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Mediation for High Performance Sports Disputes

July 21st, 2015

Originally produced as conference material for the 17th Annual ABA ADR Conference, April 16, 2015
Paul Denis Godin

I: INTRODUCTION – MEDIATION IN AMATEUR SPORTS DISPUTES
Conflicts in high performance amateur sport (“HPS”) are tense emotionally-charged disputes for athletes, coaches, and the national and international sports organizations (“NSO”s and “ISO”s) involved. Such conflicts raise intriguing challenges for the mediators and arbitrators charged with handling them. High performance level sports disputes are a volatile mix of high-stakes win/lose issues, multiple parties, intensely competitive personalities, rigid criteria from multiple sources, and numerous process challenges (such as timelines sometimes measured in hours, and parties spread all around the globe).

Mediation has proven to be a successful tool in both managing and resolving these challenging disputes, often in creative ways that have maintained and even improved relationships. Crucial to achieving those successes is the ability of good mediators to adapt to and deal with the peculiar challenges noted above.

Focusing on the experiences of the Sport Dispute Resolution Centre of Canada (“SDRCC”), mediations of HPS disputes are reviewed.

II: TYPES OF NATIONAL LEVEL AMATEUR SPORTS DISPUTES
To understand the challenges involved, it helps to understand the four main types of dispute that arise in national level HPS in Canada (and many other countries), which include:

a) Carding (government funding) disputes;
b) Team selection disputes;
c) Doping allegation cases; and
d) Administrative disputes with NSOs (internally, or between NSOs and athletes/coaches).

FUNDING DISPUTES

Broadly speaking, carding (funding) disputes are complaints about the allocation of government funding and services, which may arise in other forms in other countries, but doubtless still arise. In Canada, Sport Canada (the government department responsible for national sports initiatives) issues a set number of “cards” each year to each NSO (e.g., Swimming Canada, Skate Canada, etc.) The NSO must then distribute the cards to its own high performance athletes in accordance with the NSO’s preset carding selection criteria. The number of cards an NSO receives in a given year is fixed and cannot generally be expanded.

Each card represents a package of concrete benefits, including a monthly income, tuition remission, and access to federal resources such as physiotherapy and training. It also represents a highly prestigious status in the sport. A “carded athlete” is either at the top tier of the sport or on his/her way there in a developmental stage.

Carding conflicts arise when one athlete complains that:

a) the Carding criteria were wrongly or unfairly applied (for example, if the criteria allowed only one athlete per weight class to be carded, and the NSO carded two from the same weight class);
b) the criteria themselves were unfair, biased or otherwise inappropriate; and/or
c) an exception to the criteria should be made for them on some grounds.

TEAM SELECTION DISPUTES

Team Selection disputes involve one or more athletes claiming they were wrongly excluded from a given national team. Again, the basis of the complaint is usually that:

a) the team selection criteria were wrongly or unfairly applied (an example of unfair application would be when athletes are not advised of the criteria in time to adjust their training and competition schedules to meet the criteria);
b) the selection criteria themselves were unfair (for example, the athletes in one team sport were allowed to subjectively grade one another as part of the selection criteria, a method with an inherent conflict of interest, given the friendships and rivalries on the team); and/or
c) an exception to the criteria should be made for them (e.g., when an athlete is a world-ranked top ten but did not compete much that year while rehabilitating from injury).

DOPING ALLEGATION DISPUTES

Doping Allegation Disputes arise from violations of applicable anti-doping codes by athletes, coaches, medical professionals, sport officials or related individuals. Most countries have a national body responsible for administering the World Anti-Doping Administration (“WADA”) Code (“WADC”) or their national equivalent. In Canada, the Canadian Centre for Ethics in Sport (“CCES”) administers the Canadian Anti-Doping Program (“CADP”), which is modelled on the WADC. Violations include the presence of prohibited substances or metabolites thereof in an athlete’s sample, trafficking, use/ attempted use or possession of a prohibited substance or method, administration to an athlete of a prohibited substance or method, and various forms of sample testing avoidance, refusal, or tampering.

