The Decision

June 25, 2012 2

IN THE MATTER OF AN APPEAL UNDER RULE 140 OF THE RULES AND BYLAWS OF

ATHLETICS CANADA (APPEALS POLICY)
BETWEEN: LANNI MARCHANT and KRISTA DUCHENE (Appellants) and ATHLETICS CANADA (Respondent)

DECISION MATTER UNDER APPEAL

1. The matter under appeal is the decision by Athletics Canada’s National Teams
Committee to deny a petition from marathoners Lanni Marchant and Krista DuChene to
be nominated to the 2012 Canadian Olympic Team.

2. Although Athletics Canada denied the petition in separate documents setting out slightly
different reasons, these two appeals are being treated as a single appeal as the nature
of the petition, the general reasons for the decisions, and the purpose of the appeal are
similar. The parties agreed in advance that the two appeals would be merged and heard
as one, before a single Appeal Panel.

BACKGROUND

3. Lanni Marchant and Krista DuChene submitted a joint petition to the Athletics Canada
National Teams Committee (NTC) requesting their nomination to the 2012 Canadian
Olympic Team on the basis that they qualify as ‘Rising Stars’ and their performances
meet the Olympic goals and high performance principles of Athletics Canada.

4. In a September 2010 announcement about Marathon and Racewalk criteria to attend the
2011 World Championships and 2012 Olympic Games, Athletics Canada published the
following:

Athletics Canada directly applies IAAF standards for most events, however in the spirit of
consistency, has chosen to set its own standards for both the marathon and 50km racewalk.
The final selection criteria for both the World Championships and Olympic Games will include
Rising Star criteria which would be discovered through performances in shorter events such
as the 20km racewalk and the 10,000 metres.

5. In December 2011, Athletics Canada published its Internal Nomination Procedures
document for the 2012 Olympic Games. Section 6.2 of the document reads:
There will be no ‘Rising Star’ criteria in the Marathon or 50k racewalk

6. The next paragraph of section 6 of the same document reads:

Notwithstanding the criteria contained in this document and its appendices, and in truly
exceptional circumstances, the NTC may, in its sole discretion, identify athletes/relays as
‘rising stars’ and may select them to the Olympic Team

7. The Appellants submitted an appeal under Rule 140 (Athletics Canada’s Appeals
Policy). Under this Policy, the Grounds for Appeal read:

Not every decision may be appealed. Decisions may only be appealed, and appeals may
only be heard, on procedural grounds. Procedural grounds are strictly limited to the
Respondent:

a) Making a decision for which it did not have authority or jurisdiction as set out in governing
documents;

b) Failing to follow procedures as laid out in the bylaws or approved policies of Athletics
Canada;

c) Making a decision that was influenced by bias, where bias is defined as a lack of
neutrality to such an extent that the decision-maker is unable to consider other views or
that the decision was influenced by factors unrelated to the merits of the decision;

d) Exercising its discretion for an improper purpose; or

e) Making a decision that is grossly unreasonable or unfair.

8. The Respondent submitted a written response to the Appeal. A hearing was held on
June 15th, 2012 beginning at 1:30pm EST, and ending at 2:45pm EST.

APPEARANCES

9. The following people participated in the hearing:

Lanni Marchant and Krista DuChene (Appellants)
John Stevenson (Coach and Observer, for the Appellants)
Scott MacDonald (Director of National Team Programs, for Athletics Canada)
Rob Lonergan (Counsel, for Athletics Canada)
Rachel Corbett (Designated Official, Sport Law & Strategy Group, responsible for
administering the appeal)

Kevin Lawrie (Observer, Sport Law & Strategy Group)
Jake Madderom, Alanna Hinrichsen, Harry VanderHoek (constituting the Appeal
Panel

DOCUMENTS CONSIDERED

10. In addition to the oral arguments heard at the hearing on June 15th, 2012, the following
documents were also considered:

The Appellants’ Original Petition to the NTC (undated but received by e-mail on May
2nd, 2012)

