The Coach's "Discretion" in Making Selection Decisions

The Coach's "Discretion" in Making Selection Decisions
Coaches Report - Fall 1999, Volume 6 Number 2
From http://www.sportlaw.ca/articles/coach/coachtofc.htm
---
How much discretion should a coach have in selection decisions? How much discretion can a coach have? In the period leading up to the Pan Am Games we dealt with a flurry of appeals about selection decisions, many involving the issue of discretion. While not a new issue, there are some subtleties about discretion that deserve further discussion.

"Discretion in selection" means giving the selector (let's assume that person is the coach) an opportunity to exercise judgment and choice in coming to a decision. How much discretion is a matter of degree. At one end of the continuum, the coach is given no discretion, because selection is based entirely on objective criteria such as time or rank. There is nothing to evaluate and no choices to be made.

At the other end of the continuum, the coach may be given complete, or absolute discretion. The coach chooses whomever she wants based on whatever factors she considers relevant. And, of course, there are all kinds of situations in between the two extremes where the coach has varying degrees of discretion.

Perhaps the most common of these situations involved a group such as a high performance committee or a board of directors establishing the selection process and criteria and then allowing the coach to exercise his discretion in weighting, interpreting and applying these criteria to make decisions.It has been our experience that legal problems arise not because the selector has been given discretion, but rather, because of concerns about the amount of discretion actually granted and the way that it is exercised.

How Much Discretion?
The sport organization's policy document that sets out how the selection process will proceed and the criteria that will be considered should be carefully drafted so that it reflects exactly what was intended in terms of who does what and how much discretion each party is intended to have. Ambiguous wording, incomplete directions and inadequate explanations give rise not only to misunderstandings, but may also provide grounds for appeals of decisions.

The coach must look very carefully at (and clarify) how much discretion he or she has been given and how that discretion might be constrained. In one recent appeal, the high performance committee established a list of criteria the coach was obliged to consider but did not define each criterion, rank each criterion or tell the coach how much weight to put on each factor. However, the coach was obliged to at least consider each factor; he could not ignore any one of the criterion. But what does "consider" mean?

Could the coach turn his mind to one of the factors, decide it had no relevance in the present situation and dismiss it by putting no weight at all on it? Probably not, but the way in which the criteria are to be considered should be carefully phrased in the selection process so that everyone – athletes and coach together -- understand what is to be considered. For example, wording such as "consider and take into account" tells the coach she must put some weight on each factor, but not how much.

Abuse of Discretion
The coach must work within the terms set out for the exercise of the discretion given to him. Not doing so is technically known as an abuse of discretion. An abuse of discretion is always reviewable through an internal appeal (or by a court if the sport organization has no internal appeal process).

Examples of an abuse of discretion that may be open to review are considering irrelevant factors that have nothing to do with the selection, or, alternatively, not considering relevant factors. Treating athletes within the selection process differently (for example, weighting a factor differently with different athletes, or making an injury exception for one athlete but not another) is improper, as is exercising the discretion arbitrarily or for an improper purpose. It might be argued that not selecting a certain athlete as a form of sanction for past indiscretions or behavioural problems is an exercise of one's discretion for an improper purpose (that is, for reasons of discipline, not selection). Behavioural problems should be dealt with through the discipline policy (for example, a particular sanction might preclude an athlete from eligibility for future selection).

Assuming the discretion is exercised properly, the greater the discretion given, the less room there is for a review. An appeal panel should not substitute its own view or interpretation of the criteria for that of the coach if the coach has been given the discretion to make those interpretations herself. The panel's only job is to make sure the discretion was exercised within the bounds dictated for it.

Given this, it might be tempting to say, "Well, lets give the coach absolute discretion to make selection decisions". From a legal standpoint, that may be perfectly acceptable. But from the perspective or making sure the competitive goals of the organization underlie the selection process and criteria and ensuring athletes know ahead of time the selection criteria, and perhaps have a part in their determination, according the coach absolute discretion may be ill-advised.

It is always an invitation to an allegation of arbitrariness in the selection (and thus reviewable) if effort is not spent reviewing how the discretion has been exercised and the selections made (regardless of the degree of discretion). It is always an excellent practice to provide a rationale for the selection or non-selection of each athlete, given that one of the greatest reasons for selection appeals is a lack of communication as to how and why an athlete was not selected.

Organizations need to consider very carefully how much discretion they wish the coach to have in the selection process and the implications of granting such discretion. The scope of that discretion needs to be clearly and fully set out for everyone to see, as well as any factors the coach must consider and how she must consider them. And the coach must be very clear about the extent of her discretion and be able to support the fact that the discretion was exercised properly. The easiest way to do that is to provide a full rationale for selection decisions in light of selection criteria.