CLA News / Post-Covid Mediation-Charting The Path Of The Future (Scope Of Mediation In Sports Dispute)
Hosted By: Supreme Court of India Mediators, Commonwealth Lawyers Association, Sports Dispute Resolution Centre and Youth Bar Association of India.
Report Authors : Rahul Kumar, Abhijeet Kashyap & Aditi Bansal, Students of the Law College Dehradun Faculty of Uttaranchal University, India.
About the Webinar:
By its very nature the underlying purpose of sports is the evolution of human being to his/ her perfection and develop absolute precision in skills. The real energy that empowers sports at every level from local to global is that of harmony, peace, relationship and entertainment. However, as the sports industry has continued to emerge as one of the fastest growing industry, reaching globally to about US $ 1.7 Trillion, with several stake holders passionately involved for their love of it and others associated in it for business and employment, serious conflicts continue to arise which culminate into disputes.
Resolution of disputes using the process of courts is cumbersome, as they are not fully equipped to deal with them, in absence of expertise involved and because technical procedures are time consuming. This defeats the very purpose for which the sports industry exists. In sports, issues have to be decide instantaneously, whether they are photo finish or decision by a third umpire. Arbitration has brought in experts to deal with sports disputes, but has met with limited success, although it does not imbibe the technical format of the courts. Most of the procedure are bereft of technicalities, but has always left one party disheartened, dismayed and depressed. A decision reached by following strict legal principles and not the overall picture, always leave the heart burning in one of the parties and gives impression of vested interest, if not bias. Resolution of disputes in sports industry needs much more than mere resolution of disputes, it need the existing relationships to be maintained, preserved and sustained, for all times to come.
Sports disputes majorly revolve, around Team Selection, Carding or Funding, Doping, Disciplinary Measures, Governance of Federations, Associations and validity and implementation of Government Policy Framework. Most of these disputes can be better resolved by professional mediators, who have a larger vision and deeper understanding into sports culture, ethos, philosophy, interest of the fans and bring about a sense of justice. The idea behind mediation, to resolve sports disputes, is to create a win – win situation, for both the parties and not to declare that one party had won and the other has lost, not the game, but the dispute.
Webinar Proceedings dated 10th November 2020.
The event commenced with introductory remarks from Rakesh Kumar Khanna, Senior Advocate & Mediator and immediate past President of the Supreme Court Bar Association, India. He threw light on the previous webinars and the objectives behind them. He also pointed out the intention and the vision of the team towards the upcoming series. Khanna then invited Steven Thiru, Vice President of the Australasia Hub, Commonwealth Lawyers Association and a former Head of the Malaysian Bar Council. Steven welcomed the panelists for the day, Mr. Deryck Murray, a former Wicketkeeper for the West Indies and an Arbitrator in Sport disputes, Ms. Louise J. Reilly, a Barrister specializing in Sports Law and an internationally recognized Arbitrator and Mediator, Hon’ble Justice Mr. Graeme Mew, a Judge at the Superior Court in Canada and the Director at Sports Disputes Resolution Centre, Canada, Hon’ble Justice Dr. A.K. Sikri, a former Judge of the Supreme Court of India and currently Judge act the Singapore International Commercial Court. He also welcomed the participants from across the globe. After an enlightening introductory remarks and welcome address the floor was handed over to the moderator Rajiv Dutta, Senior Advocate at the High Court of Delhi and the Supreme Court of India, a mediator and former Vice-President of Supreme Court Bar Association.
