First Experience of CAS, ‘Eye-Opening’ in Many Ways – Including the Comparison with Mediation
4th July 2023
Without going into too much detail about the case; not least out of respect for the process and the matter that at the time of writing we are still waiting for an adjudication from the assigned CAS arbitrators; last month allowed for me to get first-hand experience of the Court of Arbitration for Sport (CAS / TAS).
Although I have been ‘on the fringes’ of arbitration proceedings with sports related disputes in the past, this was my first experience of CAS. I must point out at this juncture, that I was neither the claimant or respondent in the case; I was however requested to appear as an ‘expert witness’, a title that still doesn’t fit comfortably with me, as;
(i) I don’t see myself as an expert, and
(ii) even if I were an expert, I perceive some others as more knowledgeable on the subject
…… but this was a matter that I care about greatly and have invested a lot of time, energy and resources in over many years and felt compelled to help …….. i.e. the regulation of Football Agents.
First Impressions and An Opportunity to Enhance my ADR Knowledge
I think people could be forgiven for the conclusion that some of the ‘actors’ in the drama of the ‘transfer window’ love ‘the spotlight’; not least as I know some do like to get their name (or the name of who they represent) in the headlines. Added to this, some club chairmen and CEOs have built a reputation as ‘tough negotiators’ and experts in ‘brinksmanship’ during the drama, whilst some managers are labelled as ‘wheeler dealers’ and ‘pulling a rabbit out of the hat’ on transfer deadline day.
But is that really the case, or do they not just have a timeline in mind and targets to achieve within said timeline set well in advance; along with contingency plans should something unforeseen occur?
It may be worth considering that the need to maintain a certain reputation in a transfer window has a negative effect on their dealings during this period, if not even prompting disputes based on misconceptions, misunderstanding, bias and stereotypes?
Mediation can arguably maintain the desired reputations and image that people desire, but alleviate the potential threat and disruption cause by disputes.
No Place for Mediation (in this dispute)?
In this particular case, and for that matter other similar complaints/cases that are being (or have been) heard in other courts and jurisdictions around the world in regards to the new FIFA Football Agent Regulations (FFAR) – I have long argued that I believed mediation could play a valuable role in resolving this dispute. If only to save time and money for all involved, make mutually beneficial improvements to proposals, as well as benefit those who are both directly and indirectly affected by the aforementioned FFAR.
Now, I (and others) had ‘locked horns’ with a few people (many from the legal profession) about how mediation could help in this case/dispute (and other football disputes); and it was true, I found many merely dismissing mediation with no reasoning for their objections. Either demonstrating a lack of understanding of mediation, seeming ignorance or dare I suggest a modicum of self-interest/preservation (after-all mediation is acknowledged and recognised by many as a means to resolve disputes quickly and subsequently reduce legal costs – but that is a topic for another day.
However, I am ‘big enough’ (some would say ‘ugly enough’) to admit a ‘change of heart’ or even that I may be wrong with my previous views and opinions. Hence. after only a couple of hours observing proceeding in this case at CAS, my perception in this particular case/dispute was to change quite dramatically, to a point where I appreciated mediation probably wouldn’t work in this case.
Not even the alleged mediation ‘evangelist’ (I seem to become at times) could ‘bat-away’ the fact that there was one key aspect of this dispute/hearing that should it have been a mediation procedure, it arguably could not have even commenced.
In entering into mediation, both parties typically are required to sign a mediation agreement and confirm certain aspects to allow for mediation proceedings to commence/proceed. One key aspect of this is confirmation that someone representing each disputant-party has ‘authority to settle’, and as such in this CAS Arbitration hearing it became quite apparent as to why mediation could not seemingly be used. Whilst one disputant-party had someone in attendance who would have ‘authority to settle’ the dispute, the other disputant party did not, in fact it could be argued whether it was possible for that party to provide any one person, who could have authority to settle (given the nature of FIFA as an organisation).
Whilst I acknowledged the dispute therefore had seemingly no place for ‘mediation’ in trying to reach a resolution and it needed someone to pass judgement (i.e. CAS Arbitrator(s)), could there just be a case for the ‘hybrid’ of ‘Med-Arb’ in such instances?
