Wendy Lewis

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Settling Sports Disputes by ADR: Some Major Sports Dispute Resolution Bodies Modelled on the Court of Arbitration for Sport Ian Blackshaw*

Introduction

Sport is big business and worth more than three per cent of world trade. It is not surprising, therefore, that sports disputes, especially commercial ones,

are on the increase. The sporting community prefers to settle its disputes by some form of alternative dispute resolution (ADR) process rather than going to court, which is considered to be a last resort.

As a result, a number of sports dispute resolution bodies have been established for this purpose; perhaps the best known is the Court of Arbitration for Sport (CAS), which is based in Lausanne, Switzerland and has been operating successfully for 25 years.

In this article, we will take a brief look at some of the other major sports dispute resolution bodies, which have been modelled on the CAS and subsequently established in various parts of the world.

These include the Sport Dispute Resolution Centre of Canada based in Montreal; the FIBA Arbitral Tribunal based in Geneva, Switzerland; the FIFA Dispute Resolution Chamber based in Zurich, Switzerland; the Japan

Professor Ian Blackshaw is an International Sports Lawyer and a former Vice-President

Legal Affairs of the ISL Sports Marketing Group, Lucerne, Switzerland. He qualified as a Solicitor of the Supreme Court of England and Wales and also holds a Master's Degree in International Sports Law from Anglia Ruskin University, Chelmsford and Cambridge, United Kingdom, where he is a Visiting Professor.

170 DISPUTE RESOLUTION INTERNATIONAL Vol 3 No 2 October 2009

Sports Arbitration Agency based in Tokyo; and Sport Resolutions (UK)

based in London. Having briefly described these bodies and what they offer, we will draw

some general conclusions.

The Sport Dispute Resolution Centre of Canada (SDRCC)1

In April 2004, the Sport Dispute Resolution Centre of Canada (SDRCC), modelled on the Court of Arbitration for Sport (CAS) but taking into

account the Canadian dispute resolution tradition, officially commenced

its operations. The SDRCC - also known by its French acronym CRDSC (Centre de

r~glement des diffdrends sportifs du Canada) - is a not-for-profit corporation created by Federal Legislation and is funded by Sport Canada. The mission of the SDRCC is to provide the sporting community with a national alternative

dispute resolution service and strengthen the culture of fairness in Canadian

sport by resolving disputes quickly and efficiently as well as to provide expertise and assistance in the field of alternative dispute resolution.

A new Canadian Sport Dispute Resolution Code has been introduced

and took effect on 1 January 2009.2 The publication of this code followed a public consultation during which the entire Canadian sporting community

was invited to provide input, comments, and suggestions on a draft version

of the new code. Notable changes to the previous code include the following matters:

* improved definitions of parties, affected parties and intervenors;

* new timelines for filing a request and for rendering cost or doping

decisions;

* new provisions pertaining to the language of the proceedings; * clarification of the resolution facilitation services;

* amendment to the rule on the onus of proof in team selection disputes;

and

* several other changes mandated by the new Canadian Anti-Doping Programme 2009.

The new code outlines the procedural rules under which all disputes

submitted to SDRCC must conform. Some of the important aspects of the

dispute resolution procedures addressed in the code are:

1 The SDRCC is based in Montreal (Quebec). Its official website is at: www.crdsc-sdrcc.ca. Marie-Claude Asselin is its Executive Director and CEO and she may be contacted for general enquiries by e-mail at: [email protected].

2 The full text of the new Code may be found by logging onto: www.crdsc-sdrcc.ca/eng/ dispute-resolution-code.cfm.

SETTLING SPORTS DISPUTES BY ADR

* jurisdiction of the SDRCC; * confidentiality;

* timelines; * appointment of arbitrators;

* selection of mediators;

* settlements and awards; and

* costs.

