1. Dispute Resolution in Sport Theory, Practice and Demo
Ed Procter
Richard Harry
I’m EP, Chief Executive of Sport Resolutions
In our slot this afternoon we want to do three things:
Look at the role of dispute resolution in sport and the part played by Sport Resolutions in it – That’s the theory
Take you through some recent cases from the recent Olympic Games that SR helped to resolve – That’s the Practice
To involve you in a case study of an Olympic selection dispute that is to be decided by an appeals tribunal – That’s the Demonstration

2. The Lesson of Dianne Modahl
Sport Resolutions created in response to Modahl case
Catastrophic consequences for athlete and NGB
Disputes present an ever increasing risk to governance of sport
Alternative approaches are required
SR is the independent dispute resolution service for sport in the UK.
We provide bespoke arbitration and mediation services for sport.
Established, as the Sports Dispute Resolution Panel, in late 1990’s in wake of Dianne Modahl’s dispute with the British Athletic Federation (“BAF”)
800m runner Dianne Modahl reveived lengthy ban for failing a drugs test 42 x normal level of testosterone in her body shortly before 1994 Commonweath Games in Canada
Her ban was overturned, result traced to mishandling of her urine sample in Portuguese lab and she was eventually exonerated
Modahl spent six years fighting the BAF for compensation and to clear her name - she sought £450,000 in damages.
The High Court ruled against her in 2000, on the basis that no contract existed between her and the BAF.
Ultimately, the cost of fighting the dispute financially ruined Modahl and contributed to the financial collapse of the BAF in 1998, which was replaced by UK Athletics
The Modahl case is an important lesson of the risk that disputes
present to the governance of sport
Sport Resolutions was founded on the belief that a different approach is required

3. Sport Resolutions UK
A sport specialist independent arbitration and mediation body
Created by umbrella representative bodies of British sport
An alternative to court based litigation
Jurisdiction through references in sporting rules and contracts
Jurisdiction also by ad hoc agreement of the parties
As I said, Sport Resolutions is a sport specialist arbitration and mediation body
Operate out of our arbitration and mediation centre, at 1 Salisbury Square off Fleet St, but hold tribunals and mediations throughout the UK
Not for profit company limited by guarantee
Founded by 9 member organisations, representing governing bodies, athletes, professional players, sponsors and the British Olympic and Paralympic Associations.
One of these 9 members is the Northern Ireland Sports Forum who represent the governing bodies in this part of the United Kingdom. The NISF nominates a director to our board, who is currently Keith McGarry and before that it was Ken Nixon. The board is led by an independent chairman and also includes four other independent non-executive directors.
SR provides an independent mechanism for sports organisations, sponsors, athletes, coaches and other individuals to resolve their disputes without the costs, delay, publicity and uncertainty of going to court. An alternative to court based litigation
Like any dispute resolution body, SR’s involvement is dependent on it securing jurisdiction through the legal consent of the parties (i) rules (ii) contract (iii) ad hoc written agreement
SR has its own arbitration rules and mediation procedure and specific rules to govern work of its NADP and NSP

4. Panel Structure Arbitrators (110) Mediators (28)
Legal (60) Specialist (50)
National Anti-Doping Panel
(20)
National Safeguarding Panel (23)
Athlete Selection & Eligibility Panel (45)
Professional Football Panel (61)
Commercial Panel (42)
Integrity & Discipline Panel (83)
Employment & Discrimination Panel (42)
Provides our services through a small Secretariat of 6 staff, utilising services of expert panel members.
We operate a closed list of 110 Arbitrators and 28 Mediators, which we openly recruit to and refresh every 3-4 years.
Two classes of Abritrator “Legal members” who chair panels. Must have Tribunal chairing or judicial experience + sporting expertise
“Specialist members” , sit as wing members. Must have significant sporting knowledge and experience in other professional capacity eg. medicine, finance, former athlete, coach, official and so on
SR operates seven thematic arbitration Panels which reflect the case referrals we receive (refer to list)
Mediators must have a nationally recognised mediation qualification such as through CeDR, have recent experience of mediating no fewer than 10 mediations and must have a knowledge and interest in sport.
SR also worked with the Bar Council, Law Society and British Association of Sport and Law to provide a pro-bono legal advice and representation service for athletes and officials who visited London this year to participate in the Olympic and Paralympic Games. We are in the process of extending this service as a legacy project arising from the Games.
Mediators (28)

