Terceira wins landmark case against BOA
Equestrian Jill Terceira believes her landmark case against the Bermuda Olympic Association is a “win-win for all athletes” after the Court of Arbitration for Sport ruled in her favour.
The show jumper took the BOA before the CAS in Lausanne, Switzerland, after being banned from representing Bermuda for three years because of two breaches of conduct at the Pan American Games in Toronto in 2015.
She received a one-year ban for wearing traditional red Bermuda shorts instead of a skirt during her horse's veterinary inspection and a three-year ban for an alleged security breach at the Athletes' Village.
The two-times Olympian's 3½-year battle with the BOA was finally brought to a close in January when the CAS ruled the bans were disproportionate to the offences and that written reprimands would have sufficed.
The result is that the BOA is facing a six-figure payout, including approximately $45,000 that has to be reinstated to Terceira as funding she would have gained as an Elite A athlete from the time it was revoked, $5,000 towards her court expenses, and an amount to be determined by the CAS for its costs — which could be as much as $50,000.
“I had to take my case further to CAS to seek justice,” Terceira told The Royal Gazette. “I am pleased and very thankful for the winning result. Fairness, integrity and impartiality was shown by the Swiss court.”
The BOA declined to comment yesterday.
The CAS ruled that Terceira had “substantial reason” for her uniform violation, as the skirt was provided to her only when she arrived in Toronto and was too long to run with her horse. The same-style shorts were worn by the island's male and female athletes at the opening ceremony of the Olympic Games in Rio de Janeiro in 2016.
The CAS also said that there was no evidence of security being endangered by the alleged breach at the Athletes' Village.
It found that the steps the BOA took during its proceedings against Terceira “violated principles of natural justice” and that it had retroactively applied a revised constitution that “included a very complex and detailed dispute resolution and provision” and “rather confusing rules” designed to prolong an already exhaustive process.
The security violation centred on Terceira's request for her official support team — her trainer and her horse's co-owner, who was her 77-year-old mother — to stay at the village after their accommodation fell through.
Although that request was denied by Carlos Lee, the Bermuda chef de mission, Games officials granted permission and upgraded their accreditation to allow them to stay in the unoccupied room that was already paid for by the BOA.
The next day Heidi Mello, the chef d'equipe for the equestrian team, and her assistant, Jaime Masters, discovered the support team had stayed at the village and called the police to have them escorted from the premises.
“It was an absolute nightmare,” said Terceira, who believes the stress and worry from the two episodes had an adverse effect on her performance at the Games.
“As an athlete, things should be made easy for you by the officials. My last day of competition was a disaster. There was so much conflict going around.”
Six months after the Games, Terceira received a letter from the BOA informing her that she was being investigated by its Disciplinary Committee, which was set up only after the Games concluded. The committee included chairman Austin Woods, a former BOA president, Larry Mussenden, James Amos, Debbie Jones-Hunter and Jenny Smatt.
The CAS also determined that at the time of the Games there were no existing disciplinary policies or procedures contained in the BOA constitution, which simply gave athletes the right to appeal any decision to Lausanne within 21 days.
Terceira made numerous inquiries to the BOA about the investigation and the disciplinary process, but to no avail.
Furthermore, the 47-year-old did not receive any notification of the three-day hearing, where she received her punishment, a verdict that the CAS said was reached after the BOA applied rules against Terceira from a revised constitution that did not come into effect until 2016.
Lee, Mello and Masters attended the hearing as BOA witnesses, along with Ian Truran, on behalf of the Bermuda Equestrian Federation. The CAS determined that no explanation was given by the BOA's Disciplinary Committee on how it determined its sanctions.
“I felt [the bans] were far too harsh, so I appealed the decision to the Appeal Panel [which was also formed after the Games and chaired by Cindy Clarke], but it was upheld,” said Terceira, who was unable to qualify for the Pan Am Games in Lima, Peru, this summer because of her ban. Those games were her only means of qualifying for the Toyko Olympics next year.
She added: “I just felt abandoned and lost. I was like, ‘Now I have to stand up for myself and fight for all athletes who have had the system manipulated against them.”
