By David

There has been a large and surprising response to the Swimwatch article discussing the selection of New Zealand swimming teams. The discussion has revealed a far more complex history than I ever imagined. For example in 2008 there were two cases heard before the Sports Tribunal. Both were brought by athletes who had missed selection for the Beijing Olympic Games – Kane Radford and Te Rina Taite (both links open PDF files). In both cases the Tribunal dismissed their appeals. Radford again met the wrong side of Swimming New Zealand’s selection processes for this year’s World Championships (although if he had been Australian, he’d have been on the team).

I have just finished reading the two Tribunal’s “Reasons for the Decision”. I am not surprised they found against the swimmers. A combination of dirty pool, confused rules and hard ball tactics by Swimming New Zealand left the Sports Tribunal with little option. Here are some examples of what I mean.

In both cases Swimming New Zealand disputed the jurisdiction of the Tribunal to hear the appeals. In the Radford case Byrne, the CEO of Swimming New Zealand, embarrassingly emailed the Tribunal confirming that SNZ did accept the Tribunal’s jurisdiction; leaving the SNZ’s lawyer desperately trying to find legal arguments as to why Byrne’s opinion didn’t matter. The best their lawyer could come up with was that there was no agreement because no consideration had been paid and Kane Radford had not acted to his determent as a result. Clearly the standard of Victoria University’s Legal Department and particularly the section that deals with ethics and the law is not what it once was. The moral of the story for any swimmer with a selection issue is “beware”. SNZ will make every effort to tie the case up in legal arguments about process to confuse and delay addressing the real issue – justice for a New Zealand swimmer.

In the Te Rina Taite case SNZ claim they offered the four relay swimmers the chance to swim a trial relay to see if they could swim the qualifying time. The Tribunal says it was told that “Ms Palmer and Ms Boyle chose not to swim”. Now, I’ve not spoken to either swimmer, however Hayley Palmer’s parents assure me Jan Cameron never asked Hayley if she wanted to swim. In fact her father felt so embarrassed by the story he called Te Rina Taite overseas to apologize for the SNZ deception. I do not believe SNZ either. I think they made it up. Even the Tribunal wasn’t convinced. Their Decision reports that it “seems odd to this Tribunal that the situation should have developed in this way”. That’s legal speak for “we don’t believe you”. The moral of the story for any swimmer with a selection issue is “beware”. SNZ will use their power to damage your case.

In the Te Rina Taite case SNZ made every effort to get the case thrown out, without a hearing, by claiming Te Rina never submitted her appeal on time. You see, SNZ have a rule that says any complaint about selection has to be submitted within forty-eight hours. Te Rina Taite politely expressed her concern to SNZ within forty-eight hours. Here is what she said, “Hi, I realise you are probably quite busy at the moment, but could you maybe just explain why the women’s 4 x 100 freestyle relay didn’t qualify?” It took her another couple of days to formally complain. SNZ used Te Rina’s courtesy and good manners to kill her appeal. SNZ don’t care what’s right and wrong. To them it’s all about winning; at any price. In this case a good person was treated shamefully. What the forty-eight hour rule effectively means is that every swimmer going into the New Zealand selection trials needs to have a lawyer briefed and ready. This year’s trials end on a Friday night. If something goes wrong, there is no point in waiting until Monday to call your lawyer. You will already be out of time. The moral of the story for any swimmer with a selection issue is “beware”. SNZ will use their rules to deny you justice.

The concluding paragraph of the Te Rina Taite report is worth every person associated with the selection of a New Zealand team reading in full. Here is what it says.

The appeal is dismissed, but not without the matters raised by the Appellant having troubled the Tribunal. The complex mix of documents which are to be read by an athlete to understand the entirety of the nomination and selection process could be improved upon, in the Tribunal’s view. Selection Updates as late as occurred here may be warranted by particular circumstances, but in general carry risk of late notice and thus challenge. While the appeal is dismissed, the Tribunal considers that whilst she may not have achieved anything for herself, Ms Taite was entirely justified in bringing the appeal to proper scrutiny of the nomination process adopted by SNZ; and for the purpose of future nomination and selection policy processes, and documentation.

In other words SNZ’s selection process stinks. And, sadly, it has not got any better. Why? Because, the same people are making the rules. At every turn they use the rules to cover themselves. I don’t know why Cameron doesn’t just order Sky Sport to broadcast a news item saying she’ll pick whoever she wants. Just take a look at what her current “rules” say.

A swimmer must “Record a time equal to or better than the FINA A time” except “Swimming New Zealand may amend these selection criteria at any time in its sole discretion” and “In the event that a swimmer has in the 12 months prior to the Selection Event met the Performance Requirement, and is unable to compete at the Selection Event due to extenuating circumstances, the previous performance will be considered by the SNZ Selectors.”

Without question the confusion and contradictions commented upon by the Sports Tribunal in 2008 are alive and well in Swimming New Zealand’s selection policies today. Cameron likes it that way. Only the rule of her law is a priority in the Cameron world. Certainly if I were Kane Radford or Philip Ryan I’d be looking at turning SNZ’s confusion to my advantage. Both those swimmers should be on their way to the World Championship’s open water race in Shanghai – even if they have to go to their lawyers and the Sports Tribunal to prove it. And you pool swimmers out there, brief your lawyers well before you set off for the West Wave Pool in two weeks. You may well need them.

In response to my call asking Hayley Palmer’s parents about the Te Rina Taite case I have received the following email.

“At the time in which this case was heard we were not aware it was happening. When we read the case we felt physically ill.

We had always been puzzled by the decision not to try and send a (women’s 4 x 100m freestyle) relay team when a qualification slot was available to New Zealand and the invitation had already been received, especially when so much effort was being placed into getting a belated qualification for the Men’s team which did not hold a pre-qualified slot. Te Rina’s case was brought to our attention last year (2010) purely by chance and we were mortified when we learned of it, to the point where I personally called Te Rina Taite overseas to apologise for what she must have assumed was a betrayal by her fellow swimmers. I explained to her that we had been completely unaware of her action.

The claim is made in the case to which you refer and the whole decision hinged on the statement that Mr. Rushton had personally spoken to the other swimmers (by implication our daughter) asking if she wished to swim again and also that Jan Cameron had spoken to our daughters coach and that she had been offered that opportunity which she had rejected. I can categorically assure you that no such approach or offer had been made to my daughter by either Mr. Rushton or my daughters coach. I cannot comment as to whether or not Jan Cameron had spoken with my daughters coach as she claims but I can assure you that no such offer to swim again was made to my daughter. Had it have been made then she absolutely would have swum as offered as she was desperate to obtain selection to the vacant relay slot. Attending the Olympics was her dream as it would have been Te Rina Taite’s dream and she would have taken any opportunity offered to help the team qualify. We feel very sorry for Te Rina especially given the efforts (which we applaud) that were made to allow the men’s team to qualify and the three month time window that was offered to them after the trials were completed.