The case revolves around an appeal by athletes Tess Lloyd and Caitlin Elks against Australian Sailing's decision not to nominate them for the 2016 Australian Olympic Team in the Women’s 49erFX Class event. The appeal was initially heard by the Australian Sailing Appeals Tribunal, which upheld the non-nomination decision. Dissatisfied with this outcome, the appellants took their case to the Court of Arbitration for Sport (CAS), arguing that the Appeals Tribunal had committed an error in law. The central issue was whether the nomination panel’s decision could be challenged in the absence of evidence demonstrating bad faith, dishonesty, or perversity. The appellants contended that the panel failed to properly consider the nomination criteria, while the respondent maintained that the panel had acted within its discretionary powers as outlined in the criteria.
The nomination criteria granted the panel absolute discretion to nominate a crew if no baseline performance was achieved by any eligible crew. The Appeals Tribunal found the criteria clear and unambiguous, allowing the panel broad discretion to evaluate relevant factors. The CAS Sole Arbitrator, Tricia Kavanagh, ruled that a nomination decision made in accordance with the criteria could not be challenged unless there was evidence of bad faith, dishonesty, or perversity. The appellants failed to prove that the panel had not given proper, genuine, and realistic consideration to their nomination. The Arbitrator also found no legal error in the Appeals Tribunal’s decision, which had correctly assessed the panel’s discretion and provided reasoned conclusions.
Another aspect of the case involved Olivia Price and Eliza Solly, who had also unsuccessfully appealed before the Appeals Tribunal but chose not to take their case to the CAS. They sought to participate in the appellants’ CAS hearing as an affected party under the Australian Olympic Committee’s By-Laws. The Sole Arbitrator ruled that they could not be heard on the merits of the appeal unless the CAS ordered a reconsideration of nominations.
The appellants raised several grounds for appeal, arguing that the Nomination Panel did not have unfettered discretion and was required to evaluate their candidature under specific criteria. They claimed the panel failed to properly analyze event results, including "nation placings" at certain regattas, and selectively compared their performance with other crews. Additionally, they argued the panel considered irrelevant factors, such as speculative future performance, and ignored relevant data, including their top 10 finishes in some events. The appellants sought either direct nomination to the Australian Olympic Committee or a reconsideration by a new Nomination Panel.
Australian Sailing and the Australian Olympic Committee defended the decision, asserting that the Nomination Panel had exercised its discretion appropriately and considered all relevant criteria. They argued the Appeals Tribunal correctly characterized the challenge as a factual and discretionary matter, not a legal error, and requested the appeal be dismissed.
The CAS ultimately upheld the Appeals Tribunal’s decision, confirming that the Nomination Panel had acted within its discretionary authority and that there was no legal error in the prior ruling. The appellants’ challenge to their non-nomination was dismissed, reinforcing the principle that discretionary decisions cannot be overturned without evidence of bad faith, dishonesty, or perversity. The case highlights the complexities of sports arbitration and the balance between administrative discretion and legal oversight.