on the merits of the decision. This is reflected in the main orientations taken by the CAS jurisprudence on these questions. The CAS’s review of selection decision is primarily interested in protecting an athlete’s legitimate expectation to be selected. CAS panels have also put an emphasis on the need for selection processes to fulfil the ideal of good governance.
Reviewing (or rather not) the merit of the selection process
The CAS panels are extremely cautious when they are called to review the selection process to the Olympics. As a single CAS arbitrator put it, he “should be careful not to readily trespass into the selection processes of a professional cycling organization which processes clearly embrace a wealth of experience and expertise that [he] cannot hope to share”.Footnote 59 The aim of the scrutiny by the CAS of the selection process is admittedly not to “set aside the decision simply because it thinks a better one could have been made”.Footnote 60 In short, there is a considerable scope of discretion reserved to the SGBs in selection matters as the CAS confers a “significant degree of deference”Footnote 61 to their decisions. Therefore, the standard used to review a selection decision for the Olympics is usually the “abuse of discretion”.Footnote 62 This explains also that in some cases, even where the CAS panel finds that the selection process is procedurally flawed, it prefers to remit the matter to the national federation or Olympic Committee for a new process.Footnote 63
The CAS is adamant that it is not being asked “to determine which of two [yachting] crews is better performed or which is more likely to win a medal”.Footnote 64 Those are matters “which under the rules are given to appropriately qualified persons within the AYF [Australian Yachting federation]”.Footnote 65 Yet, in that case, the AYF modified the official results of a regatta. The sole arbitrator considered that it “would be capricious for the Nomination Panel or the Board to proceed on a different finishing place to that achieved at one of the Nomination Regattas following a ruling by an International Jury at the time”.Footnote 66 The arbitrator also rejected the argument that everything goes in selection matters. He held:
“I also do not accept that it is an answer to a complaint that the Nomination Criteria have not been properly followed and/or implemented that there is no need for compliance or non-compliance with the procedures in the Nomination Criteria if ultimately the opinion formed by the Nomination Panel or the AYF is that the Nominees have the best prospects of winning medals in their class at the Sydney 2000 Olympic Games. If this were so then there would be no need for provisions such as clauses 2.3 and 2.4 relating to the factors to be taken into account and the weight to be given to performance in the Nomination Regattas and how that performance was to be assessed.”Footnote 67
Hence, there is a limit to the discretion of sporting federations. The key question is then “whether or not these flaws in the procedures amount to circumstances which demonstrate that the Nomination Criteria have not been “properly” followed and/or implemented”.Footnote 68 In the present case, the fact that the official result of a specific regatta was modified by the selection panel “had a relevant operative effect in that it caused the weight given to the performance of the Appellants in the Nomination Regattas to be decreased”.Footnote 69 The sole arbitrator is “satisfied that in the particular circumstances of this case the decision of the AYF Board could have been different if the particular non-compliance had not occurred”.Footnote 70 This led to the annulment of the original selection decision and the re-submission of the matter to the AYF Board to make a novel decision.
However, when the rules applicable to the selection procedure indicate a clear subjective scope of evaluation, the CAS panels have been reluctant to intervene. This is clear from the Schuler case, which was instrumental in opening up the jurisdiction of the CAS Ad hoc Division in Turin.Footnote 71 Indeed, the panel found that Ms. Schuler “does not claim that the Respondent acted in bad faith or in a discriminatory manner, so any arbitrariness is excluded” and “did not provide any evidence that the selection process was unfair and that the Decision was unreasonable under the circumstances”.Footnote 72 Thus, it concluded that the Swiss ski federation “exercised its discretion in a reasonable, fair and non-discriminatory manner and in accordance with the rules in deciding not to select the Applicant”.Footnote 73 It is solely in case of an unfair, discriminatory or arbitrary exercise of its discretion by an NF or an NOC that the CAS will intervene and annul a decision. This approach was espoused two years later in a case involving an Australian swimmer, Andrew Mewing, challenging his non-selection for the Beijing Olympics. The swimmer was in the eyes of the sole arbitrator “really attacking the merits of the nomination or selection decision by Mr Thompson [the Australian National Head Coach”,Footnote 74 this was deemed “impermissible in such an appeal”.Footnote 75 Especially that “[i]n the absence of bad faith, dishonest or perversity, this appeal could only succeed if it could be shown that Mr Thompson, in nominating the relay team, did not give “proper, genuine and realistic” consideration to the “overall needs of the team””.Footnote 76 On the contrary, the CAS considered that “[t]he fact that someone else, similarly considering the matter, may have arrived at a different result, or even the fact that his decision is wrong, is insufficient to enable the appeal to be successful as such matters go to the merits of the decision not whether or not the decision-maker gave proper consideration to such matters”.Footnote 77 Nevertheless, to be successfully invoked by an NF, this scope of discretion must be seen as being exercised. For example, in the dispute opposing Isabella dal Balcon to the Italian winter sport federation [FISI] and NOC in 2006, there was no indication that the federation exercised its discretion. As the panel noted, “the process was made by the DA Snowboard applying the 2-best rule and FISI accepting the recommendation from the DA Snowboard without resort to the use of its discretion”.Footnote 78 In fact, it found that the “FISI accepted the direction of the DA Snowboard albeit on the changed criteria that this Panel has found to be arbitrary and unfair and therefore to be disregarded”.Footnote 79 Instead of relying on a potential discretion the FISI’s selection decision relied on arbitrary objective criteria. This contrasts with the Schuler decision, which “was made using discretion that had been properly preserved to the Swiss National Federation”.Footnote 80
This reluctance to intrude in the SGBs decision-making in selection cases extends to the interpretation of the qualification criteria. In a dispute concerning the qualification to the Pentathlon event at the Beijing 2008 Olympic, the Greek Pentathlon Federation was challenging the qualification of an Australian athlete which obtained its qualifying results at a competition that the federation refused to see as an official competition complying with the competition rules set up by the International federation.Footnote 81 The panel relied on the official report of the technical observer mandated by the international federation to dismiss the complaint. Thus, highlighting that it “is extremely reluctant to put the (factual) findings of an experienced Technical Observer into question and to completely disregard the First Respondent’s recognition of the 2007 Open Australia Championships as a relevant event for eligibility purposes”.Footnote 82 Here again despite solid evidence otherwise the panel refused to intervene, unless the Appellant would have “demonstrated that the Technical Observer did not provide an accurate report or that the results of the competition have been achieved by undue means or even fraud”.Footnote 83
Finally, the CAS found that if the minimum eligibility requirements set by an IF are met, it is not for it to exercise discretion in the selection of athletes for the Olympics. This can be drawn from the Schuettler case. Rainer Schuettler, a German tennis player, was selected by the German NF and NOC to take part in the Beijing Olympics. Nevertheless, the International Tennis Federation blocked his selection on the ground that there were better ranked German players to be selected first. The question was “whether the ITF Rules oblige NOCs to nominate players strictly in accordance with the List [the ITF ranking]”.Footnote 84 Yet, the CAS panel disagreed and recognized that “no ITF Rule has been identified to us that subordinates the NOCs power of selection in that way either expressly or by necessary implication”.Footnote 85 The discretion in the selection process, once the objective criteria set by the international federations are met, lies with the NOCs.Footnote 86 This means also that the NOCs can decide not to select an athlete even though he or she has met the minimum criteria set up by the IF. In fact depending on each IF’s eligibility system, NOCs may have more or less discretion in distributing the quotas they have obtained amongst their national athletes. As pointed out by a panel in the Mewing case, “being entitled to consideration for nomination and being eligible for nomination is not the same as having a right to nomination”.Footnote 87 Another panel, in a case opposing two Australian snowboarders to their NF in the context of the Sochi Olympics, highlighted that “the allocation process allocates quota places to the NOCs, and not to individual athletes”.Footnote 88
NFs and NOCs often dispose jointly of a wide discretion insofar as the selection of their Olympic team is concerned. This discretion is deemed necessary due to the subjective nature of the evaluation of the ability of an athlete. Nonetheless, it is not without limits, if formal criteria have been devised and publicized, they must be taken seriously by the SGBs. In particular, they might give way to legitimate expectations on which athletes may be able to rely to claim a right to be selected for the Olympic Games.
