Andrew Mewing, an Australian swimmer, appealed against Swimming Australia Limited's decision not to nominate him for the Men’s 4 x 200 Metres Freestyle Relay Squad for the 2008 Beijing Olympics. Despite achieving the Olympic "B" qualifying time in both the semi-final and final of the selection trials and finishing eighth in the final, Mewing was not selected. He initially appealed to Swimming Australia's Appeals Tribunal, which dismissed his case, prompting him to take the matter to the Court of Arbitration for Sport (CAS). The CAS appeal sought to overturn the Tribunal's decision, include Mewing in the relay squad, and have Swimming Australia cover his legal costs. The Australian Olympic Committee (AOC) participated as an observer, and procedural rules were modified to allow the arbitrator to review facts and law without first determining if the appeal met specific grounds.
Mewing argued that his performance warranted nomination, especially since all eight finalists in the Women’s 200-meter freestyle were nominated, along with an additional swimmer who did not compete in the event. He contended that his inclusion would enhance team competition and align with the "overall needs of the team" criterion. However, Swimming Australia maintained that nomination was not automatic and that the head coach, Alan Thompson, had discretion to consider team needs. Thompson's decision was based on strategic considerations, including the relay event's scheduling, which required resting top swimmers for the final. Mewing was deemed unnecessary because four faster swimmers were already available for the heats, and his inclusion would not contribute to the team's success.
The arbitrator emphasized that CAS precedent generally upholds selection decisions if made in good faith and in accordance with established criteria. Mewing's arguments, including comparisons to the women’s team and speculative claims about his potential improvement, were dismissed as irrelevant or unconvincing. The arbitrator found Thompson's reasoning sound and consistent with the nomination criteria, noting that selection decisions should not be overturned unless there is evidence of bad faith or procedural misconduct. The appeal was ultimately dismissed, reinforcing the principle that courts and tribunals should not reassess the merits of selection decisions unless procedural fairness is compromised. The case highlights the balance between individual athlete expectations and the discretionary power of selectors in high-stakes competitions. The question of costs was reserved for further consideration.