Ineffective Assistance of Coaching

Dutch long-track speed skater Sven Kramer had another gold medal within his grasp in the 10,000-metre race this week. However an error by his coach led Kramer to an unfortunate disqualification. Each race involves two skaters, one of whom starts in the inner lane and the other on the outer lane. After each lap, the skaters switch lanes. As Kramer had switched from the inner lane to the outer (he had already been skating for an extensive period during this race), his coach Gerard Kemkers, momentarily confused, quickly and wrongly told Kramer to move back into the inner lane. Kramer did so and continued to race. After finishing (and otherwise winning) the race, Kramer was informed by Kemkers that he was disqualified and the reasons why.

Kramer was naturally upset and Kemkers, upon realizing his mistake, was devastated by his own error. It's worth noting that Kramer is a renowned champion at long-track speed skating and was primed to win the gold medal, barring any other mishap that might have happened notwithstanding Kemkers' faulty advice.

The application of the rules in sporting events can be quick and it can be harsh and in some cases perhaps excessively punitive. Where athletes commit a serious error due to their own negligence resulting in a disqualification, the decision will likely be considered 'legitimate'. However, where, as here the decision to change lanes was the result of the coach's improper advice, a complete disqualification seems less than fair or appropriate.

Although the rules that normally apply in the state-based legal system may or may not fit so neatly for various reasons within the sporting context not the least of which include the types of interests that are stake, both systems arguably share certain common features such as basic procedural and adjudicative fairness (or at least pay lip service to it). Take for example the instance of a criminal trial where a defendant is convicted in no small part due to failures on the part of his/her counsel to provide adequate representation. On appeal, if the defendant can demonstrate that his/her trial counsel was incompetent and the errors committed on account of such incompetence resulted in a miscarriage of justice, the conviction will be overturned and a new trial will be ordered. Proving incompetence however is a rather difficult task in practice. As a Supreme Court of Canada decision in one case attests, there is a

a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.

Returning to Kramer and Kemkers for a moment, athletes are like litigants in the legal process seeking to acquire a positive result. A sporting event can be like a trial or a hearing, some are long and drawn out, others short and brief. In all cases, they seek to get to the "promised land" through the assistance of "counsel" - the analogue for which in the sporting context is the "coach" or "trainer". A bond is built - one of trust. Like legal counsel, the coach/trainer helps to guide the athlete through their expertise of the process including both technical requirements and/or artistic nuances (as the case may be). Furthermore, as in litigation, the coach or trainer plots out certain strategies and tactics, some will work and some may not. Ultimately, in following such predetermined strategies and tactics an athlete like a client cannot thereafter claim that the result was unjust solely on the basis that a reasonable strategy failed to achieve the aims it set out to achieve.

However, what happens or ought to happen when a coach offers a rather sudden and quick yet unreasonable bit of advice which the athlete has little time to reflect on, but because of the established relationship of trust decides to follow it in the heat of the moment and in so doing culminates in a patently adverse and unfair outcome for the athlete?

Kemkers, it should be noted, has worked with Kramer on numerous occasions and through this relationship Kramer has won numerous competitions. Kemkers is himself a former Olympic bronze medalist in speed skating. His experience thus makes the error that much more unreasonable and below the standard expected of someone of his caliber and expertise. Furthermore, given his record in helping Kramer and his experience of the sport as a former speed skater, Kramer had little reason to doubt Kemkers' advice in the heat of the moment.

Assuming Kramer's disqualification was unjust and extreme under the circumstances, what are the alternatives? In the appellate litigation context, when a criminal defendant is able to successfully demonstrate that his/her trial counsel was ineffective, the remedy is normally to order a new trial. Except where it might conflict with other rules, one remedy might have been to allow Kramer to skate the whole race again, and perhaps alone. After all, another country's skater shouldn't be forced to re-race 10,000 metres just because Kemkers made an error. If this remedy would be considered reasonable, Kramer would likely deserve at least some time to recuperate physically before racing the 10,000 metres.

Given that Kramer completed the entire race, another alternative might have been to simply penalize him with a time deduction, rather than a complete disqualification. This might have cost Kramer the gold medal but may have kept him in medal contention depending on the extent of the time deduction.

All said and done, Kramer has stated that he has moved on and will retain Kemkers as his coach in light of their otherwise successful history together and the medals their collaboration has given rise to. Still, one cannot help but think that rules relating to such particular errors ought to be reconsidered to produce more just and equitable results.

