On July 25, the Sport Dispute Resolution Centre of Canada published an arbitral decision stating that Canadian eventer Jessica Phoenix appealed to the SDRCC when she didn’t make the Olympic team. Phoenix won that case and replaced Kathryn Robinson on the team, and she went on to finish 38th in Rio de Janeiro with Donald Leschied’s A Little Romance.
Now the country’s national equestrian governing body, Equestrian Canada (formerly Equine Canada), has been ordered by the same arbitrator who oversaw the case, Robert P. Armstrong, Q.C., to pay $35,000 towards Phoenix’s legal costs.
In an Oct. 6 document Armstrong, who was appointed as an independent arbitrator in the original case, noted that financial reward is rarely given except in exceptional circumstances. Phoenix sought approximately $50,000.
Armstrong cited a 2004 case, Boylen v. Equine Canada, in which Richard Pound, Q.C., said that egregious conduct by a sports organization may attract costs on an increased scale.
Phoenix’s counsel argued that their case was “exceptional” because Equestrian Canada acted in an “unprofessional” and “objectionable” manner and “in bad faith” during the original hearing.
Phoenix’s original argument for her inclusion on the team claimed that the selection process was unfair, and that she should have been named to the team with A Little Romance or Pavarotti, but team coach Clayton Fredericks cited fitness concerns with her horses. Phoenix also testified that Fredericks approached her in the barns at a competition and told her she’d ruined her chances at making the team by not running Pavarotti cross-country during a selection event.
Equestrian Canada’s counsel argued that national sports organizations have limited financial resources and an award of cost would mean less money for others who were not involved with the case, as well as the fact that there was no evidence supporting bad faith on the part of the organization.
But Armstrong did not accept Equestrian Canada’s argument.
“In my view, the evidence in this case clearly establishes that this is an exceptional case,” he stated in the document. “Ms. Phoenix and the Claimants were subject to a process, which could not withstand scrutiny. Persons in the position of Ms. Phoenix and the other Claimants must be subject to a process that has the objective appearance of fairness. This case manifestly did not have the appearance of fairness. Indeed events turned out exactly as they were predicted by the coach. Minutes of the meeting of the Selection Panel are deficient in respect of the failure to mention Pavarotti and simply wrong in respect of A Little Romance. I conclude that there should be an award of costs in favor of the Claimants.”
He concluded a reasonable cost would be $35,000.
When contacted, Phoenix did not wish to comment on the result of the case.
“Regarding the Jessica Phoenix et al. vs Equestrian Canada, EC accepts the decision of the Sport Dispute Resolution Centre of Canada,” said an Equestrian Canada representative in an emailed statement. “We do not intend to issue further comments as we consider the matter closed.”