Dispute Resolution In Sport: Athletes, Law And Arbitration (2015)

Thursday, 09 April 2015

DISPUTE RESOLUTION IN SPORT:  ATHLETES, LAW AND ARBITRATION (2015), by David McArdle, LLB, PhD, published by Routledge Taylor & Francis Group, London and New York, 194 pages, hardback, ISBN 978-0-415-59567-4 (hbk) £85.00.

This book is small in its footprint yet broad in its scope. It offers expansive discussion on overarching dispute resolution issues in the National Collegiate Athletic Association, the Court of Arbitration for Sport, FIFA, United States professional and Olympic sports, and in the context of antitrust and organized labor schemes in the United States and Europe

This book may be the first to have time traveled — its publication date is 2015 yet I purchased my copy at Wildy’s in October 2014!  One of its key points though is that it does still update the reader with all the latest events through 2014.

The author, David McArdle, is a well-published Senior Lecturer in the School of Law at Stirling University in Scotland, and the book’s mission is set forth succinctly as follows:

The book explores, in depth, the development of alternative dispute resolutions in sports, paying particular attention to high-profile institutions such as the Court of Arbitration for Sport, the FIFA Football Dispute Resolution Panel and important national-level bodies, and their relationship with national and international-level actors such as the IOC, WADA and the European Union. It also examines in detail the legal frameworks within which sports arbitration systems operate, considers their similarities with other arbitral bodies and considers the extent to which ADR in sport can be seen as a consequence of, and perhaps a solution to, the ‘juridification’ of sports.

While I question whether a 194 page book can explore a legal subject such as this “in depth”, it does traverse the field of European and North American sports dispute resolution with enthusiasm and earnestness.

The book raises interesting issues with which you may or may not agree, and perhaps that is its charge. The author is an academic and not a practitioner or serving as an arbitrator, so his views are undoubtedly independent, often new, and could, the author suspects, prove disagreeable (perhaps intentionally so).

For example, in the preface the author writes:

Perhaps the most important point to emerge from those cases is the impossibility of discerning an approach by the CAS which is remotely analogous to the doctrine of legal precedent, so that earlier decisions give some meaningful guidance as to the likely outcome of later disputes. To the contrary, the CAS appears keen to avoid a situation in which parties in breach can predict with any certainty what the applicable damages will be, the apparent rationale being that an ability to ascertain that figure with any degree of certainty would, of itself, encourage breaches and thus undermine contract stability . . .

And continues this theme in the first chapter when stating:

[I]t is also the case that some CAS determinations actually have been explicitly informed by both its earlier rulings and by recourse to wider legal principles and judicial precedent – a cynic might argue that CAS Panels use precedent when doing so reinforces the judgment they wish to reach and ignore it when the precedents are adverse, and this does appear to be the case in respect of appeals from the FIFA Dispute Resolution Chamber in particular.

This is obviously somewhat controversial and certainly not a view echoed by all academics and practitioners (this author included). As a CAS arbitrator, I would argue that CAS cases are full of citation to and reliance on prior cases precisely because subsequent CAS panels are influenced by prior awards; there would be no reason to do this but for the notion that prior cases provide clear and considered guidance to CAS panels on how to decide future similar cases. Of course, as a legal matter, they are not and cannot be binding as you would find with cases reported in a common law court system, but these prior cases are as persuasive as you can get on bringing certainty and predictability to cases that come before CAS, and the FIFA cases are no exception. But everyone can have their own opinion, and the fact that there are different views on the same issue does not mean either one is correct.

The book is however accurate in its rendition of much of the structural bases for dispute resolution for sport worldwide. By way of example, the discussion of the US Olympic structure, and the travails the U.S. Olympic arbitration system has experienced, is the best, and most accurate, I have seen from a foreign author, bar none, and exceeds the attempted expression of similar issues from several US authors and courts.1

The book does an excellent job of explaining to the uninitiated the basis for US labor law in sports and the most current issues of our day in that area, including salary caps and competitive balance issues, and even the highly publicized issues involving concussion litigation and NCAA governance issues that have been on the front pages of American sports for the past few years.

Where the book loses its way a bit is when it attempts to tackle more than dispute resolution issues and diverts its focus to other areas such as competition/antitrust considerations, collective bargaining and labor, and young athletes.

The book focuses on arbitration, and does not cover discussion of the use of mediation in sports generally (including collective bargaining or labor matters), CAS mediation, or the use of the athlete ombudsman in US Olympic sports as tools for resolving sports disputes.  To this extent, the book's title and preface are somewhat misleading, as both make reference to "dispute resolution" and "ADR". 

This volume is a valuable weapon in the teaching arsenal introducing important concepts and raising fundamental and not so fundamental issues for the reader’s consumption, so it should prove valuable in the libraries of teachers, students, and libraries. Practitioners may find it more theoretical than practical in its approach to the mundane daily problems of sports law advocates and advisors, because it discusses a great deal of historical features and points out areas of possible law reform rather than focus on issues that bear primarily on advocacy. Nonetheless, I maintain it as a welcome addition to my personal sports law library and will consider using it or excerpts of it for courses I teach on sports law.


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