Sources:

Raf Casert, "Sven Kramer Lane Change Error Loses Him Gold Medal" Huffington Post (24 February 2010), online: http://www.huffingtonpost.com/2010/02/24/sven-kramers-lane-change-_n_474601.html

Raf Casert, "Sven Kramer Keeps Coach After Devastating Gaffe" Huffington Post (24 February 2010), online: http://www.huffingtonpost.com/2010/02/25/sven-kramer-keeps-coach-a_n_476126.html

Michael Dew, "Ineffective assistance of counsel as a contributing cause of wrongful conviction" (19 November 2006), online: http://www.legaltree.ca/node/643#_ftnref65

R. v. G.D.B., 2000 S.C.C. 22, [2000] 1 S.C.R. 520.

http://www.thejusticeproject.org/national-agenda/court-rules-sleeping-lawyer-violated-defendants-right-to-a-fair-trial/

Citizenship of Sport

The Vancouver Winter Olympic games have raised many interesting issues, which will be discussed in a series of blog posts. The first matter which I would like to focus on, due primarily to its cross-cutting nature, is the relationship between citizenship and sport which has been manifested during the Vancouver games.

Traditionally, the Olympic games are considered showcases of both national pride and the unity that is shared by athletes regardless of their nationality or beliefs. This duality was apparent during the Opening Ceremonies, when athletes processed as part of national contingents and later collectively took the Olympian’s creed, which cuts across nationality to stress the shared beliefs and goals of those talented athletes who are able to call themselves Olympians. A touching demonstration of the universality of the Olympic spirit were the arm bands worn by athletes from all nationalities in order to honor Nodar Kumaritashvili, the Georgian luger who died during a practice run prior to the Opening Ceremonies.

In addition to these public and non-controversial manifestations of the universality of athletics, the Vancouver games – and the athletes who have participated in them - have also highlighted the more controversial idea of citizenship of sport, by which I mean the athlete’s identity as an athlete trumping his or her identity as a citizen or national of a particular state. During the Opening Ceremonies, there were a remarkable number of athletes who were competing for states not usually associated with winter sports. The stories of these athletes were noteworthy in that some are dual nationals and, while they learned their sport in one country of their citizenship, they nevertheless chose to represent the other country of their citizenship as Olympians.

As the games unfolded during week one, other stories of citizenship of sport have emerged. Some continue to reflect the dichotomy of dual nationals and their choice of state to represent. Others, however, are more unusual. Yuko Kavaguti is part of the pairs ice skating team of Kavaguti and Smirnov of Russia. Japanese by birth and ethnicity, Yuko had a dream to be an Olympian and reached out to a famed Russian figure skating coach as a teenager in order to pursue that dream. However, the Japanese pairs figure skating program could not provide Yuko with the support or training she needed to pursue her goal and so she moved to Russia to train, became a Russian citizen and competed for Russia at Vancouver. In the process, she was required to renounce her Japanese citizenship and change her name to sound somewhat more Russian. She did all of this because she is, I would argue, a citizen of sport.

Similarly, Allison Reed is a fifteen year-old ice dancer who, along with her partner Otar Japaridze, is competing as part of the Georgian Olympic team at Vancouver. On the surface, there is nothing unusual about this. However, Allison is an American, who still resides in the US and only recently received Georgian citizenship as well. Her two older siblings are also ice dancers and compete for Japan, which is understandable given that their mother is Japanese. Allison, however, competes for Georgia because her ice dancing partner is Georgian.

This phenomenon of switching nationalities is not unique to the Olympic games, however it is particularly noteworthy, and arguably glaring, in the Olympic context. By drawing attention to these examples and to the concept of citizenship of sport I in no way wish to reflect on the propriety of citizenship of sport, other than to assert that it is likely easier to condemn the decisions made by athletes than to try to understand them. My purpose in writing this posting is to propose the existence of the concept of citizenship of sport and to suggest that it is likely to continue on in athletic competitions, especially as interactions between athletes and geography become more common, since, for example, many athletes compete and train in other countries than their country of nationality or citizenship. Citizenship of sport implies a new conception of societal belonging, replacing the traditional emphasis on nationality and national identity with the idea of being a skier, figure skater, or other athlete. It reflects the effort and dedication which athletes put into perfecting their craft, and asserts that the ability to display a life’s work of dedication and, typically, self-sacrifice should not be bounded by national rules and selection processes which might deny the athlete the opportunity to compete and pursue his/her dreams.

Certainly, nationality and citizenship are very personal considerations for anyone, particularly those who grew up dreaming that they would have the chance to compete for their country on a grand international scale such as the Olympic games. Citizenship of sport is no less personal, in that it encompasses the devotion of athletes to their sports and their desire to showcase that devotion, talent and sacrifice to the world. In the majority of cases, traditional concepts of citizenship and nationality co-exist with citizenship of sport to the benefit of the athlete and his/her country. However, it is important to acknowledge the existence of citizenship of sport and that it exists in a separate – though often intersecting – plane than traditional notions of citizenship and nationality.


For information on the athletes mentioned above, see:

http://www.nbcolympics.com/athletes/athlete=2504/bio/index.html
http://www.usatoday.com/sports/olympics/vancouver/figureskating/2010-02-18-ice-dancing_N.htm