Protecting the legitimate expectations of the athletes
One of the oldest tenets of the CAS jurisprudence concerning selection disputes is the necessity to ensure that the legitimate expectations of the athletes are respected. Since the Watt case,Footnote 89 the first award of the CAS in selection matters, the question of the existence of a legitimate expectation to being selected for the Olympics is central. Kathryn Watt, an Australian cyclist, who was first informed that she was selected to participate in the 1996 Summer Olympics in Atlanta was later de-selected by the Australian Cycling Federation (ACF). The panel found that the letter informing the athlete that she would be picked to represent Australia at the Games “amounted to a strong representation by the ACF to the Appellant that she would be ACF’s nominated rider for the 3000 m individual pursuit at Atlanta”.Footnote 90 Indeed, the terms of the letter “were such as to raise in the Appellant the legitimate expectation that she would be the person recommended by the Respondent to the AOC to ride the Pursuit”.Footnote 91 This guarantee “was given by the Respondent in the knowledge and with the intent that the Appellant would rely upon it and “chart her course” accordingly”.Footnote 92 In doing so, the federation “was knowingly departing (in favour of the Appellant) from its own published selection policies and procedures”.Footnote 93 Thus, “the ACF was duty bound to honour its commitment to the Appellant unless circumstances of the type which qualified that commitment came to pass”.Footnote 94 These exceptional circumstances would entail that another Australian athlete would approximate or beat the time of the world record before the Atlanta Games. The federation claimed that another athlete, Ms. Tyler-Sharman, did so during a training session, to justify Ms. Watt’s de-selection. The sole arbitrator disagreed with the justification advanced by the federation, he held that “it would be unreasonable to conclude that the qualification of Watt’s “nominated status”, referred to in the letter of 22 April 1996, contemplated that the “unlikely aspect of another Australian competitor performing some unique ride—i.e. equalling or near to the new world record” was referring to “training times” or any performances in circumstances other than those required for “world record status”.Footnote 95 In short, “[i]t is a truism that world records are not created in training”.Footnote 96 Hence, he concluded:
“Where a sporting organization, in circumstances deemed by it to be appropriate, chooses to depart from its established rules of selection procedure and to nominate, in advance, a particular athlete as its selected choice for a particular event and, in doing so, creates expectations in and obligations upon that individual, then in my view it should be bound by its choice unless proper justification can be demonstrated for revoking it.”Footnote 97
As no proper justification was provided, Ms. Watt was re-instated in Australia’s Olympic team for the Orlando Games instead of Ms. Tyler Sharman.
As the Australian Olympic Committee was one of the first to introduce a CAS arbitration clause in its rules applying to the selection process for the Olympics, it is not very surprising that many of the cases discussed concern Australian athletes, as illustrated by a well-known case involving two Australian judokas competing for a spot at the Sydney Summer Olympics.Footnote 98 Ms. Sullivan, the appellant, was challenging the nomination of Ms. Raguz, the defendant alongside the national federation and Olympic Committee, and claiming that she should have been selected to represent Australia. Here, the legitimate expectation to be selected did not arise from a previous announcement of the selection to participate in the Games, instead the CAS finds that it stems from the selection criteria communicated beforehand by the Australian federation. The arbitrators “conclude that Athletes vying for selection in the 2000 Olympic Games Team in the sport of Judo have and at all times from 27 September 1999 have had a legitimate expectation that the provisions of the Agreement [containing the selection criteria] would be complied with”.Footnote 99 In its submission, the Australian federation argued that it had modified the criteria included in the Agreement. But the panel was of the view “that whatever may have been the subjective intention of the First Respondent [Australian Judo Federation] in pursuing a change to the relevant points table the proposed change was not effective until after the three selection events had taken place”.Footnote 100 Additionally, “[a]ny power to amend must be subject to a limitation that it could not be exercised retrospectively once that “allocation” had been made and once it had been scrutinised and confirmed”, and “no indication in writing had been given by the First Respondent [Australian Judo Federation] to any of the potential Olympic nominees for selection that the points table was proposed to be changed prior to the change occurring”.Footnote 101 Thus, “all Athletes had a legitimate expectation that the issue of the nomination to the AOC would be governed by the documentation existing on 27 September 1999 which had not been amended prior to the selection decision by the Oceania Judo Union”.Footnote 102 Henceforth, “the Court upholds the Appeal of the Applicant and orders that First Respondent [Australian Judo Federation] nominate to the AOC the Applicant [Ms. Sullivan] in substitution for the Third Party [Ms. Raguz]”.Footnote 103 As often, the legitimate expectations of one athlete clash with those of another. The CAS noted this unhappy state of affairs and labelled it “a matter of grave concern”.Footnote 104 Nonetheless, Raguz was de-selected from the Sydney Olympics, she tried to challenge the CAS ad hoc award in front of the Australian courts but to no avail.Footnote 105
The idea of ensuring that legitimate expectations of athletes are protected is analogous to the notion of estoppel, which a CAS ad hoc panel referred to in a case opposing the New Zealand Olympic Committee and the Salt lake Organizing Committee for the Olympic Winter Games of 2002 (SLOC). In this instance, the SLOC had wrongfully accepted the misleading entry form of two New Zealand skiers. The panel held that “[b]y accepting the entries for the two athletes for both Slalom and Giant Slalom, SLOC induced them to prepare and train for both disciplines for which they were properly entered”.Footnote 106 Thus, “[t]o exclude them from competing in these two disciplines at this late stage would be unfair and contrary to the […] doctrine of estoppel”.Footnote 107 Indeed, “[g]iven the interaction of the International and National Federations with the Organizing Committees of Olympic Games (SLOC in this case), both the athletes and the Applicant are entitled to rely on the acts and omissions of SLOC as if they were acts or omissions of FIS [Fédération Internationale de Ski]”.Footnote 108 Here by accepting the entry forms to the Olympics submitted by the National Olympic Committee and by giving the appearance that they had fulfilled the selection criteria imposed by the FIS, the SLOC had induced legitimate expectations for the athletes and was estopped from blocking the participation of the two skiers to the Salt Lake City Winter Olympics.