The Respondent’s Decision re: DuChene (May 18th, 2012)
The Respondent’s Decision re: Marchant (May 18th, 2012)
The Appellants’ Appeal Submission (June 5th, 2012)
The Appellants’ Appeal Submission Exhibit 1 (Olympic Games comparison results
table)

The Appellants’ Appeal Submission Exhibit 2 (letter from Dr. Stellingwerff re:

Modeling effect of wind and/or temperature on marathon performance)

The Respondent’s Response (June 12th, 2012)
Athletics Canada 2012 Olympic Games Internal Nomination Procedures, published
December 2011 and last revised March 13th, 2012)
Athletics Canada Rule 140 (Appeals Policy)
Athletics Canada Announcement of Marathon Criteria for 2012 Olympics, September
22nd, 2010
Athletics Canada National Team Selection – Rules Book (revised March 2012)

POSITION OF THE APPELLANTS

11. The Appellants are appealing the decision of Athletics Canada to deny their petition to
be nominated to the 2012 Olympic Team.

12. The Appellants explain that they are the 9th and 10th fastest Canadian female
marathoners and therefore should qualify as ‘Rising Stars’ in the marathon event. The
Appellants argue that Athletics Canada should have Rising Star criteria for marathon
based on the following factors:

There is no rationale to exclude marathon from having Rising Stars
Marathoners are held to a different standard than athletes in the other disciplines –
resulting in differential treatment which creates an undue burden on marathoners
Published marathon standards clearly state that a Rising Star category would be
available for marathon

13. The Appellants explain that they achieved Olympic Goals and High Performance
Principles, laid out by Athletics Canada, and they should therefore qualify as Rising
Stars for marathon.

14. During the hearing, the Appellants argued that, initially (in September 2010), Athletics
Canada made reference to a Rising Star category for marathoners but then changed the
criteria when the Internal Nominations Procedures were published. The Appellants claim
that there is no mechanism for challenging criteria when they are published and, further,
neither Appellant was a serious marathoner at the time of the original announcement.

15. The Appellants believe that Athletics Canada is relying on outdated notions of
marathoners as older athletes who have already developed through racing at shorter
distances. The Appellants cite a passage from a Globe and Mail article in which Athletics
Canada Executive Director Rob Guy is quoted. The article reads:

“Mr. Guy said the organization doesn’t have a “rising star” category in the marathon because
most marathoners started out in other events, such as the 10,000 metres, and they are not
typically young and upcoming runners. “It didn’t make a lot of sense to have a rising star
category for the marathon because that’s not typically how they develop.”

16. Mr. Guy’s statement, coupled with an April 18th, 2012 email from Scott MacDonald, lead
the Appellants to believe that the NTC was biased when it rejected the Appellants’
original petition. During the hearing, the Appellants claimed that the NTC had “already
made up its mind” and failed to consider the valid arguments in the petition.

17. The Appellants say that they have never competed in a 10,000m on the track and
performance in that event cannot be used to determine their capabilities or potential
qualifications for Rising Star status in marathon. The Appellants provide a chart showing
that an athlete’s performance in the 10,000m or 10k is not necessarily equivalent to, or
indicative of his or her marathon performance.

18. The Appellants say that Rising Star status is typically granted to athletes who have not
competed in World Championships or Olympic Games, and they believe Athletics
Canada has used these criteria unjustly to exclude marathon from the Rising Star
criteria. Simply because marathoners sometimes (but not always) participate in other
events before moving on to marathon should not be a barrier to being named a Rising
Star in marathon.

19. The Appellants also contend that team selection inequities for marathon place an
additional burden on marathoners that is not seen in the other athletics disciplines.
Particularly, the Appellants say that marathon does not offer a ‘B’ standard (a repeat ‘B’
standard is a requirement for team selection in the other disciplines) and finishing in the
top 3 at the Canadian championships (another requirement for other disciplines) does
not apply to marathon. Further, the lack of a ‘B’ standard also prevents qualification as a
Rising Star.