‘Bruised’ and Frustrated – Could a More Mediation Centric Approach Have Helped?
For quite some time now I have been trying to ‘get my head around’ the hybrid models of ‘Med-Arb’ and ‘Arb-Med’ (that combine mediation and arbitration) with differing levels of success, suffice to say this experience at CAS did help a little.
Yes, I can see how such approaches could work in specific disputes, albeit to work fairly, I personally believe there needs to be strict processes and controls in place so that the two ‘related’ yet quite different approaches of mediation and arbitration are applied in a correct and constructive manner, to allow for the disputants to reach a resolution.
Whilst up until now I have been very positive about my experience of this CAS hearing and the associated arbitration process, I felt that some of the skills and approaches utilised in ‘mediation’ could have helped in the process ……. not so much for the lack of someone with ‘authority to settle’ as is required for mediation.
This perception was not only from my own observations of the process, but also the way I felt after the proceedings had been completed. As a witness and ultimately someone directly impacted upon by the matters at hand (i.e. FFAR) and the outcome of the case; I felt, bruised, battered if not ignored, disenfranchised and undermined at times by the approaches of some (not CAS or the panel I hasten to add) and their actions (the matters of unprofessionalism demonstrated by some who should know better would shock many professionals – which I will refrain from explaining further at this time).
Whilst I appreciate the primary lawyers ‘have their jobs to do’ in representing the best interests of their clients and ultimately to ‘win’ their case, the sometimes overly-critical and adversarial approach to proceedings just went a bit ‘too far’. With lawyers as both friends and professional associates, I appreciate that ‘duelling’ may be normal for the legal representatives to engage in between themselves, but expanding this to a seemingly mocking disrespect and misrepresentation does not in my mind serve the aim of dispute resolution well or indeed the image of arbitration or the likes of CAS for that matter (after all isn’t this ‘arbitration’, not ‘litigation’).
So, with this in mind, after recognising flaws for applying ‘mediation’ in such a dispute, it also highlighted seeming flaws in ‘arbitration’. Whilst mediation may well benefit from some of the ‘strong-arm’ skills of arbitration, it was also clear that arbitration (and some protagonists in proceedings), would benefit from some of the more constructive, collaborative and productive approaches and ‘soft skills’ often adopted in mediation, if only to protect the process of arbitration in the long term and encourage people to participate in such proceedings, many of whom give up their own time voluntarily for the benefit of others.
What? ……………….. CAS do Mediation?
One rather fortuitous occurrence from first CAS experience was an observation of the signposting on leaving CAS after day one (of two), in noticing ‘mediation’ listed at CAS. Maybe this demonstrates some innocent ignorance on my part, or the fact that I took the name of CAS too literally (Court of ARBITRATION for Sport), as I wasn’t aware of any form of mediation offering at CAS up until this point.
Of course, at this point the ‘Mediation Evangelist’ in me came to the fore and for quite some time it again ‘fuelled’ the belief that there is a key role for mediation in sports disputes, after all if CAS recognised and operated mediation proceedings, mediation couldn’t really get a bigger sport’s industry endorsement than that of TAS/CAS.
Trying to 'Prevent the Fire', After the 'Building Is Ablaze'?
A couple of weeks after the CAS hearing, I was fortunate enough to listen to a very highly qualified and respected person with not only legal and arbitration experience in sports disputes, but also a high level of appreciation and understanding of mediation. At which point it dawned on me that CAS mediation may not be the success it should be (and ultimately a reason why).
Whilst I openly applaud CAS for having ‘mediation’ on its ‘menu’ of dispute resolution mechanisms, and then subsequently reviewing the CAS Mediation Rules (written seemingly in 2013, and amended in 2016 – demonstrating CAS were well ahead of many, to embrace mediation, not least in sport, CAS really does have a very difficult task in making ‘mediation’ a plausible and productive ‘dispute resolution’ mechanism.
This is no fault of CAS or ‘mediation’ per se, but moreso the fact that often by the time sport disputes reach CAS they have often been fought and argued between the disputing parties many times before, and arguably the animosity and mindset to ‘win’ at all costs is so engrained that the parties are in no mood for mediation. Or even the simple fact that the disputant parties are too tired of the dispute, that they want someone else to make the decision/judgement.