The SDRCC is confident that this new code 'will enable the delivery of

better services to the members of the sport community'. The activities of the SDRCC - the so-called 'Canadian CAS' - are well

described and analysedjuridically by Dr Hilary Findlay in her contribution,

entitled 'Form Follows Function: Crafting Rules for a Sport-Specific Arbitration Process - "The Canadian CAS"' in the Asser Sports Law Series Book on The Court of Arbitration for Sport 1984 - 2004.1

She makes some pertinent observations in her conclusions as to what is necessary for setting up an effective sport-specific arbitration mechanism

and identifies the following three important criteria as follows: '... what is the appropriate scope of review afforded to the adjudicator in an arbitration, what is the appropriate standard of review to determine an "error" in the original decision, and, lastly, what is the appropriate scope of authority of the adjudicator in crafting a remedy.'4

The widest possible scope in these matters tends to ensure the success and

effectiveness of the dispute resolution body.

The FIBA Arbitral Tribunal (FAT)

Introductory remarks

Established two years ago in May 2007 - with very little fanfare outside the world of basketball - FIBA, the International Basketball Federation, set up its own dispute resolution body, know by the acronym 'FAT' (the FIBA Arbitral Tribunal) with the laudable objectives of settling disputes speedily, informally, inexpensively and effectively. So far, the FAT has dealt with 37

cases, with 20 more pending at the time of writing. The FAT, which is the brainchild of Dr Dirk-Reiner Martens, a former

Secretary-General of FIBA and sports arbitrator, has its seat in Geneva, Switzerland, where FIBA itself is based, and offers arbitration under Swiss Law. It is independent of FIBA, and the language of its arbitrations is English.

3 Edited by Jan S Blackshaw, Robert C R Siekmann andJanwillem Soek, 2006, T M C Asser Press, The Hague, the Netherlands, at pp 280-293.

4 Ibid, atp 291.

172 DISPUTE RESOLUTION INTERNATIONAL Vol 3 No 2 October 2009

Hearings are by application only and appeals from FAT awards lie to the Court

of Arbitration for Sport (CAS), which is based in Lausanne, Switzerland. All its arbitrators have CAS experience and its President is Professor Gabrielle Kaufmann-Kohler of Geneva University, who is well-known in CAS circles.

However, exceptionally, no appeals lie from awards of the FAT or appeals to the CAS to the Swiss Federal Tribunal. These are expressly renounced by the parties to the FAT (see below). In fact, to date at least, there have been no appeals to the CAS or legal challenges to FAT awards.

The FAT is proving to be an effective body within the European world

of basketball. In fact, the FAT standard form arbitration clause is now commonplace in European basketball contracts. However, the FAT is also growing in popularity outside Europe in other countries such as China, the Lebanon and Saudi Arabia.

The FAT standard form arbitration clause

The standard express contractual reference to FAT arbitration takes the

following form: 'Any dispute arising from or related to the present contract shall be submitted to the FIBA Arbitral Tribunal (FAT) in Geneva, Switzerland and shall be resolved in accordance with the FAT Arbitration Rules by a single arbitrator appointed by the FAT President.

The seat of the arbitration shall be Geneva, Switzerland. The arbitration shall be governed by Chapter 12 of the Swiss Act on

Private International Law (PIL), irrespective of the parties' domicile. The language of the arbitration shall be English.

Awards of the FAT can be appealed to the Court of Arbitration for Sport (CAS), Lausanne, Switzerland. The parties expressly waive recourse to the Swiss Federal Tribunal against awards of the FAT and against decisions of the

Court of Arbitration for Sport (CAS) upon appeal, as provided in Article 192 of the Swiss Act on Private International Law.

The arbitrator and CAS upon appeal shall decide the dispute ex aequo

et bono.' As will be seen, FAT arbitration is handled by a single arbitrator - rather than a panel of three which is more common in CAS cases - and this helps to speed up the process of getting a FAT award. Also, short deadlines are set for the parties to reply; and submissions are made online.

Likewise, time is saved by the fact that the dispute is decided on an ex aequo et bono basis - in other words, by applying general rules of justice and fairness, including, of course, the rule of due process - obviating the need to refer to any particular national or international law. This basis also applies to the determination of any appeals from the FAT to the CAS.

SETTLING SPORTS DISPUTES BY ADR

This possibility is foreseen in Article R45 of the CAS Code of Sports-related Arbitration (2004 Edition).

In general, a decision of the FAT is made within six weeks of the end of

the proceedings; and, this, in turn, is usually within three to four months of the date of the filing by the claimant of the request for arbitration.