When a doping violation is detected, the infringing party is notified by CCES of the alleged violation and of the procedures leading to an arbitration of the issues at the SDRCC. An interim step, called Resolution Facilitation, has been used by the SDRCC prior to arbitration since 2010, which, as described below, is an unusual procedure that is not quite mediation and not quite pre-arb hearing.

ADMINISTRATIVE ISSUES AT THE NSO LEVEL

A variety of other disputes crop up between an NSO and its many internal and external stakeholders. Typical examples include complaints that NSO policies (such as Athlete Agreements or bylaws) are unfair, that administrative decisions by the NSO (e.g., to change sponsors) were inappropriate or biased, that NSO appointments to various posts (such as a national team coach) were inappropriate, and that NSO staff have acted inappropriately. Disagreements within an NSO Board could also require help, if the board is deadlocked or in a fight between cliques.
Most NSOs have developed their own internal ADR and appeal processes to deal with disputes though with varying degrees of sophisitcation. Historically, NSOs have usually preferred to resolve issues internally within the sport, but in Canada, Sport Canada funding for NSOs in the last decade has been contingent on the NSO building into their processes a right of appeal to an external body, the SDRCC. Such an external appeal was considered beneficial to athletes and the sport because most complaints involve the NSO itself as one of the interested parties, typically defending its own decision. As a result, an NSO’s internal appeal process may not be seen by complainants as fair and unbiased.


II: THE CHALLENGES IN AMATEUR SPORTS DISPUTES

Mediating sports disputes at the SDRCC raises a number of fascinating challenges for mediators in both theory and practice. While some of these challenges crop up in other contexts, rarely do they arise in such a potent combination:

Party-Based Challenges- Competitive parties
Issue-Based Challenges- Win/lose issues, rigid criteria, high stakes
Process Challenges- Urgency, multiple parties, geographic spread, unrepresented parties
Purposive Challenges- Non-negotiable rules- disciplinary cases

1. Win/Lose Context – Many SDRCC disputes appear to have stark win/lose outcomes with a fixed pie, at least at the rights-based level. There may only be one spot on a team and putting Athlete A in that spot means Athlete B is out. The same is true of competition for Cards. Each NSO gets a fixed number of cards from Sport Canada, and cannot request more when a dispute arises, so winning the card at arbitration means another athlete loses that card.

2. Competitive Parties - Parties in sports disputes tend to have highly competitive personalities, often with a history of head to head competition on the field of play. Athletes rarely reach the heights of national and international sport without having a strong competitive streak. Even on the NSO side, most NSO boards of directors are heavily populated with former high performance athletes and coaches who now volunteer their time and effort to the sport they loved. Add the sometimes incestuous nature of sporting circles and we have a volatile mix. NSO Board members often have ties to individual athletes, coaches or teams, having risen through the sporting ranks themselves or having children actively competing in the sport.

3. High Stakes – For many HPS issues, the stakes are incredibly high. An athlete may train for 10-30 years and only get a single shot at the Olympics. One simple decision can deny them their (and their family’s) dream. Even secondary decisions such as a denial or limitation of funding, or the dropping of an athlete from a pre-Olympic qualifying event can effectively end that emotionally priceless dream, which increasingly has a major financial prize attached to it (endorsements, bonuses, and lifelong opportunities). Emotions as a result run high on all sides, but particularly for the affected athletes and their families.

4. Urgency - Many decisions are incredibly time sensitive. NSOs often face hard tight deadlines to comply with requirements of international sport organizations (ISOs like the IAAF for track and field), games organizing committees (like the IOC or the organizers of the international Games or tournaments). In some cases, the announcement of the national team may be made only a few days before the team departs for the event or before the international deadline for submitting the team list. A delay of even several days can make the issue a moot point (the event is done or the external deadline has passed), and every hour that the clock ticks is an hour that someone’s planning is on hold and their mental preparation is crumbling.

5. Multiple Parties – Most cases involve many interested parties. A typical case on team selection, for example, involves the NSO (with a large board of directors that must approve any decision), a complainant athlete, one or more affected athletes (the initially selected athletes that might be displaced), athlete representatives (often coaches who are invested in their athletes, or relatives, with or without lawyers), and other potential stakeholders (such as a national team coach). In one case involving a challenge to selection criteria, for example, more than 100 affected athletes were identified, who had to be notified and provided an opportunity to intervene on the issues, all while a time sensitive decision loomed ever closer.