20. The Appellants also allege that Athletics Canada treated marathoners differently when it
failed to adjust its ‘soft standard’ qualifying times for team selection for marathon as it did
with other track and field disciplines.

21. The Appellants note that, in its response, Athletics Canada assumes that if the selection
criteria allowed the selection of ‘Rising Star’ marathoners, the Appellants would still not
qualify. The Appellants reject this statement and demonstrate that Athletics Canada is
still holding marathoners, unjustifiably, to an ‘A’ standard when a ‘B’ standard should be
created and applied. The Appellants show that if a ‘B’ standard were created for
marathon, in similar fashion to how it was created for the 5000m event, the Appellants
would qualify as Rising Stars.

22. Further, the Appellants show that they have in fact met the IAAF ‘A’ standard for
marathon (just not the Athletics Canada ‘A’ standard) and meet other qualifications and
objectives for Rising Star; if such a category existed for marathon. The Appellants
provide data showing that they are the fastest female Canadian marathoners in the past
six years.

23. The Appellants claim that their performances qualify them for the Olympic Team under
section 6.0 of the Internal Nomination Procedures – particularly because there are “truly
exceptional circumstances” that warrant their selection. The Appellants describe the
exceptional circumstances as the NTC’s failure to use a reasonable ‘B’ standard for
marathon and failure to include the external factors of the Rotterdam Marathon.

24. Specific to the Rotterdam Marathon, the Appellants claim that outside factors should be
considered when determining the Appellants’ proper time for that event. First, the
Appellants cite a passage in the Respondent’s response which reads, in part: “[Event]
results [are] not an accurate assessment of performance potential [because they do] not
account for the conditions in those events, including race tactics, and outside factors.”
The Appellants argue that the NTC did not consider outside factors in the Rotterdam
Marathon when determining the Appellants’ performance potential.

25. The Appellants identify the following as ‘outside factors’ that should have been
considered by the NTC: the age of the Appellants, Ms. Marchant’s recent injuries and
the fact that she was suffering from bronchitis, Ms. DuChene’s three pregnancies, the
progression of the Appellants, how well the Appellants have been performing, the
Appellants’ newness to marathon, and the modeling effect of wind and/or temperature
on marathon performance at the Rotterdam Marathon.

26. Further to exceptional circumstances, the Appellants note that in the UK, a marathoner
was added to the British Olympic Team by UK Athletics with the following rationale:
“Following consideration of all relevant facts and using its expert option, (UK Athletics)
exercised its discretion to nominate Lee Merrien to the BOA”. The Appellants argue that
Athletics Canada has sufficient discretion to apply exceptional circumstances to their
situation as well.

Conclusion

27. The Appellants believe they should be named to the 2012 Olympic Team for any of the
following reasons:

Athletics Canada’s statement in September 2010 indicated that there would be
Rising Star category for marathon – and the Appellants have met a reasonable ‘B’
standard that would be created if such a category existed, The failure to create a ‘B’ standard and the failure to create aRising Star category for
marathon is an ‘Exceptional Circumstance’ that permits the Appellants to be
selected, The Appellants’ performance at the Rotterdam Marathon, taking into account outside
factors and the totality of the competition, qualifies as ‘Exceptional’ and permits the
Appellants to be selected.

POSITION OF THE RESPONDENT

28. The Respondent, Athletics Canada, denied the Appellants original petition for the
following reasons:

The athletes did not qualify under the standard criteria as they did not meet the
published time of 2:29:55, The athletes are not permitted to be considered as ‘Rising Stars’ because criteria for
marathon does not include a Rising Star category, Even if there were a Rising Star category for marathon, the Appellants would not
qualify because there are no “truly exceptional circumstances” that demonstrate the
athletes have the competitive abilities to finish in the top 24 in 2012 and the top 8 in a
future Olympic Games (which are considered Rising Star criteria in those categories
and events that accommodate Rising Stars).