The FAT request for arbitration

Arbitration by FAT is commenced by filing a written request for arbitration. The request for arbitration, which is similar in its material contents to the

one filed with the CAS, is accompanied by a Power of Attorney in favour of

the claimant's (legal) representative. The claimant is also required to pay an administration fee of C3,000; and,

in addition, the claimant and the respondent share an advance payment of

the arbitrator's fees. These fees are determined according to the value and complexity of the dispute. If the respondent fails to pay its share of these fees, the claimant can pay that share; all of these factors are taken into account in any final award that is made on costs by the FAT.

The FAT procedural rules

Arbitrations before the FAT are conducted in accordance with the FIBA Arbitral Tribunal Arbitration Rules of December 2007.5 These Rules are

subject to the FIBA Arbitral Tribunal Regulations, which form part of section L2 of the FIBA Internal Regulations.

EnforcingFAT awards

Failure to honour a FAT award may give rise to a number of sanctions

being imposed by FIBA on the party concerned. These sanctions include: a monetary fine; the withdrawal of a FIBA Agent's Licence; a ban on the international transfer of players; and a ban on the registration of new players.

To date, apparently there has been only one case in which the party

concerned has failed to comply with a FAT award. As will also be seen from the above provisions in L2.7.3, FIBA sanctions

are appealable to the FIBA Appeals Tribunal in accordance with the

corresponding Regulations.

Final remarks

The FAT is proving to be an effective and, therefore, popular body for resolving disputes in the sport of basketball and, perhaps, this wining

5 These can be downloaded from the FIBA official website to be found at: www.fiba.com.

174 DISPUTE RESOLUTION INTERNATIONAL Vol 3 No 2 October 2009

formula/model may be adopted by other sports bodies for the settlement of their disputes. Of course that remains to be seen.

However, not all sports may wish to adopt the ex aequo et bono basis of

decision making and/or exclude further appeals to external courts or tribunals - in other words, the ordinary courts of the land which may otherwise have jurisdiction in dealing with disputes. In this connection, there is always the legal problem of ousting the jurisdiction of the courts, which in manyjurisdictions is not legally possible - at least, until all internal remedies of the sports body concerned have been exhausted. See, for

example, the English House of Lords decision in the case of Scott v Avery [1856] 5 HL Cas 811.

What may be said with more certainty is that the FAT can expect to have a heavier caseload in the foreseeable future, as the dispute resolution procedures of the FAT are invoked by more countries outside Europe. This, of course, will necessitate the appointment of more FAT arbitrators, who currently comprise a rather select and limited band of pioneers.

The FIFA Dispute Resolution Chamber (DRC)

Introductory remarks

The FIFA Dispute Resolution Chamber (DRC) is an important sports disputes resolution body handling several hundred football-related cases each year. Not all of these cases are published on the FIFA official website,6

but only those of 'general interest'. For example, on 15 August 2008, FIFA published the decision of the DRC in the high profile Adrian Mutu case, who was sacked by Chelsea Football Club in October 2004 and fined £20,000 and banned by the English FA from football for seven months, after failing a drugs test for cocaine. Chelsea brought a claim against the player in the DRC for damages for breach of contract. A FIFA statement read:

'We can confirm that a decision has been taken by the Dispute Resolution Chamber (DRC) regarding the case of the player Adrian Mutu and Chelsea Football Club (England), and that the decision has been notified

to the parties concerned. The claim for compensation of Chelsea Football Club, regarding the

breach of a contract which was signed between the two parties on 12 August 2003, has been partially accepted. The player Adrian Mutu will have to pay the amount of C17,173,990 to Chelsea Football Club.'

This case has been appealed to the Court of Arbitration for Sport (CAS)

and is pending.

6 www.fifa.com.

SETTLING SPORTS DISPUTES BY ADR

Generally speaking, the decisions of the DRC are based on general principles of labour law, but on some points/issues the DRC makes its

own kind of law which may be described as a 'Lex Sportiva', as the so- called 'specificity of international professional football' is one of the considerations to be taken into account by the DRC in reaching their

decisions in appropriate cases. Generally speaking, decisions are made on the basis of the submission of documents rather than through oral hearings.

