Where is Mediation Applicable in Sports Disputes,
........... and Where it is Not?
2nd August 2024
Whilst the prompt for composing this article arose from a question and subsequent discussion under ‘Chatham House’ rules at a ‘round-table’ event several weeks ago, I felt it important to address the question with my own thoughts, whilst not breaching the confidences of others at said event.
Whilst I cannot remember the question verbatim, it was posed by a prominent figure from the world of football law who asked (something along the lines of):
“What is the role for mediation in sports disputes,
where is it viable and where is it not”
Hence, the discussion that ensued, in the relatively limited time available, prompted not only some thought and consideration for myself (both short-term and long-term), but also prompted some enlightening, surprising and not so surprising discussions.
Worryingly, More Examples of a ‘Skewed’ View of Mediation
What did surprise me from the responses in a room of mostly very highly qualified legal professionals, was again the largely uninformed and ill-informed view of mediation.
Some of the views expressed, were largely ‘out of sync’ with how I was trained as a mediator; as well as the various core elements and values presented by the likes of the CMC, IMI or even the European Code of Conduct for Mediators.
As I have intimated on several occasions in past articles, posts and presentations; a plethora of lawyers and barristers who profess to also be ‘mediators’ (rather than ‘mediation advocates’ in supporting client-disputants), seem to apply some quasi-mediation approach that is more akin to Med-Arb (which is a discussion for another time, and those more specialist than me on the topic). This subsequently seems to lead often to a somewhat ‘skewed’ perception of how a mediator should act in a mediation, as well as the roles and responsibilities of the mediator.
It is also worth noting that those in attendance who didn’t view themselves as ‘mediators’, although largely attentive to the topic, seem to either (i) have a resistance to the notion of mediation (see ‘Are Some Members of The Legal Fraternity Amongst the Biggest Hurdles to Mediation?’), or (ii) a misinformed view of mediation or really no appreciation of mediation whatsoever (see ‘Why Don’t Sports Lawyers Embrace Mediation?’ ).
Back to The Question: The Role of Mediation in Sports Disputes
However, the benefit for me is that the question itself prompted quite a lot of thought, consideration, and self-reflection, not least in the approach to mediation that I was trained in, as well as considering the style and approach I adopt and develop yet further, for the benefit of all concerned with a dispute, not least the disputants.
Some mediators may well believe that mediation can solve every dispute; that in my view, is simply not the case (or at least not a practical view). This is due to the variables that may exist in any dispute, such as (i) the nature of the dispute, (ii) the disputants, (iii) any laws that may apply, and (iv) the amount of ‘good faith’ demonstrated by those involved.
In addition to this, sport applies another level of complexity and nuance in terms of disputes, whereby mediation may be viable or where it may not, in my considered opinion.
Mediation is NOT Viable in Sports Disputes:
Whereby a penalty or sanction is imposed or a benefit gifted (e.g. team selection), based on a predefined set of measurable criteria which are to be specifically applied, I do NOT believe mediation to be appropriate in resolving any subsequent dispute. Although, there may be a place in some appeal processes to such a ruling, but moreso under more of a med-arb approach than that of a more tradition mediation approach.
This is largely because, in my opinion no-one is forced to participate in a sport and thus sign up the associated rules and regulations. Either you sign up to those rules as a participant or you don’t (and choose not to participate, or go elsewhere). Hence, those who do choose to sign up, do so in the belief that those rules will be applied equally and fairly to everyone else who signs up as a participant under the same rules and regulations.
So, in cases whereby for example; (a) an athlete is selected for the national team based on pre-set qualifying result criteria, (b) a coach is banned for a doping offence, (c) an agent is fined for gambling offences, or (d) a player is suspended for a match because of getting so many cards/warnings ……….. it is appropriate that any dispute be resolved and adjudicated on by a third party such as an arbitrator, expert-panel or a court/judge
As such, that qualified adjudicator must judge whether the rule is appropriate and fair, has been applied correctly, and whether the subsequent sanctions are again appropriate, and the penalty is appropriate and fair; NOT a place for mediation (not least as any mediator should not judge)!
Where Mediation IS Viable in Sports Disputes
In relation to such cases of a dispute whereby mediation is not viable after the objection has been raised (as mentioned previously), it could be argued, that had mediation been applied before the rule or regulation was introduced (and subsequently applied, thus triggering the dispute), or at a point thereafter whereby concerns are raised by participants or other stakeholders in reviewing a proposed new or revised rule or regulation, any such disputes may well be avoided, whether past, present or future – through mediation.
The simple fact is, that often when disputes arise in what may be considered to be by some as more ‘mature’ sports; over such things as new governance models, rules and regulations, and financial contributions, they are subject to CBA’s (Collective Bargaining Agreements), ‘golden share(s)’, MOU’s (Memorandums of Understandings) and ultimately approved or vetoed by the sport’s stakeholders before being approved or ‘coming into force’.
Hence, such disputes rarely occur, and if there is disagreement it is mutually resolved (e.g. with mediation) because in many such cases, there is either : (i) a mutual benefit to resolve matters before a formal ‘dispute’ arises, or (ii) if a dispute does arise, any decision thereafter is relatively clear based on prior agreements (e.g. the case of the PFAs CBA Rights that ruled out a proposed cap on footballer salaries in England, due to breaching an agreed constitution (i.e. Professional Football Negotiating and Consultative Committee’s (PFNCC) constitution)).
Therefore, at the point of reaching these initial agreements and understandings between stakeholders (or even revising them), there is a clear role for mediation. Not so much in resolving a dispute, but reaching an agreement and resolution, so that matters can progress for those who may otherwise ultimately find themselves in a more serious dispute in the future.
One such dispute where mediation could have been utilised is the long-running dispute between several football agents and agent associations with FIFA over the FFAR (FIFA Football Agent Regulations) of 2023. FIFA and the FFAR subsequently found themselves subject to numerous cases before courts and arbitration panels around the world. Even at the time of writing over a year later (at the time of writing), the FFAR are partly suspended and await an ECJ (European Court of Justice) ruling.
But I will be covering the place for mediation in this specific dispute between football agents and FIFA with the FFAR, in a separate article. Not least as I believe with a ‘fair wind’ and a change in approach mediation could have averted this dispute.
No Doubt Mediation Has a Valuable Role Resolving Disputes in Sport
Whilst the viability for mediation in some sports related disputes may be argued, there is no doubt that mediation has a place in disputes between individuals and groups in sports. At least those disputes, where there is no predefined, established, and largely accepted set of rules and or rules and regulations that possess clearly defined and objective sanctions, penalties and awards.
The ability for parties in the sporting world, who may find themselves in dispute over something of a non-governance nature to resolve their dispute in a quick, confidential and cost-effective way, is invaluable.
Not least, given the fast-moving nature of sport, with fixed competition calendars, limited timescales, and a high level of scrutiny – the ability to resolve disputes through mediation is invaluable.