Does Football Avoid ‘Airing its Dirty Washing in Public’ with Fixed and Prescribed Dispute Resolution Options?
17th April 2023
After many years in the football world, and the majority of those as a sports agent and football agent, I am justified in saying that the football industry is at times a very ‘murky’ and ‘clandestine’ world in how it operates and how it is regulated.
Whilst football endeavours at almost every level, seemingly not to ‘air its dirty laundry in public’ through prescribed mechanisms for dispute resolution and disciplinary matters, it is reasonable to think that disciplinary matters that are in the interest of the football community as a whole are open to wider scrutiny. Those cases that are between two disputants should be able to be resolved by those 2 parties involved in a confidential manner in the first instance, and later referred to a higher authority if the matter cannot be resolved.
Hence, this is part of the reason why I took my knowledge and experience of the football world and ‘coated it in a varnish’ of mediation training and skills with a view to applying it in the football world.
Years of Mediating Without Realising
Like a lot of other mediators, during our training we realise that we have been mediating for many years without even realising it, let alone getting paid for it. This may well be down to the typical characteristics that a lot of mediators share, such as being perceived as ‘the only sensible voice in the room’, having empathy for others, heightened emotional intelligence, being approachable, analytical and possessing a problem-solving mentality.
Don’t get me wrong, people will confirm that when I am a party to a disagreement and/or dispute (as a disputant), I can often be very head-strong, driven, vitriolic, stubborn and even an angry person when it is a matter of something I care about, believe in or think is (in)justice …… in fact I am possibly a nightmare for some mediators to deal with 😊. And on reflection there has been many a time looking back when a good mediator could have resolved my dispute and thus allowed me (and the other party to the dispute) to avoid the headaches, heartaches, frustrations, lost earnings, legal costs and time lost from an overly extended dispute.
How Private is 'Private' in Football?
It is understandable that some matters in football should arguably be kept private; and although I somewhat disapprove of the concept of ‘undisclosed transfer fees’ (not least as with a bit of digging and someone ‘leaking’ information it is known), I do appreciate that in such a competitive and lucrative industry, some matters of a more personal nature (e.g. salaries) do need to be kept private.
However, the fact is that the football world is a relatively small one; and even smaller when it comes to gossip, rumour and the leaking of information that should otherwise be confidential. The simple matter is that given the nature of the industry, with the right contacts, an ‘ear to the ground’ and a person who bears a grievance, has something to gain, or even just a habit of gossiping, such information can be sought out.
Whilst Rui Pinto and the Football Leaks saga received a huge amount of publicity for seemingly ‘lifting a lid’ on confidential football matters and deals, I believe it only gained such huge notoriety after a huge amount of journalistic effort, the huge swathe of information made available and the fact it was publicly accessible. A proportion of the information released was already available to those in the football industry should they have sought to find it, although not seek to publish it.
Contradiction of Control vs Confidentiality
I think many involved in the football industry (either directly or indirectly) believe that the football authorities love to maintain ‘control’ (as well as secrecy), and some would argue that football at times believes the laws that apply to everyone else and other industries do not necessarily apply to football. Whether the grounds for such a view are FIFAs perceived restrictions on ‘government intervention’ or the matter that certain football participants cannot supposedly follow normal channels of dispute resolution (e.g. litigation) in their disputes with one another.
The matter of disciplinary issues in football, I accept are largely separate to disputes between individual participants. Not least as it is the football authorities who write the regulations, set their rules for the game, and as such, dispute resolution is a key element and possibly should form part of the disciplinary process, whereby a standard dispute resolution (or choice of resolution(s)) is specified for participants.
Although the matter of internal disciplinary disputes within sports governing bodies are now subject to increased scrutiny, whereby it is believed the case at hand is ‘in the public interest’, then the procedure should be available publicly for scrutiny (as highlighted most notably recently in English Cricket).
Yet, there remains a huge frustration for many in the football community that when participants have a dispute with another football participant, they cannot seemingly seek to resolve their dispute through normal means, or a dispute resolution mechanism of their choosing. They have to go through the dispute resolution mechanism as prescribed by the football authorities, whether international or domestically.
In many cases this makes many disputes unviable in seeking recourse, either due to the cost, duration and/or complexity; this in turn often means disputes remain unresolved, innocent parties unable to seek redress, disputes are resolved in ‘shady rooms’ and ‘murky alleyways’ and incidents that should be addressed are often not.
Prescribed Dispute Resolution vs ‘Sweeping it Under the Carpet’
As I alluded to earlier, I would not argue against there being a prescribed dispute resolution in cases where the parties to the dispute have not established a preferred dispute resolution mechanism in their contract/agreement, or cannot agree on a dispute resolution mechanism. However, where the parties can jointly agree a means by which to resolve their dispute (should one arise), then that is a matter for them to decide (jointly) and them alone without the control of the football authorities and any agendas that may impact on the parties reaching a resolution.
