Aggrieved athletes who believe they've wrongly missed out on national selection are taking on the decision-makers in record numbers.
Eleven cases were filed with the Sports Tribunal 2020/21 disputing decisions made by National Sporting Organisations (NSOs) and the New Zealand Olympic Committee (NZOC) - nearly double the number of cases in each of the previous four years and the most cases in more than a decade.
Seven of the appeals related to selection or nomination for this year's Tokyo Olympics.
Most cases over the last year were resolved or withdrawn prior to a formal hearing by the Tribunal.
Of those cases that did get a hearing, none were upheld.
The Tribunal expected a spike in cases challenging selection decisions ahead of a major event such as the Olympics, Commonwealth Games or World Cups but the last year had been unprecedented.
A short turnaround to the next Olympics in Paris in 2024 and next year's Commonwealth Games could keep the Tribunal busy as athletes increasingly took every avenue open to them to chase their dreams.
The Covid-19 pandemic and cancelled qualification events for the Tokyo Games contributed to the increase in recent cases, but the trend of athletes taking on NSOs and the NZOC can be tracked back through Tribunal data to a turning point in 2014.
In the 2014/15 reporting year appeals to the Tribunal against non-nomination and non-selection overtook appeals regarding disciplinary decisions for the first time.
At the time, Tribunal chairman Sir Bruce Robertson wrote in the Annual Report: "It is abundantly clear that a number of national sport organisations (NSOs) critically require a revision of their selection processes so that they are in a form which is easily understood by all athletes and not so overborne by legalese that they are not immediately accessible to all."
The following reporting year Robertson was still writing about the Tribunal's work with non-selection cases which he described as "demanding challenges" ahead of the 2016 Rio Olympics.
"In most cases there has been a less than optimal level of communication within the particular sport. Not surprisingly an athlete on the cusp of selection will have made an enormous investment in their activity. When they are simply told they have not been nominated there will be frustration, disappointment, and sometimes anger. More effort needs to go into explaining why the decision has been made," he wrote in the 2015/16 Annual Report.
Athlete selection is back under the spotlight just months after the completion of the Tokyo Olympics after Cycling New Zealand admitted to breaching the rules during the Games.
Barrister, and Tribunal member, Don McKinnon was asked by NZOC to investigate and found the process to replace an athlete during a cycling event had not been conducted according to International Olympic Committee and Union Cycliste Internationale (UCI) rules.
"I honestly still don't understand why they felt I'm not good enough to go to the Olympic Games"
Natalia Kosinska when she was named in the 2014 New Zealand sailing team. Photo / Photosport
Windsurfer Natalia Kosinska could understand why athletes raised concerns about selection processes and expected more athletes to do so in the future.
Kosinska qualified a spot for New Zealand in the RS:X at the 2016 Rio Olympics but Yachting New Zealand (YNZ) opted not to send an athlete in that class.
It was the first time that New Zealand was not represented in boardsailing at the Olympics in more than 30 years.
Kosinska challenged the decision at the Sports Tribunal in May 2016, under urgency, on the grounds that YNZ had failed to properly follow or implement its selection policy in that it failed to apply certain nomination criteria and reasonably exercise its discretion under its selection policy; failed to provide Kosinska with a reasonable opportunity to satisfy the eligibility criteria, and the nomination decisions were affected by apparent or actual bias.
The case was dismissed by the Tribunal and Kosinska never made it to an Olympics.
"I was angry enough that I couldn't just accept the decision, I felt like I just needed to at least put up a fuss," Kosinska said when she reflects five years later.
If she had had more time and more money Kosinska believed the appeal outcome would have been different.
Kosinska was originally from Poland and arrived in New Zealand in 2007. She worked in administration for YNZ and after the 2008 Olympics YNZ were scouting for new talent and suggested the former world youth champion compete.
She qualified for the 2012 Olympics but was not nominated by YNZ for the Games - a decision she said she could accept after minimal build-up and a plan to compete at the next Olympics in Rio.
"Sport is tough and you make it or not but I think that if the organisation you are a part of if they are fair and you know things upfront it's just easy to accept those tough decisions but I don't think that is the case with Yachting New Zealand."
Looking back, Kosinska said if she could have afforded to she would have got a lawyer involved sooner ahead of the 2016 Olympics.
"In yachting it is actually quite common that athletes challenge the organisation, they go to court, but as an athlete I didn't know that and also I didn't have money for a lawyer."
Two years into an Olympic cycle Kosinska said athletes signed a contract that outlined the events selectors would take into consideration when nominating an athlete for the Olympics.
Kosinska said athletes were not allowed to have the document reviewed by anyone.
"It gives selectors absolute discretion so in the end it comes to those three people thinking that you likely to win a medal or not and I think that's an issue because it is much easier for the competitor to accept that they're not going to the Olympics if the selection is based on results purely and in New Zealand it's not."
Natalia Kosinska in action during the 2014 ISAF Sailing World Championships. Photo / Getty
In Poland results determined if an athlete was nominated but Kosinska believed other factors were at play in New Zealand.
An email leaked to Kosinska and other unsuccessful New Zealand sailors, by a sailor from another country, showed YNZ had no intention of sending windsurfers or Laser Radial to the 2016 Games.
