Consultation on the impact of COVID-19 on Dispute Resolution in Sport
Open invitation to contribute to Ad Hoc Working Party on the impact of COVID-19 on Dispute Resolution in Sport
A video-conference has been arranged for 3 pm to 4:30 pm on Tuesday 19 May 2020 and any requests to participate should be sent to that email address by the same time. Register here.
DISCUSSION AND CONSULTATION PAPER (7 May 2020)
- We are seeking to assemble an Ad Hoc Working Party of experts in the field of sports dispute resolution, to consider and in due course report on the impact of Covid-19 on Dispute Resolution in Sport. This initial Discussion Paper sets out some of the issues which we think may be of interest to those involved in sports disputes (whether regulatory or arbitral), raises various questions for consultation, and makes some tentative recommendations for good practice.
- We do not presently seek to set a uniform blueprint for the resolution of sports disputes. Different sports and arbitral centres have their own practices and procedures. Rather, we hope at this stage to encourage helpful discussion and the sharing of information between those involved in the area with the aim of improving the overall efficiency and fairness of the practice and procedures for the resolution of sports disputes arising out of and effected by the Covid-19 health emergency.
- This Paper draws on the experience of some of the initial members (initially listed in the Appendix) in arbitrating or appearing before Sports Dispute Resolution panels and the courts and tribunals since the outbreak of Covid-19, and raises some of the questions for wider discussion.
- We have also drawn on ongoing work, guidance and consultation conducted by other bodies and lawyers in the UK concerning dispute resolution during Covid-19, including the Civil Justice Council invitation for ‘Rapid Consultation: The impact of COVID-19 measures on the civil justice system’ (1 May 2020) and the Administrative Law Bar Association ‘Guidance to Advocates on Remote Hearings’ (May 2020). However we would encourage international input and comparisons as well.
- We set out below some initial questions for discussion and some brief answers from some of the individual members of the Working Party so far. Along with LawInSport, which has kindly offered assistance with this consultation process, we invite those interested in the resolution of sports disputes (including arbitrators, practitioners, arbitral institutions and sports governing bodies) to provide responses to the questions, or to raise any other matters considered to be of importance for us to consider and to debate at a video-conference in a few weeks time. We aim thereafter to produce a report, reviewing the responses to consultation and setting out any recommendations for good practice that we are able to agree upon.
- The Covid-19 health emergency has had a significant and unprecedented effect on sport and on dispute resolution in sport. Competitive sporting competitions have almost all been suspended or cancelled since late March 2020 and whereas there are currently ongoing discussions about resuming some sports ‘behind closed doors’ in the future, there remains considerable uncertainty about when and how sport will resume to be played. The severe financial impact of the crisis on sport, and the regulatory issues arising from the suspension and cancellation of competitions is likely to cause an increase in sports disputes. Sports dispute resolution is carrying on during the crisis and, as with other areas of professional life, is and will be overwhelmingly likely to continue to be conducted by video and/or telephone hearings (‘remote hearings’) which pose various challenges.
- Practitioners have identified a number of points of broad interest to those involved in the resolution of sports disputes, including the following:
(i) It is very important for tribunals and advocates to arrange ‘ sessions with equipment used to conduct the hearings before they take place;
(ii) Parties and tribunals shall often need to have the ability to communicate with each other privately while conducting a hearing (for example solicitor to barrister, or with lay clients, or panel member with panel Chair). Arrangements need to be considered to facilitate this;
(iii) Confidentiality and security of the means of communication is very important;
(iv) Parties should ensure witness statements pleadings and arguments are clear and set out the main evidence/submissions that shall be made so as to assist the tribunal in hearing the case;
(v) Feedback so far suggests that the concentration required for a remote hearing means that it can be more tiring for those taking part than a traditional hearing in person. Those arranging hearings should take this into account in terms of timetabling;
(vi) The additional burdens on parties and advocates who may be working from home, without access to their offices, and may have additional responsibilities or problems (ie childcare, home schooling, health related issues) pose challenges that tribunals shall need to be sensitive to;
(vii) The Covid-19 health crisis ought not be relied upon as a general excuse by parties not to properly progress disputes without some justification. On the other hand tribunals need to be sensitive to the additional complications Covid-19 puts on parties with respect to preparing for or participating in disputes, and need to be sensitive about requiring explanations from parties where personal and private issues may be causing difficulties.