Background

The world governing body of association football, FIFA, was established in

1904 for the purpose of achieving, on a global basis, uniformity, equality

and certainty in football, and improving the game, both on and off the field of play. To realise these goals, FIFA first set up the Players' Status Committee (PSC), one of its Standing Committees, with the aim of deciding all

international football disputes.

In 2001, FIFA set up the Dispute Resolution Chamber (DRC) to take

over certain disputes from the PSC relating to the international status and transfer of players. Its competence extends to cases concerning labour disputes, with an international dimension, and also to disputes regarding training compensation and the so-called solidarity contribution.

The PSC is required to set up and monitor compliance with the Regulations on the Status and Transfer of Players (RSTP), the latest version

of whose provisions is December 2004/October 2007, and also to determine

the status of players for various FIFA competitions.8 Its competence is

governed by the provisions of the RSTP. The PSC is also responsible for the work of the Dispute Resolution Chamber in accordance with the RSTP and the Rules Governing the Procedures of the Players' Status Committee and the Dispute Resolution Chamber.9

For further information regarding the background and history of the DRC and, in particular, the influence and effect of the European Court

of Justice Decision in BosmanC on the corresponding rules and operating arrangements, see the recent book entitled The Jurisprudence of the FFA Dispute Resolution Chamber by Frans de Weger.i

7 FIFA Statutes 2008, effective as of 1 August, 2008, Art 34.1 (o).

8 Jbid, Art 49.1. 9 Ibid, Art 49.2. 10 Case C415/93 Union Royale Belge de Societes deFootball v Bosman [1995] ECR J4921. 11 Published by the T M C Asser Press, The Netherlands, 2008, at pp 2-8.

176 DISPUTE RESOLUTION INTERNATIONAL Vol 3 No 2 October 2009

The nature composition and operation of the DRC

The DRC is not an arbitral court, such as the CAS. The decisions of the DRC

are not, therefore, international arbitral awards, and can only be enforced through the statutes and regulations of FIFA. In other words, within the so-called 'football family'. As such, the decisions of the DRC are of great importance and have a huge impact on the international football world. The members of FIFA, the national associations, must fully comply with

all decisions of FIFA, such as decisions of the DRC. 12 In turn, the national associations must take measures to ensure that their own members, the national players and clubs, also fully comply with these decisions.13

The DRC meets in the form of a panel composed generally of at least three members, including the chairman or the deputy chairman.14

According to the FIFA Commentary on the DRC, the composition of the DRC must be based on the fundamental principle of equal representation

of players and clubs. Ten members represent the players and are proposed by FIFPro, the international union for professional football players; and ten club members are proposed by the national associations and leagues from around the world from amongst their clubs.

The FIFA Executive Committee then formally appoints the proposed members, together with the chairman and the deputy chairman.1" In

this respect, it is very important that the members of the DRC do not perform different functions in the same matter. They will explicitly refrain from attempting to influence other bodies and committees and they must maintain strict confidentiality concerning any and all information that may come to their attention in the exercise of their

duties and not mentioned in the decision. In particular, they are strictly obliged to respect the secrecy of deliberations.16 The decisions of the DRC are made by a simple majority vote of the members; each of the

members, including the chairman, has one vote each. In the event of a

tie, the chairman has a casting vote. Abstentions are not permitted. The decisions will be communicated to the parties in writing, although in urgent cases, the decision may be given orally immediately, with written

confirmation following within the next 20 days. 17

12 Ibid, Art 13.1 (d). 13 Ibid, Art 65.2. 14 According to the FIFA Statutes, the composition, specific duties and powers of the indi-

vidual committees, such as the DRC, will be stipulated in special organisation regulations. The composition of the DRC is therefore laid down in the before-mentioned Procedural Rules as well as the RSTP, edition 2005.

15 FIFA Commentary, explanation Art 24, p 72. Procedural Rules, Art 4. 16 Procedural Rules, Art 5 para 7. 17 Ibid, Art 13 para 2.

