What Chance has Mediation Got in Football .......
.......... When its Elder and Stronger Sibling is Still Misunderstood?
18th March 2023
Despite all the merits of mediation and the undeniable benefits that mediation can bring to the football world (and it’s numerous and varied disputes), I still have doubts as to how well it will be received and thus adopted, both in the short and longer term.
This is further compounded by the fact that Mediation’s elder, more established and arguably stronger sibling ‘Arbitration’, is still largely misunderstood and arguably not utilised as best it should in the football industry.
The Transition from Football Agent to Football Mediation
My own personal transition to becoming a mediator was admittedly more ‘by luck than judgement’, when in 2022 I started on the course of retraining in the field of mediation. Only after receiving my CMC (Civil Mediation Council) and IMI (International Mediation Institute) accreditations did I learn that FIFA were establishing a mediation panel and subsequent mechanism (only announced officially in recent weeks) for dispute resolution on matters of an ‘international dimension’.
This transition from agent to mediator was primarily spurred on by the comments of others who had experience of working with me over many years in the realm of football and football agency, and had often commented that I was often the ‘source of resolutions to disagreements’ and the ‘only reasonable voice in the room’ at times; and had I considered a role in mediation.
Given that this observation came from several people that I respected greatly (both professionally and personally), and it included some in the legal professional (including arbitrators), I felt it only right that I investigate mediation, although this at this time I hadn’t really considered the possible application of mediation in football.
Added to this was the frustration garnered from observing, hearing and experiencing the numerous disputes from within the football industry in my 15 years as an agent (and before that as a coach/manager), with many such disputes going unheard, even more unresolved and some even resorting to questionable practices for one party (‘disputant’) in the dispute to prevail over another (arguably unfairly).
The final straw was very much the dispute between FIFA and the football agents over the new FFAR (FIFA Football Agent Regulations) approved in December 2022. This dispute I have written about many times in the past and will no doubt continue to write about in the future (as at the time of writing, this dispute rumbles on with numerous cases of arbitration and litigation ‘in the pipeline’), and for me should have resorted to mediation before now rather than the inevitable prospect of litigation in several courts (see ‘Could Litigation in the Dispute(s) Between FIFA and Football Agents Over New Agent Regulations be Avoided with Mediation?’).
I hasten to add that the transition from football agent to that of a mediator did not involve ‘holy water’, the intervention of an exorcist or any ‘hail Marys’ (not in an NFL sense) ……. It did however involve a considerable learning curve in terms of mindset (rather than technicalities) for which the learning is still ongoing, and I believe any good mediator continues this learning journey indefinitely, as does any good arbitrator or lawyer.
Arbitration in Football
Justifiably arbitration has been a ‘cornerstone‘ of dispute resolution in football, adopted by FIFA as well as many of the football (con)federations and national (member) associations in their rules and regulations. Furthermore, CAS (the Court of Arbitration for Sport) is seen by many in sport (and the legal profession) as the overriding court by which sports related disputes are heard and settled.
Quite understandably much of the football community (including the applicable governing bodies) do not want their grievances and disputes aired in public through the courts (i.e. litigation). This is arguably not just because of the scrutiny it may receive (public and media) but also the publication of confidential information (financial sums) and that it is both damaging to the reputation of the sport and those involved in the dispute (‘disputants’). As such, arbitration ‘should’ address the matter of confidentiality, but even then, such confidentiality through arbitration is not always guaranteed, should a disputant challenge the award and/or the arbitrator (e.g. in England under the Arbitration Act of 1996) which may lead to litigation in the courts, and thus open the dispute up to public and media scrutiny.
In addition to this, ‘Arbitration’ is a sensible proposition in resolving football disputes, not only does it facilitate confidentiality (in most cases) but it is also based on the adjudication of the case by an independent arbitrator (or a panel of arbitrators) who are experts in the applicable regulations and the
law.
So where is the issue with arbitration, and why isn’t it more evident and influential in resolving football disputes?’
Misconceptions and Misunderstanding
I am not too big to admit that my understanding of ‘arbitration’ in football (or any other sphere for that matter) was totally incorrect, in fact for quite some time. Yes, over time I have developed my understanding of the arbitration process and the role of arbitrators (even more so since becoming a mediator); even though I still readily acknowledge that I still do not understand the intricacies of arbitration.
However, many in the football industry are totally ‘blind’ to the key facts surrounding arbitration and the role it plays in football. This subsequently leaves them not only at risk of large costs in terms of time and finance, but also the potential to be disappointed with arbitration process (if not their appointed arbitrator) due to false expectations.
False Expectations of an Arbitrator
Probably the biggest misconception about arbitration in football is whereby a disputant assumes (incorrectly) that an arbitrator is there to support their case and do the best job in the dispute for them as the disputant. To an extent, this misconception is somewhat understandable as many arbitrators are from the legal profession (i.e., lawyers and barristers), and thus they are presumed to act in an arbitration in a similar manner to which they would as an appointed lawyer, and thus act on behalf of the disputant and represent their case (and argue against the case of the other party).
Subsequently, this often leaves the disputant with a false expectation of the arbitrator in supporting their side in the dispute, which may not even be realised until after the appointment and fees are subsequently due. The role of the arbitrator (as I understand it to be) is to objectively analyse the dispute, and judge the case of both sides on their merits, regardless of who has appointed the arbitrator or paid the fees for the arbitration process or the arbitrator themselves. Their duty is to the rules and regulations applicable to the case and not to either disputant or associated party.