29. In explaining that there were no exceptional circumstances for the two Appellants, the
Respondent provided data comparing the competitive abilities of other athletes as well
as data showing the very low odds of an athlete who has not run the standard placing in
the top 24 of the Olympic Games.

30. During the hearing, the Respondent contended that the Panel does not have the
jurisdiction to insert its own recommendations for selection criteria. The Respondent
explained that the NTC (who are experts) determined the criteria for marathon and
properly determined that marathon should not have a Rising Star category, and these
decisions are not appealable and not within the Panel’s powers to overturn.

31. The Respondent claimed that the Appellants cannot, at this time, appeal the selection
criteria as those criteria were published in December 2011 and the time to appeal them
has passed. The Respondent says that the Appellants are free to appeal the
implementation of those criteria, particularly on the appealable grounds of bias and
gross unreasonableness, but the appeal fails on both of those grounds.

32. During the hearing, the Respondent explained that male athletes were able to meet the
marathon standard – including one athlete who met the standard at the Rotterdam
Marathon in spite of the ‘outside factors’ the Appellants claim affected that marathon and
their performance in it.

33. The Respondent contends that the NTC did consider exceptional circumstances for the
Appellants, but when looking at the results without emotion or compassion, the statistics
did not support naming the Appellants to the team under the exceptional circumstances
provision.

34. The Respondent refutes the Appellants’ grounds for appeal claiming firstly, that the NTC
made its decision without bias (the statements by Mr. Guy and Mr. MacDonald were
explanatory statements and did not show bias), and secondly, the NTC’s decisions were
reasonable (as the NTC considered the criteria in a fair and even-handed manner).

35. The Respondent defended its decision to have 2:29:55 be the standard for team
selection and explained that the time is essentially a ‘B’ standard when compared to
other track and field events. During the hearing, the Panel asked how the standard of
2:29:55 was determined. The Respondent explained that athletics experts use
performance statistics from the IAAF, age-based progressions and average race times
to properly set the qualification standard for marathon and for all other events. The
Respondent also reminded the Panel that the establishment of standards is not at issue
in this appeal, but rather their implementation.

36. In response to the Appellants’ arguments regarding ‘outside factors’ that affect race
times, the Respondent sympathized with the Appellants but explained that the NTC
included the relevant outside factors in its decision-making; particularly rejecting the
“modeling effect of wind/temperature” theory because there are many other external
factors that could affect team selection as well. The Respondent contends that “team
selections have to be based on real data, not modeling”.

37. During the hearing, the Respondent stressed that the appeal should turn on whether or
not there was unreasonableness or bias in the NTC’s decision. The Respondent says
that the NTC recognized it had the power to nominate athletes to the team for truly
exceptional circumstances and chose, justifiably, not to exercise this power to nominate
the Appellants to the Olympic team.

Conclusion

38. The Respondent believes that the Appellants are attempting to challenge the team
selection criteria, which they may not do at this time.

39. The Respondent submits that the NTC followed proper procedure and exercised proper
discretion, within its expertise, when deciding not to name the Appellants to the team.
Page 10

40. The Respondent submits that the Appellants have not met the ‘grounds for appeal’
required for the appeal to succeed.

41. The Respondent asks that the appeal be denied.

DECISION

42. It is the decision of the Panel to deny this appeal. Our reasons follow.

43. Firstly, we agree with the Respondent that our jurisdiction is limited to examining the
implementation of published selection criteria. The Olympic selection criteria and
standards themselves are not up for debate at this time. Our task is restricted to
reviewing the communication and implementation of those standards by the NTC. The
Panel’s view on the standards themselves is irrelevant to this hearing, as we do not have
the authority to look behind the standards as published.

44. The Appellants have suggested in their written submissions and in verbal submissions
that there was no opportunity to challenge the criteria when published. Furthermore, at
the time they were published neither Appellant was competing in the marathon nor is it
likely that they had Olympic team aspirations. In any event, it is the Panel’s view that
Section 140.03 (a) of the Appeal Policy – Scope of Appeal, allows individuals to
challenge criteria when they are published, and there is no exclusion in Section 140.03

(b) that would prohibit this. In the Panel’s experience after hearing many appeals, the
criteria themselves tend to only be questioned when their implementation produces an
adverse result. That is the case here – and the Panel agrees with the Respondent that
the criteria are not open for review at this late date.

