Lawyers who have represented a number of riders in cases involving the FEI have raised concerns about the appeals process, while British dressage rider Richard Davison asks whether a form of mediation would be a better solution. H&H finds out more...
CRITICISMS have been levelled at the FEI appeals process, with concerns over the structure and questions about its independence.
The case of Sri Lankan showjumper Mathilda Karlsson – who lost Olympic ranking points, and her country its individual Tokyo spot, after an FEI investigation – has led to riders and lawyers speaking up.
Ms Karlsson’s appeal against the FEI’s decision to remove classes held at Villeneuve-Loubet from the ranking points was dismissed by the FEI Tribunal (news, 25 June). The classes had been added to schedules after the definite entry deadline, but the additions were approved by the FEI and the French federation.
Their removal meant Ms Karlsson lost points and dropped out of Olympic qualification.
Her lawyers, Piotr Wawrzyniak and Luc Schelstraete of Dutch firm Schelstraete, have represented a number of clients in cases involving the FEI.
“We think the structural approaches of the FEI are not right, in more than one area,” Mr Schelstraete told H&H. “We’ve had a number of experiences that raise serious concerns.”
Mr Schelstraete said one issue is the fact everything to do with each case is kept confidential; so if a decision is not published on the FEI’s website, as not all are, nothing to do with it may be cited in another case.
Mr Wawrzyniak said: “It’s about an objective and professional approach towards stakeholders, which the FEI seems to lack.”
Mr Schelstraete cited the case of two Ukrainian dressage judges who lost their appeals against suspensions for “nationalistic” judging (news, 15 December 2016).
He said the lawyers asked for the evidence on which the FEI had based its decision, and explained the Tribunal told the FEI to disclose evidence and communication with the dressage committee, but this did not happen.
“According to the FEI, there was nothing,” he said. “In a civil court, if this is the case, you will win as there’s no evidence. The FEI and its legal department didn’t obey the instructions to disclose, but nevertheless, our clients were suspended.”
The lawyers also criticised the process of informing riders of regulatory and disciplinary decisions unrelated to doping, as they said they are told nothing but the decision itself.
“In Mathilda’s case, we had an email from the Tribunal asking us to name our witnesses for the hearing, then there was an email from the FEI legal department saying we weren’t allowed witnesses as we didn’t name them in our appeal submission,” Mr Wawrzyniak said. “But we hadn’t specified any because we hadn’t seen the file. We need the file to be able to put witness requests in; the Tribunal should think about due process and a fair trial.”
Independence
Mr Schelstraete questioned whether the FEI Tribunal is as independent from the FEI as is claimed, especially as it is chaired by an FEI dressage judge.
There is no specific allegation of impropriety or bias made against the chairman, rather the criticism is one of a potential for or perception of bias.
“Who writes the decisions?” he asked, adding that in Mathilda’s case, there was no one on the panel who knew about showjumping. This meant long discussion of FEI jumping rules, “but the Tribunal always accepts FEI rules because they don’t know how it works”.
“We’re not convinced this is objective or independent,” he said. “For us there’s no fair trial.”
The lawyers would like to see modernised regulations and more rights for riders, with full documentation released, and Tribunal panellists who are nothing to do with the FEI.
“We need more checks and balances, and better procedure,” Mr Schelstraete said. “This isn’t acceptable; something has to change.”
Mediation
TOP British dressage rider Richard Davison also raised concerns about the FEI’s dispute-settling process, in response to Ms Karlsson’s case.
“I’d like to have a discussion with the FEI about whether there’s a better way to resolve some disputes than a Tribunal hearing,” he told H&H.
Richard believes a mediation route might be more helpful rather than the adversarial approach, especially in cases such as Ms Karlsson’s.
“A lot of other sport governing bodies are going down this route,” he said.
Richard agreed with the lawyers in questioning the fact it was Ms Karlsson who suffered, when the FEI had acknowledged it was at fault, and that she had paid all her costs to get to the show on the basis that it was above board.
Richard also agreed that perhaps the Tribunal should not be chaired by a FEI judge, as “any official who wanted to be upgraded would have to be pretty brave to find against the governing body”.
An FEI spokesman said all final Tribunal decisions are published online except cases involving minors or issues related to safeguarding. Preliminary Tribunal decisions are not published as it would not be appropriate when the “merits of the case have yet to be adjudicated on; this is in keeping with the established practice of the Court of Arbitration for Sport”.
In Ms Karlsson’s case, the FEI said her points had not been validly earned, and the decision was “not arbitrary, but rather necessary to assure fair and equal conditions for all riders”.
The spokesman said the suspension of the Ukrainian judges was upheld by the Tribunal and the Court of Arbitration for Sport (CAS), which “rejected the judges’ arguments regarding any procedural irregularities”.
The FEI Tribunal is elected in accordance with the FEI statutes, in particular article 38.6 which states: “The FEI Tribunal shall be composed of a chair and a minimum of six other members, each with legal expertise and appropriate knowledge and experience of equestrian sport.”
All Tribunal decisions are appealable to CAS. The appellant nominates one panel member, the respondent another and the president of the CAS appeals division nominates the chairman.
CAS jurisprudence has long established that any perceived procedural irregularities in the underlying proceedings are “cured” by the “de novo” nature of the appeal.
H&H, 22 October 2020
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