Rajiv Dutta introduced and invited Deryck Murray to share his views on the topic. Deryck started by talking about the multiple disputes that threaten sports and how it is essential to have a reliable mechanism to resolve those disputes without hindering the game’s spirit. Employing processes of resolution maintains the fundamental law of the sport, and the game’s spirit. It is something that is unwritten, but all participants feel it acutely. He further defined Mediation as a structured interactive process, where an impartial third-party assists disputing parties in reaching out a settlement. The parties’ fashion the solution as the mediator moves through the process. Sports is played to win. When coming to a dispute resolution, the parties also have an instinct to win. Mediation is a process that makes the mediator, the facilitator for resolution. The parties are the ones who have to fulfill the need for resolution. The referees, umpires, etc. are the people who take the important decisions, maintaining the game’s spirit. However, the interpretation of the rules is what plays a key role here. Mediation is an extension of the same. Choosing this mechanism and the mediator requires a mutual agreement of trust and understanding. It is a movement towards compromises and reconciling the parties’ positions. Perception is what sometimes prove to be the root cause of such disputes. Sometimes minute things which might not really feature as the headline issue, might be the cause behind the dispute. Sports is like a catalyst, that acts as a tool for Nations to facilitate the sustainable development. Deryck also talked about the issues of Caster Semenya and Usain Bolt, to explain his point. He gave some more examples and elaborated on how perception plays the central role. Sometimes, nepotism also prevails where a more influential party is often seen to be giving the mechanism to be followed further, which forces the other party to follow them. But what matters more in this case are the regulations that are followed at the seat which has been chosen for resolution, along with the resolution facilitator’s perspective, as he is the one who eventually balances the situation. Deryck helped the attendees understand the topic from a sportsman’s point of view. He concluded his address by saying that, “we are actually aiming to capture the ‘Corinthian Ethos’.”
Rajiv Dutta then introduced and invited Louise Reilly to give her presentation. Ms Reilly gave an overview of the CAS mediation rules. Mediation before the CAS is a non-binding and informal procedure. It is essential that the parties are willing to negotiate in good faith. CAS mediation rules are for the resolution of contractual disputes. The rules specifically exclude disciplinary disputes such as doping issues, match-fixing and corruption, except in certain circumstances. CAS has a list of mediators, coming from various parts of the world, for the parties to choose from. Mediators are required to be impartial and independent of the parties. Their role is to identify the issues in dispute and to facilitate discussion between the parties, thereby encouraging and instilling trust and understanding between them. CAS mediators specifically have the role to propose solutions. The mediators may communicate with the parties both individually and jointly. The process remains confidential. Once the parties reach a settlement and an agreement is signed, it has the same binding force as a contractual agreement. Mediation remains a voluntary process throughout, but it becomes binding once the settlement agreement is signed. If parties fail to reach a resolution, they can submit their dispute to arbitration. The mediator shall not accept an appointment as arbitrator unless expressly agreed to by the parties. This is known as a “Med-Arb procedure”. Ms Reilly shared some examples from her personal experience in the field and then concluded her address.
Rajiv Dutta then introduced and invited Hon’ble Justice Graeme Mew to share his expertise on the topic. He firstly acknowledged Deryck Murray’s concerns about the Semenya decision. But he pointed out that there had been progressive CAS decisions such as in the case of the Indian athlete Duttee Chand that indirectly lead to Indian athletics changing its rules. He said that just as with any other adjudicative body there are certain improvements that can be made both with the optics in terms of how that Tribunal is seen by its constituents, and also its substantive organisation. He then discussed the case of Trinidad involving the soccer association and the limited role of courts when jurisdiction to resolve sports disputes has been given to sport tribunals like the CAS. In the aforementioned case, the CAS process had been seen as prohibitive and as unfair by the soccer federation. He then elaborated on the case’s details and analysis further. He then talked about the importance of sports in our lives and how important their resolution is. He highlighted how courts are not well-equipped yet to deal with sports disputes, as it lacks the swiftness and expertise to deal with the same. He talked about how sports is in alliance and how important reservation in Sports is. Courts are not quick enough to solve sports related disputes and lack expertise in the same. He talked about Canada’s status in the same. There, the sports associations receiving public support are not to solve the disputes in the court. They are instead supposed to go to the Sports Dispute Resolution Centre of Canada (“SDRCC”) an independent tribunal providing mediation and arbitration, and now recently safeguarding services to the sports community. He then threw light on the organization’s work in the field. Mediation as a practice is quite suitable for sports disputes, even though the international legal and cultural differences at different places might make it difficult for the mediating parties to follow a particular place’s resolution, rather than the ones at their motherlands. Mediation facilitates communication between the parties. He gave a few illustrations to highlight resolution by mediation’s effectiveness over courtroom and arbitration resolution in this particular field. He described Canada’s prevailing system for the same in detail. In Canada there is also a process called “Resolution Facilitation”, which is now built into the arbitration process. Resolution facilitation is an assistance process that allows the parties involved in a dispute to communicate more effectively and work towards an agreement. In every case going to arbitration a neutral is made available at no charge to the parties to talk about the dispute. This is usually done by telephone. The resolution facilitator is a neutral “process manager,” whose role is to try to help the parties to better communicate with each other and to resolve their dispute through an amicable settlement. Should such a settlement not be possible, the resolution facilitator helps the parties understand the other options offered by the SDRCC to settle the dispute. This process is used in all arbitrations including doping cases. He then talked about the other kinds of cases as well, where the process has proved to be highly effective. He further cited multiple examples and illustrations regarding the areas in sports law where mediation manages to achieve great success, when arbitration cannot. Justice Mew also shared his personal experience in the field which was very enriching.