SETTLING SPORTS DISPUTES BY ADR

However, if the case is of a comparatively simple nature, then it may be handled and decided by a single judge: the so-called DRC Judge. In that

event, the members of the DRC will appoint a DRC Judge for the clubs and one for the players from amongst their members.18 Members of the DRC may not adjudicate in cases in which they have a personal or direct interest. In other words, in a potential conflict of interests' situation. In such cases, the member concerned is required to withdraw from the proceedings in good time and give reasons for being unable to act.19

When deciding cases, the DRC applies the RSTP, whilst taking into account all relevant arrangements, laws and/or collective bargaining agreements that exist at national level, as well as the specificity of sport.2" In practice, the RSTP rules are the main source of law for the DRC when deciding a dispute relating to the international transfers of players, their status and their eligibility to participate in organised football.21 These fundamental rules are compulsorily and uniformly applied throughout the world.22 They aim to regulate international transfer law when deciding a dispute between member associations and they also establish basic principles that guarantee uniform and equal treatment of all participants in the international football world.

23

The RSTP rules are complemented by the Rules Governing the Procedures of the PSC and the DRC (the Procedural Rules). The Procedural Rules deal with such matters as the composition of the DRC, its jurisdiction and the

applicable law. The DRC is required to render a decision within 60 days of filing the case

and the DRC Judge is required to render his/her decision within 30 days. 24

Reasons must be given for the decision. 2' There is a time limit of two years

for bringing proceedings before the DRC. 26

Appeals from the DRC

In its Circular 827, FIFA outlined that after 'intense and very constructive

discussions with the International Council of Arbitration for Sport', FIFA finally agreed to recognise the jurisdiction of the CAS to act as a final appeal body for decisions taken by the DRC with effect from 11 November 2001.27

18 RSTP, edition 2008, Art 24 para 2. 19 Procedural Rules, Art 7 para 1. 20 RSTP, edition 2008, Art 25 para 6. 21 The RSTP also set up rules regarding the release of players for association teams and

the player's eligibility to play for such teams. 22 FIFA Commentary, explanation Art 1 para 1, p 8. 23 FIFA Commentary, explanation Art 1 para 2, p 8. 24 RSTP, edition 2008, Art 25.1. 25 Procedural Rules, Art 13 para 4. 26 RSTP, edition 2008, Art 25.5. 27 Circular 827 dated 10 December 2002.

178 DISPUTE RESOLUTION INTERNATIONAL Vol 3 No 2 October 2009

Article 62.1 of the FIFA Statutes provides that the decisions of the DRC may be appealed before the CAS.2' This possibility is also mentioned in the decisions of the DRC itself. The provisions of the CAS Code of Sports-Related Arbitration (Edition January 2004) will govern these appeals and the CAS will primarily apply the various regulations of FIFA and, additionally, Swiss Law to them.

29

Appeals against final decisions rendered by FIFA legal bodies and against decisions passed by confederations, members or leagues must be lodged with the CAS within 21 days of notification of the decision in question.30

Each decision of the DRC expressly stipulates that the 'statement of appeal' must be sent to the CAS directly within 21 days of receipt of notification of

the decision concerned and that it will furthermore contain all the elements as required by the directives of the CAS, a copy of which is enclosed with the

decision. Within a further ten days following the expiry of the time limit for filing the 'statement of appeal', the appellant must file a brief stating the

facts and legal arguments on which the appeal to the CAS is based.3 1 Within the following 20 days from the receipt of the grounds for the appeal, the respondent must then submit his 'statement of defence' to the CAS.

32

Finally, it should be noted that cases may only be referred to the CAS after

all other internal FIFA channels have been exhausted.33 The CAS, however, is expressly excluded from handling appeals arising from: (i) violation of the Laws of the Game; (ii) suspensions of up to four matches or up to three months; and (iii) decisions against which an appeal to an independent and duly constituted arbitration tribunal recognised under the rules of the association or confederation may be made.34 Appeals to the CAS will not generally have a suspensive effect. However, the appropriate FIFA body or, alternatively, the CAS itself, may order an appeal to have such an effect."

Final remarks

It should be noted that recourse to the ordinary courts of law for settling disputes is, as a general principle, expressly prohibited by FIFA, unless expressly provided for in the FIFA regulations. 6

28 See Ian S Blackshaw, Robert C R Siekmann, Janwillem Soek (eds), The Court of Arbi- trationfor Sport 1984-2004 (The Hague, T M C Asser Institute, 2006) generally and, in particular, the Chapter in this book by Christian Krihe, entitled, 'The Appeals Procedure before the CAS', at pp 99-104.