Some specific issues
- In addition to those general issues that arise, we set out below, in no particular order, some of the questions which we have identified specific to the resolution of sports disputes and (shown in red text) some preliminary observations from individual members of the Working Party so far. Those interested in the resolution of sports dispute are invited to send in their responses to any of these questions, and other questions or points which they think it would be helpful for us to consider and debate with a view to providing a report in due course.
(i) What steps should be taken to ensure that only those who are entitled to be present at a remote hearing are present ?
Parties should serve lists of email addresses of all those in their teams.
(ii) Should those responsible for organising the hearing insist on a "test" pre-hearing?
(iii) Does sport need a common "platform" for remote hearings?
No - each body may have its own reasons for choosing what it does.
(iv) Should there be a standard approach to dealing with applications for adjournments or delays/non-compliance with directions as a result of on Covid-19 excuses ?
No - each situation is likely to depend on its own circumstances, and needs to be addressed with appropriate understanding and/or firmness.
(v) Do/Should sports tribunals have the power to grant substantive interim relief, such as restraining a party from breaching a contract or requiring a party to pay a salary on time?
If possible yes, if they are to offer effective alternative dispute resolution – but it will depend on the rules of the various bodies conferring jurisdiction.
(vi) If so, what procedures are there/should there be for applying for interim relief? FA Rule K.8 offers a useful model. If possible a single arbitrator, appointed by a neutral body like Sport Resolutions and able to determine the claim within a few days ought to be adopted.
(vii) If not, what can/should a sports tribunal do to assist the parties obtain a just and effective result?
A tribunal may be invited rule on its own jurisdiction; where it rules it has no jurisdiction to determine the application this might remove a hurdle to the parties from applying to the court.
(ix) What approach should tribunals adopt to sporting sanctions imposed before the lockdown? If a player is subject to an 8-week ban, for example, instead of an 8-match ban, but when the ban was imposed it was contemplated matches would be played that are now not being played, what should the proper approach be?
This is a matter for each tribunal, but if a ban is expressed in time when it could have been expressed in matches, then we would expect that to be respected.
(x) What approach should tribunals adopt to sanctions where a season or tournament is cancelled and the results declared ‘null and void’? For example, if a league is cancelled and the results expunged should any sanctions imposed on a club (financial or otherwise) also be expunged?
There may be arguments both ways but it would be unfortunate for different tribunals to adopt opposite approaches, especially within the same sports.
(xii) Should sports tribunals place greater emphasis on legal certainty and settlements?
If possible, yes.
(xi) What is the best way to do that?
If possible high-level principles to encourage mediation and settlement should be the preferred to allowing a party to take any unfair advantage as a result of COVID-19.
(xii) Should sports tribunals be more prepared to deal with matters without the need for a hearing?
Yes, in appropriate cases- a hearing on the papers should not always be seen as the exception.
(xiii) Should pragmatic issues be shared in dealing with video hearings so there is a common practice and consistency to ensure parties are given a fair remote hearing (especially where there is remote witness evidence)?
Yes, the sharing of information and experiences is to be encouraged.
(xiv) Should the ‘events of insolvency’ provisions in many governing body/competition rules be modified?
If possible. The power to suspend a club, for example, should be used sparingly in order to rehabilitate and keep clubs going.
(xv) What are the basics needed to achieve a level playing field?
Fundamental concepts such as access to justice, the right to a fair hearing and how to achieve these in current times need to be considered.
