For triathlete Emma Carney, a two-time world champion, competing at the 2000 Olympics would have been the pinnacle of a glittering career. The Sydney Games provided a grand stage: the sport was making its Olympic debut and the women’s race was one of the opening events on the first day. Winning Australia’s first gold medal of the Olympics, on the steps of the Sydney Opera House, would have been an iconic moment.
But Carney never even made it to the start line. Months before the Games, she was told by Triathlon Australia (TA) she would not be one of the three Australian female triathletes nominated to the Australian Olympic Committee (AOC) for selection. Believing she had satisfied the selection criteria, Carney launched legal action. Despite Carney being partially successful in the litigation that followed, TA’s decision ultimately stood.
The experience of non-selection and the legal battle that followed was so traumatic that the scars linger with Carney two decades later. “It broke me, destroyed me and humiliated me,” she tells Guardian Australia. Carney has recently published an autobiography, Hard Wired: Life, Death and Triathlon. It is the first time she has publicly commented on the selection dispute.
“I never spoke about my appeal because it was so disgraceful, dishonest and disgusting for me,” she says. “My case was the longest running in the history of the Olympics in Australia because we won every stage, [but] in the end it didn’t matter.”
Carney’s selection fight was particularly dramatic. It involved an ambiguously worded selection policy, a qualification race cut short by an official’s error, allegations of commercial bias (Carney was sponsored by one bank, TA another) and appeals all the way to the Court of Arbitration for Sport, based in Switzerland. But as the Tokyo 2021 Olympics draw near, Australia’s small band of sports lawyers await the call that will spark yet another high-stakes selection fight.
Already, two members of the Hockeyroos have successfully appealed their non-inclusion in the Olympic squad. With just nine weeks remaining until the Games begin, and only 111 of the expected 450-odd Australian Olympians selected, disputes are almost inevitable in the weeks ahead. And when the phone rings, says Paul Hayes QC, a Victorian barrister who regularly appears in these cases, “you have to get your skates on”.
Hayes says that appeals are typically “quite straightforward” from a legal perspective. “But,” he adds, “understandably for the athlete, there is a huge emotional factor for them. They have put a good part of their life into training with a view to Olympic selection. These dreams of getting to the Olympics begin when they are children. Suddenly, it is all on the line.”
The three-phase Olympic selection process begins several years out from each Games. Firstly, the international federation for each sport publishes “participation criteria”, setting out minimum standards for events – the times or results necessary for participation. Then each national federation in Australia will publish “nomination criteria”, which guide the selection process. These are typically more exacting than the participation criteria. “Rather than just send along Olympic tourists, the nomination criteria ensure that we send to each Olympics athletes who are competitive in their respective sports,” explains Hayes.
The nomination criteria vary widely by sport. In athletics, for example, Australia is permitted to send up to three athletes per event. Provided they have met the participation criteria, the winner of each event at the national championships is automatically nominated. The other two spots are then determined by a nomination committee in accordance with the criteria. In team sports, selectors have far more discretion. “Of course there is an element of subjectivity,” Hayes continues. “Factors like team balance, how the coach wants the team to play, their game plan, their strategy are all relevant. At the end of the day, you have to choose what is best for the team.”
The final phase involves the national federation nominating their chosen athletes to the AOC for selection. While the AOC typically rubberstamps nominations, they do retain discretion. Before the 2008 Olympics, swimmer Nick D’Arcy – who had already been selected – assaulted another swimmer and was dropped from the team by the AOC. He appealed, unsuccessfully.
These disputes are covered by a strange blend of contract law (athletes submit to the selection processes by written agreement) and administrative law. Successful appeals are uncommon. “It is very hard – the bar is set high,” says Hayes. “Successful non-nomination appeals, typically heard by an internal tribunal, with an appeal to the CAS – are very rare.”
Whatever the outcome, there are few real winners. “Inevitably someone is going to be unhappy,” says Amelia Lynch, a partner at law firm Lander & Rogers, which acts for a number of sporting federations. Because Olympic places are usually capped, one athlete’s successful nomination appeal means that another athlete is no longer on the plane. “You can’t just add one in; someone else has to fall out,” Lynch continues. “It’s unavoidable that someone is going to be unhappy with the process. From a lawyer’s perspective, the appeals I have seen have absolutely provided a fair process, but I understand why that still doesn’t result in an athlete feeling good about it.”
Lynch says that lawyers involved in such cases have an acute understanding of what is at stake. “With what’s on the line – going to the Olympics, not going to the Olympics – it definitely makes it more stressful,” she says. “It’s interesting to be a part of, but you feel that pressure when you’re involved.”
In the weeks ahead, Australian athletes who have trained for years in the hope of representing the country will be told they are not going to Tokyo. Some will immediately accept the decision; others will consult lawyers about lodging a legal challenge. Despite the personal toll of her own experience, ex-triathlete Carney has no hesitation in offering her advice. “Life is not always fair,” she says. “But you must always appeal if you have been wronged.”