SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC) NO: SDRCC 15 0269 KIRA LENGKEEK (CLAIMANT) AND CANADA SNOWBOARD (RESPONDENT) JURISDICTIONAL DECISION Submissions: On behalf of the Claimant: Michael Nguyen On behalf of the Respondent: Fedora Mathieu
1. On July 23, 2015, I was appointed under section 6.10 of the Canadian Sport Dispute Resolution Code (the Code ) to hear Kira Lengkeek s request for arbitration (the appeal ) of Canada Snowboard s ( CS ) decision not to award her a card, or financial assistance under the Athlete Assistance Program ( AAP ). She seeks an Order naming her to the national team which will allow her to obtain funding through the AAP. 2. Canada Snowboard raised a preliminary issue contending that SDRCC had no jurisdiction to hear Ms. Lengkeek s request. 3. This jurisdictional decision is based on the written submissions of the parties as agreed to in a telephone conference call on July 27, 2015. 4. On July 31, 2015, I issued a short decision finding that SDRCC had jurisdiction over the matter with reasons to follow. These are my reasons. BACKGROUND 5. Ms. Lengkeek is a 16 year old snowboard athlete who competes in both the Slopestyle and Halfpipe events. She is a member of CS. 6. CS is the governing body in Canada for the sport of snowboarding. A federally incorporated non profit organization, CS is recognized by, among other agencies, the Government of Canada, the Canadian Olympic Committee and the World Snowboard Federation. 7. As a national sport organization, CS is mandated by Sport Canada to nominate athletes to receive financial assistance through the AAP. In order to receive a card, a snowboard athlete must be named to the national team. 8. Between April 13, 2015 and May 4, 2015, CS published its selection policies for the 2015 2016 slopestyle NextGen team, slopestyle national and development team and halfpipe national team. 9. On May 13, 2015, CS announced the names of athletes who it had nominated to the teams, and who were, therefore, eligible for carding. Ms. Lengkeek was not one of those athletes.
10. On May 14, 2015, CS informed Ms. Lengkeek that although she had qualified to receive a carding nomination, she would not be nominated for a card since she had not been named to the slopestyle NextGen or the halfpipe team. 11. On May 18, 2015, Ms. Lengkeek appealed the decision under CS s Appeal Policy and paid the $200 fee necessary to initiate the internal appeal process. 12. On June 8, 2015, CS s President and Interim Chief Executive Officer Guy Poupart responded to Ms. Lengkeek, attempting to resolve the appeal by explaining the selection process and informing her why she had not been selected. CS informed Ms. Lengkeek that it did not intend to change the selection decision and asked her if she intended to pursue her appeal. 13. On June 10, 2015, Ms. Lengkeek asked CS to allow her appeal and asked for an explanation for CS s denial of her appeal. 14. Mr. Poupart sought an independent third party opinion on the validity of Ms. Lengkeek s appeal in accordance with the Appeal Policy. The third party determined that there were not sufficient grounds for Ms. Lengkeek s appeal. 15. On June 24, 2015, in reliance with the third party opinion, CS informed Ms. Lengkeek that it was denying her appeal stating that there were insufficient grounds of appeal. 16. Ms. Lengkeek appealed CS s decision to SDRCC on July 11, 2015. ISSUE 17. The sole issue before me for the purpose of this award is whether or not SDRCC has jurisdiction to arbitrate the dispute. 18. As a jurisdictional appeal, it is neither necessary nor appropriate for me to make a decision on the merits of an appeal nor to base a decision on the evidence which might be presented by the parties during such an appeal, should I decide that SDRCC has jurisdiction. I have therefore, only referred to the arguments of the parties as they relate to jurisdiction.
