BEFORE ADRsportRED TRIBUNAL by nikeborome


									                         BEFORE ADRsportRED TRIBUNAL

ADR 03-0027







I, THE UNDERSIGNED ARBITRATOR, having been designated by the above named tribunal,
and having been duly sworn and having duly heard the proofs and allegations of the parties, FIND
AND AWARD as follows:

1) The above captioned matter was heard before Patrice M. Brunet, sole arbitrator appointed by

      Mr. Richard McLaren, pursuant to RA-15 of the ADRSportRED Code to hear the request for

      arbitration from claimant Karine Sergerie who was seeking to be declared eligible to attend the

      World Taekwondo Qualification Tournament in Paris (hereinafter referred to as the “Paris

      Tournament”), December 4-7, 2003.

2) The hearing was held via teleconference on December 1st, 2003, from 7 a.m. until 8:10 a.m

    (Eastern time) with the following individuals attending the hearing:

    a) For the Claimant: Ms. Karine Sergerie and Ms. Gabrielle Viger

    b) For the Respondent: Master Bob Whites

    c) For the Intervenors: Ms. Ivett Gonda and Ms. Dominique Bosshart

    d) For the ADRSportRED Court Office: Ms. Odette Lagacé and Mr. François St-Pierre

                                                  I. FACTS

3) On November 5th, 2003, David Silverman, in his capacity of Secretary General and Executive

    Director of Respondent, advised Claimant that President, Grandmaster Ken Cheung, had

    confirmed that Karine Sergerie was selected to attend the Paris Tournament, along with

    Dominique Bosshart, Veronique St-Jacques and Ivett Gonda.

4) Further to this message, Claimant received copy of her electronic air ticket to allow her to travel

    to the Paris Tournament, giving further effect to the decision to select her to this event.

5) During her testimony, Claimant further raised that she received additional funds from Messrs.

    Silverman and Martineau to perfect her preparation to participate in this event.

6) Claimant traveled to Texas to participate in a month-long training camp in November 2003 in

    preparation for the Paris Tournament.

7) However, on November 24, 2003, Respondent sent an e-mail to Claimant advising her that on

    November 20th, 2003, the Selection Committee issued a revised decision to the President

    regarding selection of athletes to attend the upcoming World Taekwondo Qualification

    Tournament in Paris.

8) In this revised decision, the Selection Committee admitted their error in having selected Karine

    Sergerie to the team, since section 2.2.3 of the WTF Taekwondo Association of Canada’s Athens

    2004 Schedule ‘B’ – Olympic Selection Criteria states that:

         Athletes must also compete in the Stage 2 events (2003 Pan American Games and the 2003

         World Taekwondo Championships ) in order to be eligible to represent Canada at either

         or both Olympic Qualification events.

9) As Karine Sergerie had not qualified to compete in the Pan American Games (by a single point),

    Respondent advised her that she was ineligible to represent Canada to the Paris Tournament for

    having failed to compete in both events stated in section 2.2.3.

10) On November 27th, 2003, Karine Sergerie requested that this matter be arbitrated before this


11) In her submission and testimony, Claimant raised that:

    a) The document containing the Selection Criteria was outdated;

    b) She was pressured into signing the athletes’ contract containing the selection criteria, as it

        was forced upon her on the eve of the Canadian Championships;

    c) She set aside her studies to dedicate her time to prepare for the Olympic Qualification event;

    d) She travelled outside of Canada, at the request of Respondent;

    e) She was informed of the revised decision only 4 days before her departure to the event;

    f) She is vice-world champion and her points total is superior to any other athlete in Canada;

    g) It was agreed with her federation that after the Paris event, she would continue her

       preparation in Mexico;

    h) Notwithstanding section 2.2.3, section 6.1 should find application as it states that the

       Respondent’s Executive Board has discretion to overrule the Athens 2004 Selection Criteria

       if there are unforeseen circumstances which do not allow the criteria to be fairly and

       objectively applied.

12) Respondent stated and testified in response that:

    a) They recognized their error in selecting Karine Sergerie to the Paris Tournament on

       November 5th, 2003;

    b) It was only on November 20th, 2003, that Respondent realized their error towards the

       selection of Karine Sergerie in contravention with section 2.2.3 of the Selection criteria;

    c) Respondent expressed their profound regrets for this turn of events, and recognized the

       hardship suffered by Karine Sergerie, however they were compelled to issue the revised

       decision on November 24th, 2003. Acting otherwise would have been contrary to their own

       internal rules;

    d) Respondent recognized that everyone, including the Executive director, overlooked section

       2.2.3 by appointing Karine Sergerie to the Paris Tournament;

    e) However, the text of the section is clear enough that Respondent did not have any other

        option but to issue the revised decision to remove Karine Sergerie from the Paris


13) Intervenor Dominique Bosshart recognized that the athletes were indeed hesitant in signing the

    athletes’ contract on the eve of the Canadian Championships, as they did not have an

    opportunity to review the document beforehand;

14) Panel asked if the Athletes’ representative participated actively in the elaboration of the

    selection criteria, and most importantly on the issue of mandatory participation in the two (2)

    events to maintain eligibility to participate in the Olympic qualification events. Dominique

    Bosshart recognized that she was the Athletes’ representative and that this detail had probably

    been overlooked;

15) The only other Olympic qualification event is to be held in Miami, Florida, on January 27th,

    2004, as the regional qualification event.

