ADR Solutions and Approaches for High Performance Sports Disputes

On April 16th, 2015 in Seattle, Canadian ADR specialists working with the Sport Dispute Resolution Centre of Canada (SDRCC) made two presentations to the 17th Annual ABA ADR Conference focusing on ADR in the sports context. Our merry band of CBA-sponsored panelists included Marie-Claude Asselin (SDRCC), Paul Godin (SDRCC, CAS), Richard McLaren (SDRCC, CAS, FIA ICA, BAT), Richard Pound (SDRCC, IOC, WADA, ICAS), and Jeffery Benz of the U.S.A. (CAS, LCIA), with Carol Roberts (SDRCC, CAS) assisting. The ABA invited one of our distinguished panelists, Richard Pound, to present the conference’s opening plenary session, which was very well received by a diverse ADR audience.

The panel highlighted the SDRCC’s unique arbitration/mediation experience, along with recent international developments, and advanced online dispute resolution (ODR) methods. The SDRCC has jurisdiction to handle most national level amateur HP sports disputes. Although the ultimate form of resolution is by arbitration, using a nation-wide panel of sports ADR experts, the SDRCC has also adopted a mandatory mediation process (referred to as a resolution facilitation) in handling these disputes. In its first ten years, respect for the SDRCC has grown amongst athletes and federations. Canada is one of the few states to use facilitation processes in sports disciplinary proceedings like doping violations, and is a leading user of ODR approaches like virtual mediation and arbitration processes.

To begin, Marie-Claude Asselin, Jeff Benz and Richard McLaren summarized ADR processes in HP sports disputes in Canada, the U.S.A., internationally, and in various pro sports. Amateur national-level HP cases in Canada are typically addressed first at the sports federation level, with the SDRCC being the forum of final appeal. Cases include carding (funding) disputes, team selection disputes, doping violations and miscellaneous challenges such as complaints about federation policies and procedures. The SDRCC is one of the few organizations to make mediation a default mandatory step in the sport ADR process, subject to some discretionary exceptions. In the U.S.A., ADR processes include use of the American Arbitration Association, USADA (for doping violations), and other processes for niche disputes. many pro sports have adopted ADR processes in recent years, including baseball, basketball, golf and many others.

Mediation of non-doping cases has resolved a surprising percentage of SDRCC cases. Paul Godin and Jeff Benz identified the unique aspects of sports disputes (such as the sense of a “sport family,” the often small and interconnected world of a sport federation, the fear of decisions being “political” etc.)  The unique challenges thereof include hard urgent deadlines, highly competitive parties, win/lose situations like team selection, wide geographic separation of parties, involvement of minors, etc. Best practices from their experiences included the value of identifying common interests like ‘leave no athlete behind’ and “do what’s best for the sport/country.” Brainstorming workable options with athletes and their federation was highly effective.

Richard McLaren, a senior SDRCC and CAS arbitrator, walked through a number of current examples of arbitrations, both for non-doping cases, and doping violations. At the international level, such cases are generally dealt with by the Court of Arbitration for Sport (CAS), established in 1984. As noted by Richard Pound in his plenary talk, CAS was originally associated with the IOC, but is now a truly independent international body with its own jurisprudence (lex sportiva), governance, and expertise in sports law that is now recognized by most international courts as being worthy of significant deference in sports issues.

Drawing on his significant experience as an arbitrator of sports disputes, Richard Pound shared a list of best practices for arbitrators when facing sports cases. His checklist of questions for arbitrators to consider (re jurisdiction, issues, parties, process, rules, the standard of review, and orders) was a valuable aid for any arbitrator. In the sports context, issues like jurisdiction and the standard of review, for example, can be very contentious and are often misunderstood even by counsel, who may not have significant experience with sports cases.

Paul Godin discussed the controversial use of resolution facilitation (RF) in doping violation cases. Beginning as a pilot project, the RF process was used as an information sharing session (not a settlement discussion) between the Canadian Centre for Ethics in Sport (CCES- the enforcement body) and the accused. While initially resisted by the CCES because of strong public policy requirements for doping cases under the Canadian Anti-Doping Program, RFs in doping cases have proven helpful to both the CCES and many affected athletes. RFs are now a standard step in the doping violation process. While settlement is not the purpose of doping RFs, the hour long sessions generate increased shared understanding of the issues, improve the athletes’ knowledge and understanding of the complaint against them, and clarify the SDRCC/CADP processes. Athletes can share their perspectives, get their questions answered, and engage in dialogue with the CCES representative. While the CCES does not plea bargain in respect of the sanction, in certain cases, athletes can manage aspects of the sanction faced (such as the starting date of a suspension, and potentially even the severity of the sanction) by cooperating with the CCES in various ways.

Marie-Claude Asselin, the Director of the SDRCC, finished by reviewing the SDRCC’s legacy in its first ten years of operation. The SDRCC faces approximately 40-50 cases a year (almost half are doping cases). Of non-doping cases, more than 50% have been related to team selection complaints (athletes challenging selection of another athlete to a national level team). One of the significant challenges in HP sports cases is the very tight timeline that might apply (a decision may need to be rendered within hours in order to meet an external deadline). The SDRCC has developed a streamlined, highly time-efficient ODR process that has resolved cases from intake through to final arbitrated decision in three hours. Overall settlement rates vary from year to year, but average close to 40% over the first ten years.

Many thanks to the CBA, the Alberta South ADR Section, Dentons law firm, SDRCC and ABA for their generous financial and moral support of the panel.  The SDRCC website is www.crdsc-sdrcc.ca for those interested.

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