ARGUMENTS 19. The arguments of the parties may be summarized as follows. 20. CS says that arbitration clauses must be strictly interpreted and respect the intentions of the parties. CS submits that SDRCC s arbitral jurisdiction can only be exercised with the express consent of the parties. CS says that SDRCC has no jurisdiction to arbitrate this dispute because CS s Appeal Policy expressly provides that there is no appeal from the denial of an internal appeal except in narrow circumstances. 21. CS submits that it has the authority to consent to, or deny, SDRCC s jurisdiction and that absent any legislative authority granting SDRCC jurisdiction, SDRCC cannot extend its jurisdiction over CS s decisions involving athletes and coaches emanating from activities related to national team programs and/or national teams representing Canada at international single sport events and multisport games. 22. CS submits that it has developed rules and policies which are designed to prevent certain types of appeals and that those rules and policies are reviewed and approved by Sport Canada as a condition of funding. 23. CS contends that SDRCC s decision Vachon v. Canada Snowboard (SDRCC 15 0267, issued July 27, 2015) is wrong for several reasons. The first is that it unreasonably extends SDRCC s jurisdiction, jurisdiction that can only be given by legislation. CS argues that SDRCC cannot assume jurisdiction based only on its agreement with Sport Canada regarding funding. CS asserts that if there is a dispute between Sport Canada and CS regarding CS s decision to prohibit some matters from being arbitrated by SDRCC, that dispute is a matter between SC and Sport Canada. 24. CS also argues that the decision represents an intrusion in CS s right to govern itself and unreasonably interferes with CS s power to adjudicate its internal matters. CS submits that its internal appeal policy should be strictly interpreted and that SDRCC should find that it has no jurisdiction to hear the dispute. 25. Ms. Lengkeek contends that her appeal raises serious and non frivolous issues that deserve to be heard and decided by an internal appeal committee.
26. Ms. Lengkeek relies on the agreement between Sport Canada and CS as well as CS s own policies in support of her argument that decisions relating to team selection and nominations for carding can be appealed internally and eventually before SDRCC. 27. Ms. Lengkeek contends that Sport Canada makes it a requirement that all national sport organizations whose athletes can be nominated for carding, including CS, must have an appeal policy that allows any dissatisfied athlete to appeal to the SDRCC for decisions relating to carding. 28. Ms. Lengkeek also argues that she has done everything possible to resolve the matter within CS s jurisdiction, and, having exhausted all available recourses, has the right to appeal to SDRCC. 29. Ms. Lengkeek says that CS s decision to refer the matter to an independent third party without giving her an opportunity to testify does not constitute a formal internal appeal. 30. Ms. Lengkeek contends that allowing CS to deny appeals it considers frivolous or lacking merit without right of further appeal to SDRCC would create a risk that all national sport organization decisions would become unchallengeable. 31. Ms. Lengkeek further relies on SDRCC s decision in Vachon, saying that it follows the sport law principles set out in SDRCC s case law and must be given precedence. RELEVANT PROVISIONS SDRCC s Code 32. Article 2.1 of the Code provides as follows: Administration (a) The SDRCC administers this Code to resolve Sports Related Disputes. (b) Subject to Subsection 2.1(c) hereof, this Code applies to a Sports Related Dispute where SDRCC has jurisdiction to resolve the dispute. This Code will therefore apply to any Sports Related Dispute:
(i) in relation to which a Mediation, Arbitration or Med/Arb agreement exists between the Parties to bring the dispute to the SDRCC; (ii) that the Parties are required to resolve through the SDRCC; or (iii) that the Parties and the SDRCC agree to have resolved using this Code. (c) This Code shall not apply to any dispute that a Panel determines, in its discretion, is not appropriate to bring before SDRCC or to a dispute where the Panel determines that the SDRCC does not have jurisdiction to deal with the dispute. 33. Article 3.1 of the Code provides, in part, as follows: Availability of Dispute Resolution Processes (a) The dispute resolution processes of Resolution Facilitation, Mediation, Arbitration or Med/Arb under this Code are available to any Person in connection with the resolution of a Sports Related dispute, subject to Subsections 3.1(b), 3.1(c) and 3.1 (d) below. (b) Unless otherwise agreed or set out herein, and if the dispute involves an NSO, where the Person applies to the SDRCC for the resolution of a Sports Related Dispute, the Person must first have exhausted any internal dispute resolution procedures provided by the rules of the applicable NSO. For the avoidance of doubt, a NSO internal dispute resolution dispute procedure is deemed exhausted when: (i) The NSO has rejected the right of the Person to an internal appeal; (ii) The NSO or its internal appeal panel has rendered a final decision; or (iii) The NSO has failed to apply its internal appeal policy within reasonable limits. 34. Sports Related Dispute is defined as a dispute affecting participation of a Person in a sport program or sport organization. Such disputes may include (but are not limited to) those related to:. (ii) a decision made by a NSO board of directors, a committee thereof or an individual delegated with authority to make a decision on behalf of a NSO or its board of directors, which affects any Member of a NSO; [Article 1.1(mm)]