6. Geographic Spread – Unfortunately, many parties to HPS disputes are spread across the country or the world in a variety of time zones, attending competitions, training camps etc. Simply getting the necessary people on a single phone call requires enormous effort, particularly when timelines are tight.

7. Rigid External Criteria – Many disputes are governed by rigid criteria beyond the control even of the NSO in question, and arguably beyond the effective reach of a single nation’s court system (if the criteria emanate from an ISO like the IAAF, or from an International Multi-Sport Organization like the IOC). In a team selection case, for example, the number of athletes allowed on the team may be set in stone by those externally imposed criteria. The number of figure skating spots for an Olympic Games is dependent on criteria set by the ISU and the IOC. The Canadian NSO cannot change those criteria. Similarly, in Carding disputes, Sport Canada sets the number of cards for the NSO at the start of each year, and that number cannot be increased. Even a redistribution of the existing cards requires Sport Canada approval (requiring either another party at the table or a second round of negotiation with Sport Canada). In Doping Allegation cases, the national anti-doping code (CADP in Canada) must be applied.

8. Unrepresented Parties - Many parties, particularly athletes, are not represented by legal counsel, and there are significant rights-based elements to these disputes if they go to arbitration. Unrepresented parties may not fully understand their best alternative to a negotiated agreement (BATNA) and can take unrealistic positions as a result. There is the potential for power imbalances in some cases.

9. Non-Negotiable Issues - A final challenge, in the case of Doping Allegations and disciplinary sanctions, is that one of the parties (the Canadian Centre for Ethics in Sport- CCES) has a strong public policy mandate to uphold based on the CADP. As a result, the CCES has taken the view that it cannot negotiate sanctions (unless the athlete effectively accepts the initially proposed finding and sanctions). To date, the CCES has indicated that it cannot ‘plea bargain’ based on counter arguments by the accused. As a result, Doping Allegation Resolution Facilitation sessions are primarily approached as facilitated information sharing sessions designed to clarify questions, facts and issues, not as mediated attempts to resolve the issues. Does this limitation then render the RF process a waste of time and energy? The CCES experience suggests that the RF still adds significant value to both the athlete and the CCES.

III: CASE STUDY: TEAM SELECTION DISPUTES

In a case that involved a midnight deadline, an SDRCC arbitration was scheduled to begin 3 hours after mediation began, and that arbitration would have resulted in a win/lose decision (one athlete would be left off the team). I asked the parties at the very beginning to set aside the rights-based arguments, save them for the arbitration, and instead to focus on seeing if we could find a way to solve their problem. Each party was asked to identify their key goals, with the result that a single major common goal emerged- to maximize the participation of all affected athletes, and to leave no athlete at home, if possible. This goal then became the target for a three stage brainstorming session (generate the ideas, evaluate the ideas, and finally see what parties could commit to).

After thirty minutes of brainstorming options with the parties (revisiting the selection criteria, taking the whole team anyway, having one pay their own way to the competition, applying the criteria in various ways, etc.), we walked through the list of ideas, evaluating them for degree of satisfaction of party interests and for doability. Some options were not palatable as they did not address the goals or concerns of one or more parties. Many were win/lose options in that one or another athlete would be left completely at home. Other options were palatable to all, but were simply not doable because of external constraints on team composition (coming from the international games in question or the ISO). After evaluation of all the options, it became clear that only one route allowed all athletes to go. It was not a perfect solution for all parties (because one athlete would participate only in a team event, not in an individual event as also desired) but it was the only route within the applicable criteria that allowed all affected athletes to go. In the end, the representatives of that athlete agreed to that solution. They wanted the athlete to go (the arbitrator might decide against them), and even if they won at arbitration, they did not want to be responsible for forcing another athlete to stay behind.

While a ‘perfect’ solution was not achieved, a good solution that met everyone’s stated goal was accepted in an atmosphere that had cleared the air of misconceptions and promoted cooperation. In addition, the win/lose result of an arbitration was avoided (a result that might have produced lasting acrimony within the team in question).

