Thoughts on a legal approach to Marchant and Duchene’s appeal

Lanni Marchant ran 2:31:50 and Krista Duchene ran 2:32:06 in Rotterdam, faster than the IAAF Olympic A standard, but slower than the Canadian A standard.They are appealing the decision to leave them off the team, and hope they can convince the COC and AC of the value of taking them to London.

I’ve said it before: making emotional arguments about the value this would have to Canadian running generally, or to Canadian women’s marathoning specifically, is a losing proposition. The arguments may be valid, but they won’t fly with the COC, or with AC, and they won’t fly in court, if that is where they intend to take this.

The courts have stated that they will not act as an appeal for COC decisions, as that body has the final say and expertise on the matter of Olympic selection. That said, they will intervene if there is an issue where the body that the COC has delegated to make a selection (i.e Athletics Canada) makes a decision that goes against their own selection criteria. So you can’t argue that you want an exception to the rules, but you can argue that the rules were not followed. If Marchant is a good lawyer, she should be able to figure out a way to couch her demand in such a way.

She could do it by calling the standards themselves unfair. She could argue that the standard for the women’s marathon of 2:29:55 is “patently unreasonable” (a good legal term!) given that athletes in all other events have the opportunity to qualify for the Olympics based on the A standard (which is the same as IAAF standard in the other track events) and a repeat B standard, as well as finishing in the top three at the trials. Since there are no marathon trials, these two women, ranked one and two in Canada in the marathon, would satisfy one of those criteria. The marathon standards are different than those for the other events in that they don’t require repeatablility. This is to the advantage of the athlete, as it’s harder to repeat a marathon performance, than it is a 5k performance, obviously. The qualifying window is open longer and closes earlier for just this reason. But because of that difference, the opportunity to qualify under an A+B+top three scenario is lost. So the question I would make the court decide is, is the qualifying procedure unfair to marathoners. It might be tough, though, because the reason it is different in the first place (everything but the tougher mark required) is to help athletes qualify.

The other thing the court would have to look at is whether it is fair to other marathoners to essentially declare the standards invalid, as many other athletes were working under the assumption that there was only one way to qualify. It is conceivable that someone like Megan Brown, who recently ran a 15:44 5k, might have made a marathon attempt if the standard was 2:37 not 2:29:55. There is quite a large gap between those standards, and an athlete and her coach may have calculated that an expected performance may have fallen under one standard, but not close enough to the other to be worth the slog of marathon training for this year. This seems a reasonable defense against granting an appeal, and I wonder what Marchant and Duchene would say to their compatriots in Canadian women’s distance running? Interestingly a court in New Brunswick once ruled that a fight-off was a fair way to settle a Canada Games selection in judo. It would not really make sense for the women involved here to race-off, in the case that the selection process is found wanting. So if Marchant and Duchene want to go down the road of “fairness” they may end up shooting themselves in the foot.

In any case, I look forward to seeing what Marchant, a lawyer specializing in sports-law, has to say in her appeal. I sincerely hope there is very little drivel about what it would mean to Canadian marathoning to send someone, and that she finds a creative, but legal way to show that marathoners are literally held to a different standard than, not the rest of the world, but the rest of Canadian track and field athletes. If she can do that, she might win.