Mediation in Sports: Why shouldn’t everybody win?
When one thinks of dispute resolution in a sporting context mediation does not necessarily come to mind. One might think of arbitration, which has played a prominent role in the resolution of sports disputes in recent years. After all, the Court of Arbitration for Sport settled a dispute between the Chilean and Ecuadorean Football Associations, determining that Ecuador would participate in the 2022 World Cup but would suffer a point deduction for the next World Cup’s qualification games (Read more here). Closer to home, arbitration was used to resolve a relegation dispute among Heart of Midlothian, Partick Thistle and the Scottish Football Association during the COVID-19 pandemic (Read more here). The fact that the Scottish Football Association’s articles of association provide that disputes should be resolved by arbitration is a testament to arbitration’s popularity. Despite the increasing prominence of mediation, it is not a form of dispute resolution that is commonly associated with sports.
In an area so dominated by arbitration, is there room for mediation?
The characteristics of mediation: tailor made for sporting disputes
Mediation offers similar privacy and confidentiality as arbitration. Disputing parties that select mediation would still have the comfort of knowing that the dispute would not be subjected to public scrutiny. This is particularly beneficial in a sporting context where media interest is often high. The privacy and confidentiality offered by mediation would ensure the dispute remains private, safeguarding the parties against the release of any potentially embarrassing or commercially sensitive information.
What makes mediation stand out is that it allows the disputing parties more readily to maintain their relationship than adversarial proceedings such as arbitration. This would be particularly useful where the dispute involved a league and a club, as the parties would still have to work together after the dispute. Resolving a dispute between a league and a club through mediation may allow the parties to maintain a good relationship, which in turn would allow them to continue working together with reduced animosity. If such a dispute was resolved through arbitration, the losing party may harbour resentment, which would prevent the parties from working together effectively going forward.
Whilst sport disputes cover a wider range of issues, sport disputes often concern employment contracts and disciplinary issues. These are areas where mediation has proven to be effective. The privacy offered by mediation would ensure that employment contract details are kept private whilst the preservation of relationships encouraged by mediation may lead to the parties working together effectively in the future. Mediation would be particularly effective at resolving disputes concerning disciplinary issues as it could help the party in question avoid public embarrassment. Mediation could also be more effective than other forms of dispute resolution at finding a solution to the disciplinary issue. This is because the win-lose nature of arbitration may exacerbate any indiscipline should the misbehaving party lose the arbitration.
Mediation in Sport: A prominent example and international approval
Whilst arbitration is often credited as the dispute resolution method, mediation was used to rescue the 2012-2013 season of the US National Hockey League (NHL) (Read more here and here). The dispute involved the NHL and the National Hockey League Players Association (NHLPA) and concerned the negotiation of a collective bargaining agreement which involved a significant reduction in player salaries. Understandably, the NHLPA staunchly opposed the salary reduction, and the parties found themselves at a stalemate. This led the NHL to cancel multiple games, eventually putting the entire 2012-2013 season in jeopardy. Mediator Scot L. Beckenbaugh was brought in to help the parties achieve a resolution. Beckenbaugh engaged in “shuttle diplomacy” and helped the parties find areas of compromise, eventually leading to the resolution of the dispute after 16 hours of mediation. Mediation has also featured in American Football disputes. In 2013, a dispute between the National Football League (NFL) and former players, regarding the NFL hiding the dangers of concussion, was referred to mediation by a federal judge (Read more here). The appetite for mediation in sports is not limited exclusively to the US. In February 2023, FIFA published its Mediation Guidelines and appointed 20 mediators worldwide (Read more here). These steps by FIFA suggest mediation may play a more important role in the resolution of future football disputes.
Whilst mediation is becoming more popular in Scotland, it has not yet broken through in a sporting context. This is somewhat surprising considering how effective mediation is, both in theory and in practice, when it comes to the resolution of sports disputes. However, if international developments are indicative of anything, it seems likely that mediation will play a more important role in the future of sports disputes in Scotland.
Alejandro Coghill, Trainee Solicitor at Shepherd and Wedderburn LLP
30 March 2023