Professional sport is not an activity for enthusiasts. It is a high-value economic branch of global importance. However, unlike ‘ordinary’ business activities, sport operates according to its own rules. What you probably did not know is that sport is a regulated activity, however, the rules were not imposed by legislative bodies. Probably every country in the world has its own Sports Law which only provides the legislative framework within which the activities will take place, but disputes related to sports are rarely brought before the state courts. They only go public when the protagonist is a big sports star.
How are these disputes settled then?
There are two ways these disputes are being settled. The most common one is arbitrage.
Disputes in sports have always been settled this way. The laws on sports in some countries have made it very clear that the cases of disputes will be settled this way, hence it is what they use in most cases. The use of arbitration to resolve disputes which involve principles related to sports, financial or other interests related to the practice or development of sports, works successfully because all its advantages are best used in such cases. You may ask why, because these procedures tend to be very expensive? This is true, but the procedure does offer certain commodities. Arbitration is primarily “private”, there are no public court proceedings, the parties themselves agree to resolve the dispute in such a way, it is characterized by a flexible and informal procedure, and the expertise, independence, and impartiality of the person before whom the dispute is presented. The decision is made quickly, and the parties are obliged to accept the decision, which they do. Mostly. However, recently, the number of cases in which the jurisprudence of sports courts and bodies authorized to make decisions in disputes are being reviewed has been increasing.
For this reason, the use of mediation has found its purpose in sports disputes. Let’s take a closer look at what mediation is?
It is a procedure in which a third neutral person helps the parties in an effort to reach a mutually acceptable solution to the dispute. The mediator establishes and facilitates the conversation between the parties, in order for them to achieve the goal. The mediator does not make decisions about how the dispute will be resolved. In the case of sports disputes, third parties are organized services of professional mediators. Visit sportsmediationservice.org.nz to see how such services function and under which conditions.
What does the whole procedure look like?
During the process, each party involved in a dispute can present its views, clarify how the current dispute affects it, and what options would satisfy its interests. The mediator will listen carefully, guide the parties to discuss key issues, observe the common points of view and interests of the parties and help them to base their agreement on them.
What are the top benefits of using this method to settle disputes?
What needs to be pointed out is the fact that when the process is complete, both parties involved will be satisfied with the outcome. Not something you can say about arbitration, though. Below is a list of all benefits:
- The parties themselves come to a solution, which increases commitment to implementing the agreement.
- The opinions and values of the parties are respected.
- It creates a positive atmosphere and helps build relationships.
- It is fast and efficient. The dispute can be resolved within a few days or weeks.
- It is way cheaper than other dispute resolution procedures.
- Information presented in the procedure is confidential.
The experiences of other countries have shown that, even if the parties do not reach an agreement in the process, it is easier to reach a solution in the later stages of dispute resolution or in court proceedings.
What are the basic principles based on which this process works?
- Voluntariness. The parties to the dispute voluntarily initiate the process and participate in reaching an agreement.
- Confidentiality. The procedure is confidential in nature. Statements made by the parties in the mediation procedure cannot be used as evidence in any other procedure without the consent of the parties.
- Equality of the parties. The parties in the procedure have equal rights.
- Neutrality of the mediator. The mediator mediates in a neutral way, without prejudice regarding the parties and the subject of the dispute.
Two parties decide to use this method by drafting an agreement. With the agreement, which can be a separate agreement or in the form of a clause in the main agreement, the parties agree to settle their dispute related to sports peacefully, through mediation. The agreement can say that the process has to be performed in front of the Court of Arbitration for Sport, for example, and in this case, their rules apply.
The procedure is led by a mediator, who is chosen from a list created by the aforementioned institution. They are elected for a period of four years. After their mandate expires, they can be re-elected. The parties can choose a mediator by agreement, and if they do not do so, he will be appointed by the President of the Court, in agreement with the parties. Of course, from the list of mediators. One of the more important requirements, which is expressly stated in the Rules, is: that he must ensure the time in which he will devote himself fully to the procedure in order to conduct the procedure quickly and efficiently. He must maintain impartiality and independence from the parties. He is obliged to disclose any circumstance that could call into question his objectivity in the eyes of the parties.
Finally, it can be concluded that the whole procedure of settling a dispute goes with way less noise and drama when mediation is used. It can also be said that the outcome is always a win-win situation.