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Rider wins spot on Olympic team following arbitration

|Written By Gabrielle Giroday

A renowned rider originally not selected for the Canadian team at the upcoming Rio Olympics will now be included, after arbitration through the Sport Dispute Resolution Centre of Canada.

Robert Cohen says a recent arbitration involving an internationally ranked equestrian, and that overturned the selection of riders who would be attending the Rio Olympics, is ‘exceptional.’
The legal battle pitted Jessica Phoenix, a well-known Canadian rider and the owners of three established horses, against Equine Canada and Kathryn Robinson, a rider who was scheduled to go to the Olympics with the horse, Let It Bee. The competition is set to take place in Rio de Janeiro from August 5 to 21.

A selection panel had chosen four riders, and their respective horses — including Robinson, but not Phoenix — to compete in eventing, which arbitrator Robert P. Armstrong of Arbitration Place describes as “an equestrian competition where a single rider/horse combination competes in the three phases of dressage, cross country and show jumping.”

Phoenix, Don Good, owner of horses Pavarotti and Bentley’s Best, and Anita and Don Leschied, owner of the horse A Little Romance, argued that Phoenix “is and has been Canada’s leading Eventing competitor for the last 10 years with significant international achievements,” and that she “satisfied all Nomination Criteria to be appointed to the 2016 Olympic Team” riding Pavarotti or A Little Romance.

“They further submit that Kathryn Robinson, who was selected to the team with her horse, Let it Bee, simply does not measure up to Ms. Phoenix,” said the ruling.

Armstrong ultimately agreed, after arbitration took place July 6, and a decision on July 11. He ultimately ruled Phoenix should attend the Olympics with A Little Romance.

Peter Howard, of Stikeman Elliott LLP, told Legal Feeds by e-mail that “Ms Phoenix, her owners, and us as their counsel, have not and do not intend to comment on the ruling.”

The hinge of the decision were conversations that occurred at the Bromont CCI3, a competition in Quebec, where Phoenix did not ride with the horses Pavarotti and Bentley’s Best. The conversations in dispute were between Phoenix and Clayton Fredericks, who the ruling describes as “a former Olympian who competed in eventing competitions for Australia” and coach of the team, and between Fredericks and Good.

“Mr. Fredericks acknowledged that it was his view that Ms. Phoenix should have run Pavarotti and Bentley’s Best at the competition in Bromont. He acknowledged that he expressed this view to Ms. Phoenix. However, he denied that he threatened Ms. Pheonix that her failure to run the horses in Bromont would keep her off the Olympic team,” said the ruling.

Armstrong, however, said in his ruling that he accepted that “Fredericks earnestly believed that both horses needed another run at cross-country before the Selection Panel would meet.”

“However, he became a man with a mission on this issue and my assessment, unfortunately, is that he lost it,” said the ruling. “He told both Mr. Good and Ms. Phoenix that Ms. Phoneix’s four horses would not be considered for the Rio Games for failure to run in Bromont — an event that was clearly not mandatory.”

“It is essential that a selection panel proceeds impartially and applies the nomination criteria in a way that ensures fairness and also the appearance of fairness,” said the ruling. “The approach taken by Mr. Fredericks with Mr. Good and Ms. Phoenix fails that test.”

Robert Cohen, a partner in the advocacy group at Cassels Brock & Blackwell LLP, has acted in sports and entertainment arbitration disputes, and called the case “exceptional.”

Cohen was not involved in the case, but says he does “not think that this case will unhinge the deference that arbitrators and courts must show for reasonable decisions rendered by Olympic or other team selection panels acting in good faith and applying appropriate considerations.”

“This seems to be one of those rare cases where, through the [marshaling] of compelling evidence, a disgruntled athlete could actually demonstrate the appearance of bias, a flawed consideration of factors by the selection committee, and possibly undue pressure being placed on other members of a selection committee by an influential member, who was ‘on a mission’ to impose his own conditions for inclusion on a team, even though those conditions were not requirements of the published selection considerations,” says Cohen.

“In short, this was a perfect storm of evidence to demonstrate the improper exercise of discretion of a selection committee so as to allow the arbitrator to find that their decision was both procedurally and substantively flawed to such an extent that an arbitrator could justifiably ‘gallop’ over the selection panel’s expertise and decision.”


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