Is mediation suitable to resolve sports related disputes?
Published 05 November 2014 By: Volker Hesse
Based on his own research, Volker Hesse draws conclusion on the kind of sports disputes that are most suitable to be submitted to mediation, the success rates of mediation, its limitations and on what barriers prevent mediation being used often to settle sport disputes.
What is mediation?
People who are in a conflict situation often take a position and try to convince the other side that their own position is justified. In such a situation, especially when emotions run high, the conflicting parties usually do not even listen to each other and just try to counter the other party’s argument. The likelihood that the parties find a sustainable solution for their conflict in such a situation is rather low. If the conflicting parties do not find an agreement for their dispute, they traditionally let a third person, for example, a judge or arbitrator, decide on who is right and who is wrong and what is fair and unfair.
There are types of alternative dispute resolution that allow parties to resolve their dispute in a different way - such as mediation.
Mediation is a relatively new concept in continental Europe as an alternative to the conventional dispute resolution system that is mainly based on courts that unilaterally decide a dispute between two parties. Litigating procedures result in winners and losers. In some cases, all parties leave the courtroom disappointed with the decision of the judge.
The ultimate aim of mediation is that a binding solution is found for the conflict that satisfies both parties. The most important factor is that the parties themselves shall find this solution, rather than the mediator, whom in principle only facilitates the parties’ communication.
The mediator does not have the competence to make a decision. Instead, their role is to guide the parties through the mediation procedure, facilitating communication in a way that is optimal for the parties' needs and that tries to bring the discussion towards a rational solution.
The traditional way to decide contractual disputes in sports
In sports, the common way to resolve contractual disputes is by submitting the dispute to either an arbitration tribunal, such as the Court of Arbitration for Sport, or to internal committees of national and international federations such as the FIFA Dispute Resolution Chamber/FIFA Players’ Status Committee or to public courts. Both of these procedures can be time consuming and cost intensive.
Sport is a fast paced world and it is in the interest of all stakeholders, clubs and athletes, in particular, that disputes are resolved quickly and cost-efficiently.
How long does a mediation procedure take?
In the authors opinion mediation is usually faster than arbitration and takes on average of 43 days according to a study performed by the European Union1.
Figure I: Comparison of the length of mediation and litigation procedures in the EU, Source: data based on Palo et al.2
If a dispute is decided by a judge or arbitrator, it is likely that one party is not satisfied with the outcome and decides to appeal to the next instance which again increases the overall duration of the dispute. Successful mediation procedures on the other side are respected by the parties to a large extent because the parties themselves made the “decision”. The likelihood that parties respect a solution which they worked out themselves is considerably higher than a decision that is imposed on them by a third person.
The view of specialists in sports dispute resolution
In order to get a better picture on mediation in sports, the author of this article conducted qualitative interviews with sixteen persons with experience in sports disputes in various countries, i.e. mediators, sports-lawyers, representatives of international and national sports federations and representatives of athlete’s syndicates.
The interviewees were asked several questions about mediation in sports; some of the results shall be presented below.
What kinds of sports disputes are most suitable for meditation?
Interestingly, over half of the interviewees were in favour of mediation for contractual disputes, such as disputes on transfer agreements between two clubs, contracts between an agent and a club or an agent and a player. One third were of the opinion that employment related disputes between a club and an athlete were suitable for mediation. However several interviewees mentioned that football related employment disputes should not be submitted to mediation as the FIFA regulations provide in certain circumstances for sporting (disciplinary) sanctions for a club and/or a player in case of an unjustified breach of an employment contract. As with other disciplinary disputes it was felt that violations of the regulations, for example in doping cases, should be sanctioned in order to reach a preventive and punitive effect, so mediation is not suitable for such disputes.
How many mediation procedures are successful?
As mediation procedures are confidential, it is difficult to obtain clear data on the success rates. The Swiss Association of Mediation (“Schweizer Dachverband Mediation") reports based on a study performed in 2008 that mediation procedures have a success rate of above 70%.3 Other authors maintain that success rates of 75% - 90% are reported in mediation depending on the area where mediation is applied.4
According to the conducted research by the author in the sports sector, the interviewed persons were involved (either as a lawyer, mediator, observer, etc.) in a total of 117 mediation procedures related to sports. It was reported that 69 of these mediation procedures were successful which signifies a success rate of more than 65%. It has to be noted that after an unsuccessful mediation procedure, parties still can, in principle, refer their dispute to a court, a federation’s committee or an arbitration tribunal. It should also be noted that, even if the parties are unable to fully resolve their conflict, the mediation might still serve to help them effectively narrow their issues and bring their respective positions closer together, thus creating fertile ground for a future solution.
Future developments - online mediation?
One of the advantages of mediation is the potential cost effectiveness compared to other procedures. For example, litigation requires the parties – at least in part – to go through a predetermined procedure, which requires expenditure of costs at each stage. With mediation, parties are free to determine their own procedures.
Online mediation, where parties meet in online forums with the mediator to see and speak to each other online as is now technically possible, could serve to reduce procedural costs even further, and significantly so if the parties are international, which can often be the case in sports disputes. A disadvantage is obviously that the parties cannot meet directly and the personal element of a discussion might get lost.
The main limitations of mediation
The enforceability of any settlement reached, the absence of good faith of parties and the lack of support by national and international federations were mentioned as the main limitations for the use of mediation in sports.
With regard to disputes that contain a financial element, interviewees explained that there might be a risk that parties conclude a settlement agreement but fail to respect it afterwards. However, it has to be pointed out that the settlement agreement is a regular contract between the parties allowing them to build in whatever mechanisms they think suitable to ensure compliance with the terms of the settlement (penalties, bank guaranties, ability to apply to the courts, CAS arbitration, etc). Additionally, settlement agreements concluded by the way of mediation may have favourable enforcement possibilities depending on the jurisdiction concerned.
What is the future of sports mediation?
Parties to sports disputes often look for a quick, confidential and cost effective resolution. Mediation is capable of meeting these needs, having the potential to reduce the average time and costs of the procedure to the benefit of all stakeholders, including athletes, clubs and federations. Provided that those involved in sports disputes are better informed about mediation, that mediation provisions are included in regulations of national and international federations, and that mediation clauses are included in contracts, this author believes we will see mediation being used more often as a mechanism of alternative dispute resolution.
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- Tags: Arbitration | Court of Arbitration for Sport (CAS) | European Union | Football | Governance | Litigation | Regulation | UEFA
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Volker Hesse is founder and director of VIVA Sports Law – Consulting, a consulting company specialized in sports management and sports law in Zurich, Switzerland. He is additionally a member of the UCI Disciplinary and Arbitral Board and a mediator.