The transformation of Sports law has occurred due to globalization hence increasing the complexity and abundance of disputes that involve athletes and clubs based in different countries with a governing body such as FIFA/IOC. Traditionally these types of disputes have been resolved via litigation or arbitration (i.e., the Court of Arbitration for Sport has traditionally been a venue for athletes to resolve disputes) however, due to increased financial sponsorship, there is an urgent need for new methods of resolving disputes that meet the criteria of being processed quickly without hurting the relationship or reputation between the stakeholders involved.
Importance of Mediation in Sports Law
Mediation provides increased opportunities for cooperation between stakeholders to maintain their ongoing working relationships as it relates to athletic performance in any sport. It provides quicker and less costly ways to resolve disputes as compared to prolonged litigation. This is critical to the ability of parties to compete within a defined time period (for example, the length of time an athlete competes and when teams retire their players). It also allows for private and confidential mediation which will assist in safeguarding a party’s reputation from negative public relations while allowing them autonomy to create innovative and mutually beneficial outcomes. Furthermore, mediation reduces emotional and financial stress associated with adversarial litigation; therefore, creating a more cooperative sporting environment.
Cross-Border Mediation in Sports
Dispute resolution is most important when considering a mediated settlement between parties involved in a cross-border dispute. Recent trends in sporting activity around the world, such as the movement of players across international borders for either transfer or global sponsorship agreements, have made cross-border mediation an important mechanism for resolving disputes related to sport through a non-adversarial approach that will consider jurisdictional issues (i.e., jurisdictional complexities) arising as a result of differing legal systems of each party (i.e., differing laws in each country).
Cross-border mediation works to address jurisdictional complexities by seeking to utilize consensual resolution that is acceptable to all parties, as opposed to rigidly determining what laws apply based on where the parties are located and which laws are most relevant to their specific dispute. International legal instruments such as The Singapore Convention on Mediation (SCM) provide further support to cross-border mediation by enhancing the enforceability of mediated settlement agreements throughout multiple countries and increasing the likelihood of all parties involved in a commerce-related dispute having faith in, and confidence in, the mediated outcome of their respective disputes.
Need for Cross-Border Mediation
Cross-border mediation provides solutions to the complexities of jurisdictional issues by not relying on strict legal definitions about laws that apply in a given jurisdiction or as to what forum a case will be adjudicated in, and instead focuses on achieving results that all parties can agree to. This is accomplished through the use of International Instruments (the Singapore Convention on Mediation), which assist to ensure that all mediated settlement agreements reach a level of enforceability in various countries, hence they increase confidence in the process. Additionally, mediation is an effective means to create understanding and cooperation between parties who have different cultural and legal backgrounds, through providing a neutral forum in which the parties can work together to resolve their issues. In a fast-moving global sports world where delays could have disastrous effects on tournaments, transfers or commercial arrangements, cross-border mediation is able to provide the timely resolution required while at the same time maintaining harmony in the world of international sports. Lastly, cross-border mediation allows parties to avoid shopping for a preferred forum and avoid obtaining conflicting rulings, which occurs frequently in the context of international litigation.
Emerging Trends and Institutional Support
Institutions have been pushing for mediation to be introduced into the resolution of disputes involving sport over recent years. International Federation’s and the International Olympic Committee have been among those encouraging the use of amicable dispute settlement mechanisms ahead of resorting to arbitration. There is increasing interest in using hybrid models to settle disputes such as mediation-arbitration (Med-Arb), where the parties try to reach an agreement before proceeding to a binding arbitration process if mediation is unsuccessful. There has been training for industry-level expert mediators in sport to assist with resolving disputes, which enhances the credibility and effectiveness of mediation as a dispute resolution mechanism.
Conclusion
While there are many challenges regarding the use of mediation as a mechanism to resolve sports disputes such as power imbalances, lack of awareness, and resistance to an agreement; there is a growing trend towards mediation as an accepted dispute resolution mechanism within sport’s governing bodies and its use in conjunction with arbitration-type mechanisms in the resolution of disputes, indicates that mediation’s role is increasing. As a result, mediation in relation to the cross-border context is becoming a necessary aspect of sports law both as a dispute resolution mechanism and as a way to preserve the relationship between parties, protect the reputations of parties, and preserve the integrity of the global sports ecosystem. As sports continue to expand into other markets outside the country where they are governed, the use of cross-border mediation will play a vital role in providing an equitable, effective, and harmonious process to resolve disputes.
Authored by: Sriman Mishra, Advocate (IP & Sprots Law) & Mediator