In the lead up to London 2012 there have been selection issues in a number of different sports, including taekwondo, judo, athletics and rowing. Now, on the eve of the Opening Ceremony, CAS (sitting in an ad hoc capacity in London) has not only found a selection process to be invalid but ordered that the selected athlete be “deselected” and the originally unselected athlete take his place.
The facts
On 23 June 2011 the South African Sports Confederation and Olympic Committee (“SASCOC”) published equestrian-specific selection criteria (“the Specific Criteria”) with a 30 April 2012 deadline for their satisfaction.
On 24 October 2011 the Fédération Equestre Internationale (“FEI”) published its updated Qualification System for Eventing for London 2012 (“the FEI Criteria”).
On 21 February 2012 the South African Equestrian Federation (“SAEF”) informed the Appellant, Alexander Peternell, that he had been included in the short list for the individual Eventing Slot at London 2012.
On 1 March 2012 the FEI rankings were published. Mr Peternell was ranked number 164 and Mr Paul Hart, who intervened in the CAS hearing at an interested party, at number 442.
From 2001 Mr Peternell lived and trained in England.
On 6 April 2012 SAEF informed Mr Peternell and Mr Hart that the deadline for athletes and horses to achieve the FEI Criteria was 17 June 2012.
On 7 April 2012 a statement was made in a press release that both Mr Peternell and Mr Hart had satisfied the FEI Criteria.
On 26 April 2012 Mr Peternell informed SAEF that the horse on which he intended to compete had sustained an injury.
On 10 May 2012 SASCOC communicated to SAEF that it required the final names for the team for London 2012 to be submitted no later than 28 May 2012.
On 11 May 2012 that deadline was brought forward to 25 May 2012. Neither Mr Peternell nor Mr Hart were informed of that change of deadline.
On 21 May 2012 Mr Peternell confirmed his entry to an event which would potentially allow him to qualify on a new horse.
On 22 May 2012 the South African Equestrian Association (“SAEA”) informed Mr Peternell that the cut off date for selection was 17 June 2012.
On 23 May 2012 the SAEA then informed Mr Peternell that he has not been selected but Mr Hart had been.
On 10 June 2012, in advance of the 17 June 2012 deadline, Mr Peternell qualified on his new horse.
On 23 June 2012 SAEF confirmed the selection of Mr Hart.
On 2 July 2012 SASCOC reaffirmed that selection.
On 4 July 2012 Mr Hart was announced as South Africa’s Individual Eventing representative.
On 11 July 2012 Mr Peternell appealed to CAS.
The decision
CAS found that:
(i) The FEI Criteria set a prescribed deadline of 17 June 2012 which applied to athletes and horses;
(ii) The Specific Criteria deadline of 30 April 2012 applied to athletes only;
(iii) SASCOC and SAEF imposed new deadlines for qualification on such short notice that Mr Peternell could have had no hope of being selected to represent his country;
(iv) Mr Peternell was dealt with in an arbitrary and manifestly unfair manner;
(v) Given that, by the ultimate deadline 4 July 2012, both Mr Peternell and Mr Hart had satisfied all the relevant criteria, it was necessary to consider the SAEF Criteria to choose between the two;
(vi) As Mr Peternell was ranked higher, he should have been nominated for selection;
(vii) Accordingly, Mr Peternell was selected and Mr Hart deselected; and,
(viii) Costs were to be awarded against SASCOC and SAEF.
Opinion
Although some recent selection issues in Great Britain have suggested that it is virtually impossible to overturn a national body’s decision, this CAS Arbitral Award shows that it can happen.
However, the Award does suggest that an Appellant would need to satisfy a very high test of “arbitrary and manifest” unfairness in order to be successful.
This case also implicitly highlights the institutional difficulties faced by athletes who seek to train and live away from their own countries in the lead up to London 2012.
Littleton’s John Mehrzad and Katherine Apps are 2 of only 15 barristers selected as advocates to appear before ad hoc sittings of CAS during London 2012.