5. Arbitration in sport
Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more expert arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.
Arbitration has become an increasingly popular mechanism for resolving disputes in sport . Eg. All appeals against anti-doping rulings for international level athletes go to the Court of Arbitration for Sport for final determination. FIFA requires all national football associations (such as the IFA) to provide in their constitutions, for disputes between members of the football family, to be resolved through private arbitration.
Sport Resolutions is referenced in some 200 sporting rules and contracts as an appeal or arbitration body.
So what does arbitration offer those involved in sports disputes?
Final and binding resolutions – there are no multiple levels of appeal as exists in the public courts system – sport is used to a system where you prepare, compete, live by the result and move on to the next competition – so there is a good fit in this regard.
Private – proceedings are not held in public and decisions are only made public where parties agree to do so
Expert judges – rather than generalist judges, arbitrators are usually appointed for their industry level expertise – for sport this means appointing arbitrators who understand the language, culture and rules of sport
Speed – the parties can determine their own timetable in accordance with any sporting deadlines that may apply - crucial when transfer deadline day is looming, the next round of competition is waiting or a major international event is on the horizon.
The main disadvantages of arbitration are that the costs of paying the tribunal, the fact that parties sign away right to challenge decision and that in some cases court is required to enforce arbitration agreements

6. Mediation in Sport
Mediation is a consensual, non-binding and “without prejudice” process whereby a neutral third party assists the parties in dispute to reach a mutually agreed settlement without recourse to the courts or arbitration.
Mediation is similar to arbitration in the sense that the consent of all parties is required at the outset, that an independent person assists the parties to resolve the dispute and that it is a private process that can be concluded away from the public courts.
Mediation is, however, very different from arbitration in a number of respects.
No panel to decide the rights and wrongs of the dispute
The mediator is a neutral facilitator who works with the parties to help them to explore a negotiated settlement
The parties enter the process, knowing they can walk away
It is not binding, unless or until the parties reach a settlement, at which point a binding settlement can be entered into
It is flexible and can be used at any point in a dispute
It is without prejudice meaning that anything disclosed in mediation cannot be used as evidence in any subsequent litigation or arbitration
Unlike arbitration, it is not an adversarial process. This is crucial is the parties need to maintain future relationships
Useful to help resolve disputes which are about money and relationships
Eg. Terminations of contracts, athlete-coach fallings out, disputes
over rights and entitlements to govern aspects of a sport
Tends not to be suitable for serious disciplinary matters such as anti-doping, safeguarding, illegal betting and match fixing
In my view mediation is a very effective and powerful process for resolving certain types of disputes in sport.

7. Olympic Selection London 2012 Olympic Games Role of BOA Role of NGB’s
Role of Sport Resolutions

8. Grounds of Appeal On what grounds can an athlete appeal?
Test as set out in Belcher v British Canoe Union

9. Lani Belcher vs British Canoe Union
A decision may be open to challenge if, but only if:
It is not in accordance with Selection Policy as published and/or
The policy has been misapplied or applied on no good evidence and/or in circumstances where the application of the policy was unfair
The decision maker has shown bias or the appearance of bias or the selection process has otherwise been demonstrably unfair,
Where the conclusion is one that no reasonable decision maker could have reached.

10. Rhythmic Gymnastics Group vs British Gymnastics
Interpretation of the Selection Policy
Benchmark score (of ) had to be achieved “at the 2nd Olympic qualification, CI, 15th – 18th January 2012 [Test Event]”
Interpretation of British Gymnastics and the athletes
To finish some examples of recent cases
Sport Resolutions is named as the appeal body in the selection policies of most Olympic and Paralympic sports.
A dispute between a group of rhythmic gymnasts based at University of Bath who British Gymnastics refused to nominate for selection to London 2012 Olympic Games. Dispute centred on a disagreement over interpretation of the required performance criteria.
Arbitrator found in favour of the athletes and they went onto be selected to represent Team GB in London.

11. Rhythmic Gymnastics Group vs British Gymnastics Principles to be applied in interpreting the policy (1)
The ultimate aim of interpreting a provision in a policy is to determine what the parties meant by the language used
The subjective interpretations of the parties are immaterial
The standpoint in determining what the parties meant is that of a reasonable person with all the background knowledge which would reasonably have been available to the parties at the time that the Policy was made
In ascertaining what a reasonable person would have understood the parties to have meant, the tribunal must have regard to all the relevant surrounding circumstances. If there are two possible constructions the tribunal is entitled to prefer the construction which is consistent with common sense and to reject the other

12. Rhythmic Gymnastics Group vs British Gymnastics Principles to be applied in interpreting the policy (2)
Where the parties have used unambiguous language the court must apply it
Where terminology is used which has a known meaning in a particular context, the meaning of that terminology will be a question of fact to be determined by the tribunal
Where a contract is poorly drafted and ambiguous, a tribunal should endeavour to ascertain the intention of the parties from the language that has been used
If an ambiguity as to what the parties meant cannot be resolved by application of these ordinary principles of construction, the contract must be construed contra preferentum

