The case involves an appeal by elite mogul skier Manuela Berchtold against Skiing Australia Limited (SAL) for not nominating her to the Australian Olympic Committee (AOC) for selection to the 2002 Winter Olympics in Salt Lake City. The dispute stemmed from a Selection Agreement between SAL and the AOC, which required SAL to nominate athletes likely to achieve the best results at the Olympics. Berchtold, despite recovering from knee surgeries and achieving a 26th rank in World Cup events, was not nominated, while two lower-ranked skiers (33rd and 37th) were selected. SAL cited her failure to meet specific criteria in the Selection Agreement, though it had requested the AOC to reconsider the criteria, which the AOC declined. Berchtold appealed directly to the Court of Arbitration for Sport (CAS), bypassing SAL’s internal appeal process due to the urgency of the Olympic deadline.
The CAS panel addressed jurisdictional and procedural matters, rejecting Berchtold’s request to join the AOC as a party. It clarified that the appeal concerned whether SAL properly followed the nomination criteria, not the AOC’s discretion, as the AOC was not involved in SAL’s nomination decision. The panel emphasized that the Selection Agreement’s criteria were not absolute but subject to discretion in extenuating circumstances, which SAL had not adequately considered. The panel found that SAL’s selection panel failed to properly exercise its discretion under the Selection Agreement, despite acting in good faith. However, it declined to decide whether Berchtold should be nominated, remanding the matter to the selection panel for reconsideration. The panel underscored that its role was limited to ensuring the nomination criteria were properly followed, not substituting its judgment for the selection panel’s.
The central issue revolved around whether the Selection Panel properly followed the selection criteria outlined in the Selection Agreement. The Agreement required athletes to meet specific performance standards, such as achieving a top 60% result in the FIS Freestyle Mogul Skiing World Championship or a top 50% result in World Cup events. However, the Agreement also included a discretion clause allowing the Selection Panel to consider extenuating circumstances, such as illness or injury, when evaluating an athlete's performance. The CAS found that the Selection Panel failed to exercise this discretion when deciding not to nominate Berchtold, despite being aware of her knee injury affecting her performance in the 2001 World Championships. The Panel’s decision was based solely on her not meeting the literal criteria without considering whether her injury constituted an extenuating circumstance.
The CAS emphasized that the Selection Panel had an obligation to assess all relevant factors, including extenuating circumstances, before making a nomination decision. Although the CAS acknowledged that the Selection Panel and SAL acted in good faith, it ruled that the nomination criteria were not properly followed. The appeal was allowed, and the matter was remitted back to the Selection Panel for reconsideration, instructing them to determine whether Berchtold had achieved the required competition result standard when accounting for her injury. The Panel was directed to use its expertise to evaluate her overall performance and potential for success at the 2002 Games. The CAS concluded by formally allowing the appeal and ordering a reconsideration of Berchtold’s nomination in accordance with its reasoning.