(xvi) How can that be guaranteed in the present circumstances?
(xvii) To what extent should mediation become compulsory (or at least, to what extent should a refusal to mediate potentially attract sanction) given the financial constraints facing all aspects of nearly all sports?
Mediation is under-used in sports cases, and that there is still a perception that it won’t work/can’t work in many sporting scenarios. Experience would suggest otherwise, and if the only way is to force entities down that route is to make it compulsory as a starting point, that may need to be considered.
(xviii) How can privacy and confidentiality be guaranteed in remote hearings?
(xix) How should the ‘lone objector’ be dealt with?
There may be a strong desire to return to sports events and competitions sooner rather than later. But there may be challenges from e.g. individual players who feel it is unsafe or clubs who are not satisfied with the protections provided by other clubs/venues, or wider challenges by police and health bodies to ground security arrangements etc. Some of those will fall within the scope of sports’ rules and regulations. Consistency of approach is desirable, but tribunals will not want to be making decisions about what should go ahead where there is uncertainty over safety.
(xx) Should tribunals issue guidance in general terms (and independently of the consideration of any specific dispute) as to how they are likely to resolve the particular legal issues thrown up by the CV-19 crisis?
Whilst it may assist parties in resolving disputes without proceedings, if done it should be done carefully and sparingly lest it create a risk that the tribunal may have pre-determined points of legal dispute upon which they have yet to hear argument.
(xxi) Where CV-19 related legal issues are determined in the course of considering a live dispute, should the tribunal consider a change of practice in relation to the extent to which and the speed with which such determinations are publicised?
It would be useful if points of principle determined in live cases could be publicised promptly although thought will have to be given to how confidentiality of other aspects of the proceedings is preserved.
(xxii) Should an ability to demonstrate good faith efforts to resolve matters without recourse to the tribunal be a pre-condition of the tribunal accepting a case for hearing? Experience in some jurisdictions suggests that this may prove to be more productive of satellite litigation than of early resolution. Mediation should be encouraged wherever possible and it may make sense to ask parties to indicate what efforts have been made without making it a jurisdictional hurdle.
(xxiii) Where the hearing is conducted electronically, should it be listed for longer than a traditional in person hearing?
Yes, there will likely be at least some delays relating to technological malfunction but in any event the degree of concentration required in remote hearings may be greater for some arbitrators and participants and that needs to be taken into account in setting the length of a sitting day.
(xxiv) When CV-19 is relied upon as an excuse for failing to comply with a direction must explanations be taken at face value?
Tribunals need to be appropriately sympathetic to the difficulties created by the present crisis but also live to the danger of them being used as a pretext. In assessing the validity of any purported excuse, the tribunal will need to have in mind that it may be asking parties or their representatives to disclose matters that are highly sensitive and intensely personal and that such information should only be required where the tribunal is satisfied that it is reasonably necessary and proportionate to do so.
(xxv) What do video hearings lose, as compared with in-person hearings?
The sense of contact, perceiving the whole room and both sides, advocates, witnesses, and picking up the nuances of natural speech and body language, have all been regarded as important in achieving the right result in the most efficient and effective way. Tribunals have to adjust to what they assess and how in order still reach a fair and correct result.
(xxvi) How do you deal with parties who are not equally resourced when it comes to preparing and presenting their cases?
Tribunals will need to tailor e-directions, and conduct of video hearings, to the problems which one side or the other or both, may be facing in these conditions. For example, instead of ordering the parties jointly to submit something (eg the hyperlinked e-bundle), tribunals should consider the resources each party has and decide whether to order the party with better resources to prepare the bundle before submitting it to the other for agreement.
(xxvii) Does social distancing make it easier or harder to achieve pro-active case management?
Without any in-person meetings, parties may need more time for particular or all steps, eg proofing witnesses, searching for documents, organizing the interpreters, consulting with lawyers or experts etc. The key thing is for the tribunal to communicate, understand the specifics and then monitor and supervise.
