Mediation in Sports Disputes

Mediation in sports disputes is growing in popularity. This article reviews the benefits offered by mediation and considers how sports disputes are different from ordinary commercial disputes. The author also offers some practical suggestions for mediators in sports disputes.

Mr President, Mr Kennedy, you and I are like two men pulling on a rope with a knot in the middle; the harder we pull, the tighter the knot until it will have to be cut with a sword. Now why don’t we both let up the pressure and maybe we can untie the knot?

These words were written by Chairman Khrushchev to President Kennedy in 1962 during the Cuban missile crisis.

That event is a long way from sports law disputes. But the image is powerful. The parties to a dispute can co-operate in untying the knot rather than having a solution imposed on them.

There is more than one way of resolving disputes. Litigation is one. Mediation is another.

Mediation offers participants an opportunity to resolve disputes amicably and for the good of the sport (at least when the parties are negotiating in good faith).

I start with a short summary of what mediation is about. These are motherhood statements that will be no surprise to any practitioner. Nevertheless, they bear repeating.

The core features of mediation are:

• It is a decision making process in which the parties make and own the decision.
• The parties are assisted by an independent mediator.
• The parties are in control of the process.
• The parties can negotiate flexible outcomes that would not be available with an imposed solution. A judge cannot split the difference. The parties can do whatever they want.
• The process is confidential, as opposed to litigation, which is usually in open court.
• It can also be quick. Athletes’ careers are short. They do not have time for prolonged proceedings. The same goes for clubs – the season is short too.
• Mediation is less costly than litigation.
• Mediation provides an opportunity to preserve an ongoing relationship. The parties might even negotiate future contracts – a possibility that is beyond litigation.

While there is no fixed rule for the mediation process, mediation usually offers to the mediator an opportunity for a confidential and private intake session at the beginning of the mediation, perhaps a day or so earlier. There is also usually a joint session in which the parties can outline their respective positions. The challenge for a mediator is to control chest beating style openings and to ensure that discussion in a joint session is productive.

A search of the internet reveals many contributions about mediation in sport. (Some care needs to be taken because the internet offerings intersperse articles about meditation in sport, and the reader can be taken in by interesting discussions which lead on a different path, before the misprint is discovered.)

The internet contributions invariably extoll the virtues of mediation in sporting disputes.  Many of them also lament that mediation is not resorted to as often as it could be.

Sport is big business. And where there is big business there are invariably disputes.

The question is what is the best way to resolve the disputes.

Blackshaw observes that alternative dispute resolution (ADR), which includes mediation, “lends itself to the settlement of sports-related disputes because of the special characteristics and dynamics of sport” encapsulated in the expression “specificity of sport”.[1]

Mediation is suitable for a wide variety of disputes. Many sport related disputes are really just commercial disputes in which there is a sports person or a sporting association involved. The classic case is a contract dispute.

Many commercial contracts now provide that the parties must attend a mediation before commencing proceedings in court or going to arbitration.

Blackshaw points out that many sports federations now include in their constitutions specific provisions for mediation of appropriate sports disputes.[2]

It is generally accepted that there are some disputes in which mediation is not appropriate. These include doping disputes and most disciplinary cases.

But most other cases are suitable to submit to mediation.

Blackshaw reviews the mediation service offered by the Court of Arbitration for Sport (CAS).[3] He offers examples of disputes that have been settled by CAS mediation. These include disputes between athletes and their advertising agencies in relation to commission payments.

We have a classic example here at home.

The late, great Henry Jolson was appointed mediator in a complaint about an episode of the Footy Show in 1999. Nicky Winmar had been invited onto the show but he cancelled his appearance. Sam Newman painted his face black in mockery. There was uproar amid allegations of racial vilification. Henry was appointed mediator. This resulted in begrudging apologies being delivered.