45. Arbitrator Michel Picher, in the 2008 Olympic team selection case before the Sport
Dispute Resolution Centre of Canada (SDRCC) of Poss v. Synchro Canada, stated that
the role of an arbitrator in a selection appeal is to “determine whether an NSO has fairly
communicated its own rules to athletes vying for team selection, has faithfully adhered to
those rules and has administered its selection process in a manner devoid of
arbitrariness, discrimination or bad faith” (page 24 of the decision). This Panel adopts
this view, and therefore our deliberations are focused on the implementation of the
selection criteria and standards.

46. We must state that the performances of the Appellants in the Rotterdam Marathon are
impressive. Our decision to deny the appeal is in no way intended to diminish their
achievement. We also believe that the Appellants have promising futures and we heard
from the Respondent in the hearing that based on their fast races in Rotterdam, they
have already qualified for selection to the national team for the 2013 IAAF World
Championships in Moscow.

47. However, the fact remains that there is a published Olympic marathon standard for
women of 2:29:55 and neither Appellant has achieved that standard. They have argued
compellingly that there are exceptional circumstances that warrant their nomination to
the Olympic team through a discretionary selection of ‘Rising Star’, and to fail to
recognize these circumstances has resulted in a decision that is grossly unreasonable
and unfair. They have also argued that the NTC was biased in its deliberations that led
to the May 18, 2012 decisions because three of its members (Rob Guy, Martin Goulet
and Scott MacDonald) made comments in public that would suggest a predisposition
towards enforcing the standards strictly and denying the Appellants a nomination to the
Olympic team.

48. Firstly, our Panel examined whether or not Rising Star considerations applied to the
marathon. We have concluded that the selection criteria (contained within the document
‘2012 Olympic Games – XXX Olympiad – International Nomination Procedures’) are
contradictory. The Rising Star Nomination process is set out in Section 6 of this
document. Subsection 6.2 states “There will be no Rising Star criteria in the Marathon or
50K RW”. Immediately following this phrase is the following text: “Notwithstanding the
criteria contained within this document and its appendices, and in truly exceptional
circumstances, the NTC may, in its sole discretion, identify athletes/relays as ‘rising
stars’ and may select them to the Olympic team”.

49. We believe that Athletics Canada likely intended that there would be no Rising Stars
selected for marathon or racewalk (a position conveyed by the CEO in comments to the
media), which would mean that the only way to be nominated for these events was to
achieve the qualifying standard in the qualifying period. The ‘notwithstanding’ wording
was likely intended to allow the NTC to nominate an athlete as a Rising Star even if he
or she was not in the Rising Star eligibility pool as described in Subsection 6.1. It likely
was not intended to allow a marathoner or 50K racewalker to be nominated as a Rising
Star. However, an ordinary reading of the text in the Internal Nominations Procedures
supports the interpretation that in truly exceptional circumstances, any athlete may be
deemed a Rising Star, even those in the marathon and racewalk events.

50. It is thus our conclusion that the Appellants can be considered for nomination to the
team as Rising Stars. In any event, the NTC decisions of May 18th, 2012 considered
them in this light and so our task becomes one of examining the NTC decision that
ultimately, there is insufficient evidence that the Appellants are capable of a Top 24
finish in London and a Top 8 finish in a future Olympic Games, which is set out in
Section 2 of the Internal Nomination Procedures as being the goal and criteria for Rising
Star selections.