Rajiv Dutta then introduced and invited Hon’ble Justice A.K. Sikri, to share his experience and expertise with the attendees. He started his presentation by thanking Mr. Rajiv(the host) for such a generous introduction and he also thanked the organizers of the webinar for selecting such a substantial topic. Then he mentioned the importance of this topic and its relation to sports disputes as far as India is concerned.
Further, he explained that what he gathered from the other speakers of the webinar, which was of utmost significance. He highlighted crucial takeaway from the viewpoint of the other speakers. Firstly, that the courts are not well equipped to decide the dispute as far as the sports disputes are concerned. Secondly, he talked about CAS, which is the arbitration body, and the manner in which arbitration takes place. He explained how mediation is crucial between the process of courts and arbitration, as far as India is concerned.
He explained that the failure of sports has a different nature from other disputes, such as commercial disputes. Then he explained how in sports everyone wants to win but in mediation, there is always a win-win situation and they have to find out the solution for resolving their dispute amicably. He emphasized that mediation is a process which facilitates the level playing field, so that the competition, which is there between the parties get resolved by the help of mediation.
Moreover, he explained the type of disputes that may arise in sports, for instance, selection of the team, doping, sharing of revenue, etc. He explained the issues concerning the sports in India like election, corruption in sports, etc. Particularly in India, he explained the issue of gender discrimination and sexual assault in sports. ‘There are many such cases where the coach has tried to indulge in such practices and several complaints have come up against them. What is more important is that these issues need to be resolved immediately. They cannot wait even for a few days sometimes.
‘That is why many sports committees have ad hoc judges or arbitrators in the events. We need on the spot resolution. It is neither the courts, that is litigation, neither arbitration that can deal with it effectively. We need mediation for that,’ the judge said.
He said that time has come, as far as India was concerned, to have specialised mediation, including sports mediation, and the country should now gear up and start thinking as to how we can do mediation.
‘Covid-19 situation in the country has given us a chance to look into mediation. Of course it is a pandemic which has created panic all over the world, many have died, livelihoods and lifestyle have been affected. In the whole process we have realised that technology can play an important role. ‘And now ODR (Online Disputes Resolution) is seen as the next step even in Indian legal system, whether litigation or arbitration or mediation. And according to me, some of the cases which are proper for online mediation, apart from consumer disputes, are sports disputes,’ the judge said.
He further said what was felt now and being highlighted was that it was not necessary to go to courts and there should be self-regulation and mediation plays an important role in the process.
He said there cannot be a society without conflicts but what was needed was an early and peaceful mediation of those conflicts.
‘Mediation is one such process which goes into the reason why disputes have arisen. It not only looks into the past, it looks into the future also so that relationship between the parties is maintained.
‘Discussions are always better than arguments because arguments are to find out who is right and a discussion is to find out what is right. It is only the mediation which brings about this. It heals the past, lives in the present and dreams the future,’ the judge added.
He explained that how mediation came in India, by the amendment in CPC, by inserting sec. 89 for the mediation process. Then he explained the case of the Dehli Ranji trophy, where there was a dispute in the selection of the team and that time almost 10 years ago, this case before going to court, they mediated and find out the solution just in one day.
He then addressed, how mediation is an effective resolution process of dispute resolution, where there is a need for on-spot resolution. He explained mediation and its significance that how mediation not only look at the past but also the future, so that the relationship between the parties not affect.
Justice Sikri said that mediation has come a long way in the last 15 years and it was here to stay as the legal system is enlarging its scope.
With such an effective and informative address by all the panellists, it was time to conclude the session by proposing a vote of thanks to all those who have been instrumental in making this event a grand success. Mr Dutta finally rested his part by welcoming Aruneshwar Gupta, Senior Advocate at the Supreme Court of India and Head of the Sports Disputes Resolution Centre, to deliver the vote of thanks. Gupta delivered the vote of thanks, marking the successful end of the highly enriching and informative session.