A sporting chance
14 October 2002
Alternative dispute resolution (ADR) in sport - if one includes arbitration as well as mediation within the range of accepted ADR disciplines - is not a new concept. The Court of Arbitration for sport was established in 1983 to provide a mechanism to resolve international disputes. It was followed more recently by the Sports Dispute Resolution Panel in the UK, which was formed by all the major bodies representing governing bodies, athletes and sponsors. Around the world, from Australia to Canada to France, similar organisations have begun to find their way onto the field of play, thus opening up the prospect of the dispute resolution game moving to a different level.
The emergence of these bodies gives a strong indication of a growing trend in favour of ADR and a collective determination on the part of sport to find a better and more effective way of resolving its disputes. There is little doubt that the old training manual is being rewritten, as new tactics are employed to keep sport out of court and give ADR a chance.
Historically, the courts have represented a very unappealing option to a sector that is used to competing on its own terms. The much reported case of Diane Modahl and the British Athletics Federation, resulting in tragic financial consequences for both parties, provides a telling illustration of why sport prefers to play at home. It is, of course, not just a question of cost. The court system is not designed to operate flexibly and at speed, a critical factor when issues such as selection are in dispute. In fairness, the courts have traditionally shown a marked reluctance to encroach onto the pitch unless there has been a clear breach of the rules of natural justice.
The fact remains that sport's defences are coming under increased pressure from a combination of commercialisation, legislation (human rights), ethical threats (doping) and an invasion of the litigation culture that requires an altogether more robust approach if control of the game is not to be lost. Key stakeholders, including players, sponsors, governments, and lottery funders are increasingly demanding a fairer and more professional approach. Dissatisfied players, disenchanted sponsors, and a sceptical public do not assist the attainment of gold medals.
So, how has this promising form on the training field transferred to the competition arena? A large number of sports bodies are reviewing their disciplinary procedures to introduce a more obvious degree of independence and expertise, thereby limiting the likelihood of any subsequent challenge. The Football Association now provides for the appointment of independent chairmen to all FA appeal boards. The Football League has adopted a similar approach through its newly established Football Disciplinary Commission.
In contrast, there are, as yet, few known instances of established mediation schemes within the sports sector, a notable exception being the FA Premier League's rule that requires mediation to be considered prior to arbitration in the case of a dispute over a manager's contract. This commendable initiative achieved an early result with the successful mediation of the dispute that followed George Graham's acrimonious departure from Tottenham Hotspur. But in the main, mediation has been confined to the substitutes bench, often appearing deep into injury time, if at all.
A fair summary at the close of the first innings of sport's partnership with ADR might conclude that ADR has thus far provided sport with a safe last line of defence. Sport has played the game with a straight bat, achieved a greater consistency of stroke play in increasingly testing conditions, and generally avoided too many appointments with the overall match referee - the courts. On the other hand, ADR, and mediation in particular, has much more to offer to sport as it tries to stretch the boundaries of performance. The use of established ADR techniques at an early stage of a dispute can help to create and protect the environment in which sporting excellence and participation will prosper. Sport undoubtedly has the resolve to meet the challenges that lie ahead and is generally headed in the right direction, but it could equally use a helping hand in staying on track - a timely opportunity for the legal advisers?
There was barely a sports lawyer on the starting line 20 years ago, but today there is a veritable scramble of runners all jockeying for position on route to the winning post. But how will the aspiring lawyer or law firm stand out in the crowd and get on the fast track to success? The answer may perhaps lie in adding an extra string to their bow by providing creative sports-focused solutions to disputes that are client and athlete-centred. A lawyer specialising exclusively in sports-related ADR within the next five years might have the winning ticket to a life membership of the family of sport.
Jon Siddall is director of the Sports Dispute Resolution Panel, the body established to provide an independent dispute resolution service to sport in the UK