51. We turned next to the Appellants’ claim that the NTC was biased in its decision-making,
because members of the NTC had previously stated in remarks to the media and in
personal communications to the Appellants, that the Appellants could not be nominated
to the Olympic Team because they had not achieved the standards. Speaking for both
Appellants, Ms. Marchant was hesitant to cast any individual in a negative light and she
clearly appreciates the seriousness of making a claim of bias, and understands the fairly
high threshold to prove such a claim. Representatives of Athletics Canada countered
this claim by stating that public remarks were not an indication of someone having
already made up their mind, but rather were an expression of support and respect for
published standards, which form the basis for team selection in the sport of athletics.

52. We tend to agree with this latter position, particularly in light of the fact that Athletics
Canada was then operating on the belief that Rising Star considerations did not apply to
marathon, and the only way to make the team was to achieve the standard. Upon review
of the Appellants’ petition and more detailed reflection, the NTC came to the conclusion
that the Internal Nomination Procedures were not clear on this question, so they
examined the Appellants’ case with a view to Rising Star considerations. There is no
evidence that they did not deliberate carefully and this Panel is not convinced that
members of the NTC acted with bias, arbitrariness or a pre-determined view of the
outcome of their reconsideration.

53. If we are wrong in this view, and there was bias at play within the NTC in terms of key
members of the NTC being unable to consider other views, then such an error can be
cured at this stage of the appeal process where bias is not evident. It is worth noting that
this Panel was appointed shortly after the Appellants filed their first petition, and we were
instructed to disregard any media reports about this case, which we have done.
Certainly, the members of this Panel have come to this appeal without any predetermined
views on the merits of the Appellants’ case.

54. Next, we considered carefully the Appellants’ claim that the failure of the NTC to
exercise its discretion to make a Rising Star selection amounts to a decision that is
grossly unreasonable and unfair. In the hearing, Ms. Marchant recited for us a number of
exceptional and very specific circumstances that could support a Rising Star selection,
including:
AC’s lack of clarity about whether Rising Star applied to marathon, and the
contradiction arising from the September 2010 announcement and the December
2011 Internal Nomination Procedures, AC’s failure to further articulate the parameters for Rising Star, after indicating in the
September 2010 announcement that Rising Star selections would be possibly based
on performances in shorter events, AC’s failure to designate a ‘B’ standard for the marathon as it has done for all other
events, the achievement of which would trigger a Rising Star consideration,
The performances of the Appellants themselves at the Rotterdam Marathon in windy
conditions, and the fact that these personal best results were obtained without the
benefit of pacers, drafting or any form of financial support from Athletics Canada.

55. Ms. Marchant stressed that these circumstances are unique enough to support a Rising
Star nomination in this case without creating a precedent that would open the floodgates
to other athletes seeking Olympic nomination through the Rising Star category.

56. The Panel agrees with the Appellants that the criteria for Rising Star were not wellarticulated,
and that there is no ‘B’ standard for marathon as there is for other events. In
their written submissions for this appeal, both parties conducted their own analyses to
suggest what a marathon ‘B’ standard might be. Athletics Canada has presented data to
demonstrate that the Marathon A standard for women of 2:29:55 is comparable to a ‘B’
standard in other events, on average, while the Appellants assert that a marathon ‘B’
standard for women would be in the range of 2:31:55 to 2:43:15.

57. To decide this appeal, the Panel does not have to speculate a ‘B’ standard for the
marathon, but rather has to examine the decision-making process of the NTC. Whether
or not there was a ‘B’ standard, and whether or not other Rising Star parameters were
set out, we are satisfied that the NTC gave the Appellants’ petition very detailed and
thorough consideration. Ultimately the NTC has to be satisfied that the Appellants have
the competitive abilities to be on track for a Top 24 finish at the Olympic Games and a
Top 8 finish at a future Olympic Games. Failing this, the NTC has to determine if there
are ‘truly exceptional circumstances’ in terms of the performance of an athlete that would
warrant a nomination.

