Conflicts in high-performance amateur sport are tense, emotionally-charged disputes that raise intriguing challenges for the mediators and arbitrators charged with handling them. High-performance level sports disputes are a volatile mix of high-stakes win/lose issues, multiple parties, intensely competitive personalities, rigid criteria from multiple sources, and process challenges that can include timelines measured in hours and parties spread all around the globe.
Mediation has proven to be a successful tool in both managing and resolving these disputes. Crucial to achieving those successes is the ability of good mediators to adapt to and deal with the peculiar challenges involved.
The four main types of disputes that arise in national level high-performance sport in Canada are:
- Carding (government funding) disputes;
- Team selection disputes;
- Doping allegation cases; and
- Administrative disputes with national sporting organizations.
Broadly speaking, carding disputes are complaints about the allocation of government funding and services. Each year Sport Canada issues a set number of “cards” to each national sports organization (e.g., Swimming Canada, Skate Canada, etc.) The organization must then distribute the cards to its own high-performance athletes in accordance with its own carding selection criteria.
Each card represents a package of concrete benefits, including a monthly income, tuition remission, and access to federal resources such as physiotherapy and training. It also represents status: a carded athlete is either at the top tier of the sport or on the way there.
Carding conflicts arise when an athlete complains that the carding criteria were wrongly or unfairly applied; the criteria themselves were unfair or biased; and/or that an exception should be made for them.
Team selection disputes involve one or more athletes claiming they were wrongly excluded from a given national team. Again, the basis of the complaint is usually that:
- The team selection criteria were wrongly or unfairly applied (an example of unfair application would be when athletes are not advised of the criteria in time to adjust their training and competition schedules to meet the criteria);
- The selection criteria themselves were unfair (for example, the athletes in one team sport were allowed to subjectively grade one another as part of the selection criteria, a method with an inherent conflict of interest); and/or
- An exception to the criteria should be made for them (e.g., when an athlete is a world-ranked top ten but did not compete much that year while rehabilitating from injury).
Doping allegation disputes arise from violations of applicable anti-doping codes by athletes, coaches, medical professionals, sport officials or related individuals. Most countries have a national body responsible for administering the World Anti-Doping Administration Code or the national equivalent. In Canada, the Canadian Centre for Ethics in Sport administers the Canadian Anti-Doping Program, which is modelled on the WADC. Violations include the presence of prohibited substances or metabolites thereof in an athlete’s sample; trafficking; use/attempted use or possession of a prohibited substance or method; administration to an athlete of a prohibited substance or method; and various forms of sample testing avoidance, refusal, or tampering.
When a doping violation is detected, the infringing party is notified of the alleged violation and of the procedures leading to an arbitration of the issues at the Sport Dispute Resolution Centre of Canada. An interim step, called resolution facilitation – an unusual procedure that is not quite mediation and not quite pre-arbitration – has been used by the SDRCC prior to arbitration since 2010.
A variety of disputes can crop up between a sports organization and its many internal and external stakeholders. Typical examples include complaints that an organization’s policies (such as athlete agreements or bylaws) are unfair; that administrative decisions by the organization (e.g., to change sponsors) were inappropriate or biased; that appointments to various posts (such as a national team coach) were inappropriate; and that organization staff have acted inappropriately. Disagreements within an organization’s board could also require help, if the board is deadlocked or in a fight between cliques.
Most sports organizations have developed their own internal ADR and appeal processes to deal with disputes though with varying degrees of sophistication. Historically, they have usually preferred to resolve issues internally, but Sport Canada funding in the last decade has been contingent on the organization building into its processes a right of appeal to the SDRCC. Such an external appeal was considered beneficial because in most complaints the organization itself is one of the interested parties, typically defending its own decision.
The experience at the SDRCC has shown that, while not all high-performance sport disputes can be settled at mediation, mediation often achieves stable win-win settlements in a very timely, cost-effective manner. Mediation also adds value even when disputes don’t settle, by improving understanding and respect amongst the parties, and helping to rebuild damaged relationships which may be crucial in a team context. A more subtle but important benefit is the simple power of allowing parties to feel heard when so much is at stake for them.
Even for disciplinary cases, facilitated discussions can provide athletes with greater levels of information about and greater comfort with the disciplinary process, their rights and obligations, as well as the chance to explain their actions and be heard. Even where disciplinary rules heavily prescribe flexibility on issues like sanctions, there may still be ways to achieve more optimal results that would otherwise be possible, giving athletes more control over when sanctions begin (and therefore end), for example. The increased understanding can also enhance athlete cooperation with anti-doping efforts, minimize aggravating offences, and potentially, in some cases, lead to reduced sanctions.
About the Author
Paul Denis Godin is a mediator with ADR Chambers/Stitt Feld Handy Group.