Dispute management alternatives

The challenges 

The current system of arbitration in sport was not a specific subject of research in the ClearingSport project. However, the matter came up regularly, and previous research reveals several issues that affect the legal due process of especially athletes, but also other actors. 

• Review of the decisions of sport bodies and its dispute settle is administered within each sport, providing little to no separation of powers.
• The Court of Arbitration for Sport (CAS) is the overwhelmingly dominant body in sport arbitration. This body lacks sufficient independence and transparency, including in its procedural rules, the selection of arbitrators and the reasoning and publication of the awards.
• Costs to access justice are prohibitive for individual complainants, including athletes in particular in the areas where highly technical expertise is needed in combination with strict liability.

ClearingSport’s assessment

The current system of arbitration in sport conflicts with two principles of access to fair justice:

1. The system is mandatory, rather than voluntary.
2. The system does not respect the rule of law, as demonstrated by ineffective independence and lack of adherence to due process

Alternative avenues for dispute management that would ensure that sports arbitration complies with due process and broadly the rule of law are a necessary complement of any good governance and integrity reforms.

The identified solution 

Introduce alternatives for dispute management in sport, particularly in the areas of arbitration and mediation, to ensure fair access to justice.

Arbitration

Partner organisations should be able to outsource arbitration to specialist services in place of a sports disciplinary or appeals panel being conducted by the sport. 

Mediation

Mediation can be particularly useful in the provision of remedy when there are very clear means to redress the power imbalance between parties. Mediation is often a swift and cost-effective way of bringing the parties to an agreed solution. Mediation services to be considered include:

• selection and appointment of a specially trained neutral facilitator with a good understanding of the sport
• organisation of the mediation in a confidential setting using a mediation procedure
• mediation of the dispute and assistance to finalise a settlement agreement between the parties