22.02.12

Let Them Play

The development of alternative dispute resolution in Jamaica should include the establishment of a national sports dispute resolution programme (a "programme"). Arbitration is particularly valuable for resolving disputes in highly specialized areas, such as sports. Our sports community is vibrant, sometimes contentious, of huge cultural significance and it is big business (and growing!)

The sporting community has special characteristics that are not often well served by traditional adversarial litigation:

  • Disputes often rest on highly technical issues of fact rather than issues of law;
  • Disputes  often require fast resolution, for instance, questions of eligibility or team selection often arise with respect to competitions that may occur within weeks or months of the decision being disputed;
  • The international nature of sports tends to give rise to cultural barriers, conflict of laws and disagreement. For example, great care would have to be taken to develop our programme so that the West Indies Cricket Board may participate in disputes referred to this tribunal;
  • There is a resistance to litigation because of the long-standing (albeit often unsatisfactory) internal processes for dispute resolution, the closely-knit nature of the sporting community and the ongoing nature of its relationships;
  • The disputes are sometimes confidential in nature, and
  • Litigation can be costly and time-consuming.

Arbitration as a means of dispute resolution has the additional potential benefit of diversity in the selection of the panel of arbitrators. The development of arbitration (including the enactment of a new arbitration statute) and the anticipated push to train arbitrators generally, should broaden the pool of persons eligible to serve on the programme's tribunals. In time, the programme could draw from a cadre of former athletes, coaches, lawyers and independent arbitrators who have all been trained in dispute resolution and arbitration. Recourse to the tribunal could be mandated in a number of ways. For example, legislation or policy could require national sports associations to make submission of disputes to the programme a condition of receiving any grants or other government funding. Similarly, means could be found to encourage bodies such as the National Premier League to submit disputes to the programme.

Some types of disputes which could be addressed by the programme include (PLEASE SEE BOX):

  • Team selection and criteria. Indeed it would be lovely if West Indies Cricket Board selection issues could be resolved quickly by an independent tribunal;
  • Issues of non-compliance with the policies or constitution of a national sporting organization;
  • Issues that arise due to communication failures between executives and members;
  • Appeals to disciplinary decisions;
  • Doping;
  • Allegations of match-fixing;
  • Improper recruiting, particularly with respect to issues of child-welfare;
  • Suspension;
  • Determinations of eligibility;
  • Funding issues;
  • Sports-related contract disputes;
  • Appeals against decisions made by a national sports organization; and
  • Oversight and appeals of the award of government grants.

Currently, many disputes are dealt with, but not necessarily resolved, at the level of the particular club, team or school or at the national association level.  This ad hoc treatment leads to inconsistency and uncertainty. A national sports dispute resolution programme can seek to harmonize its decisions with international norms, particularly those established by the Court of Arbitration for Sport ("CAS"), with the benefit of ensuring consistency of results. Obvious additional benefits include the relative accessibility of the tribunal and its affordability for affected persons.

Here, we do not need to reinvent the wheel. A number of countries (e.g. the United Kingdom, Canada and South Africa) have created national programmes tailored for the needs of their national sporting community. The "tailoring" includes considerations of establishing the jurisdiction of the programme, the nature of disputes that it might hear and the availability of appeal to the courts or to the CAS, which sits in Switzerland. In addition, where athletes or the national associations are also governed by International Federations or agencies such as the Association of Tennis Professionals, the World Anti-Doping Agency and the International Association of Athletics Federations or FIFA, the programme should allow for the dispute resolution process of the International Federation and draft its constitutional documents accordingly.

The natural ability of many Jamaicans and the dedication of our sports professionals have allowed our sports' community to blossom into a rich, vibrant and lucrative industry, deserving of a sophisticated dispute resolution system. The availability of a custom-made programme could absorb some of the stresses of contention, permitting our athletes to reach and keep even higher heights.

Shani Nembhard is an Associate at Myers, Fletcher & Gordon and is a member of the firm's Litigation Department. Shani may be contacted via shani.nembhard@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.