More than 4,000 athletes from 150 nations are set to compete in 22 different sports when the 2024 Paralympic Games in Paris begin this week. The names selected have been confirmed over the last few months.
Selection can cause controversy, as it did at the Olympics where the Netherlands’ beach volleyball squad made international headlines – perhaps for the first time – following a contentious decision to pick Steven Van De Velde for the Olympic team, despite an extremely serious previous sexual offence conviction.
The approaching Paralympic Games, in conjunction with the Van De Velde story, raises the question: how does an athlete qualify, and who gets to decide who competes?
Selection criteria
Selection is a two-fold process. An athlete must be eligible according to the criteria set by their sport’s International Federation. This is largely a qualitative assessment based on criteria such as world rankings and/or, where possible, qualifying times, distances or other objective metrics.
To compete in the men’s 200m at the Paris Olympics 2024, an athlete either had to be sufficiently highly ranked in the world, or have run a recognised time of 20.16 seconds or better between 1 July 2023 and 30 June 2024. As this demonstrates, the standards for qualification in the largest events are exacting – 20.16 would have been enough for fifth place in the Tokyo 2020 200m final.
However, meeting these qualifying standards is not necessarily enough. It is not uncommon for participating nations to have more eligible athletes than they can field, so they must select from their stable of eligible athletes.
The National Olympic Committees of each participating state determine the criteria for this selection and generally incorporate additional factors into their decisions, including a degree of discretionary selection.
Most selections are fairly uncontroversial and follow the results of the relevant athletes, particularly in disciplines with quantifiable results. The fastest runners and highest jumpers will be put forward. But that is not always the case.
For the 2024 Olympics, Australian marathon runner Lisa Weightman lost out to compatriot Jessica Stenson, despite having a faster qualifying time. Athletics Australia opted for the younger Stenson, based largely on her superior record in major events.
Weightman initially intended to appeal the decision to the Court of Arbitration for Sport (CAS), but decided not to do so, given the costs involved and the fact that an overturning of the decision was unlikely.
Legal challenges
Costs and prospects of success are a key part of why few selection grievances are formally challenged. Neither the CAS nor the courts will interfere with a genuine discretionary judgement on which athlete is the better prospect for the Games.
The cases that go further are those which challenge the criteria itself. In Britain, the most famous example is Dwain Chambers. Chambers returned from a two-year doping ban in time for the 2008 Beijing Olympics, but could not compete for Great Britain because of UK Athletics’ “Bylaw 25”, which stipulated that Britain would not select any athlete previously banned for doping offences.
Chambers challenged this rule as a restraint of trade under English law, but was unsuccessful, with the English courts considering the BOA’s criteria to be proportionate to its legitimate aims of promoting clean participation and protecting the reputation of British Olympic participation.
However, Chambers was restored to Team GB in 2012, after the CAS determined that the lifetime bans imposed by the BOA (and, separately, the IOC’s previous rule banning athletes convicted of doping offences from at least one Olympic Games) were incompatible with the World Anti-Doping Code.
Dawin Chambers provided a rare case of a legal challenge to Olympic or Paralympic selection
What’s to come?
Selection disputes are relatively rare, but the importance of the Paralympics and Olympics, both as career milestones and as an asset for future earnings, is such that they will always attract the biggest selection controversies. However, the cost of pursuing these at private expense is such that few athletes will take the matter to its fullest extent.
With rules on post-doping ban eligibility now largely settled, remaining selection disputes are often centred around merit and discretion – an unpredictable area in which external authorities are reluctant to intervene.
However, Van De Velde’s case perhaps shows a glimpse of the next major selection dispute. The English courts have not held a lifetime doping ban to be a restraint of trade, but it remains to be seen how different national courts would approach a refusal to select an athlete based on criminal record or other moral controversy.
With Van De Velde included, the question was not answered at the Paris 2024 Olympics, and we will likely not see it answered at the Paralympics either – but it is perhaps only a matter of time before the question is tested on regulatory or judicial grounds.
As the rules stand, the Netherlands Olympic Committee had to address the complexity of the matter and the controversy without contravening the regulations and pragmatically decided to prohibit the athlete from staying in the Olympic Village and talking to the media, thus distancing itself from the athlete’s actions and striving to maintain the image of the organisation, as well as, more generally, the integrity of the Games.
Serge Vittoz, Counsel (Geneva), and Daniel McDonagh, Associate (London), both work at law firm Charles Russell Speechlys.