13. Andi Manley (on behalf of Molly Renshaw) vs British Swimming
Qualification for ….
“up to 2 places available”
Athlete finishing 1st in Trials on condition she achieves the FINA A minimum standard of
2nd spot to athlete finishing second in Trials provided she achieves the World LC ranked top 16 time of
Nominations for remaining places will be determined at the later Nationals to the fastest available swimmer achieving the FINA A time

14. Andi Manley (on behalf of Molly Renshaw) vs British Swimming
Facts:
At Trials, Molly finished 2nd. The winner achieved the FINA A time and was selected.
Molly finished in which was within the FINA A time but outside World LC time
Molly therefore not selected
At the Nationals Molly won her race but in time just outside FINA A standard.
Again, Molly not selected

15. Andi Manley (on behalf of Molly Renshaw) vs British Swimming Grounds of Appeal and Outcome
That the Selection Policy was unclear in that MR believed that she would be selected for the team on the basis of the time achieved at the Trials if she was not beaten at the Nationals, and
That there was a lacuna in the Policy in that no provision had been made for circumstances where the second placed swimmer at the Trials met the FINA A standard (but not the World LC time) and no one met the FINA A at the Nationals.
Appeal rejected on the basis that the policy was clear and there was no lacuna as the Policy specifically allowed for a team to be nominated with “up to” 2 swimmers, thereby acknowledging that British Swimming would not necessarily always nominate 2 swimmers in all events.

16. Tonia Couch vs British Swimming
Selection criteria for the women’s individual 10 m diving event were:
To select athletes who will form the team to achieve the best possible results
To select athletes who will have the best chance of potential success
To select athletes who have the potential to succeed in the Olympics of 2016

17. Tonia Couch vs British Swimming
Tonia Couch was the highest ranked female individual diver
Lower ranked athlete was selected to compete
Appeal on basis that as best athlete Ms Couch should have been selected
British Swimming’s position

18. Tonia Couch vs British Swimming
Appeal rejected
First objective refers to selecting the “team” to achieve best possible results
Second refers to winning medals
No basis for treating each event in isolation

19. Olympic Selection Case Study.
Olympic Selection Case Study
The UK 100m sprint team has been selected for the 2012 Olympics.
Alan Sprinter and Bert Faststart have been selected and Clive Spikes has missed out.
The selection criteria, which were posted on the NGB website only, stated the following:
Athletes will be selected, up to a maximum of the number of available places, in the following order:
The winner of the UK Championships,
The highest placed eligible finisher, provided they finish in the top 3, at the World Championships not already selected from the UK Championships
For setting a new world record in the 12 months before selection
For setting a new British record in the 12 months before selection
The athlete considered most capable by the selection committee of securing a medal at the Games

20. .
Background
Alan Sprinter is 27 years old and has a PB of 10.1 and a SB of 10.3
Bert Faststart is 31 years old and has a PB of 9.98 and a SB of 10.4
Clive Spikes is 20 years old and has a PB of 9.95 and a SB of 9.95

21. Facts leading up to selection.
Facts leading up to selection
Alan Sprinter won the UK Championships, early in the season, in a time of 10.3 seconds. Bert Faststart did not race as he was injured. Clive Spikes was disqualified from the final for two false starts but he had posted a time of 9.97 in the semi-final heat.
In the World Championships, Clive Spikes was the best placed Briton finishing fourth. Alan Sprinter finished sixth but Bert, coming back from injury, failed to progress beyond the semi-finals.
In order to increase his sprinting stamina, Clive Spikes also entered several 200m races, and at a meeting in France, he set a new British record for the distance.
In the lead up to the selection meeting, Bert Faststart was nervous that he would not have the chance to add to the silver medal that he won in the 100m at the 2008 Olympics in Beijing. His season had been plagued by injury and he has only managed to compete in half the races on the calendar. He is now nearing full fitness however. Alan Sprinter, however, has picked up a hamstring injury and has been rated as only 50/50 to be fit for the Games.

22. .
Exercise
Team 1 – assume the position of Clive’s legal team. Put forward your reasons in support of the appeal
Team 2 – assume the position of the NGB. Defend your decision to select Alan and Bert.

23. Dispute Resolution in Sport Theory, Practice and Demo
Ed Procter
Richard Harry
I’m EP, Chief Executive of Sport Resolutions
In our slot this afternoon we want to do three things:
Look at the role of dispute resolution in sport and the part played by Sport Resolutions in it – That’s the theory
Take you through some recent cases from the recent Olympic Games that SR helped to resolve – That’s the Practice
To involve you in a case study of an Olympic selection dispute that is to be decided by an appeals tribunal – That’s the Demonstration