CS s Appeal Policy 35. Section 3 of CS s Appeal Policy provides that any individual who is directly affected by a Canada Snowboard decision shall have the right to appeal that decision; provided there are sufficient grounds for the appeal under the grounds for Appeal section of this Policy. 36. Section 4 provides that the Policy applies to decisions relating to, among other things, the Athlete Assistance Program (AAP) carding nominations. 37. The Policy sets out the grounds for appeal (section 8) and provides that, upon receiving the notice of appeal, will attempt to resolve the appeal by mediation (section 10). 38. Sections 11 and 12 provide as follows: 11. Should the review fail to resolve the appeal, Canada Snowboard will appoint an independent third party Case Manager who has the following responsibilities: a) Determine if the appeal falls under the scope of this Policy; b) Determine if the appeal was submitted in a timely matter; c) Decide whether there are sufficient grounds for the appeal. 12. If the appeal is denied on the basis of insufficient grounds, because it was not submitted in a timely manner, or because it did not fall under the scope of this Policy, the Appellant will be notified, in writing, of the reasons for this decision. This decision may not be appealed. ANALYSIS AND DECISION 39. I conclude that SDRCC has jurisdiction over this complaint. 40. The facts in Vachon v. Canada Snowboard are virtually identical to those in this appeal. A snowboard athlete challenged CS s decision not to name him to the national team, a decision that deprived him of the possibility of obtaining funding. The athlete appealed the decision and was advised by CS that his appeal was denied on the grounds that there were insufficient grounds. The
athlete appealed that decision to SDRCC. CS argued that SDRCC had no jurisdiction to hear the appeal. 41. Arbitrator Décary relied on previous SDRCC decisions (Hyacinthe v. Athletics Canada, SDRCC 06 0047, and Celebija v. Karate Canada, SDRCC 14 0241) in finding that SDRCC had jurisdiction over the appeal. Décary found that, by accepting the Contribution Agreement of Sport Canada, sports federations undertake to refer to the SDRCC disputes emanating from their internal proceedings in order to have them resolved by a final decision. 42. Arbitrator Décary also noted recent amendments to SDRCC s Code which specifically provides for an appeal to SDRCC where an athlete has exhausted any internal appeal procedures, including instances where an NSO has rejected the right of the person to an internal appeal. He found that an athlete has a right to appeal a decision to the SDRCC from the moment the NSO denies him or her the right to an internal appeal, and concluded that, having had his right to an internal appeal panel denied by CS, the athlete had exhausted his internal remedies and had a right to appeal to SDRCC. 43. Although the principle of stare decisis does not apply to Tribunal decisions, fairness demands a degree of consistency between decisions to ensure that athletes in similar circumstances receive similar treatment and I find no reason to depart from Arbitrator Décary s conclusion. 44. Section 3 of Sport Canada s Athlete Assistance Program Policies and Procedures sets out the responsibilities of the NSO (National Sport Organizations), Athletes and Sport Canada: When National Sport Organizations (NSOs) nominate Eligible Athletes who then apply for Athlete Assistance Program (AAP) support, they agree to carry out certain responsibilities. 3.1 NSO Responsibilities NSOs are responsible for nominating Eligible Athletes for AAP support. In making these annual nominations, the NSO agrees to the following: develop discipline and appeal procedures based on due process that include access to independent dispute resolution services offered through the Sport Dispute Resolution Center of Canada (SDRCC)
45. In my view, having accepted federal funding, CS cannot enact, in effect, a privative clause denying athletes the right to appeal carding decisions, however CS attempts to characterize those decisions. 46. Furthermore, Article 3.1(b) of the SDRCC Code expressly provides that an athlete has a right to appeal to SDRCC when the athlete has exhausted all internal dispute resolution procedures, including situations where the sport organization has rejected the right of the athlete to an internal appeal. 47. I find this to be a complete answer to the question of SDRCC s jurisdiction and find it unnecessary to address the other arguments made by CS. CONCLUSION 48. I find that SDRCC has jurisdiction to hear and decide Ms. Lengkeek s request. August 10, 2015, Vancouver, BC Carol Roberts, Arbitrator