Published May 6, 1999
By Graeme Mew
A constant challenge in any system of dispute resolution involves balancing the desirability of having fair procedures for the resolution of disputes against the availability of resources to administer dispute resolution programs. The quest for fairness is particularly challenging when dealing with organizations whose participants are volunteers and whose resources are dependent upon membership fees, local fundraising and donations.
While my comments today will be directed to the resolution of disputes in amateur sports, many of them could equally apply to other clubs or organizations that make decisions affecting the participation of a member of the club or organization.
The spectrum of individuals who participate in amateur sport is extremely wide. At one of the scale is the three year old taking introductory lessons at a local karate club. At the other end of the scale are athletes, notionally amateur, who receive financial support from the Federal government and/or significant income from endorsements and appearance fees.
Let me give you a smattering of examples of disputes that arise in the context of amateur sports. Some of them, unfortunately, end up in the courts.
Two members of Canada's National Swim Team celebrate a successful World Championship by eating out in a European restaurant. Returning to the hotel by taxi, they are held up in traffic, and miss a 9:30 p.m. curfew by 5 minutes. They are suspended from the team and sent home, without reasons and without an opportunity to explain themselves, on an early morning flight the next day.
After meeting all the selection criteria and being named to Canada's Commonwealth Games Team, a weight lifter is told at a training camp, a week before the games, that he is being placed with a reserve athlete. No reason for the replacement is given and the athlete is sent home.
A wheelchair athlete undergoes his first doping test following a national meet. Not knowing how doping tests are conducted, he does not object when the procedures deviate sharply from established protocol, resulting in a mix-up of urine samples. Failing the test, he is suspended for two years.
A team of women golfers is selected using objective criteria approved by the Board of Directors of the sport governing body. Just prior to leaving for an international tournament, the Chairman of the National Teams Committee adds a subjective element to the criteria, and selects a different team.
A provincial rugby union introduces a rule requiring each team playing in the top division of competitive rugby in the province to have a coach who has undergone formal national coaching certification. One of the teams imports a coach from England, after first checking verbally with a provincial rugby official as to the proposed coach's eligibility. The Board of Directors of the provincial rugby union subsequently meets and decides that the proposed coach's qualifications are not satisfactory. The deadline for the team to have an eligible coach has passed and the team is relegated to a lower division.
Due to a high demand for playing opportunities in a growing urban area, a lacrosse association creates a second team by dividing an existing, heavily populated district, into two. Four players from the original team did not wish to move to the newer team, although according to the rules of the Association, their place of residence required that they switch teams. The players applied for and won a court injunction, barring the Association from moving them to the new team.
All of these situations actually occurred. In the first five cases, athletes lost significant benefits and opportunity without having been found "guilty" according to our society's standards of fairness and natural justice. In the sixth case, the sport organization had to go to court, at considerable expense, to defend its reasonable eligibility rules.
What happened in each case?
The swimmers did not do anything because they did not know that they could.
The weight lifter went to court and won, but was not reinstated to the team because his lawyer did not name the correct organization in the lawsuit.
At great financial expense, the wheelchair athlete went to an arbitration hearing and won. A short time later, however, two weeks after major surgery and while still on heavy medication, he was selected for a second random drug test. Failing this test, he was suspended for four years.
The golfer sought a court injunction and won, as the organization had blatantly broken its own rules.
The rugby team sought a court injunction against the provincial rugby union and lost. The judge said that the team's means of redress was, as a member of the provincial rugby union, to call a special general meeting. Such a meeting was eventually called and the member clubs of the provincial union sided with the team and voted to reinstate the team to the senior league. The president of the provincial rugby union resigned. In the meantime, however, the team played a season in the lower division.
The lacrosse association had to appeal to the province's Supreme Court to have the injunction set aside, by which the time the season was over and the new team had already folded.
Most, if not all of you, are familiar with the damage that litigation can do to both the finances of a non-profit organization and the relationships between members of the organization, virtually all of whom will be volunteers.
You would be surprised how often, even at provincial and national levels of organized sport, sports governing bodies do not have adequate rules to deal with the resolution of disputes. Quite often even where there are procedures, they do not meet some of the basic criteria of natural justice or fairness. As you can well imagine, the further down the organizational pyramid that one travels, the more likely it is that there will be either no procedures at all or inadequate procedures.
A commonly encountered attitude is that the development and implementation of dispute resolution procedures is the slippery end of a slope that will lead to a bureaucratic and legalistic organization, in which administrators of the sport lose touch with the athletes. There is some legitimate basis for such concerns. Many of you who have been involved with voluntary organizations will know that there always seem to be people who allow position or power to go to their heads and who become inflexible or even autocratic in their conduct of the organization's business.
