Abstract
With an increasing number of sport disputes being heard by way of arbitration, some have called it a ‘growth industry’. Much has been written on the relative benefits of sport-specific arbitration processes as compared to the litigation process but few contributions have probed more deeply to address the function and design of such a process. The purpose of this paper is to examine how certain prescribed rules of an arbitration process can serve as instruments of sport policy.Three rules of the arbitration process, each of which goes beyond a basic rule of procedure operation and has important policy implications for the sport organisation and sport in general, are discussed. The three rules relate to the proper scope of review of the adjudicator, the standard of review to be used in defining an error and the scope of authority of the adjudicator in crafting a remedy. Each of the rules can affect not just the outcome of a decision, but also the role decision-makers play within the sport organisation.The underlying premise of this paper is the view that the arbitration process and, more specifically, the rules of arbitration should be designed to support and to facilitate the desired function of independent sport arbitration. What that function is must be considered in light of the sport organisation’s own governance and policy-making role. Policy-based rules of procedure such as the three discussed here, can either support that role or make incursions into the independent functioning of the sport organisation.
Highlights
Tied to and having an impact on the function of the arbitration process are questions concerning the appropriate scope of review and standard of review that should be used
What can or should be reviewed? Should the standard of review be that of the organisation in its own internal procedures, that used by the courts in a judicial review or some other independently determined standard? And if an arbitrator does determine that an error has been made, what relief should the arbitrator be able to grant the aggrieved? Should the matter be sent back to the original decision-maker to correct the error and render a decision or should the arbitrator have the authority to substitute his or her own decision?
The case of the American Olympic wrestler, Matt Lindland, stands as a clear example of a case where, as 7 Nafziger put it (2001, p. 361), ‘function followed form’ in a dispute resolution system and as a case which eventually led to significant unintended consequences, chaos for all parties involved, and a total of some 15 judicial or quasi-judicial interventions (Thompson, 2001, p. 407)
Summary
It is suggested here that arbitration, apart from being a mechanism of dispute resolution, is an instrument of policy. Arbitrations and of the courts and the standard of review to be used in assessing certain decisions, those of officials within the sport and those of a discretionary nature This case more generally highlights the need to consider and define carefully what sort of decisions ought 9 to be reviewed (or not reviewed) and by whom; who the parties to an adjudication should be; and any limitations that should be put on the scope of a review by an adjudicator (that is, should an adjudicator be able to review a matter on its merits or should he or she be limited to a review of any procedural or jurisdictional errors that may have taken place in the preceding hearing). Where an adjudicator finds in favour of the complainant, should that adjudicator be able to substitute his or her own decision for that of the original but flawed decision, or should that flawed decision be sent back to the original decision-maker to correct the error and reconsider the matter? Should the adjudicator’s authority extend to modifying, directly or indirectly, intentionally or even unintentionally, the underlying rules or policies of the organisation from which the original decision came? It is suggested that the answers to all these questions flow from a careful and necessary consideration of the intended function of each stage of a dispute resolution system – from original decision within the sport organisation to the appeal stage and to the independent arbitration - and should be answered in the careful design of the rules under which the arbitration mechanism operates
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