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Monique Dell v New Zealand Olympic Committee


Appeal against decision of NSO – D appealed decision of NZOC not to select her for women’s 4x400m relay team in 2014 Commonwealth Games – urgent hearing held and decision advised same day with reasons to follow – D in forefront of NZ women’s 400 m running for a number of years – In 2009 D ran personal best of 51.88s but didn’t compete as much in 400m over next years – ran more in the 2013 season and recorded creditable 400m times but outside individual qualifying criteria, so her opportunity to compete at the Commonwealth Games limited to the 400m relay – NZ women’s 4x400m relay team (that D not part of) achieved a qualifying time allowing NZ to enter a relay team in the Games (the members of which were to be determined) – Athletics New Zealand (ANZ) nominated D as one of six members of the Games relay team subject to her “proving form and fitness” – ANZ nominated B as first reserve – on 4 June, NZOC announced D will be confirmed as selected as the sixth member in the relay squad subject to form and fitness requirements being met – NZOC also confirmed selection of B as first reserve – on 4 June ANZ advised D she was required to meet a performance standard of running 400m in 54.25s by 30 June to be confirmed as selected – however D failed to meet that standard – NZOC subsequently didn’t select D and announced B as sixth member selected for relay team. Tribunal rejected D’s arguments that: she had been prejudiced because of uncertainty over whether she had been nominated; there was no power to impose a performance standard; imposing a performance standard was unreasonable; and the selection process was biased. D nominated by ANZ with, what was in effect, a recommendation that her selection should be subject to a condition – NZOC selectors not bound to select D because she had been nominated – nor were they bound by any performance recommendation by ANZ selectors, nor prevented from imposing their own performance requirement -Tribunal considered NZOC selectors selected D, as a consequence of the ANZ nomination, but adopted as a condition a performance requirement, which entitled to do under NZOC/ANZ agreement (dealing with nomination and selection) – NZOC selectors entitled to adopt as performance requirement a time specified by the ANZ selectors who had expertise and knowledge – NZOC selectors made a conditional selection of D subject to her achieving specific performance standard by 30 June which she did not do – Tribunal also satisfied that ANZ’s communications to D fairly informed her – while would have been preferable if ANZ’s advice had been accompanied by written advice by NZOC of D’s conditional selection, the communications fairly informed D of what was expected of her to be confirmed as a member of team – D didn’t voice any disagreement then – no bias in B’s selection – B’s selection as first reserve was not conditional as she had run the sixth fastest recent 400m time which in the selectors’ view justified her selection as first reserve – B correctly nominated and selected as first reserve and then as sixth member of the team – Jurisdiction – Tribunal rejected NZOC’s argument that D had not given NZOC valid notice of her appeal and out of time to appeal – Tribunal satisfied D not prejudiced by processes followed and decisions made by ANZ and NZOC which allowed her an extension of time to prove her fitness – appeal against non-selection therefore did not succeed.

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