In essence, a disputant who is successful in appointing their preferred arbitrator, yet has a weak case in the dispute, may end up with their appointed arbitrator finding in favour of the other disputant party. Not least as the arbitrators duty will be to the rules, regulations governing the dispute and where applicable, the law ….. and not to the disputant who appointed them.
Potential for Spiralling Costs
Arbitration cannot be considered a ‘cheap’ process (if compared to that of something like the small claims court in England), and although typically cheaper than litigation in the vast majority of cases (at least historically), the costs of arbitration can mount up quite significantly, the longer a dispute goes on and the more complex it is. And as with litigation, it is not unknown for the costs of arbitration to exceed the actual amounts claimed in the dispute going to arbitration.
Firstly, if the parties to a dispute cannot agree on a sole arbitrator, then more likely than not an arbitration panel of at least 3 arbitrators has to be appointed, thus increasing costs for each party (by 100-200%, if not more). In the worst-case scenario, a disputants case may be deemed so weak or frivolous by a sole arbitrator (or an arbitration panel), that it is not unheard of for the other party to be awarded costs of the arbitration, thus further increasing costs.
Furthermore, on the realisation that the arbitrator is not there to represent their case, a disputant may not be willing to present their case at the arbitration hearing and thus may have to appoint a solicitor to represent them in the arbitration. This will subsequently increase costs yet further in the dispute, as the solicitor will most likely not only charge for time at the hearing but also the hours spent in preparing the case for the hearing (and possibly post arbitration requirements).
Fortunately, during my time in the football industry I have never had to follow the arbitration process through to a hearing. On the few occasions when arbitration was looking inevitable, myself and the other party have reached a reasonable compromise to settle the disagreement. Although in one case whereby I was in dispute with another party, they belatedly agreed with the settlement proposal I had made prior to the pre-arbitration process, because they seemingly:
(i) realised that arbitration would cost them more than the disputed amount, and
(ii) received invoices from the lawyer they had appointed to advise them on the case, which were similar in cost to the disputed amount.
Time
In the case I described above, the saving grace there, was the fact that the pre-arbitration process can be quite long, and thus it gives the other party time to consider whether arbitration is actually worth it.
Whilst some cases going to arbitration are relatively simple and as such the arbitrator (or panel) will make a judgement and thus an award very quickly, that does not necessarily reduce the costs for the disputants. Yet the hourly costs of the arbitrator(s) and lawyer(s) appointed are just the direct financial cost of the arbitration process, and the impact of the time in getting to an arbitration hearing can also have a significant impact on the disputants.
It is possible for an arbitration to be fast-tracked, but this is not always feasible. Arbitrators are often very busy people (e.g., barristers and senior lawyers) and inevitably in high demand with justifiable fees. However, what happens in terms of the disputant parties when an arbitration hearing cannot be heard quickly; does it damage a disputant’s morale with worry, damage their reputation if others find out they are in dispute or even distract them considerably from their other work?
Arbitration is far from a quick process in most cases, whether it is a ‘Rule ‘K’’ through the English FA, a dispute through one of FIFA’s dispute mechanisms or even through CAS; and the more complicated the case, the longer it will inevitably take. In fact, in the most extreme cases, even after the hearing which may have taken many months, it is not unheard of for it to take in excess of a year for a final adjudication/judgement.
Is Arbitration Affordable and/or Cost-Effective?
For me personally, I think arbitration in sport plays a huge role and is valuable to many participants and stakeholders in resolving disputes – but with that, the question has to be asked: “ is arbitration widely accessible, applicable and affordable to a large proportion of football disputes?”
Bearing in mind the number of disputes that exists in football involving the likes of clubs, players, agents, coaches/managers, we would expect that the primary source of dispute resolution in English football – the ‘Rule K’ arbitration process – would be awash with hearings on an annual basis, yet the figures below from the FA as to ‘Rule K’ arbitrations seemingly do not demonstrate this.
On this basis, and from my own experience of the football industry I would estimate a huge number of disputes that would normally be settled through the FAs ‘rule K‘ arbitration process (and other dispute resolutions mechanisms in other territories), are not doing so for a number of reasons, which may include:
- Settlement reached after realising the cost of arbitration and/or the disputants want the dispute resolved quickly.
- Settlement reached by one disputant exerting influence (e.g., finance) over another, often unfairly.
- The disputant(s) do not want to go to arbitration as the case may involve matters that may be deemed a breach of regulations and possibly be subject to sanctions.
- One party cannot afford arbitration and gives up on the dispute – despite having a very good case.
- Potential damage to reputation on publication of the adjudication (or in extreme cases, potential litigation) and thus negating the apparent benefit of confidentiality with arbitration.
So Where Does this Leave Mediation?
In one way, I think mediation has a key and crucial role to play in football related disputes, in both supporting ‘Arbitration’ in picking up the cases that don’t necessarily justify arbitration, and in facilitating
and settling disputes that aren’t judged viable by disputants in taking down the arbitration route (e.g. cost, time or disclosure).
The key to this matter is that ‘mediation’ needs to be properly understood within the football community; its applicability, the process, the benefits and where it fits in to the football world alongside arbitration.
The apparent recognition and adoption by FIFA of mediation as an official dispute resolution mechanism, shows that mediation has a place in the football world. The key matter is that mediation needs to be readily recognised and understood by football participants and stakeholders of various guises around the world.
Most significantly, mediation has to be adopted domestically amongst football participants and stakeholders, not least as FIFAs dispute mechanisms (including FIFAs new mediation panel) only extend as far as disputes with an ‘international dimension’.
Thus, leaving many football related disputes unresolved and/or with no route to facilitate effective resolution – without mediation.