29 FIFA Statutes, Art 62.2. 30 Ibid, Art 63.1; CAS Procedural Rules, Art R49. 31 In conformity with point 4 of the Directives. 32 CAS Procedural Rules, Art R55. 33 FIFA Statutes, Art 63.2. 34 Ibid, Art 63.3. 35 Ibid, Art 63.4. 36 FIFA Statutes, Art 64.2.

SETTLING SPORTS DISPUTES BY ADR

Furthermore, the Member Associations of FIFA are required to insert a clause in their statutes or regulations, stipulating that it is prohibited to take disputes in their associations or disputes affecting leagues, members of leagues, clubs, members of clubs, players, officials and other association officials to ordinary courts of law, unless the FIFA regulations or binding legal provisions specifically provide for or stipulate recourse to the ordinary

courts of law. Instead of recourse to the ordinary courts of law, provision shall be made for arbitration. Such disputes shall be taken to an independent and duly constituted arbitration tribunal recognised under the rules of

the association or confederation or to the CAS. Furthermore, the FIFA Member Associations shall also ensure that this stipulation is implemented

in their association, if necessary by imposing a binding obligation on its members. The associations shall also impose sanctions on any party that

fails to respect this obligation and ensure that any appeal against such

sanctions shall likewise be strictly submitted to arbitration, and not to the ordinary courts of law."

FIFA and, it may be said, so many other international sports governing bodies and organisations have a general policy of excluding the ordinary

courts from being involved in disputes. But such attempts, if not qualified, to oust the jurisdiction of the courts, are void under English Law and also under many other legal systems around the world, as being contrary to 'public policy' ('ordre public'). This is particularly so in several jurisdictions in relation to the settlement of labour disputes by legal proceedings.

However, such provisions if reworded to the effect that recourse to the

ordinary courts of law is only permitted after all internal procedures for dispute resolution within the Sports Body or Organisation concerned have been exhausted this is generally valid. See, for example, the decision in the previously cited leading English case of Scott v Avery 8

Finally, the decisions of the DRC are relatively speedy; rendered

by football specialists; and enforceable through the FIFA disciplinary channels and procedures. Hence, as mentioned above, the DRC is not

short of cases.

The Japan Sports Arbitration Agency (JSAA) 9

The Japan Sports Arbitration Agency (JSAA), which was established on 7 April 2003, and has been operational since 1 June 2003, since when several arbitral awards have been rendered.

37 Ibid, Art 64.3. 38 [1865] 5 HL Cas 811. 39 The official website of the JSAA is at www.jsaa.jp.

180 DISPUTE RESOLUTION INTERNATIONAL Vol 3 No 2 October 2009

Its objectives are stated in Article 3 of the Statutes of the Agency, namely:

'... to support the development of sports by administering services to efficiently settle disputes between, among others, athletes and sports

associations through arbitration.' The JSAA is modelled on the Court of Arbitration for Sport. The JSAA has two sets of arbitration rules: Sports Arbitration Rules and

Sports Arbitration Rules for Cases Based on Specific Arbitration Agreements (Special Sports Arbitration Rules).

The former were adopted on 7 April 2003 as the first task completed by the board of directors of theJSAA and came into force on IJune 2003. The latter were adopted on 14 May 2004 and came into force on 1 September 2004.

The key difference between the two sets of rules is the scope of their

subject matter. The scope of the former rules is limited to cases where athletes governed by the JOC (Japanese Olympic Committee), the JASA

(Japan Sports Arbitration Agency), the JSAD (Japan Sports Association for the Disabled) and their affiliated sports associations file appeals against

decisions of such bodies; whereas that of the latter is wider and covers all

sports disputes, including sports business disputes. Due to this difference, the application fee corresponding to cases brought under the former is nominal (approximately US$500); whereas that of the latter is calculated in

accordance with the amount of the claim brought by the applicant. There must be an arbitration agreement between the athlete and the

sports association in dispute in writing or in some other comparable manner which definitively represents an agreement between the parties (Article 2 (2)). Where a sports association expressly states that it is willing to

arbitrate a dispute with an athlete over one of its decisions, an arbitration agreement is deemed to exist at the moment when the athlete files its complaint to the JSAA (Article 2(3)).

