A panel comprising representatives from various Olympic sports, and John de Mestre & Co solicitor John de Mestre, discussed the recent events surrounding swimmer Ian Thorpe. As well, the options open to athletes who felt cheated by the selection process were analysed, as were measures to avoid legal proceedings for future Olympic committees and athletes.

John de Mestre & Co have been involved with numerous legal proceedings surrounding the Olympic selection process. De Mestre said the firm had acted on behalf of a number of athletes in the past “who felt cheated by the selection process and wanted to appeal the decision”.

In an interview with Lawyers Weekly, de Mestre said the seminar went well. “I summarised what the selection process was and what an athlete could do if they felt they were unfairly treated,” he said.

Also at the seminar was a lawyer who had been a chairperson of a triathlon selection committee. “She had done some work after the last Olympics because there was some dissatisfaction about that,” de Mestre said.

At the last Olympics, “teams for the Sydney Olympics were announced and around 42 appeals were made. Every appeal is very time consuming and can be costly as well as emotionally draining for the athlete”. At the seminar de Mestre said he made suggestions on how the number of appeals could be reduced in future.

The seminar heard that the less discretion allowed and the more “clear cut” the selection the better, de Mestre said. “Everyone agreed that athletes being told why they weren’t selected for the team was essential.”

There were some situations in Olympic selection, de Mestre said, where someone could be the best person objectively, but not necessarily subjectively, such as with rowing. Someone might fit in better with the team, for example, or other external factors might need to be considered. This needed to be explained to athletes, he said.

During the seminar de Mestre explained the different selection processes that applied to different Olympic sports, as well as the challenges that faced athletes and their coaches. He also raised issues relating to contractual obligations in sport.

An open discussion followed a formal session, at which time sports representatives were welcomed to share their knowledge and experiences of the selection process.

Ian Thorpe’s recent disqualification was raised in the discussion. De Mestre said this event had not happened when the seminar was thought of, and just happened to tie in well with it. He said it was discussed that, hypothetically, Thorpe may have had grounds for appeal. If he had fallen backwards, de Mestre said, “he would not have [been] deemed to have started as he was. It was arguable Thorpe didn’t start, de Mestre said. “He could appeal because he was denied the ability to compete in the selection race.”

“There was lively conversation both ways, but the consensus was that it was arguable. The question was: Did he break the rules or not? On balance, everyone agreed it was arguable,” de Mestre said.

Minter Ellison partner David Garnsey told Lawyers Weekly that, regarding Olympic selection, “the moment you introduce discretion you open the door for subjective opinion. But if you don’t allow some subjectivity, then you get the Ian Thorpe situation where someone misses out”.

“It’s a very difficult situation for athletic bodies, which is why so many go to the swimming-type selection process. It is very hard to appeal against this sort of thing, but it does provide heart breaking situations,” Garnsey said.

The line that many sports organisations like to take, Garnsey said, is to make it a strict criteria regime that leaves no doubt. “But if someone is unwell on a day, or not performing their best, this is not considered.”

For athletes, Garnsey said, the Olympics can be a full time occupation. “Being part of a team and appearing on the world stage can mean a lot. It means a lot to make it. There is a lot of advertising and sponsorship involved.

“Olympic selection is a minefield for sporting associations, but good for lawyers,” Garnsey said. The skill is in drafting criteria that are less “attackable”, he said.