58. The Panel disagrees with Ms. Marchant that the failure to set a ‘B’ standard and to
establish other performance indicators over shorter distances amounts to an exceptional
circumstance. Any gap or omission in the published criteria was corrected by the NTC in
its decision to conduct an analysis of the Appellants’ competitiveness and potential for a
Top 24 result. The Panel notes that the fulfillment of a ‘B’ standard is one of the eligibility
requirements to be considered a Rising Star. Fulfillment of these eligibility requirements
does not guarantee nomination as a Rising Star – it merely puts the athlete into
consideration. Ms. Marchant noted in the hearing that if there had been a ‘B’ standard
(that would logically be slower than the ‘A’ standard and would theoretically have been
met by both Appellants) we would not find ourselves in this Appeal as the Appellants
would qualify as Rising Stars. The Panel disagrees – meeting a ‘B’ standard, had there
been one, would simply have put the Appellants into consideration. As the NTC elected
to put them into consideration anyway, the presence or absence of a ‘B’ standard is
immaterial.

59. This appeal therefore turns on whether or not the Appellants are globally competitive
and whether they can likely achieve a Top 24 result at the London Olympics (and a Top
8 result at a future Olympic Games). The NTC analysis of female marathoners over the
last four Olympics is telling. Over these Games there were 96 Top 24 finishers, and of
this number 93 went into their Olympics with personal best marathon times faster than
Ms. Marchant’s. Put another way, just slightly over 3 percent of 96 female marathoners
were able to achieve a Top 24 finish with a marathon PB of 2:31:51 or slower. These are
very slim odds.

60. The NTC also examined the specific performances of the Appellants to determine if
there were truly exceptional circumstances. The Appellants are ranked 9th and 10th on
the All Time Canadian Women’s Marathon rankings, and are the fastest Canadian
women in the last six years. Canada has not sent women to contest the Olympic
marathon in 16 years. The Appellants have seen remarkable progress in a short period
of time. They also refer to the windy conditions of the Rotterdam course, and the fact
that Ms. Marchant was battling bronchitis. Ms. DuChene‘s progress and achievement is
exceptional in light of her three pregnancies, and giving birth to her most recent child just
13 months before the Rotterdam Marathon. These are very noteworthy achievements.

61. This Panel is left with the task of determining whether the Respondent has made an
error in its decision to not find truly exceptional circumstances and to not nominate the
Appellants as Rising Stars. We can see no such error in their deliberations. They have
communicated and applied the criteria in a manner free of bias, arbitrariness,
discrimination or bad faith. Recognizing that the published criteria were not clear as to
whether marathoners could benefit from a Rising Star selection, they chose the route of
presuming that they could and considered them as such. They are an expert tribunal and
have exercised their expert discretion in a reasonable manner. Even if we might like to
see a different outcome, and even if we might have arrived at a different result in
determining whether there are truly exceptional circumstances in this case, we would be
outside our authority to intervene. There is a very high threshold to interfere in a decision
made by an expert body, acting reasonably and without bias or malice.

62. In closing we do wish to comment on the claim by the Appellants that the idea behind
the Rising Star selection is to give athletes the experience on the world stage to enable
them to hone their skills and develop into world class athletes. They cite Eric Gillis as an
example of this, as he competed in Beijing in 2008 as a Rising Star and this has helped
him to qualify for the London Olympics in 2012. Perhaps the Appellants are not aware
that Mr. Gillis achieved selection to Beijing through an appeal in which he argued
successfully that he could achieve a Top 24 result. He did not achieve this result.

63. The more important point, however, is that nowhere is it stated that gaining international
experience is the purpose of the Rising Star. The Rising Star is a criterion designed to
target athletes showing potential for a Top 24 result, it is not designed to give developing
athletes international experience, although this is typically one of the results of a Rising
Star selection.

64. Lastly, this Panel encourages Athletics Canada to think through whether or not the
Rising Star criteria are to be applied to the endurance events like marathon and
racewalk. Whatever the decision on this matter, the selection documents must be
revised to clearly convey that intention.

65. We thank the parties for their submissions and their collaboration in this appeal.
Jake Madderom (Chair)
Alanna Hinrichsen
Harry VanderHoek
June 18th, 2012

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