Appellant v Water Polo Australia

The Appellant was not nominated by the Respondent for the Australian Men’s Water Polo Team for the 2024 Olympic Games. In accordance with the AOC Olympic Team Nomination and Selection By-Law (AOC By-Law) and the Nomination Criteria Paris 2024 Olympic Games Water Polo (WPA Nomination Criteria), the Appellant lodged an application with the NST on 10 May 2024. The single ground of appeal pursued by the Appellant was that the applicable Nomination Criteria were not properly applied by the Respondent.

The appeal was determined by a sole arbitrator in the NST General Division. Following provision of submissions and evidence, a determination was made and communicated to the parties on 18 May 2024. Full written reasons were provided on 21 May 2024.

The Tribunal considered the meaning of the phrase “absolute discretion” in clauses 6.3 and 6.4 of the WPA Nomination Criteria. In this context, the phrase was construed as conferring on the relevant Team Selection Panel (TSP) the right to weigh the various criteria in clause 6.3 and, especially, 6.4 against each other as they see reasonably fit and with the ultimate goal, as required under the WPA Nomination Criteria, of nominating the athletes who they think, as a collective, as a team, will give Australia the best chance in the men’s water polo competition at the Olympics.

The Tribunal reiterated that this construction of the WPA Nomination Criteria does not give the TSP unfettered discretion or render a nomination decision pursuant to the criteria unreviewable. Referring to administrative law principles such as legal unreasonableness, the Tribunal explained that a decision made under the WPA Nomination Criteria could be successfully challenged if it were shown that the TSP acted in a manner that was irrational, illogical, and not based upon findings or inferences of fact supported by logical grounds.

Citing previous NST decisions, the Tribunal noted that “absolute” discretion is to be informed by the objectives and aims of the nomination/selection policies, as well as the factors to which the Selection Panel may have regard as articulated in such policies, and that its discretion must be exercised in good faith, in accordance with the terms of the selection policy, and in a manner that is not unreasonable, arbitrary or capricious. 

In relation to the Appellant’s non-nomination, the Tribunal found that TSP’s decision was reasonably made, was rational, was supported by fundamentally logical grounds and was clearly explained to the Appellant. TSP’s “absolute” discretion was clearly informed by the objectives and aims of the WPA Nomination Criteria – to nominate the team or squad that would give Australia its best chance in men’s water polo at the Olympics. The TSP exercised its discretion in good faith, in accordance with the terms of, and relevant matters within, the WPA Nomination Criteria, and in a manner that was not unreasonable, arbitrary or capricious.

The Appellant did not make out that the applicable Nomination Criteria were not properly applied by the Respondent. Accordingly, the appeal was dismissed.