Last month, a third decision was reached in a SDRCC (Sport Dispute Resolution Centre of Canada) case on the issue of lack of jurisdiction due to a claimant moving their case forward too slowly. We think “three” (see postscript) makes a trend and it is important to share this trend with the sport community, for the benefit of both claimants and respondents engaged in disputes before the SDRCC.
The SDRCC Code contains a provision on time limits at 3.5 b) ii, which states that “the time limit to file a Request (to SDRCC) shall be 30 days following the later of … i) the date on which the Claimant becomes aware of the existence of the dispute; ii) the date on which the Claimant becomes aware of the decision being appealed; and iii) the date on which the last step in attempting to resolve the dispute occurred, as determined by the SDRCC”.
Another section, 3.4 e) provides that “under exceptional circumstances …. the SDRCC may accept a Request that is not filed within the time limit …”. In other words, the application of time limits is not absolute, and the SDRCC tribunal retains discretion to relax these time limits if there are extraordinary circumstances.
The first SDRCC case that turned on this jurisdictional issue was Tuckey v. Softball Canada (2008, SDRCC 08-0071). This case involved nomination of umpires to the Beijing Olympic Games. At the time, the rules of the SDRCC provided for a 21 day limit (today it is 30) and the claim was late by 19 days. The lateness was attributed to the busy schedule of the claimant’s lawyer and some confusion in communications as to whether a representative of the respondent (Softball Canada) had consented to delays. The arbitrator determined that while there may have been implied agreement from the representative to extend timelines (as evidenced by an absence of disagreement), no consent was explicitly granted. As well, the lawyer’s busy schedule was not an exceptional circumstance. The arbitrator ruled that the SDRCC did not have jurisdiction and the matter was closed.
Four years later another case arose, Clattenburg v. CanoeKayak Canada (2012, SDRCC 12-0190). Clattenburg was not nominated for carding. Although given instructions from CKC about the 10 day time period for an internal appeal and the 30 day time period for the SDRCC claim, he met neither timeline. He waited for Sport Canada to finalize the carding list, which of course did not include him because he had not been nominated, and then argued he could count his time period from this date. The arbitrator disagreed – noting that “It was the failure of nomination, not the failure of being awarded carding status, that is the essence of this dispute”. The claimant was unable to muster any argument of exceptional circumstances.
The third case, perhaps the one that makes this a reliable trend, is Wachowich v. Shooting Federation of Canada (2013 SDRCC 13-0127). For various reasons, including rule changes from the international body, SFC was delayed in publishing selection criteria for the 2014 Commonwealth Games. When the final document was published, the selection trial was just 5 weeks away. The athlete competed in the trial, did poorly, and then claimed that the changes to the criteria and process were made with insufficient notice for the athletes, including herself, to adequately prepare. Two internal appeals were heard and lost. When the claim was finally filed, 48 days had passed from the last appeal rejection. Delays were attributed to the claimant’s busy schedule and the schedule of the law student who was representing the claimant, who was also a worker with the Sport Solution program of AthletesCAN. The arbitrator concluded that busy schedules and other commitments are not extraordinary circumstances and ruled that he lacked jurisdiction.
Some quotes from the arbitrator deciding this last case are insightful. He writes:
Limitation periods are important for purposes of bringing closure to any period during which a matter may be uncertain or unfinished. Such limitation periods require persons, who may have rights to assert, to make those assertions within a period considered to be reasonable in the circumstances by society at large or, as in this case, a particular subset within society, here a national sport system. … Even conduct that might be criminal has limitation periods, beyond which society as a whole acknowledges that a person may no longer be charged. The need for certainty and closure trumps the existence of the right, be they personal or public.
The arbitrator goes on to place this squarely in a sport context:
Sport related disputes are generally regarded as requiring relatively quick resolution. The Code and related processes reflect that objective and are specifically designed to provide for speedy resolution of any disputes. Events must proceed, eligibility be determined, sport outcomes be decided, sanctions be imposed and teams be selected in as close to “real” time as possible. Limitation periods in these circumstances are not mere guidelines. They are sport rules, which govern the rights of the parties involved.
In closing, arbitrators in the SDRCC system are prepared to enforce the time limitations. They appear to also agree on a fairly high bar for what is an “exceptional circumstance”. One arbitrator has used the term force majeure as being necessary to extend normal delays. (Force majeure is defined as events or effects that cannot be anticipated or controlled. They include both acts of nature such as floods and storms, and act of people such as riots, strikes and wars). In each case, there is an assertion that accident, illness or other emergency are necessary to cause an arbitrator to exercise discretion and extend the timelines for making a claim to the SDRCC.
Postscript – there is another jurisdictional ruling from the SDRCC that turns on the issue of failing to meet a time period (Yong v. Taekwondo Canada and Gonda, 2010, SDRCC 10-0127). However, the substance of this case was the tricky issue of the date that would trigger the clock counting down under Section 3.5 b), rather than any delay caused by either party. In this case, there was lots of confusion within the respondent federation as to the determination of who would receive, and who would not receive, nominations for AAP and the timing of communicating that information.