There is also the view that having dispute resolution procedures undermines leadership and effective decision-making. We can all imagine the stereotypical hockey parent unhappy about little Johnny or little Sally being left out of the team. Imagine if every time this happened the hockey parent could launch an appeal, with the right to present evidence and to be heard and to call and cross-examine witnesses!
The bottom line, though, is that even little Johnny and little Sally have rights. Although, as a private organization, a sport organization is, for most intents and purposes, a law unto itself, it has long been established by law that the right to procedural fairness exists in sport organizations. The requirement of fairness applies to all decisions within the organization, whether having to do with eligibility, team selection, discipline of club members, regimes for training, procedures for drug testing, appeals of decisions or other such matters.
What is fair will vary depending on the situation and on the issue at stake and the possible repercussions of the decision. The greater the impact of the decision, the more stringent the procedural safeguards of fairness. Although in sport situations one is usually dealing with benefits and privileges, rather than rights, it is nevertheless well established that procedural safeguards must be provided. In the case of someone like Ben Johnson, for example, the imposition of a lifetime ban for a second doping infraction effectively deprived the athlete of his livelihood. Although Mr. Johnson's membership of Athletics Canada was a privilege which depended upon him observing the rules of athletics, it was a privilege which in many respects assumed the attributes of a substantive right because Mr. Johnson devoted all of his time to, and hence derived all of his financial support from, participation in athletics.
In 1998 a survey was undertaken under the auspices of Sport Canada to gather information on the nature of disputes with which provinces and territories were dealing, and their understanding of alternative dispute resolution and the provinces and territories needs and priorities regarding their own dispute resolution programs.
Two broad categories of disputes were identified:
Those disputes arising within organizations came as a result of:
Disputes arising between organizations usually involved issues of:
More often than not it was found that disputes occurring within organizations end up being handled on an ad hoc basis. In one province only half of the sport associations in that province had actually established internal procedures for dealing with disputes. As a general observation it seemed that where organizations had formal dispute resolution procedures it was far more likely that disputes were successfully dealt with internally. Those organizations that either did not embrace or understand the need for internal dispute resolution procedures were typically unsuccessful in managing disputes.
The study found that two factors appear to contribute to the escalation of disputes within amateur sports organizations:
Often a clash of personalities will drive a dispute beyond the point of an early resolution, or any resolution at all. This factor is usually tied in with one or more other factors such as flawed policies (and thus no procedural guide or mechanism), misinterpretation of policies, a lack of knowledge of the aggrieved party's basic procedural rights by one party and a perception of biased processes by the other party. In the Sport Canada survey several jurisdictions commented on the perceived lack of objectivity and credibility of the organization on the part of the aggrieved party and on a similar perception of inherent bias that exists with respect to many organizations.
Related to this factor, respondents also mentioned a lack of "people skills" by those individuals within the organization dealing with a dispute. Quite often the experience was that the ill will arising out of one dispute sometimes comes back to haunt future dealings on entirely different matters. Thus, future differences, even minor ones, become exaggerated and exacerbated.
In the Sport Canada survey lack of knowledge was cited as a factor by almost every respondent. Parties may be well intentioned but simply do not have the knowledge or skills necessary to deal properly with disputes or resolve them. Some respondents mentioned a lack of expertise within the organization, a lack of training, a lack of leadership in dealing with an emerging dispute, a lack of skill and knowledge to implement what might otherwise be a good policy, a lack of knowledge as to how a situation may be handled and a lack of knowledge or understanding of the rights of the parties.
Other factors that often contribute to the breakdown of a dispute include:
What can we, as members of the dispute resolution community, do to assist?
In the first place, for those of you who are involved in any sort of amateur sport organization, check to see what the dispute resolution policies are. If there is not a dispute resolution policy, you may want to propose that there should be such a policy. This will undoubtedly call upon you being asked to demonstrate your systems design skills. Even if it is not feasible, for administrative or political reasons, to get a formal dispute resolution policy implemented, you may wish to make the organization's Executive Committee or Board of Directors aware of the benefits of early intervention in a dispute by a third party neutral.
The Centre for Sport and Law, which is an organization based in Ottawa, puts out some very good handbooks on the rights and obligations of athletes and sports organizations, administrative appeals and risk management. They can be purchased at a fairly nominal cost.
If the sport organization does have a dispute resolution process, it is important that it be an objectively fair one. Again, you may be able to give valuable input in this regard. There are organizations-the Centre for Sport and Law in Ottawa is one, AthletesCAN in Toronto is another-which provide consulting services to amateur sports organizations and which can often help in establishing a process to resolve a dispute.