Another piece that made this mediation successful was the power of hearing parties’ perspectives and explanations. In particular, the NSO was represented by a number of its board members, and their explanations were invaluable in allowing the parties to embrace a problem-solving approach and come to a mutually agreeable solution. From my perspective, the sincerity and genuineness of the NSO came through in their comments and their tone and approach (which was important as the NSO was viewed initially with suspicion by some parties). The NSO also disclosed hitherto unknown behind-the-scenes efforts that had been made by the NSO to get all of the athletes to the games (calls to the international event organizers; frantic reviews of criteria in search of a loophole, etc.). That information established a tone of good faith for which the athletes expressed appreciation.

Finally, the NSO’s clear explanations of how the complex array of national and international selection criteria fit together helped the parties understand why some options were simply not doable for reasons beyond anyone’s control. That allowed them to agree on the one and only option that met their primary stated goal.

Best Practices Learned: Identifying common goals, Brainstorming, Sharing of explanations and perspectives,

IV: CASE STUDY: OTHER HPS DISPUTES

A dispute arose between a national team and its NSO over a variety of NSO policies and procedures that the athletes felt were unfair or inappropriate, including the NSO’s own dispute resolution procedures. After a very fractious attempt to raise the matters internally, leading to a rejection of the concern that polarized the athletes against the NSO Board, the matter was mediated. It was quickly apparent that the combination of multiple competitive personalities on each side of the dispute, and the very adversarial history that led to the mediation could explode in a powder keg of blame and defensiveness. Each side had very strong concerns about the other, and relationships were highly strained.

In hindsight, the single smartest decision in the mediation process was to hold pre-mediation caucuses with each side to explore their goals, the relationships and the consequences of allowing those relationships to continue to deteriorate. In caucus, each side recognized that, although they felt wronged by the other side, and that they were in the right, they needed and wanted to have good relations with the other side going forward. For the athletes, they recognized that the NSO had a great deal of impact on their sports careers (setting events schedules, deciding team selection criteria, allocating funding, choosing uniforms and sponsors etc.) On the NSO side, they recognized that if they could not repair the relationship with their top flight national team, there was going to be stress and strain for 10 years to come (athletes don’t retire en masse; the team would turn over very gradually and any new members would be taught to view the NSO as the enemy also).

With that realization in mind, both sides agreed to focus, not on what happened in the past (where the enmity lay) but on the future (where they shared a common goal of having fair processes and procedures and a better working relationship). All parties maintained that future focus through several mediation sessions and self-managed action items over about 4 months to complete a mutually agreeable set of policies and procedures.

Another piece that helped both minimize defensive responses and promote substantively good and fair criteria was the search for fair and objective standards (legitimacy). Such measures of legitimacy can include comparables, relevant documents and mutually respected experts.
In this case I encouraged the parties to research comparables for the policies from a variety of external sources like other respected federations and model polices (e.g., from Sport Canada), even internationally. Rather than debate the language of a proposed clause in the athlete agreement subjectively, the parties used the external comparables that they found to provide guidance, a starting point for discussions, and to define rational ranges for answers. The facts did the heavy lifting in most cases, which prevented a battle of wills from erupting.

Best Practices Learned: Managing relationships issues early, pre-mediation caucus; Identifying common goals, Focus on future; using objective criteria.


V: CONCLUSIONS- A ROLE FOR MEDIATION IN SPORT

The experience at the SDRCC has shown that, while not all HPS disputes can be settled at mediation, mediation often achieves stable win-win settlements in a very timely cost-effective manner. Mediation also adds value even when disputes don’t settle, by improving understanding and respect amongst the parties, which helps to rebuild damaged relationships which may be crucial in a sporting context. A more subtle but important benefit is the simple power of allowing parties to feel heard when so much is at stake for them.

Even for disciplinary cases, facilitated discussions can provide athletes with greater levels of information about the disciplinary process and substance, greater comfort with the process, their rights and obligations, as well as the chance to explain their actions and be heard. Even where disciplinary rules heavily prescribe the flexibility on issues like sanctions, there may still be ways to achieve more optimal results that would be otherwise be possible, giving athletes more control over when sanctions begin (and therefore end), for example. The increased understanding can also enhance athlete cooperation with anti-doping efforts, minimize aggravating offences, and potentially, in some cases, lead to reduced sanctions.

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