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Sara Winther v Yachting New Zealand


Appeal against decision of NSO – non-nomination – Both W and K appealed decision of Yachting New Zealand (YNZ) to not nominate either to NZOC to compete as the New Zealand representative for the Women’s Laser Radial and Women’s RS:X Windsurfing classes respectively at the 2016 Rio Olympics – sufficient similarities in issues to hear appeals together – urgency due to requirement to confirm allocation of slots with World Sailing and IOC by 1 June – maintaining right of appeal – parties consensually agreed to Tribunal Chairperson acting solely in undertaking binding arbitral exercise – W and K appealed on a number of grounds including: failure to properly follow and / or implement selection policy by failing to apply nomination criteria under clause 5.3 and failing to reasonably exercise discretion under clause 5.4; W and K not afforded a reasonable opportunity to satisfy eligibility criteria; nomination decision affected by apparent or actual bias – interpretation of selection policy – exercise of discretion by selectors requires careful assessment of individual circumstances of W and K – not unreasonable for selector to rely on technical analysis of an objective nature as part of decision making process provided not in isolation or sole determinant – concerns over inadequacy of communication – need to abide by rules of natural justice and fairness in exercising discretion – athletes should be aware of information being assessed on and given reasonable opportunity to provide feedback – considered setting aside decision and requiring reassessment of individual circumstances – concluded realistically would not lead to different outcome – treatment and lack of support of W and K compared to other sailors part of YNZ targeted funding strategy rather than actual or apparent bias – appeals dismissed – observations made.

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