Selection to represent one's country is beginning to give rise to legal issues in a surprising number of cases

Qualification by nationality or a close-national link apart, selection criteria for the purpose of international representative honours can vary across sports considerably. In team sports such as football or rugby there is usually a great deal of prerogative given to the team coach or selection committee in choosing the national team/squad. One may expect this choice to be based solely on the ability and form of one player compared to those competing in his position and largely, although not always, it is. Recently, factors unrelated to form or ability have, or are about to, come into the reckoning.

Best for the team

Previously (Journal, June 2005, page 49), we examined the potential Schuh-Kreig (“boot war”) in Germany, highlighting the increasing influence of corporate interests in sport, with the potential for players being de-selected for representative honours due to personal endorsement agreements conflicting with sponsorship of the national association (as has happened previously in athletics). Commercial issues, this time in the form of insurance, are again coming to the fore. The case of Royal Charleroi Sporting Club v FIFA, currently before the commercial court of Charleroi but predicted to be heading for the European Court of Justice, could ultimately result in national associations being required to pay players (instead of their clubs) and insure them against injury when representing the national team. Many national associations (including the SFA) already provide insurance, but others do not. The implications for all national associations of having to pay wages are considerable, especially for poorer and less developed footballing nations such as the African associations, with many of their stars now earning significant wages from clubs based in the western footballing world.

In rugby union, the RFU in England is attempting to introduce centralised player contracts, such as those already used in Scotland, Wales and Ireland, for 30 international players, as a means of ending disputes over player release and compensation.

An individual choice

In individual representative sports, different criteria apply and less discretion is given to coaches or selection committees of the respective sports. Ordinarily the factors and criteria are far more specific and objective than in team sport, being based usually on meeting qualification times at trials, or achieving a certain level of national or world ranking.

Challenges to selection are surprisingly common, usually being taken to the Court of Arbitration for Sport (“CAS”), reflecting CAS speed, inexpense and willingness to resolve disputes where jurisdiction arises.

Decisions involving the exercise of discretion, usually concerning subjective issues, are not commonly contested. It is more common for challenges to be based on objective and/or technical criteria applied.

Cases before the CAS

In July 2004 Australian sprinter Patrick Johnson challenged his omission from the 2004 Olympic team. Johnson was the fastest man in the world in 2003, but subsequent injuries and a consequent drop in form resulted in Australia selecting national champion Joshua Ross for the Olympic team instead of Johnson, despite Ross’s fastest time during the qualification period being much slower than that of Johnson. CAS decided that the selection criteria used by the Australian Olympic Committee were both legal and just and had been properly applied.

On 28 January 2006, CAS determined the appeal of snowboarder Chris Klug, who contested his exclusion from the United States snowboard team for the recent Torino Winter Olympics, in favour of Tyler Jewell. The US selection criteria were based on each racer’s top two finishes in the current World Cup season. Whilst Klug had a better average finish than Jewell, the weightings given to their respective finishes meant that Jewell received more qualification points than Klug and was awarded with a place on the team. CAS decided that this selection process, in particular the weightings given to different races, was valid, well understood by the athletes and properly applied.

In summary, the exercise of discretion of those who pick individuals for team sports, or those who nominate individuals for selection in their respective individual sports, remains relevant, commonly used and difficult to challenge. Paradoxically, of course, where discretion is exercised, disagreement and dispute will always arise.

Whilst CAS provides a welcome outlet for aggrieved sports persons, it would seem that with commercial disputes such as the ongoing Charleroi case being litigated in commercial courts, the likelihood will be more challenges of a commercial nature in the ordinary courts. This will be especially so if discretion is reduced and other qualitative factors, such as endorsements, salary and insurance become factors.

Ross Thomson, Harper Macleod LLP

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