A just released decision has provided welcome guidance on when an athlete can appeal a selection decision to the Sports Tribunal where the complaint is primarily directed at the selection of another athlete.

In McArthur v Fencing New Zealand,^[1] Mr McArthur appealed after lower-ranked athletes were selected instead of him for the 2026 Fencing World Championships. He argued that he should have been selected as the selection policy, which was largely based on rankings, had been misapplied. The Tribunal agreed, allowing Mr McArthur’s appeal.

Fencing New Zealand (FeNZ) queried whether the Tribunal had jurisdiction to hear the appeal, noting that the substance of the appeal involved a challenge to the selection of another athlete. The FeNZ rules only allowed appeals where an athlete challenged their own selection. Not that of another.

The Tribunal determined that it did have jurisdiction.

Jurisdiction where another athlete’s selection is challenged

A jurisdictional issue that can arise in selection disputes is whether an athlete is really appealing their own non-selection, or the selection of someone else. That matters as sports rules often allow the former, but not the latter.

In Yachting New Zealand v Murdoch & Ors,^[2] the Court of Arbitration for Sport held (overturning the lower Sports Tribunal decision) that it did not have jurisdiction to hear Mr Murdoch’s and others’ appeals against the selection of another athlete instead of them, as their appeals were not really against their own non-selection.

In the present case, the Tribunal found that it did have jurisdiction to hear Mr McArthur’s appeal. Yachting New Zealand v Murdoch was distinguished on the basis that Mr McArthur had met the relevant nomination and eligibility criteria for selection, whereas the athletes in Murdoch had not.

Inherent in any challenge to an athlete's own non-selection is an effect on the selection of others. The Tribunal took the view that this does not affect jurisdiction, provided the appeal is directed at the circumstances of the appellant's own selection rather than at the selection of another athlete in its own right. So, although the Tribunal did, in practice, address a substantive challenge to another athlete’s selection, the appeal was still treated as an appeal against Mr McArthur’s own non-selection. Thus, the Tribunal took a narrow view of the CAS findings in Yachting New Zealand v Murdoch.

The two athletes who were selected instead of Mr McArthur were involved in the case as interested parties.

Selection policies must be applied according to their terms

The Tribunal’s decision also reinforces a simple point: if a sport has a written selection policy, selectors need to follow it. The Tribunal’s finding that the selection policy had been incorrectly applied demonstrates the importance of having selection policies that are clear and free from ambiguity.

First, the Tribunal noted that a broad goal, such as picking the strongest possible team, did not allow the selectors to ignore the policy’s specific emphasis on an athlete’s ranking in determining selection.

Second, the Tribunal held that selectors did not have a general discretion to move lower-ranked athletes ahead of higher-ranked athletes unless the policy clearly allowed that under the exemptions. There were specific exemptions for matters such as injury and living overseas, and a separate catch-all exemption for “other extenuating circumstances”. The Tribunal held that the selectors misapplied the policy when they used the catch-all exemption to repackage circumstances that were already covered by, but did not quite meet, the more specific exemptions.

Bias: a high threshold under the Tribunal’s rules

The Tribunal also considered an argument raised by Mr McArthur relating to bias. One selector had a long-standing coaching relationship with one of the selected athletes. Although the selector disclosed the conflict and did not vote, he remained involved in selection discussions. The Tribunal said it would have been better if he had stepped aside completely in relation to that athlete’s selection.

Despite this, the bias argument still failed as the Tribunal’s rules required proof of actual bias, rather than merely establishing apparent or perceived bias. This decision demonstrates how “onerous” it can be to prove actual bias in sporting selection decisions.

Simpson Grierson assisted FeNZ in this appeal.

Special thanks to Neha Pannu for her assistance in writing this article.