A number of the cases which I have been involved in have arisen not from a formalized dispute resolution process but, rather, from an ad hoc agreement between parties to a particular dispute to resolve their dispute by means of arbitration or mediation.
Once into the dispute resolution process in an amateur sports situation, many of the issues that arise are reflective of issues that arise in the broader ADR context. Does the neutral need to have a legal background? Should the neutral have a sports background? How does the neutral address the imbalances that often exist between the parties, some of whom may be represented and well funded whereas others may not be.
If you are, or become, involved in assisting with the resolution of amateur sports disputes, it is unlikely that you will retire on the proceeds. You will, however, find the experience extremely rewarding. Some examples of the work that I have been fortunate enough to undertake in my capacity as a member of the dispute resolution panel of the Centre for Sport and Law may be illustrative.
By way of very brief background, the Centre for Sport and Law is an independent organization without ties or funding links to government or to any sport governing bodies which coordinates an alternative dispute resolution system for amateur sport. It maintains a roster of 57 neutrals across the country. The neutrals receive an honourarium of $200 per day for the dispute resolution services which they provide. The Centre for Sport and Law has a contract with the Canadian Centre for Ethics in Sport which is a federally funded organization responsible for the administration of Canada's national anti-doping program. The Standard Operating Procedures of the Canadian Centre for Ethics in Sport provide for hearings and appeals to be conducted by independent arbitrators or adjudicators.
The cases I have dealt with-half a dozen in total-have been split evenly between doping cases, under the Standard Operating Procedures of the Canadian Centre for Ethics In Sport, and ad hoc disputes where the disputants have come to the Centre for Sport and Law, in the absence of a formal procedure, and asked the Centre for assistance in getting the dispute resolved. Four of the cases I have dealt with have involved an adjudicative process, one which I was not ultimately to able to assist with involved mediation, and another involved independent fact finding. Two of the cases involved harassment issues.
It will not surprise you if I tell you that the Ben Johnson case, which I adjudicated earlier this year, was particularly challenging as well, of course, as interesting. All of you know who Ben Johnson is. After failing a doping test at the Seoul Olympics he was stripped of his gold medal and world 100 metre sprint record. As a result he served a two-year suspension from athletics. He returned to competition in 1991. He managed to regain a place in the Canadian Olympic squad for Barcelona in 1992. In January 1993 Johnson participated in a 60 metre sprint at a Grand Prix event in Montréal. The Grand Prix was designated as an "international" event and, as such, doping control was administered by the International Amateur Athletics Federation. A urine sample given by Mr. Johnson following the Montréal race was analyzed and found to contain an unacceptably high ratio of testosterone to epitestosterone. Mr. Johnson was told that the results would be considered by the Doping Commission of the International Amateur Athletics Federation. He was told that he could not see the raw test data before the Doping Commission met. An offer by Mr. Johnson's counsel to attend before the Doping Commission prior to its decision was declined. The Doping Commission found that an infraction had taken place and suspended Mr. Johnson. Under the rules of IAAF, following a suspension by the Doping Commission, an athlete is entitled to a hearing before his national federation (in Mr. Johnson's case, Athletics Canada) at which the infraction must be proved beyond a reasonable doubt. Athletics Canada evidently interpreted the IAAF rule as providing Mr. Johnson with an "appeal". Accordingly, Mr. Johnson was told by Athletics Canada that he could "appeal" the decision of the IAAF Doping Commission. Mr. Johnson, who was under intense media pressure at the time, and whose family was very reluctant to go through a protracted appeal hearing with all of the attendant risk, attention and expense, decided to retire rather than appeal. The lifetime ban was confirmed. It will be appreciated that an "appeal" is very different from a hearing in which the case against the athlete must be proved beyond a reasonable doubt. The onus, in an appeal, is on the athlete. At the hearing that Mr. Johnson should have been told he was entitled to, the onus would have been on the IAAF to prove its case.
Three years after Mr. Johnson's retirement he attempted to get the courts to intervene to set aside his lifetime ban as an unlawful restraint of trade. The case went all the way to the Court of Appeal. The courts held that Mr. Johnson could, had he wished to do so, have pursued an "appeal" and that any perceived injustices arising from the suspension by the IAAF Doping Commission could have been addressed. The courts were not aware that Athletics Canada had, in fact, failed to comply with the IAAF rules relating to notifying Mr. Johnson of his right to a hearing.
