In athletes’ defence

In athletes’ defence
Photo: Sandra Strangemore
The recent Sochi Olympics might have put on display the fierce competition, personalities, and glamour of the Winter Games, but what the television–viewing public didn’t see was the behind-the-scenes struggles of athletes to make it to the top ranks.

Often these struggles are fraught with almost as much drama and rivalry as the athletic competitions. They often pit athlete against athlete or athlete against national sports organizations, which set the rules and make the decisions about who will be on teams representing their country. Whether it be in bobsleigh, skiing, speed skating, or curling, conflicts arise over everything from criteria used to select an athlete to violations of personal codes of conduct.

Until recently, the sports organizations policed themselves. Athletes who didn’t make the team or were punished for rule violations could only appeal within those sports bodies, or the impractical and seldom used redress to the courts. That all changed 10 years ago when the federal government created the Sport Dispute Resolution Centre of Canada, which offers independent mediation and arbitration beyond the sports organizations, employing inexpensive and relatively quick hearings to accommodate athletes’ demanding practice and competition schedules. “At the very beginning the tribunal was intended to be low-cost and easily accessible for the sports community,” says SDRCC CEO Marie-Claude Asselin.

Central to its tribunals are lawyers willing to represent parties in dispute. There are two lists on the SDRCC web site — those who charge and those offering services pro bono, often the same people.

About half the appeals brought before the SDRCC relate to doping, says Asselin. The others most often have to do with team selection, carding (athlete funding), and discipline. Tribunals are held before professional Canadian arbitrators.

One of the most active pro bono lawyers is Emir Crowne, a law professor at the University of Windsor who specializes in intellectual property, sport, and human rights law. He decided to get involved with the SDRCC because of his interest in sport and because it was easy to parlay his work in other fields to the issues in athletic conflicts. “A lot of tort law deals with negligence and unprofessional misconduct,” he says.

Crowne sees athletes in many ways the same as minorities. “People don’t realize that athletes aren’t millionaires,” he chuckles. “The vast majority barely scrape together a living.” Moreover, he says, the way sports organizations’ disciplinary bodies are composed “just gives the appearance of unfairness” because the appeal is held within the organization where the issue arose. Crowne said SDRCC hearings often reveal the problems that typify close-knit, insular organizations: inconsistency, thoughtlessness, and bias.

An example is the case of his client, Alexandre Lyssov, who was kicked off the Canadian fencing team because of curfew violations. The SDRCC arbitrator judged the Canadian Fencing Federation’s decision “unreasonable and improper” because the organization originally gave one reason for the dismissal and then, months later, piled on others. In her decision arbitrator Jane H. Devlin said Lyssov should have been dealt with in a timely manner.

Another of Crowne’s cases had to do with an organization’s incompetent handling of its own appeal process. Crowne described his client, bobsledder Jaclyn Laberge, as a victim of Bobsleigh Canada Skeleton, when another athlete launched an appeal over her lack of team selection. Laberge, who was affected by the judgment, was not invited to the hearing.

Arbitrator Graeme Mew ultimately upheld the organization’s decision but said both athletes were victims of a process that “could have been better handled” and was ultimately “flawed.”

Then there was the allegation of bias that reared its head at Speed Skating Canada where the famous Hamelin brothers, Charles and Francois, are members and father Yves is short track program director. Last year skater Remi Beaulieu appealed a decision to not name him to the men’s national short track team. It turned out Yves Hamelin had remained on the conference call while the selection committee picked the team. Yves’s son, Francois, was chosen.

Mew said the elder Hamelin “should have dropped off the conference call” while the team — “and not just his son’s selection” — was discussed. “Even though he did not have a vote, his presence could potentially have inhibited or otherwise affected the discussion,” the arbitrator said.

Likewise, Guillaume Bastille appealed a 2014 decision not to name him to the discretionary fifth spot on the Olympic short track team but as an alternate. Bastille, who won gold at the 2010 Vancouver Olympics and numerous World Cup medals, argued when evaluating his competitive record the selection committee failed to consider relevant information and included irrelevant data to select Francois Hamelin over him. Mew returned the matter for reconsideration.

Not all of Crowne’s cases have ended up before the SDRCC. He represented Canadian curler James Armstrong, whose doping charge was laid by the World Curling Federation, and whose case was heard by the Lausanne-based Court of Arbitration for Sport. Armstrong, skip of Canada’s national paralympic team, was suspended for 18 months after he tested positive for Tamoxifen, a breast cancer drug used by his wife before her death and which contaminated his own ASA 81 pills.

Evidence showed he had nothing to gain from Tamoxifen as an athletic-enhancer but was nevertheless found to be negligent. Armstrong had his suspension reduced to six months, enabling him to compete in last year’s world competition, a prelude to this year’s Sochi Paralympics.

Armstrong, at 62, was happy his career was revived and grateful to Crowne. “If you ever want to talk about somebody who well represents the legal profession for what it should stand for, he’s the guy.”

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