Henry delighted in the story of the phone call he received from a journalist pointing out the irony of a man called Jolson being appointed mediator in that dispute. He reminded Henry that in Hollywood a man called Al Jolson became famous by painting his face black and singing “Mammy”. (There was no cruelty here. It was a sign of the times. Despite the blackening of his face, Al Jolson fought against discrimination in Broadway on the basis of race.)

In some States there is a formal scheme established. For example, Sport SA, established in South Australia, established a State Sport Dispute Centre (www.sportssa.org.au). The purpose was to provide a confidential and impartial mediation and dispute resolution service for the South Australian sporting community. According to its website the centre can handle a diverse range of disputes, including:

• Workplace disputes
• Disciplinary hearings and selection disputes (I have some doubts about this category)
• Disputes relating to the appointment of coaches and other officials
• Employment disputes
• Member complaints of harassment and discrimination
• Grievances relating to volunteer screening.

The centre also offers the provision of trained and independent persons to chair tribunal hearings (fees apply).

One advantage of mediation is that a mediator has an opportunity, through the use of private caucuses, to speak with the parties separately and confidentially. Grabowski refers to the mediator’s ability to “mend fences” before bringing the parties together in a room to talk.[4]

Psychologists note that lawyers do not always spend sufficient time in the intake sessions – conducted privately with the parties. That is often the product of budgetary constraints. An intake session is a good opportunity to enable the mediator to assess what the parties really want, and what drives them.

For example, when a party is angry it may be that he or she is afraid. The mediator can try to find out what the party is afraid of so that the mediator is better prepared to help find some middle ground.

This can be achieved with subtle probing. The emphasis is on subtle. It might not be a good idea to ask a heavyweight boxer what he is frightened of. Incidentally, in my experience, tough guys do not always turn out to be tough negotiators.

Grabowski also points out that one difference between sports negotiations and others is that in an ordinary commercial dispute there are usually two parties, each pressing its own interests. But in sports negotiations there are others behind the scenes with a potential interest in the issues in dispute.[5] These include the sports associations and the fans. There might also be government interest in connection with grants to sporting bodies and the requirement for proper governance.

A mediator is likely to emphasize that mediation offers a golden opportunity to resolve a dispute and achieve finality in a confidential setting. The parties can settle their disputes “within the family of sport”.[6]

That is a noble objective, provided the parties are not pressured into a settlement by sport governing bodies in order to avoid adverse publicity.

Sometimes sports disputes spiral out of control. The passion for the sport, and the competitive spirit, can spill over. One example is the case of Mr Ragless, who was expelled from the South Australian Field & Game Association Southern Branch Inc (a clay target shooting club). He blamed Mr Stokes. The dispute involved no less than seven court battles (the latest being Stokes v Ragless [2017] SASC 159). One can only speculate whether an early mediation might have avoided all of that cost and distress.

It can be worthwhile for a mediator to point out what would happen if the dispute went to court or to arbitration. The parties would not be permitted to speak with the judge or the arbitrator the way they can speak with the mediator, especially in private session.

A party in a mediation might cry out “that is not fair!” That would not be permitted in a court, where much of the talking is done by the lawyers and the message is filtered through legal language and restrained by protocol.

Further, litigation takes place in open court where anybody can come and watch. This includes the media, school groups, fans and competitors. It might be said that in public relations (PR) terms there would be no winners.

The PR dimension may be difficult to measure but it is there. Fans, not to mention sponsors, can be put off by public spats involving their heroes.

In relation to the desire for privacy, there is an interesting analogy with matrimonial disputes involving public figures. Many of them are resorting to mediation, even private arbitration, rather than resorting to a court process. One of the drivers is that when there is litigation in court there is an inevitable waiting time outside what is often a crowded court – and members of the public, perhaps other litigants awaiting their turn in court, might ask for an autograph!

Some disputes arise out of the rules of voluntary sporting associations. What must be borne in mind in these disputes is that some of the participants, perhaps the leaders of community associations, are well-meaning amateurs. They are not always commercially astute. Those same individuals may have overseen the drafting of the rules of their associations.