"Yachting New Zealand sent an email to the International Federation in 2014 and they confirmed seven out of 10 Olympic classes, even though that was prior to the Olympic selection, and it happened that the three classes that they didn't confirm were the oldest sailors.
"Which is sad because you've got this Olympic philosophy and apparently age shouldn't be an issue, but it is."
Kosinska was 35 at the time.
"You see sailors who potentially had results worse than you, but they're younger and a parent is involved [in sailing], and they're going, that's hard to take."
YNZ said it was "very happy" with the process behind Olympic selections made in recent times and selection policies are "rigorous and reviewed regularly".
"The Yachting New Zealand Olympic selectors are independent appointments - Yachting New Zealand high performance staff members and coaches are not part of the selection process - and there is a separate selection committee for each class of boat.
"Yachting New Zealand recently reviewed the selection policies as part of our debrief of the Tokyo Olympics and the overwhelming feedback from sailors and coaches was that the selection process was clearly understood, very fair and that the bar was set at a high level for very good reasons.
"We make no apology for the fact we set high standards for our sailors, and that they need to attain higher levels of success than many other Olympic sports in this country.
"This is clearly communicated to sailors when they begin Olympic campaigning. For us, the Olympics is about performing. Participation is important but not a priority when we have limited funding to support campaigns capable of winning medals for New Zealand."
Kosinska knew going to the Tribunal could end her career and put on her on the outer with YNZ. In that regard she said her experience was not unique.
"Seems like it is an issue across sports and it's definitely a problem for athletes if you are not happy with your federation and you voice your criticism you are really being outed and usually first they cut your funding and then usually your results are not that great so really they get rid of the problem that way.
"I hope in future there will be a way for an athlete if there is a problem with selection that they can go somewhere independent that they are 100 percent sure that their organising body won't find out and just clarify it. Athletes often are tired because they train hard so sometimes you start questioning your thoughts, are they reasonable or not, so to have a sounding board that you can talk to someone and then if there is potentially a wrong doing on the federation side you know that the action will be taken."
The appeal was mentally exhausting for Kosinska but she would "strongly advise" other athletes who found themselves in a similar situation to challenge a selection decision they felt was unfair.
"I honestly still don't understand why they felt I'm not good enough to go to the Olympic Games.
"You put so much work and money into it that you need to fight to the end I think. I don't wish it on anyone, I have a 2 and half-year-old daughter and I hope she will never be in a situation like that, I hope we can prevent it in the future."
"My theory is you must be able to sleep straight at night knowing you did everything you could to wear the fern"
Andrea Hams (nee Miller) is a hurdler turned weightlifter. Photo / Photosport
2010 Commonwealth Games bronze medal-winning 100 metre hurdler Andrea Hams always knew where she stood in track and field but when she changed sports she faced a battle for transparency.
Hams (nee Miller) suffered an injury preparing for the 2012 Olympics that ended her athletics career.
She switched her focus to weightlifting and had her sights set on competing at the 2016 Olympics but was not nominated by Olympic Weightlifting New Zealand (OWNZ) for New Zealand's sole female spot at the Games.
"At the time I was the number one ranked weightlifter in New Zealand based on sinclair ranking and ranked ahead of the selected athlete - so felt it was worth appealing the process," Hams said.
However the Tribunal dismissed the case in which Hams cited selection bias and said OWNZ had "wrongly exercised their discretion to nominate [another lifter]".
The decision to appeal was a hard one, Hams said.
"I knew I had very little chance of changing the outcome so I knew I was likely going to feel the heartbreak all over again, but also because another athlete had worked just as hard and been given the green light for Olympic selection, it was not a nice thought to know that this would create stress for them."
"My theory is you must be able to sleep straight at night knowing you did everything you could to wear the fern. Also, those selecting need to know they are accountable for their actions and decisions."
Frustration is the overriding feeling that Hams recalled from that time.
"The process used for selection was far from transparent.
"I did not feel like I was able to speak or be heard during the [Tribunal] process, and there was poor understanding of comparing weightlifters from different weight classes articulated to the tribunal members.
"It was also very hurtful to be told that one of the selectors believed me to have 'taken myself off to hospital' when I became sick during [qualifying event]. If anyone knows anything about me as a competitor, I would never concede, I keep fighting with everything I have as an athlete."
Hams was in a good place to compare her two chosen sports and she said the experiences could not have been more different.
"I certainly never felt unclear regarding the required selection for track and field. However, in weightlifting, in 2016, we did not even see a policy for Olympic selection until the end of the qualifying season.
"High Performance Sport and the individual sports within those are small and people have alliances with their clubs, athletes within those clubs and at times the athletes they coach... there are many direct and possibly more importantly indirect conflicts of interest which are not always clearly disclosed."
Hams hoped more people would make use of the Tribunal which gives athletes 28 days to file an appeal at the cost of $500.
"I don't think there is anything more personal than day in and day out living, breathing, and training for a singular purpose and so, when you are treated badly, and selection processes are not applied equitably it feels like a personal attack.
"In my opinion, today's athletes have more awareness and access to information than former athletes had previously, so people feel more empowered to speak up when things don't sit right."
Hams, who is originally from Auckland, last represented New Zealand in the 69kg weightlifting event at the last Commonwealth Games in her new hometown of the Gold Coast in 2018.