Can every athlete that has been informed that he is selected for the Olympic Games rely on his legitimate expectation to take part in the Games to fend off any challenge against his or her participation? Not really, there might be a strong presumption that this is so, but it remains possible to de-select an athlete in exceptional cases. This possibility was tested by CAS panels in cases involving two different Australian athletes on their way to the Beijing 2008 Summer Olympics. These instances involved misbehaviour of the two athletes in their private life. Nicholas D’Arcy, a swimmer, started a brawl in a Sydney Bar and severely injured someone. This led the Australian Olympic Committee to de-select him. At first the decision was taken unilaterally by the President of the AOC, which led to its annulment by the CAS as it did not conform to the procedure enshrined in the AOC’s internal rules.Footnote 109 Yet, it remitted the matter to the AOC, which in a procedurally adequate way took the decision to remove D’Arcy from the Australian Olympic squad. Asked again to review this second decision, the CAS found that “[t]he conduct of the Appellant [Mr. D’Arcy] on the night in question, putting to one side the allegations of criminal misbehaviour, was serious misconduct”.Footnote 110 Indeed, “[t]he grossly excessive consumption of alcohol resulting in intoxication, culminating in his involvement in a fracas, was conduct that could form an ample basis for the exercise of discretion to terminate the Appellant’s membership of the team”.Footnote 111 Furthermore, “[t]he extent of the disrepute that the Appellant’s behaviour has brought himself is highlighted by the voluminous number of media reports that have accompanied his misconduct”.Footnote 112 Hence, it cannot be said “that the decision of the AOC Executive was perverse or irrational, or aberrant in the “Wednesbury” sense.Footnote 113 In other words, “[t]he sanction was not disproportionate, nor manifestly excessive so as to give rise to a finding of “irrationality”.Footnote 114 This decision points at the clear limits to the legitimate expectations athletes can rely on to participate in the Olympic Games. A similar question was at the heart of the award in a case opposing another Australian athlete, Chris Jongewaard, to the AOC. The athlete, a cyclist, had caused a car accident and injured another cyclist while driving drunk. The CAS panel found that the athlete “had a contractual obligation to not engage in (publicly known) conduct which, in the absolute discretion of the President of the AOC, brought or would be likely to bring him into disrepute”.Footnote 115 Instead, “[a]n athlete nominated for the Australian Olympic Team is presumed to be a person of good repute”, as he/she “is perceived as both a leader and a role model within the Australian community”.Footnote 116 Thus, knowing that the athlete had to answer two serious criminal charges, the panel could not “accept that the Decision of the AOC Selection Committee (and the President) that the Appellant has brought himself into disrepute and therefore should not be selected as a member of the Australian Olympic Team can be held to be so unreasonable or perverse as to be “irrational””.Footnote 117 On the contrary, it found “the Decision of the AOC (and the President) to be a reasonable Decision”.Footnote 118 However, these cases are special because the AOC has introduced a specific rule providing for the opportunity to remove an athlete from the Olympic team in case of misbehaviour. On the contrary, if an NF or an NOC does not provide for the possibility to exclude an athlete in case of a doping suspicion, he or she can rely on his legitimate expectation to defend his or her selection for the Olympics.Footnote 119
Finally, the question when a legitimate expectation arises is also key before the CAS. In a recent case, the CAS ad hoc Division had to deal with an athlete claiming that he could rely on the legitimate expectation to be selected for the Sochi Winter Olympics as he had been erroneously informed by an email sent by his national federation of his participation in the Games. However, later the same day, after the athlete confirmed his interest in the spot, the federation received a second email from the FIS stating that the Argentine Federation “does not have an athlete that is eligible to participate in the Aerials men event”Footnote 120 and, therefore, cannot get the spot misleadingly offered. Hence, the panel was of the opinion that “FIS never made during the qualification period a representation that Mr Getty was eligible”.Footnote 121 Moreover, “there is no evidence that during the qualification period Mr Getty received from FIS an individual assurance that he was eligible”.Footnote 122 Rather, “the fact that COA [Argentinean Olympic Committee] might ultimately obtain a quota place did (and could) not suggest that FIS