Lord Denning put it well in his book The Discipline of Law, although not specifically in reference to sporting associations (at pages 149-150):

Whenever a difference arose between a voluntary association and its members, the Courts said “Let us look at the Rules”. Then they got into a pretty pickle. Usually because of the obscurity of the Rules. In point of drafting, the Rules of these associations are the worst ever…

His Lordship suggested that the rules should be construed not literally but according to their spirit, the purpose that lay behind them.

Some sports administrators might not be aware of the benefits of mediation and the availability of mediators. The message for the sports administrator is that, if there is a dispute that could embroil him or her in an ongoing matter that has the capacity to affect a working relationship, then it would be wise to call in an independent mediator at the first sign of trouble.

I would also suggest a few practical considerations for mediation of sports disputes.

One is that in any dispute with legal overtones (which is probably most disputes) it would assist if the mediator is a lawyer. Mediation occurs in the shadow of the law, and it is helpful if the mediator has some idea of the possible consequences if there is no resolution and the dispute proceeds to litigation. Legal costs can be substantial. The mediator does not offer legal advice, but does need to be aware of the broader options.

Secondly, it would be good for the mediator to have some knowledge of the sport involved. The parties want to establish a rapport with the mediator, and some understanding of the sport enhances the mediator’s credibility with the parties.

Finally, the parties can agree on what can be said about a solution they have negotiated. This might be by way of press release or a notice sent to relevant persons. The publication might confirm that there was a mediation and the parties came to a confidential settlement. If the relationship is ongoing, for example in a sponsorship dispute, they might add that a new contract has been negotiated. By contrast, in litigation the whole of the evidence is given in public, and the reasons for decision are published to the world.

Mediation is becoming part of the process of litigation as that landscape is changing. Mediation of sports disputes is also gaining support.

Blackshaw concludes his article on an encouraging note for lawyers:

There is, therefore, plenty of work for lawyers in the foreseeable future in this particular and growing field of ADR practice and long may this continue to be the case![7]

[1] I Blackshaw, ‘ADR and Sport: Settling Disputes Through The Court Of Arbitration For Sport, The FIFA Dispute Resolution Chamber, and the WIPO Arbitration & Mediation Center’ (2013) 24 Marquette Sports Law Review 1, 1.

[2] I Blackshaw, ‘ADR and Sport: Settling Disputes Through The Court Of Arbitration For Sport, The FIFA Dispute Resolution Chamber, and the WIPO Arbitration & Mediation Center’ (2013) 24 Marquette Sports Law Review 1, 27.

[3] I Blackshaw, ‘ADR and Sport: Settling Disputes Through The Court Of Arbitration For Sport, The FIFA Dispute Resolution Chamber, and the WIPO Arbitration & Mediation Center’ (2013) 24 Marquette Sports Law Review 1, 19 and following.

[4] M Grabowski, ‘Both Sides Win: Why Using Mediation Would Improve Pro Sports’ (2014) 5 Harvard Journal of Sports & Entertainment Law 189, 190, 200. Footnote 9 in that article refers to an article by another author with an ambitious title: “Mediation: A Revolutionary Process That is Replacing the American Judicial System.”

[5] M Grabowski, ‘Both Sides Win: Why Using Mediation Would Improve Pro Sports’ (2014) 5 Harvard Journal of Sports & Entertainment Law 189, 193-194.

[6] I Blackshaw, ‘ADR and Sport: Settling Disputes Through The Court Of Arbitration For Sport, The FIFA Dispute Resolution Chamber, and the WIPO Arbitration & Mediation Center’ (2013) 24 Marquette Sports Law Review 1, 57.

[7] I Blackshaw, ‘ADR and Sport: Settling Disputes Through The Court Of Arbitration For Sport, The FIFA Dispute Resolution Chamber, and the WIPO Arbitration & Mediation Center’ (2013) 24 Marquette Sports Law Review 1, 57.