The current pandemic has created tremendous disruption across all industries, including in sports. You may not think immediately about the effect of the pandemic on sports, but we have all been without the distraction of watching our favorite teams now for weeks and likely for many weeks more to come. Sports is an industry and is dependent on live events occurring, which is anathema to social distancing and lockdowns. Beyond just the effect on games or matches being played, there are a large number of moving parts in the sports industry that are affected by a change in event and game schedules. These include, just as examples:
- Athletes are paid to play and if they do not play, they may not get paid or they may face a reduction in payment if they do not have a guaranteed contract.
- Sponsors pay for the right to be associated with events, and if those events are postponed or are not occurring then the sponsors are not getting the benefit of their bargain.
- Construction has halted on building new venues.
- Anti-doping laboratories have ceased processing samples taken before people were forced to work at home.
The list of effects is a long one. When we emerge from the current situation, the world of sports will be changed. And disputes are undoubtedly going to increase, particularly disputes that may have been put on hold while the world has been paused. Obtaining the assistance of a trained and neutral third party (a mediator) is often the most efficient method to resolve these disputes quickly and effectively so that industry participants can get back to business.
We all know what mediation is; in a nutshell, the use of an experienced third party to assist parties in conflict with resolving their dispute. No one walks away from a mediation with the outcome imposed on them; mediation is a necessarily consensual activity with a mandatorily consensual result. The mediator has the power to try to persuade and convince the parties of finding common ground, but the mediator has no power to impose any result. Mediation may be required by a contract as a precursor to litigation or arbitration, or it may be strongly encouraged by a court to keep crowded dockets at bay or to entice parties to resolve their cases cost-effectively. Mediation may also be the result of the parties and/or their counsel attempting to find a cost-effective resolution to a dispute that might be on the verge of blossoming into a much bigger dispute or that might include reputational risks for a party or both parties. The timing of mediation is a question capable of as many answers as people have opinions on fundamentals like the weather or preferred style of barbecue, but mediation timing, and outcome, is fully controlled by the parties.
In this article, the author posits that in sports disputes, early-stage mediation is always worth the effort, even though its early-stage success, in certain kinds of cases, may be dependent on other factors in the dispute and their relative timing. Specifically, it looks at:
- The benefits of early mediation efforts;
- Why early mediation is useful in sports disputes; and
- How to pick the right early-stage mediator.
The author discloses at the outset that he is a mediator and arbitrator with JAMS, which is a leading provider of mediation (and arbitration) services in the United States (JAMS administers over 10,000 mediations and over 6000 arbitrations annually). The points made herein draw on the author's experience and perspective not only as a mediator in the field of sports for many years but also as a CAS arbitrator, a commercial mediator and arbitrator across several hundred cases, and as a general commercial dispute resolution practitioner and advocate.
Originally published by LawInSport, 08 June 2020.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.