would waive the minimum individual qualification requirement for any athlete assigned to that quota place”.Footnote 123 Hence, “no legitimate expectation could be drawn by the email the Applicant received on 24 January 2014 from FASA (not FIS, which did not communicate directly with Mr Getty), as the indication that he might compete at the Sochi OWG was withdrawn only a few hours later”.Footnote 124 Indeed, “while this Panel would be ready to subscribe to the doctrine of “estoppel” set out in the CAS jurisprudence, the position of the Applicant finds no support in the CAS precedents he invokes, which clearly refer to situations that differ from his case in vital point: in CAS OG 02/06 and in CAS OG 08/02, the athlete had been given specific and individual assurances about his eligibility, which were withdrawn at a very late stage; in CAS 2008/O/1455, the international federation changed its rules with retroactive effects, depriving an athlete of the eligibility that could be assumed on the basis of prior rules”.Footnote 125
In any event the CAS “stressed the importance of the principle that an international federation would not abandon at will Olympic qualification criteria upon which athletes had relied”.Footnote 126 It is willing to secure the right of athletes to participate in the Olympics when they can rely on a legitimate expectation to being selected. In general, this principle fits within a broader concern for good governance and procedural fairness in selection processes.
Good Governance and selection disputes
One broader concern that runs through the CAS’s jurisprudence on selection disputes for the Olympic Games is the idea that selection procedures should live up to the ideal of good governance. In practice, this concern for good governance is embraced in both selection cases and eligibility disputes. CAS panels or single arbitrators have the tendency to deplore the procedural flaws they identify in the various selection processes they are reviewing. Basically, CAS panels have “[…]to determine whether the decision was arrived at fairly […]”.Footnote 127 This is so, because the right to select the athletes “shall be exercised in good faith and in accordance with the applicable rules and, in particular, with the principles of the Olympic Charter”.Footnote 128 Ensuring procedural fairness is an overall goal guiding the review of the CAS.
A main concern is the ideal of transparency and publicity of the eligibility criteria and the selection rules. Though, in the latter case it seems inclined to exercise a more restrained control. The CAS is, for example, very critical of the way SGBs miscommunicate (or simply do not communicate) the eligibility criteria applicable for an athlete to get to the Olympics.Footnote 129 It has held that “[t]he oral discussion of such criteria are an imperfect method of explaining to athletes what the precise criteria are in order for all athletes to know what they must do and achieve in order to be selected”.Footnote 130 Furthermore, as pointed out by a single arbitrator, he “would not hesitate to quash the decision, had the selection criteria been established before the selection, but not been communicated to the athletes”.Footnote 131 Indeed, “a professional athlete, such as the Appellant, has the right to know the criteria established by its National Federation or National Olympic Committee, which he or she must meet in order to qualify for the Olympic Games”.Footnote 132 Furthermore, “[t]aking into consideration that the decision on the selection of an athlete may constitute the opportunity of a lifetime for an athlete, the Federation and the National Olympic Committee should pursue a policy of transparency and open information”.Footnote 133 Transparency of the selection and eligibility criteria used is a must. This implies also that an IF cannot depart from the eligibility criteria it has enacted without following the proper legislative procedure enshrined in its statutes.Footnote 134 Moreover, “even if the [SGB] had properly and formally enacted a resolution adopting a new qualification system, the Panel is of the opinion that an attempt to alter the Olympic qualification process with retrospective effect at such a late stage—a few months before the Olympic Games—would violate the principle of procedural fairness and the prohibition of venire contra factum proprium”.Footnote 135 Overall, “crucial considerations of procedural fairness towards its members require international federations to announce at a reasonably early stage the Olympic qualification process and not to alter it when the national federations and their athletes have already started the sporting season leading to the Olympic Games”.Footnote 136 Additionally, “[p]aramount considerations of legal certainty require that an international federation exercises its normative discretion by adopting resolutions or regulations in proper