Sport evokes passion.

Think of the last argument you had with somebody about a sport. … did it become emotive?

Now imagine that the argument takes place in a Court.

Witnesses, lawyers, technical legal arguments and don’t forget the costs!! Hardly the appropriate forum.

Minimising this risk is something any sports organisation must address. Regardless of how menial an argument may seem, it has the potential to escalate and result in serious implications.

Look at the British Athletic Federation (BAF), the predecessor to UK Athletics. It went into administration in 1997 because it could not pay substantial legal fees that followed a dispute between it and athlete Dianne Modahl.

In Ireland, the predecessor to the Athletics Association of Ireland, Bord Luthchleas na hEireann, spent 20% of its overall annual funding on legal costs one year. (In the case of Quirke v Bord Luthchleas na hEireann (1988) IR 83; (1989) ILRM 129 – This was a doping case in which the applicant sought a judicial review).

So, adopting the correct rules, method and forum to deal with sports disputes is crucial. Avoiding court is imperative.

What’s the alternative to litigation?

‘ADR’ (alternative dispute resolution) is the phrase of the day when it comes to dispute resolution and alternatives to litigation.

Why? Well as the renowned Lord Denning once said; “Justice can often be done in them

(domestic tribunals/alternatives) better by a good layman than by a bad lawyer” (Enderby Town Football Club Ltd v The Football Association Ltd [1971]).

He was making the point that many disputes are wholly inappropriate for Court. The majority of sports disputes fall into this category. While I don’t think he was advocating a “Judge Judy” type alternative, what he was referring to was alternatives such as arbitration and mediation.

Both arbitration and mediation are very different types of alternatives – even though both come under the same ‘ADR’ umbrella.

Arbitration -vs- Mediation

Mediation is a flexible and ‘without prejudice’ form of negotiation overseen by a neutral third party called a mediator. Arbitration is more akin to a court hearing in a less formal setting, where an arbitrator delivers a decision which is final and binding.

I have outlined in Table 1 below the main advantages of mediation over arbitration in the context of sports disputes.

There is a growing tendency for NBG’s to escalate disputes within their sport as quickly as possible to arbitration, with little regard for mediation. Many disputes would benefit from the more collaborative, forward thinking approach of mediation which encourages both sides to understand the other’s viewpoint and arrive at a mutually beneficial agreement.

Once parties enter arbitration, they are on a more ‘adversarial path’. Legal battle lines are drawn.

Solicitors and barristers analyse each fact in detail. Witnesses are called, parties are cross- examined. The Arbitrator is judge and jury. His decision is binding.

For straightforward ‘black and white’, disciplinary matters (for example, a player appealing a red card or suspension), this is fine.

However, for less personality orientated grievances within sport, which usually manifest into formal complaints, then arbitration can be unsuitable, costly and a waste of resources. In fact, it can drive a larger wedge between parties within tight sports communities.

I was recently involved in a sports arbitration. Until that point, I too severely underestimated the practical differences between both arbitration and mediation. I saw a simple complaint about coaching standards end up in a two-day arbitration, involving highly legalistic preliminary issues requiring solicitors and barristers and associated costs.

I found myself questioning the suitability of arbitration for what was a complaint by the parents of a child against the child’s coach.

Surely some savvy mediator could have got the parties to kiss and make up.

Traditional approach to sports dispute resolution

This complaint about coaching standards had followed the normal course for sports disputes.

1. Firstly, there is an informal attempt to deal with it at the source – at club

2. If this fails, an independent and respected person is called on to bring the parties to compromise. However, unless professionally trained to overcome deadlock situations in highly emotive parties, this route is usually unsuccessful in resolving the

3. The dispute is escalated to the sport’s national governing body (NGB) to deal with under its Complaints/ Disciplinary

4. Under the NGB’s Rules, the dispute is referred to a disciplinary hearing’s committee who issue a

5. This decision is then appealable to an internal appeals body or directly to arbitration4.

Whilst that might work for the administration of justice of a disciplinary matter, it seems ham fisted for a complaint or grievance by one party against another.