(xxxviii) Will COVID-19 lead to a more inquisitorial approach?
It may do. All dispute-resolution methods need to adapt to the current circumstances and this may include a greater tendency towards of mediation and then independent inquiry instead of or before traditional arbitration.
(xxix) Will some of these changes be permanent and will we learn how to do things better?
This remains uncertain. There are likely to be useful experiences, e.g. the discipline needed in remote hearings, cutting down on the rounds of evidence and submission, allowing short-post hearing briefs to make sure it is all pulled together.
Attached Appendix – Initial members of CV19-AWDRES
FA National Discipline and Anti-Discrimination Panels Chair, Member of the Premier League Judicial Panel, the UK Sport Eligibility Panel, the LTA Discipline Panel and the Sport Resolutions Panel, Solicitor
Michael Beloff QC
CAS Arbitrator, Chair of ICC Code of Conduct Commission, Chair of the ICC dispute resolution commission, Member of Mixed Martial Arts doping appeal tribunal, Member of Blackstone Chambers
Founder and CEO of LawinSport
Nick De Marco QC
World Athletics Disciplinary Tribunal member, Sport Resolutions Panel of Arbitrators, Member AIAC Sports panel, Chair British Wrestling Judicial Panel, Director BASL, Member of Blackstone Chambers
Member of England Boxing Disciplinary Panel, Visiting Fellow at the Centre for Sports Law Research, Member of Kings Chambers
Sean Jones QC
Employment Judge, Employment Law Bar Association Management Committee, Bar Council, Member of 11 KBW
Chartered Forensic/Sport/HCPC Registered Psychologist, Associate Fellow BPS
Graeme McPherson QC
Premier League Judicial Panel member, FA Judicial Panel member, Sport Resolutions Panel of Arbitrators, Table Tennis England Board of Appeal Chair, Member of 4 New Square Chambers
Member of UEFA Appeals Body, Sport Resolutions Panel of Arbitrators, World Athletics Disciplinary Tribunal and Doping Panel of the International Powerlifting Federation, lecturer at Lausanne University
John Mehrzad QC
Sport Resolutions Panel of Arbitrators, FA Discipline Panel Chair, Paralympic Classification Appeal Chair, Member of Independent Reviews into UK Athletics, British Equestrian Federation and British Cycling, Member of Littleton Chambers
Premier League Judicial Panel Deputy Chair, Vice President of the Basketball Arbitration Tribunal, Sport Resolutions Panel of Arbitrators and Mediators, World Athletics Disciplinary Tribunal member, Grand Court Judge of the Cayman Islands Financial Services Division, Member of Matrix Chambers
Member of Sport Resolutions Panel of Arbitrators, Union Cycliste Internationale Arbitral and Disciplinary Panel, British Equestrian Federation arbitrator, Member of 4 New Square Chambers.
Klaus Reichert SC
Member-at-Large of the Executive of the Institute of Transnational Arbitration (Dallas), Fellow of the College of Commercial Arbitration (USA), Advisory Board Member of ICCA, Arbitrator at LCIA, ICC, ICDR, and UNCITRAL
General Counsel at the International Paralympic Committee
Murray Rosen QC
CAS Arbitrator, Premier League Judicial Panel Chair, Sport Resolutions Panel of Arbitrators, Deputy High Court Judge (Chancery), Member of 4 New Square Chambers
Sport Resolutions Panel of Arbitrators, FA Rule K Arbitrator and Anti-Discrimination Chair, Member of Parklane Plowden Chambers
Jonathan Taylor QC
Sport Resolutions Panel of Arbitrators, Head of Sports Group, Bird & Bird LLP
Professor Jack Anderson
Jack Anderson, Professor and Director of Sports Law Studies at the University of Melbourne and Member of the National Sports Tribunal of Australia