Terceira took the BOA, the Disciplinary Committee and Appeal Panel to the CAS, a move she says the BOA objected but was subsequently overruled, as she felt the “whole system needed rectifying”.
She said: “Athletes need to be supported physically, emotionally and financially by the BOA.
“We should not be bullied, intimidated or abused by the BOA and its flawed system.”
In the CAS ruling obtained by The Royal Gazette, Jeffrey Benz, the arbitrator at the CAS hearing, said that the BOA had purposefully kept its rules from Terceira, despite her repeated requests for clarification.
He wrote: “The sole arbitrator is troubled by the idea that Ms Terceira had been brought within the dispute process long before the revised constitution was adopted, and then the procedures changed on her route to a final result.
“Members of sport governing bodies cannot be bound by rules prior to their enactment and notification to the membership.”
Benz continued: “The sole arbitrator observes that the appealed decision provides no reasoning as to how the BOA Appeals Panel arrived at a suspension of three years for the security breach and one year for the uniform violation.
“This makes it impossible for the sole arbitrator and, more importantly, the athlete, to know which circumstances influenced the severity of the sanction imposed on the athlete.”
Lawyer Kae Thomas Palacio, who represented Terceira at the two-day hearing held in Switzerland, in December 2017, and in Bermuda in April last year, welcomed the ruling.
“I am hopeful that the BOA executive will give substantive and procedural regard to the decision,” she said. “Consequently, improving its systems of governance and implementing effective and fair policies, processes and procedures.
“In light of the ruling, we will liaise with the International Olympic Committee to facilitate and ensure, in the interest of Bermuda and its athletes, that the BOA adopt and adhere to best practices and good governance in the execution of its mission.”
In the arbitrator's words
On uniform violation
With regards to the uniform violation, it appears that it was a relatively minor violation.
In mitigation of Ms Terceira's conduct was the fact that the BOA failed to supply her with the uniform pieces that would most likely clearly require hemming or tailoring in advance of the day before her first required opportunity to wear them.
Why the BOA would send polo shirts, which almost never require alteration, rather than the blazer and skirt it expected her to wear at official functions, makes no sense at all.
In addition, Ms Terceira provided notice in advance to at least one Bermuda team official of her issues with her uniform and her decision to wear the Bermuda shorts for the veterinary inspection rather than the ill-fitting skirt and was not told she must do otherwise.
On security breach
Given the acknowledged fault of the Games personnel in this episode, it is hard for the sole arbitrator to fathom why the BOA has determined to go so hard after Ms Terceira on what was a natural effort by an athlete to find accommodation for her entourage.
It appears the BOA administration was simply angry that after they denied her the room for her entourage she had requested, she found a way to convince the organising committee to give her that access.
Her efforts were facilitated by the Games personnel.
Yes, she had previously asked for permission for housing designation from the BOA personnel and was refused and so should have been aware that she was not entitled to these rooming arrangements through the BOA, but as an athlete who is looking out for the best interests of her individual competitive results, it is understandable motivation for her to try to find suitable housing that meets her needs if the BOA is going to prevent her from doing so.
In any event, no National Olympic Committee or other sporting organisation can have athletes going around the system carefully built around relatively scarce resources at the site of a Games.
Of course, the rest of the Games environment must also be on top of this issue, and the organising committee personnel failed the BOA and Ms Terceira in this regard.
On the BOA's ‘secretive rules and policies'
It is now commonplace for sports governing bodies to place new rules, or changes to existing rules on their website and to announce new, or changed rules in other forms and formats — such as newsletters, e-mail communications etc.
Rules cannot be kept secret to be effective. But here, the rules that the BOA sought to apply to justify its lack of exhaustion argument were kept from Ms Terceira, despite her requesting them and being given, mistakenly, the wrong set, and despite her repeated requests for clarification.
There was some considerable dispute as to whether the 2015 BOA constitution had come into force before sometime in 2016, after the IOC had approved it, and there was some contention based on facts adduced that the BOA had not put the 2015 by-laws into effect until sometime in 2016.