The Applicant disputed her non-selection to represent Australia at an International Event in accordance with the Respondent’s By-Laws and the applicable Selection Policy. The Respondent is the Sporting Body responsible for governance of the sport within Australia, it referred this dispute to the General Division of the National Sports Tribunal (NST) on 25 April 2024.
Pursuant to the Selection Policy, the Respondent was able to select athletes on a discretionary basis, in addition to the two athletes that automatically qualified to compete in the International Event. The Respondent made the decision to select one additional athlete on a discretionary basis, and select the Applicant as a reserve.
As selection appeals generally can have adverse impacts on other athletes should the appellant be successful, and as a result, selected to the event, the NST sought for the Respondent to provide the contact details of any potential affected athletes. The athlete selected on a discretionary basis was identified and she joined the arbitration as an Interested Party.
The Applicant appealed her non-selection on the ground the Respondent’s Selection Committee failed to properly apply the Selection Criteria as set out in the Selection Policy. She argued the Selection Committee in making their decision, failed to properly consider the discretionary matters and powers afforded to them.
The sole NST Member considered submissions and evidence from all parties and made a determination on the papers (i.e., without a hearing). Notice of the determination was provided to the parties on 9 May 2024, with written reasons following on 10 May 2024.
The NST was not satisfied the ground of appeal was made out, where the Selection Committee had been afforded in accordance with the Selection Policy:
- The absolute discretion to make discretionary selections;
- A non-exhaustive list of criteria to use to decide between athletes to select at its absolute discretion;
- The latitude to give varying weight to each criterion; and
- The ability to include into its consideration any other facts it deems relevant so long as it is in accordance with the overall aim of the Selection Policy.
The NST considered even if the Applicant was correct in her submissions, that the Respondent could exercise its discretionary powers to select her as an additional athlete to compete in the International Event, it remains a matter entirely for the discretion of the Selection Committee as to whether or not it does so, noting that there was no evidence before the NST as to the maximum number of athletes the Respondent was able to select on a discretionary basis.
Ultimately, the appeal was dismissed.