As we accelerate towards the Paris 2024 Olympic Games a recent case heard in the National Sports Tribunal (NST) offers sporting bodies some sound advice that may help achieve better outcomes by affording procedural fairness, supporting good decision-making and reducing unnecessary appeals which waste precious time when sporting bodies and athletes should be focusing on the task at hand - winning gold.
Oscar Dart V Triathlon Australia
This case study examines a recent decision of the National Sports Tribunal (NST) and comments on why sporting bodies should consider supplying statements of reasons when making decisions that adversely affect people.
Mr. Dart is a professional triathlete who self-nominated for selection for the 2023 World Championship Series event held recently in Hamburg, Germany. Mr Dart was not selected for the event.
The "reasons" provided to Mr Dart by Triathlon Australia (TA) in his Non-Selection Letter were limited to the following:
"Unfortunately, in this instance, your nomination did not meet the automatic selection criteria. You were also assessed under the discretionary selection criteria; consideration was given to relevant matters set out in Clause 4.3.1 of The Policy, and discretion was not exercised. Consequently, you have not been selected for this event."
Mr Dart subsequently appealed TA's decision by way of application to the NST.
Mr Dart appealed his non-selection on the grounds that TA did not properly apply its Selection Policy (the Policy) with respect to Mr Dart and that he was not afforded a reasonable opportunity by TA to satisfy the Policy.
The tribunal stated that (at 25):
"The provision of reasons is particularly important in a professional context in which an athlete's livelihood may depend on the outcomes of selection decisions. It is an important discipline for decision-makers in order to ensure the careful, even and transparent application of criteria. Significantly, athletes are given the right to challenge selection decisions, and the likely success or otherwise of such challenges (which, as in this case, often need to be made at very short notice) depends on the reasons of selection committees. In the absence of any reasons, athletes cannot reasonably assess their position including to determine whether or not to exercise their right to appeal because they do not know how the selection criteria have been applied to arrive at a result which excluded them from selection. It is impossible, for an athlete to determine if the Selection Policy was properly applied or if the decision was infected by actual bias in the absence of reasons. As I stated above, this concern may be particularly acute in circumstances in which non-selected athlete is higher ranked than other selected athletes."
TA provided no substantive reasons to Mr Dart for his non-selection before the appeal commenced. Although in this case TA's Policy did not require the provision of reasons, it is easy to understand, as was noted by the tribunal, "...why a higher ranked athlete who misses out on selection in a World Championship Series event in circumstances in which two lower ranked athletes are selected might feel aggrieved."1 Receiving no explanation for the decision only exacerbates the situation.
Sporting bodies, particularly when making decisions around highly charged and emotional issues like team selection and eligibility, should consider providing well-thought-out statements of reasons that detail why a decision-maker made a certain decision. Consideration should be given to providing a list of the materials and issues that were considered as part of the decision-making process.
Justice Kirby in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme aptly summarised why statements of reasons can be a valuable tool for those who must decide anything that adversely affects others:2
"They encourage "a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making". They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made... They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions... By giving reasons, the repository of public power increases "public confidence in, and the legitimacy of, the administrative process". [Footnotes omitted]
The provision of statements of reasons are becoming a more well-established practice in administrative law. They play a large role in contributing to the transparency of decision making and can help people affected by the decision understand why it was made.
One of the most high profile examples in sport is the case of Djokovic V Minister for Immigration, Citizenship, Migrant Services and Multiculture Affairs. The Minister upon the cancellation of Mr Djokovic's visa before the 2022 Australian Open he released a document entitled "Statement of Reasons". Under his discretionary powers he was not obliged to provide reasons. The document was ten pages long and detailed how the Minister came to his decision. It acted as a way of explaining the decision to the aggrieved person, and the public at large who were hugely interested - and invested - in the decision.
In a time when people are demanding more transparency from decision-makers and there is an increased demand for good governance, sporting bodies should follow best practice and lead with reasons, not outcomes. This could save the burden of being dragged through appeal processes which are taxing on everyone involved and often fall at crucial times of preparation.
For more information or enquiries about providing statements of reasons, contact the Synergy Law Team