compliance with the formal procedures set out by its own statutes”.Footnote 137 A federation willing to change the selection process “should have enacted and publicized such provision at a reasonably early stage and, at any rate, prior to the beginning of the sporting season leading to the Olympic Games”.Footnote 138 In short, “the policy choices of an international federation must necessarily be translated into rules and regulations, correctly adopted—as to both form and substance—and properly and timeously publicized”.Footnote 139 Similarly, when a federation imposes “new deadlines for qualification on such short notice that the Appellant could have no hope of being selected to represent his country”,Footnote 140 it amounts to “an arbitrary and manifestly unfair”Footnote 141 way to select an athlete (and in that case his horse). Instead, “applicable deadlines should have been notified publicly and clearly so that any potential nominee had the opportunity to make appropriate arrangements, which may have included selecting alternative qualifying events and/or seeking an extension of the time limit for qualification”.Footnote 142 The timely publicity and continuous transparency of the eligibility and selection requirements is a fundamental tenet of the CAS when reviewing the selection process to the Olympics. However, one can only regret that this concern for transparency does not seem to be taken as seriously in selection cases stricto sensu. Indeed, more recently in Sochi, two separate panels have condoned vague and slightly misleading selection criteria and refused to revoke a non-selection decision on the basis of the discretion enjoyed by the national federations in selecting their athletes.Footnote 143 One ad hoc panel even held “that it does not condone [the] lack of published qualification criteria that misled the Applicant by failing to provide clear and timely notice of the performance standards she was required to meet in order to be recommended by the ASF for the nomination by the AOC to the Austrian Olympic team”.Footnote 144 In fact both panels strongly recommended “that the [NFs] establish, identify, and publish clear criteria to enable athletes to determine in a timely manner the Olympic Games qualification standards they are required to meet”,Footnote 145 but were reluctant to overturn the non-selection decisions.
The selection criteria must also be applied in a non-discriminatory fashion. In the Chiba case, a CAS arbitrator reminded that Rule 6 of the Olympic Charter “expresses the idea that sport must be practised without discrimination of any kind”.Footnote 146 Moreover, “the principles of fair play and non-discrimination are valid for athletes and sports organizations and must be followed in the process of selecting athletes for the Olympic Games”.Footnote 147 Consequently, “the fairness test requires that the selection criteria be applied equally to all athletes”.Footnote 148 CAS panels have also regretted the lack of due process in the way selection disputes have been handled by SGBs. The Fédération internationale d’équitation was reprimanded by a CAS panel for unduly delaying its decision.Footnote 149 This was worsened by the fact that the final decision adopted did not include a proper motivation. In another instance, the CAS considered that remitting a selection dispute to the same panel that has been deemed biased in a first instance “necessarily infected the second process with bias”.Footnote 150 Instead, “the question of renomination to the AOC by AC [Australian Canoeing] for selection in the 2008 Australian Olympic Team in the Men’s Kayak Flatwater Category should be referred back to a newly constituted AC Selection Panel”.Footnote 151 The CAS is also unyielding that for an NOC (in that case the South African Olympic Committee) to withdraw from an event to prevent an athlete from being selected to participate in the Olympics “is hardly within the Olympic spirit or the promotion of ethics and good governance in sport”.Footnote 152 Consequently, the panel did not hesitate to consider “that the decision of SASCOC not to select the Applicant because SASCOC did not receive an explicit recommendation by SAEF is wrong, and shall be annulled”Footnote 153 and “finds that the Applicant shall be declared selected to represent South Africa in the Equestrian Eventing discipline at the XXX Olympic Games in London”.Footnote 154
Though the CAS panels’ concern for good governance translates in a specific attention to the procedural qualities of the selection process, in practice it leads only to a relatively light-touch intervention. Even when they identified clear procedural failures, the arbitrators remained often, though not always, reluctant to strike down a (non-)selection decision mainly because the procedural failure might have as a consequence the de-selection of another athlete who would then be equally harmed.