Sports Arbitration Resolves Conflict and Preserves Relationships



Luis Millan for The Lawyers Weekly

June 18, 2010

When Jocelyn Addison, the 2008 Taekwondo Commonwealth Champion and 2006 Pan-American Championships gold medalist, was not among the athletes recommended by his sports federation to receive financial assistance from Sport Canada for his training and competition needs, he fought back and took the matter before the Sport Dispute Resolution Centre of Canada (SDRCC).

Much was at stake. Without financial assistance, or "carding" as the amateur sports world calls it, the careers of international caliber athletes like Addison are in jeopardy. In a 14-page ruling issued by an arbitrator in mid-April that provides a fascinating glimpse of the enigmatic inner workings of the amateur sports world, Addison won his case, but at the expense of another taekwondo athlete who lost his funding for this year due to the limited number of "cards" available.

An independent non-profit corporation created by federal legislation and funded by Sport Canada, the SDRCC helps to settle the singular disputes that arise in the world of sports through its roster of 45 arbitrators and mediators. While anti-doping violations tend to attract the most public attention, the SDRCC is also called to resolve disputes surrounding team selection, carding or disciplinary issues when athletes can muster the courage to lodge a complaint and face the lingering possibility of retribution.

Last year, the SDRCC managed 32 new disputes, down from the high of 47 in 2008, with approximately 50 per cent of cases dealing year in, year out with anti-doping violations. Of the non-doping cases, 62 per cent involve team selection, 15 per cent carding and 10 per cent disciplinary matters, according to SDRCC statistics. Further, in spite of being accused of bias from both athletes and national sport organizations, the figures reveal that arbitrators and mediators have in 50 per cent of the cases upheld a decision rendered by a federation and in the others granted an appeal in favour of the athlete.

"Our goal is to get the parties to work out a solution that will preserve their relationship because they will still be working together afterwards," remarked Marie-Claude Asselin, the SDRCC's executive director and chief executive officer.

It's not always an easy feat, particularly since amateur sports are dominated by fiercely ambitious and competitive individuals. More often than not, athletes turn to the SDRCC in hopes of winning their case before an arbitrator as mediation is perceived by both athletes and federations alike as an untenable and unlikely source of resolving disputes. But in actual fact, that is far from the case. Nearly half of non-doping cases before the SDRCC are resolved through mediation, thanks to a three-hour "resolution facilitation process" that is imposed on parties when they file for an arbitration request.

"In sport, you either win or you lose," said Asselin, who is taken aback by the number of disputes that are solved through mediation. "People (in the sports world) have the habit of approaching conflicts as battles to be won so they hold to their positions steadfastly. Rarely, at least initially, will they ever see mediation as a possible way of resolving their conflict."

Stephen Drymer sees the dynamics at work first hand. The co-chair of the international arbitration team at Ogilvy Renault in Montreal, Drymer regularly serves as an arbitrator and mediator for the SDRCC as well as the Court of Arbitration for Sport in Lausanne, an international arbitration body whose authority and decisions have been confirmed by appellant courts and whose jurisdiction is recognized by Olympic sports and organizations such as FIFA, the governing body of international football.

An experienced counsel to parties in international commercial arbitrations and investor-state disputes, Drymer says that sport dispute resolution differs in "many important ways" from commercial or investor-state disputes. For one, young people's lives and livelihood are at stake, which is certainly not the case with many commercial disputes, asserts Drymer. Also, athletes tend to be the so-called Type-A personalities, and they view the disputes as very personal "but for good reason," he added.

"I have never met anyone more focused, driven and determined than an elite athlete," said Drymer, who heard the taekwondo case. "You realize that, often times, these disputes have the potential - whether it is a team selection dispute or a doping allegation - to derail everything that this young person has been working towards - and that's a very serious matter," said Drymer.

His work just got tougher. In 2009, the World Anti-Doping Agency (WADA), an international independent agency whose mission is to promote, coordinate and monitor the fight against doping in sport, adopted new anti-doping rules that give arbitrators more leeway when hearing anti-doping cases. Unlike in the past, when athletes accused of doping violations faced an automatic mandatory two-year suspension but for exceptional circumstances, new WADA rules grant arbitrators the power to either lower or increase sanctions in appropriate circumstances.

While arbitrators are not bound by precedent, previously-rendered decisions can be "very authoritative." When faced with a case whose facts are very similar, it becomes very difficult for a tribunal to ignore it, said Drymer. However, the new WADA rules have yet to produce any guidance.

"It's going to make our life a little more complicated," said Drymer. "We're going to be turning to, among other things, history even though it isn't legally binding. And we're going to listen to the parties. It sounds a bit trite, but you don't go into a case knowing where you are going to end up. You consider the law, look at the rules and take into consideration the circumstances that will be brought to your attention, and then you exercise your best judgment."

While some consider the Canadian sport dispute resolution process to be slightly in favour of national sport federations, if only because athletes have to incur legal costs if they hire counsel, Drymer dismisses the contention out of hand. (Athletes can choose to be represented by family, friends or even coaches if they cannot afford a lawyer).

Drymer points out that many Canadian sport federations are in the same situation as athletes, staffed only by volunteers with little or no legal expertise. In such cases, arbitrators tend to "bend over backwards" to ensure that parties who are not represented by counsel are not prejudiced. Besides, he points out that arbitration hearings tend to be quite informal and cheap, as everything but legal costs (including arbitration and mediation costs) are incurred by the SDRCC.

"The system of sport dispute resolution is a model of efficiency, timeliness and of good justice," said Drymer. "It shows that arbitration, even in very important disputes, can be done quickly, cheaply and properly."

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