Some sports associations have incorporated an arbitration clause into their statutes to the effect that they would appear in the arbitral proceedings

whenever athletes filed a request for arbitration with regard to their decisions. In ordinary cases, the complainant may choose one arbitrator and the

respondent may choose another and the two so chosen arbitrators designate

the third arbitrator (Articles 21 and 22). These three arbitrators comprise

the Arbitration Panel. However, in emergency cases, a single member Arbitration Panel may

decide the case (Article 50). For instance, when there are just two or three days before the commencement of an event in which the applicant

wants to participate notwithstanding a decision to exclude him/her from participation, the arbitral award must be delivered within a short period of time. Otherwise, any award would be in vain and otiose.

SETTLING SPORTS DISPUTES BY ADR

Considering the short period of athletes' competitive lives, it is important to render an award quickly. According to the Sports Arbitration Rules, athletes must submit their claims to the JSAA within six months from the

date when they were notified of the decisions in question, or in cases where they were not notified of the decisions concerned, within a year from when

the decisions were made. These time limits are mandatory in order to

ensure the conclusiveness and finality of the decisions. At least one hearing must be held in all cases. If a one day hearing is

not sufficient, there should be consecutive hearing days, as long as may

be necessary. The Arbitration Panel must, in principle, render a reasoned decision within three weeks from the date of closing of the oral hearing (Article 42(1)). This rule is not mandatory but simply a target standard to

be aimed for by the JSAA Arbitrators. For further information on the JSAA, see the Chapter, entitled 'The

Activities of the Japan Sports Arbitration Agency' by Masato Dogauchi in the Asser Sports Law Series Book on The Court ofArbitrationfor Sport 1984 - 2004.4"

Sport resolutions (UK)

The United Kingdom has its own dedicated sports disputes resolution body

offering a variety of ADR solutions to a wide range of sports disputes.

Background

Sport Resolutions (UK) (Sport Resolutions) is the new name of the UK Sports Dispute Resolution Panel (SDRP). Its dispute resolution manager/

solicitor is Susan Humble, whose legal background is in litigation. The original SDRP was largely the 'brain child' of an English Lawyer,

Charles Woodhouse, CVO, a former legal adviser to the Commonwealth

Games Foundation. It was established on 1 January 2000, and is headquartered in London. It was set up to provide sports governing bodies,

commercial organisations and individuals throughout the United Kingdom

with 'a simple, independent and effective mechanism ... to resolve their differences fairly, speedily and cost effectively'. It is modelled on the Court

of Arbitration for Sport. Sport Resolutions is now the independent alternative dispute resolution

service for sport in the United Kingdom, offering arbitration, mediation

and tribunal appointment and administration services. Sport Resolutions is also the independent provider of the National Anti-Doping Panel (NADP)41

40 Ibid, at pp 300-312. 41 The National Anti-Doping Panel, an independent body established to determine

sports anti-doping cases in the United Kingdom.

182 DISPUTE RESOLUTION INTERNATIONAL Vol 3 No 2 October 2009

and Tribunal Service for sport in the United Kingdom. Sport Resolutions plays a major role in developing and planning dispute resolution services which help to maintain high standards of conduct and fair play both on and

off the field of play. Sport Resolutions has experience of appointing to and administering

over 250 disputes, across 50 sports, with three-quarters of enquiries and referrals coming from Olympic, Paralympic and English high performance

sports. The remaining quarter of enquiries and referrals come from community sport - the so-called 'grass roots'.

Sport Resolutions delivers its services through its expert panels of mediators and arbitrators, all leaders in the field and recruited for their

unique understanding of the UK sporting system.

Sport Resolutions has recently reviewed its structure to put in place a new management team. In April 2007, SDRP appointed Gerard Elias QC

as its new chairman, along with four independent non-executive directors, with legal, commercial, accounting and administrative experience.

In March 2008, the Sports Dispute Resolution Panel Limited moved to new offices in Fleet Street, London and adopted Sport Resolutions (UK) as

its new trading name. A number of Sports Bodies in the UK have now incorporated into their rules

and also their contracts referral of disputes to Sports Resolutions. For example,

the British Olympic Association now includes in its commercial contracts a standard dispute resolution clause, which provides firstly for mediation and, if that fails, then arbitration. This clause is in the following terms:

'"In the event of a dispute arising out of or in relation to this Agreement

including any question regarding its existence, validity or termination,

the parties shall first seek amicable settlement of the dispute by mediation in accordance with the Mediation Procedure of Sports Resolutions (UK)

in London in force at the date the dispute is referred to mediation."

