Conflicts in high-performance sports (“HPS”) – those involving athletes competing at the national, international or professional levels – are typically tense and emotionally charged experiences for the athletes, coaches, and sports organizations involved. The main types of dispute arising in HPS in Canada, and in many other countries, each with its own challenges, include:
- Funding disputes (who gets funding);
- Team selection disputes (who gets on a team);
- Anti-doping cases;
- Non-doping disciplinary cases (bad behavior, rule breaches, etc.);
- Administrative, governance, and rules disputes with national sports organizations (“NSOs”), internally, or between NSOs and athletes/coaches; and
- Contract disputes (such disputes are very common at the Court of Arbitration for Sport (the “CAS”), between professional clubs or between clubs and players).
Sports disputes raise interesting difficulties for the mediators handling them, with many of these difficulties applying to a single case. Sports disputes typically involve some combination of:
- Multiple parties (from 2 to hundreds);
- Highly competitive personalities;
- High-stakes issues (life-long dreams, livelihoods);
- Win/lose (distributive) issues (who gets the spot on the team?);
- Urgency (as little as a few hours notice of cases with midnight deadlines);
- Extreme world-wide geographic spread of parties;
- Unrepresented parties (and sometimes minors);
- Jurisdictional issues (does the mediator have jurisdiction at all?);
- Rigid restrictive policy and rule parameters of the various governing organizations involved (especially in disciplinary cases, creating the appearance of non-negotiable issues).
Despite these challenges, good mediators can manage and resolve these disputes creatively, often repairing and preserving crucial sporting relationships.
Several factors make sports disputes somewhat different from other mediations in the commercial or legal world, affecting how sports mediators approach their cases. Those factors include the challenges listed above, but also the particular dynamics of sports mediations described below. Good sports mediators adapt to and use these unique dynamics of sports disputes to help parties move forward productively.
One dynamic that stands out is the principle of “do no harm.” Parties in sports cases usually do not want to do harm to one another, to their team, or to their sport, whether they be athletes, coaches, federation officials, or even family members.
The presence of strong shared goals is a dynamic that can unite parties in looking at a path forward. Examples that have proved valuable in my cases include interests such as “leave no athlete behind” and “maximize the country’s chance of success.”
Sports mediators can capitalize on the useful dynamic that parties often feel part of a “sports family” which should be fostered and protected. They often have deep-rooted loyalty to teammates, their club/team, coaches, the federation, and the sport as a whole. This feeling can unify people as allies in an effort to avoid harm to that family.
A two edged dynamic of note is the small world of sports. Everyone knows everyone. And another athlete’s coach or family member could well be a national team coach, or a member of the board of directors of a national sports organization. Sometimes those relationships can help. Sometimes they create barriers, distrust, and deep suspicions about biased “fixed” decisions based on personal politics.
Lastly, many sports disputes have a high public profile, elevating the intensity and consequences of a dispute. Pride is visibly on the line when the public is watching. Personal goals like saving face, making a statement, proving someone wrong, etc. can take over the negotiation if one is not careful.
The Sport Dispute Resolution Centre of Canada (“SDRCC”) is the primary body in Canada for resolving HPS disputes at the national level. The SDRCC has made mediation mandatory for almost all non-doping cases, had an overall settlement rate of 46 percent in its first 12 years, with rates as high as 94 percent for mediations voluntarily requested by the parties. Mediation has generated many stable mutually satisfactory settlements in a timely cost-effective manner, although not all disputes settle. Mediation adds value even when cases don’t settle, by improving mutual understanding and respect among the parties and increasing the likelihood of a later settlement prior to final arbitration.
The SDRCC experience suggests organizations should seriously consider making mediation a mandatory component of the dispute resolution process. While this may challenge the view that mediation should be voluntarily chosen by all parties, mandatory mediation exposes many parties rapidly to mediation and its benefits. And it still works. Despite the many challenges noted above that are inherent in sports disputes, the SDRCC experience suggests that mandatory mediation can still generate relatively high settlement rates as well as other positive impacts on parties. Although mandatory mediation processes at the SDRCC (called Resolution Facilitations) do have lower settlement rates than purely voluntary SDRCC mediations, overall settlement rates more than tripled, from 14 to 46 percent, after the SDRCC introduced mandatory mediation processes. Many cases seen by parties as unresolvable, which would have pushed those parties to reject mediation if the choice was voluntary, were in fact settling.
To date, other countries use mediation more rarely for HPS disputes, although I would argue it should be increasingly used nationally and internationally as well as at grass roots levels. Experience has shown that mediation can be conducted cheaply and effectively over the phone, within minutes or hours of a dispute being filed. The Court of Arbitration for Sport introduced updated mediation rules in 2016 and is moving gradually to increase the use of mediation in its international sports disputes. Most HPS jurisdictions around the world do not yet mediate disciplinary or anti-doping cases, but the SDRCC experience suggests that even disciplinary matters can benefit from some form of facilitation.
Mediation could be introduced for disputes at major international sporting events such as World Championships, Olympic Games, and World Cups. Such services could be provided by the CAS, by neutral international bodies like the International Olympic Committee, or even by games organizing committees. The mediation role could be carried out by mediators or by specialized ombuds personnel with a broad dispute resolution/trouble-shooting mandate. Some time-sensitive and/or disciplinary disputes, such as doping violations, will not be as amenable to mediation in that context, but many conflicts/issues (team selection, advertising issues, code of conduct issues, etc.) could benefit from expedited mediation at major sporting events.
For a full exploration of sports mediation issues, case studies, best practices, and more detail on the experiences of the SDRCC, you can download a free copy (during 2017) of my full paper (Godin, P.D. (2017), “Sport Mediation: Mediating High-Performance Sports Disputes,” Harvard Negotiation Journal
Vol. 33: 25-51) at: http://onlinelibrary.wiley.com/doi/10.1111/nejo.12172/full
© 2017 Paul Godin