                                               II - DECISION

16) This case is an illustration of the importance for a national federation’s selection committee to

    clearly understand their own internal selection criteria in its fine details;

17) For a national federation, the Olympic selection criteria are by far the most important set of

    rules that govern their sport. The criteria should be formulated in such a way that they should

    allow them to send their very best medal-potential athletes, as medals contribute to the growth

    of the sport, and they are a direct source of funding from the Canadian Olympic Committee to

    the national federation;

18) It is apparent to this panel that Respondent has not given the required attention to understanding

    its own selection criteria. What is of equal importance here, is that an athlete’s rights and

    expectations were deeply affected;

19) Further, it is the Panel’s opinion that section 2.2.3 does not allow the national federation to send

    its very best athletes to the Olympic Games, notwithstanding the quality of the intervenors as


20) It is also surprising that the Canadian Olympic Committee (COC) and the Canadian Taekwondo

    Federation, with input from its athlete representative, would require the athlete to participate in

    an inferior event (Pan American Games are regional) in order to participate in a superior event

    (Olympic Qualification event);

21) Panel could understand that the COC and the federation wish to impose upon their athletes to

    participate in both those events to ensure a high quality field, and thus to elevate the quality of

    the Canadian team;

22) However, by drafting this rule, they have closed the door to the World vice-champion

    participating in all Olympic qualification events, in effect preventing her from attending the

    Olympic Games;

23) By admission from all parties, including the intervenors, Karine Sergerie is the best athlete in

    her category, however she will not attend the next summer Olympic Games because she did not

    participate in a regional event in 2003. This does not make sense.

24) Further, Schedule ‘C’ of the Olympic Qualification criteria (the International Federation

    criteria) literally closes the door to her participation to the next Olympic Games. Qualification to

    the Olympic Games is by way of:

    a) Placing in a World Qualification Tournament (Karine Sergerie is prevented from

       participation by virtue of 2.2.3), or

    b) Placing in a Regional Qualification Tournament, or

    c) Host nation (only open to the Greek National Olympic Committee), or

    d) Tripartite commission (by application only, the deadline for submitting names was June 30th,


25) Under the International Federation rules, only one event remains to which Karine Sergerie can

    participate to qualify to the Olympic Games, and it is the Regional Qualification Tournament to

    be held in Florida in January 2004;

26) However, under section 2.2.3, she is still ineligible to participate in the Florida Tournament

    because she has not participated in the 2003 Pan American Games;

27) It is not for this Panel to rewrite the rules which are believed to have been properly reviewed

    and adopted.

28) However based on these findings, this Panel is bound to apply the rules ;

29) There may be further elements which have escaped this Panel’s findings (we have not heard the

    reasons from the COC). However, in the presence of clearly written criteria, it is not for this

    Panel to change the wording and interpretation of the text;

30) One cannot set aside the reasonable expectation these criteria create for the other athletes, their

    entourage, and the sporting community at large. Therefore, the revised decision from

    Respondent must stand;

31) Selection criteria are, by definition, not negotiable once the Board has approved them. This is an

    issue of pure procedure, and the application is direct and immediate. Therefore, Panel cannot

    sustain Claimant’s views that she was pressured into signing the athlete contract.

32) Also, Panel does not find that section 6.1 of the Selection criteria is applicable in this case. We

    are not in the presence of unforeseen circumstances as the selection criteria have been approved

    and published since April 2003.

33) During the hearing, Panel noted that Respondent noted that:

    a) The intent of 2.2.3 was not to disqualify Karine Sergerie from participating in an Olympic

       qualifying event,

    b) Karine Sergerie represented one of the best chances for Canada to get on the podium for the

       sport of Taekwondo in Athens, and

    c) Claimant, Respondent and Intervenors did not contradict Claimant’s submission of athletic

       superiority in the sport of Taekwondo within the national and international fields.


    The Panel decides as follows:

    WHEREAS Schedule ‘B’ of Taekwondo Canada’s Olympic Selection Criteria for Athens 2004

    Summer Olympic Games, section 2.2.3 states that:

    "Athletes must also compete in the Stage 2 events (2003 Pan American Games and the 2003
    World Taekwondo Championships) in order to be eligible to represent Canada at either or both
    Olympic qualification events".

    WHEREAS although Panel noted that all parties to this arbitration were taken by surprise by

    this section, it is not for Panel to change the text of the selection criteria which has been

    approved by the board of directors, and distributed to all athletes.


    Panel finds that the decision from WTF Taekwondo Association of Canada to apply section

    2.2.3 of the Olympic Selection Criteria is well-founded;

    Panel upholds WTF Taekwondo Association of Canada's decision not to name Ms. Karine

    Sergerie to the Canadian team in the qualifying event in Paris since she has not competed in the

    2003 Pan American Games, as required in the eligibility criteria.

    The Arbitrator continues to retain jurisdiction under RA-22 of the ADRsportRED Code.

    Decision issued on this 5th day of December 2003

    Sole arbitrator:

    Patrice M. Brunet

     For ADRSportRED Tribunal


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