Contractual construction principles in sporting selection disputes
Laidlaw v Ski and Snowboard Australia CAS 2014/A/3473
In this matter Mr Holmes QC, sitting as a sole arbitrator in the Appeal Arbitration Division of the Court of Arbitration for Sport (“CAS”), was called upon to determine the proper construction of the Nomination Criteria relevant to athletes seeking to represent Australia in the sport of Alpine skiing at the 2014 Olympic Winter Games. Arbitrator Holmes QC applied contractual construction principles to construe the relevant criteria, and dismissed the proceeding.
This dispute arose out of a decision by Ski and Snowboard Australia (“SSA”) to nominate the two Affected Parties to the Australian Olympic Committee (“AOC”) for selection to the 2014 Australian Winter Olympic Team for Alpine skiing, and not to nominate the two Applicants. The Applicants appealed their non-nomination.
The issue in dispute was whether quota places allocated to Australia pursuant to the results and consequent rankings of individual athletes, could be filled by athletes of either gender, or whether the national federation was obliged to nominate an athlete of the same gender as the athlete who earned that place.
The Arguments before CAS
The sole ground of appeal relied upon by the Applicants was under 13.1(5)(a) of the Olympic Team Selection By-Law (“the By-Law”), which allowed an appeal where “the applicable Nomination Criteria have not been properly followed and/or implemented.”
The Applicants’ submitted that clause 2 of the Ski and Snowboard Association Nomination Criteria Alpine Skiing was misconstrued by SSA. Clause 2 states:
For the purposes of nomination to the AOC of Athletes for selection to the 2014 Australian Olympic Winter Team Ski & Snowboard Australia will:
(1) nominate the male Athlete(s) and female Athlete(s) (relevant to the number and gender of any quota places for Australia) with the highest ranking on the Olympic FIS Points List in any Alpine discipline (Down Hill, Slalom, Giant Slalom, Super-G and Super Combined) as published by FIS on 20th January 2014. However, Athletes ranked outside the top 100 for Super Combined on the Olympic FIS Points List on 20th January 2014 will not be eligible for nomination based on the Super Combined ranking alone; (Emphasis added)
Quota places were allocated in accordance with the International Ski Federation (“FIS”) Qualification Systems for the XXII Olympic Winter Games, Sochi 2014. As Arbitrator Holmes QC noted, it can be seen from the provisions of the FIS Qualification Systems that the allocation process allocates quota places to the National Olympic Committee (“NOC”) and not individual athletes.
The Qualification System provided for a ‘basic quota’ to be allocated to all NOCs. It was accepted by all parties that this basic quota was gender specific and must be filled by one athlete of each gender.
The Qualification System thereafter provided for the allocation of an additional male and/or female quota place dependent upon an athlete or athletes being ranked in the top 500 of the Olympic FIS Points List, and a similar (but additional) entitlement upon an athlete or athletes being ranked in the top 100.
The Applicants’ argued that these additional quota places were not gender specific and should be filled by athletes with the highest ranking and best results in a non-gender specific comparison. The Affected Parties argued that the additional quota places were gender specific.
Arbitrator Holmes QC considered that contractual construction principles applied to the construction of the Nomination Criteria, being a contractual document. He noted that the principles to be applied to the process of construction are well established. Both individual clauses and the agreement as a whole must be construed objectively: Toll (FGCT) Pty Ltd v Alphapham Pty Ltd (2004) 219 CLR 165.
Arbitrator Holmes QC found that the ordinary and natural meaning of the relevant contractual provisions were clear on their face and there was no ambiguity in the language used:
The natural and ordinary meaning of these words in parenthesis and of clause 2 as a whole, is that the SSA is also obliged under the express terms of the Nomination Criteria to nominate athletes according to the gender of the quota places earned for Australia.
Holmes QC went on to explain ‘On a female athlete achieving the required ranking the NOC is allocated a gender specific quota place for a female athlete, and must select a female athlete of the requisite ranking to fill the place.’
The Applications were therefore dismissed.
This decision is a useful reminder that in sporting disputes, including the nomination and selection process of our Olympic athletes, the usual rules for contractual construction apply. That is, the particular provision must be construed objectively and when there is no ambiguity in the language used, the ordinary and natural meaning must be given.