If the dispute is not settled by mediation within 60 days of the appointment of the mediator, or such further period as the parties

agree in writing, the dispute shall be referred to and finally resolved by arbitration under the Sports Resolutions (UK) Rules for Arbitration, which rules are deemed incorporated by reference in this clause.

The number of arbitrators shall be one. The seat of the arbitration shall be London. The agreement is governed and shall be construed in accordance with

English Law'. Likewise, several commercial companies and firms engaged in sports

marketing and promotion in the United Kingdom are also now using a similar dispute resolution clause in their agreements.

SETTLING SPORTS DISPUTES BY ADR

The standard Sports Resolutions' mediation and mediation/arbitration clauses are respectively as follows:

Mediation standard clause

'The parties hereby agree that if they are in dispute they will refer

the matter to Sport Resolutions (UK) (a trading name of The Sports Dispute Resolution Panel Ltd - Company No 3351039) for resolution by mediation in accordance with Sport Resolutions' Mediation Procedure

(as amended from time to time).'

Combined mediation/arbitration clause

'In the event of a dispute arising out of or relating to this Agreement,

the parties shall first seek settlement of the dispute by mediation in accordance with the Mediation Procedure of Sport Resolutions (UK) (a trading name of The Sports Dispute Resolution Panel Ltd - Company No 3351039) in force at the date the dispute is referred to mediation.

If the dispute is not settled within [ ... ] days of the mediation being instituted, or such other period as the parties shall agree in writing, the

dispute shall be referred to and finally resolved by arbitration under the Sport Resolutions' Arbitration Rules (in force from time to time) which rules are deemed to be incorporated by reference to this clause.'

Mediation and arbitration

These are conducted by Sports Resolutions in accordance with their

corresponding mediation and arbitration rules. These can be accessed through Sport Resolutions' official website at: www.sportresolutions.co.uk.

Sports Resolutions advisory opinions

Like the CAS, Sports Resolutions issues non-binding advisory opinions,

which, as previously mentioned, are of practical importance in assisting the parties to identify the legal issues arising in connection with their dispute.

There are specific advisory opinion rules to be followed in such cases.

Sports Resolutions Code of Conduct

Sports Resolutions' Panel Members are subject to a specific Code of Conduct.

The provisions of this Code of Conduct apply to 'all members of the Panel

of Arbitrators, the Panel of Mediators, and any other Panel(s) operated from time to time by Sport Resolutions' (Clause 1.2).

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The code requires members to carry out their duties 'expeditiously and

professionally' (Clause 2.6) and also to 'disclose at the earliest possible time

anything which might be perceived as a conflict of interest' (Clause 2.3).

Furthermore, the code requires from members 'a relationship of trust

and confidence' which it describes as 'paramount' (Clause 3.2).

Under the provisions of Clause 3.3 of the Code '[a] ny breach of this code

may result in action being taken against the member concerned including

but not limited to Sport Resolutions absolute discretion to withdraw

membership of the Panel'.

Conclusion

As may be seen, the sports resolution bodies described above have many

features in common, not least because, to some degree or another, the ADR

services they offer to the sporting world, as well as their rules and operating

procedures, are generally modelled on those of the now well-established

and successful Court of Arbitration for Sport, which has set certain norms

in this field.

Their aims are likewise similar, namely, to provide alternative dispute

resolution mechanisms for the settlement of sports disputes of various

kinds, including commercial ones, which are fair, relatively cheap, quick

and effective. Their effectiveness will, of course, depend upon the scope of

their authority and freedom of action.

The objectives mentioned above are laudable and well appreciated by

sports persons, teams, bodies and organisations and all others associated with

and representing them throughout the world; specifically the need for quick

solutions in view of sporting deadlines, particularly in eligibility disputes. It may well be said that ADR and sport go well together and long may this

continue to be the case in the interests of fairness - and sporting justice -

both on and off the field of play.