Where mediation might fit in

 

Mediation statistics suggest roughly 80% of parties reaching compromise. A mediation lasts 1 day tops.

 From commencement to conclusion the process takes weeks. Lawyers aren’t really needed for a complaint type mediation. The cost of the mediator (modest by commercial terms) is borne by the parties but usually by the NGB.

Whereas NGB’s have voluntarily, or through encouragement from Sport Ireland, adopted Arbitration clauses within their rules to keep such disputes out of the Courts, they have by contrast been very slow on the uptake of mediation within their rules.

NGB’s can balk at the thought of underwriting the costs of a mediator when a complaint/grievance type dispute arises. However experienced CEO’s know all about the cost and resources that arbitration suck out of NGB budgets and personnel. We like ‘prevention is better than cure’ adage in Ogier Leman. Mediation prevents (by odds of 4 to 1) disputes escalating to arbitration. Mediation is so flexible that a settlement can involve a party saying “sorry” to the other party. In contrast arbitration is a rigid one trick pony – either a complaint is proven or not.Whereas NGB’s have voluntarily, or through encouragement from Sport Ireland, adopted Arbitration clauses within their rules to keep such disputes out of the Courts, they have by contrast been very slow on the uptake of mediation within their rules.

This author says its high time for NGB’s to take mediation seriously enough to adopt it into their rules to prevent young complainants being corralled down a legalistic arbitral route which only reinforces the grievance rather than solves it. Think of mediation like an air filter in a polluted environment.  It purifies the air.

My advice is to amend your rules as follows:

1.    Mandate the parties to a Complaint (but not a Disciplinary Matter) to refer their dispute to mediation;

2.    Provide for a formal mediation process where a mediator is appointed;

3.    Provide that the costs of mediation, be underwritten by the NGB ;

4.    Consider even that if either party to a complaint refuses to settle their dispute at mediation, then the party electing to refer the dispute to the next formal level is liable to pay a fee for doing so.

Irish Courts Approach

Don’t take my word for it. The Irish Courts have encouraged the use of mediation as an initial dispute resolution mechanism, and have repeatedly stressed their reluctance to intervene in sports disputes (See Gould -V- McSweeney & Ors, [2007] IEHC 5 (2007)).

In a recent statement on the issue, Justice Hogan emphasised that only in exceptional circumstances “involving something akin to fraud or manifest irrationality” would the courts intervene in sporting disputes (At Paragraph 39 and 40 in Hyland v Dundalk Racing (1999) Ltd t/a Dundalk Stadium [2014] IEHC 60).

In his Judgment, Justice Hogan expressed a “desirability, where possible, of having complex sporting disputes of this kind resolved either by mediation, or, should such fail, (emphasis added) by expert binding adjudication involving the appropriate mix of sporting and legal expertise.

The point here is his suggestion that mediation should precede arbitration and only when mediation fails should arbitration be used.

He also recognises the importance of “sporting expertise” in resolving a dispute. Mediators often have an interest in sport and come from a sporting background. Wouldn’t you be more comfortable arguing before a ‘sportsperson’ who knows your sport?

A move in the right direction?

Sport Ireland, Ireland’s statutory sporting authority, has set about promoting arbitration and mediation through Just Sport Ireland (“JSI”) – a not for profit dispute resolution service for Irish Sport.

JSI offers both mediation and arbitration as an independent dispute resolution facility for Irish Sport. All new NGB’s who are seeking recognition and funding must now include a referral clause to JSI in their rules. To date 64 NGB’s have made provision in their rules for the referral of disputes to JSI.

There is no doubt, however, that the emergence of JSI in addition to the success of the GAA’s internal dispute resolution authority (the DRA), has brought a wider recognition of the benefits of ADR. However, there still remains an under appreciation, where a complaint/grievance sports dispute is concerned, of the advantages of mediation compared with arbitration, and that is reflected in the absence of mediation provisions in most NGB rules.

Conclusion

It’s time for NGB’s to formally adopt mediation into their rules and make it a compelling route for complaints of an appropriate personal nature to be resolved by formal mediation underwritten by the NGB.

 Believe me – it will save the NGB money in the long run.