Any athlete is entitled, under the Standard Operating Procedures of the Canadian Anti-Doping Policy, to apply for reinstatement. Mr. Johnson was the first athlete in the world to apply for reinstatement from a lifetime ban for a second doping infraction. To complicate matters, because of the concurrent jurisdiction over Mr. Johnson of both Athletics Canada and the International Amateur Athletics Federation, he was required to apply for reinstatement both domestically and internationally. The proceeding that I adjudicated was Mr. Johnson's application for domestic reinstatement. His application for international reinstatement is presently pending before the International Amateur Athletics Federation in Monaco. To succeed on the application for reinstatement Mr. Johnson had to demonstrate the existence of "exceptional circumstances". The Standard Operating Procedures list a number of criteria that may be taken into account in determining whether exceptional circumstances exist. There have also been a number of other decisions of adjudicators on reinstatement applications. One of the criteria is "circumstances surrounding the infraction, including any factors that may have caused or contributed to the applicant's diminished capacity". In an earlier decision, an adjudicator had held that irregularities in the procedures leading up to a suspension could form part of the "circumstances surrounding the infraction".
To cut a long story short, I concluded that the failure of Athletics Canada to tell Mr. Johnson about the type of hearing to which he was entitled was, under the circumstances, of sufficient significance to constitute an exceptional circumstance. I also found that Mr. Johnson satisfied some of the other criteria set out in the Standard Operating Procedures. When weighing all of the criteria together I was satisfied that the test of exceptional circumstances had been met by Mr. Johnson. Accordingly I reinstated him, subject to certain conditions, one of which was an expeditious application by Mr. Johnson to the IAAF.
There was a lot of evidence at the hearing. The hearing itself lasted for four days. There were also three preliminary meetings at which I had to rule on issues such as the appropriate role of counsel to the Tribunal as well as the extent to which principles of issue estoppel should prevent me from considering matters which had been dealt with by the courts during the course of Mr. Johnson's unsuccessful restraint of trade application. There were also some unusual developments that had to be dealt with. One of these occurred on the second day of the hearing when I returned to my office. There was an e-mail message on my computer. I did not pay a lot of attention to the re line. It was not until I was a line or two into reading the e-mail message that I realized I had been sent, unsolicited, a message from a member of the public purporting to relate facts which were detrimental to the position taken by one of the parties at the hearing. The e-mail message had been copied to the media. I refrained from reading the message and arranged for a copy of it to be printed off and placed in a sealed envelope. The next morning I advised counsel that I had received an unsolicited message, that I had not read it, but that the message had also apparently been sent to the media. I indicated that I would only release a copy of the message if all of the parties agreed. Knowing that the message might hurt some parties and help others, I did not want to release the message without that agreement. Fortunately, all counsel agreed. The message was reviewed. To the extent that it purported to identify individuals who might have relevant information, the parties agreed a process whereby telephone calls would be placed to each of the persons so identified and set questions would be put to them. This procedure was followed, with representatives of all parties listening in on the telephone question and answer sessions. A memorandum was then prepared, with which all parties agreed, summarizing the answers that were given by the individuals so contacted. This document was then filed as an exhibit at the hearing. Perhaps it is a sign of the times but, after this initial e-mail, two more unsolicited e-mails were sent to me before the hearing was completed. A similar procedure was followed on each occasion. Fortunately the second and third e-mail messages were left disruptive. The problem does, however, illustrate something that can happen to any of us who arbitrate or adjudicate.
One further comment before I wrap up. I first heard about the Centre for Sport and Law when I read about it in the AMIO newsletter. The Centre for Sport and Law was looking for individuals with dispute resolution and sports experience to join its panel. As a former player, albeit a not very good one, of rugby, and, more recently, a rugby club official and legal adviser, I was able to satisfy the Centre's qualification requirements and was appointed to the panel. It always pays to be vigilant for opportunities to combine your dispute resolution abilities with your personal experience.
I think it will be obvious that there are many opportunities for alternative dispute resolution procedures to be employed for the greater good of amateur sports. There is nothing more disheartening than seeing hard earned funds being dissipated on lawyers and courts rather than being spent for the greater betterment of the sport. While, as a civil litigator, you will not be surprised that I hold the view that there are some disputes that have to be dealt with in a court, there are few, if any, situations where amateur sports disputes should find their way into the courts. To the extent that you can play a role in education the sports community about alternative dispute resolution and implementing effective ADR programs, you will, I am quite sure, reap, as I have done, the rewards in terms of personal satisfaction.
Originally presented: Arbitration and Mediation Institute of Ontario (AMIO) Annual Luncheon, May 6, 1999, Toronto