As such I cannot help but wonder whether Football (mainly the authorities) has indeed attempted to ‘hide disputes’, if not ‘sweep them under the carpet’, as well as control the resolution of such disputes. Such reasons may well be to conceal failings on their own part, loopholes in any applicable regulations or even limit the number of disputes that reach such things as an arbitration hearing. This is in addition to negative findings being made public and mention of matters that they would not want to come into the public domain (or heaven forbid …. the media) for the reason of the bad publicity it may project onto the sport or the governing body(s).
Can Mediation become the First Recourse for Dispute Resolution in Football?
You will probably already have gathered by now that it goes without saying that I (and others) believe that mediation can assist in a very large proportion of football related disputes between participants, and in many cases (indeed all of those without a direct disciplinary football aspect), should be something for all parties to consider if not adopt as the first form of dispute resolution.
To an extent this is re-enforced by the fact that in 2022 FIFA adopted mediation as part of it’s dispute resolution options, HOWEVER it is worth noting that I have reservations as to how ‘pure’ FIFAs model of mediation and its procedures are; when it is compared to many of the standards, values and principles adopted by many professional mediation practitioners (but possibly more on that in a later article).
The simple fact is that mediation offers football participants an alternative when a dispute arises, or a clause in a contract at the start allows the parties some ‘peace of mind’ that they have a better means of recourse and resolution (when compared to the standard football authority prescribed options) should things go wrong and/or a dispute arises.
Cost
The first key benefit of mediation in most forms of dispute (not just football related disputes) is that of cost, as when compared to the prescribed methods of dispute resolution in football the cost of mediation is usually (dare I say should always be) a fraction of prescribed football dispute resolution mechanisms such as arbitration. In addition to this, lower cost disputes (less than £50,000 GBP) undertaken by some CMC registered mediators (of which I am one), comply with a fixed fee scheme, so that the parties know exactly what they are going to pay.
Time and Expediency
For most people who have been involved in a football dispute whereby the football authorities have prescribed the means of resolution, I am confident to say many would have found it time consuming and complex, if not also slow. The primary reason for this is that usually once the procedure is commenced, it is managed by the football authorities and/or an associated third party that they assign, hence compared to mediation it can be slow (months instead of weeks).
Given the pace at which the football industry changes and evolves, expediency often has a considerable value in making decisions and coming to agreement. Therefore, a dispute can hold up critical decisions of huge importance (maybe even career changing for a player affected directly or indirectly) and ideally needs resolving ASAP, which subsequently isn’t helped by the further delays that may be caused when passing responsibility of the dispute resolution process to a third party.
It is perfectly viable that a dispute can be resolved within 48 hours if the parties and any assigned ‘representatives’ (i.e. lawyers) along with the mediator are able to facilitate the mediation. The ability to possibly resolve a dispute in such a short time-span is invaluable where urgency is required, such as a transfer or registration deadline.
Confidentiality
As referenced earlier in this article, the matter of confidentiality in football is something that is often paramount to many of the participants involved in and/or affected by a dispute (directly or indirectly). Whilst the matters of football disputes are meant to be kept largely confidential, such matters, as well as the hearing, findings and result may still be viewed by others as part of the process.
As such, each ‘link in the chain’ is susceptible to ‘leaks’ and a breach of confidentiality, such as a football governing body, an assigned third party to arrange the dispute process and also any departments or parties therein.
However, mediation if undertaken in the form adopted by many professional mediation practitioners provides a greater level of confidentiality for the participants. As the process is confidential to SOLELY the participants, their representatives and the mediator; notes of the process are destroyed, the process is ‘without prejudice’ and the final settlement is also confidential to the participants.
Whilst the settlement agreement from the mediation MAY arguably be required to be submitted to the football authorities (in some cases), the matters discussed and the mediation process remains confidential which is an attractive proposition to the parties in the dispute whereby past actions may be somewhat questionable on a football regulatory basis.
Control
In essence, it is the participants (parties in dispute) who control the aspect of mediation, and having been involved in football for some time it is important for many in the football world to feel in control of the situation, and that they are heard and respected in a fair process.
Although it is the mediator who is in control of the mediation process and procedure; neither party is forced to continue the mediation process should they not wish to, despite being obliged to engage into the mediation process ‘in good faith’. Yet, the most important part of mediation for many in football may well be the fact that it is the disputant parties who decide on the outcome and settlement, no third party (e.g. football authorities, arbitrator, judge or even mediator) impose the agreement on the parties to the dispute.
Flexibility
With the prescribed methods of football dispute resolution, the means of resolution (e.g. compensation) may also be restricted by the duty of the arbitrator (or panel) to abide by those resolutions provided for in the regulations. However, through mediation, the settlement is only restricted by criminal law and the imagination of the parties to the dispute in coming to a resolution.
As such, football participants (e.g. agents, players, clubs) can be incredibly creative with solutions to problems, and this creativity lends itself perfectly to mediation in football related disputes and allows for resolutions that may not be possible and are limited through the prescribed dispute resolution mechanisms of the football authorities.