“Serious sport has nothing to do with fair play. It is bound up with hatred, jealousy, boastfulness, disregard of all rules and sadistic pleasure in witnessing violence. In other words, it is war minus the shooting.”
- George Orwell

“I don’t know anything that builds the will to win better than competitive sports.”
- Richard Nixon

Mediation is frequently turned to once an action has been filed in court as the lesser of two evils: litigation with a handed-down verdict versus a mediated settlement where the parties are free to walk away from an unsatisfactory outcome. During litigation, mediation is often part of a court order for ADR. But as a useful, regularly-used core device to resolve fundamental disputes, mediation is noticeably either absent or singularly unsuccessful when it comes to resolving disputes arising in the sports arena, at least in the United States.

Witness the failure of mediation to resolve the recent labor strife in the NFL and NBA during 2011: The parties were ordered to attend mediation before various judges and President Obama’s appointed Federal Mediator, but those efforts failed to resolve the disputes. Using shuttle diplomacy outside the usual channels, the parties resolved their disputes on their own to reach resolutions under which each could declare victory on their key issues. Doubtless, the various mediators involved would probably like to take credit for the eventual outcome, much like the person who works zealously to open that tightly closed jar of peanut butter only to witness someone who later tries it succeed where they had failed. But the fact remains that neither of these high profile cases were resolved using a third party neutral mediator. Straight negotiation was the order of the day, with the prospect of a win/lose distributive legal process being the fallback and driving force for resolution.

Similarly, if one looks at the main body for resolving Olympic sports disputes, the Court of Arbitration for Sport, it has a complete set of mediation rules that are almost never used. No one can point to a wide range of cases, or even a range of cases said in the plural, that were resolved using their mediation panel, even though it includes such notables as Henry Kissinger (former US National Security Advisor and Secretary of State, Nobel Peace Prize winner, and power broker extraordinaire), Sepp Blatter (the head of the organization that runs the world’s most popular sport, soccer as we call it), a former ambassador and member of the UN Security Council, a senior diplomat with UNESCO, a member of the Kuwaiti Royal Family, Jacques Rogge (President of the IOC), and distinguished law professors and lawyers from around the globe. Despite all of this amassed gravitas and worldly experience as tribal elders from broad walks of life, the mediation facility provided by the Court of Arbitration for Sport risks atrophy from non-use.

If you review the collective bargaining agreements of the major US professional sports, the concept of mediation is largely unmentioned—you find decisions that will be made by third parties or sometimes not so distant parties.

The same goes for the rules of the Olympic sports where nary do you find mention of mediation as a viable alternative to the head-to-head battle for a winner and a loser on any issue.

This stands in stark contrast to the accepted principles of commercial practice, lex mercatoria, and basic business relationships. The contracts that form those relationships often contain provisions directing the parties to mediation if they have a dispute before heading to arbitration or litigation. Of course, all litigants and their counsel in those cases assume or know that mediation will be a necessary part of the dispute process.

Why? I believe that it is cultural.

Unlike most other industries, sport has a central core tradition of declaring winners and losers. In perhaps the most famous antithetical statement of competitiveness in English literature, the dodo in Alice in Wonderland exclaims, “Everyone has won and all must have prizes.” As the quotes I use to open this article make clear, sports is an inherently comparative inquiry: how am I doing relative to someone else. It does not matter that a dispute may look a lot like a straight business dispute with risks for both sides in the event of loss. Participants in the sporting endeavor are tasked daily with being winners and avoiding being losers, and this translates to unnecessary transaction and organizational costs for the participants. You simply do not find athletes on the field of play seeking to find win-win solutions; they are looking to see who will be the winners. Period. To underscore this, the sports psychology texts are replete with discussion of the “winner” mindset or mentality. Even Baron Pierre de Coubertin, founder of the modern Olympic movement, expressed it like this:

“The importance of these Olympiads is not so much to win as to take part… The important thing in life is not the triumph but the struggle. The essential thing is not to have won but to have fought well.”

This formulation assumes that there is always a winner and a loser even if de Coubertin, the great post-Victorian advocate for the benefits of mass sports participation, wants us to believe there is something else to it as he attempts to console or convince the non-winner, however successfully.

This may be why arbitration is so widely used in sports. Arbitration is highly evaluative and distributive. Arbitrators declare winners and losers and make “awards” rather than facilitate creative “settlements.” In arbitration, like in speed skating, basketball, soccer, or track and field, there usually is a clear winner and a clear loser. And arbitration offers a single event, a field of play in the legal sense, on which disputing parties can compete in accordance with a defined set of rules and with clear metrics for success.

But imagine a non-profit sports governing body with an already over-taxed, lean executive team having to address board governance disputes between competing constituent interests or the amount of time that could be saved by resolving disciplinary complaints against athletes or others by not simply taking the party line or the hardcore rules line on punishment but by having a neutral third party explain the risks of continuing and bridging the trust, confidence, and evaluative problems that the parties too close to an issue suffer from? Similarly, think about how most of our children participate in sports (this model of participation is roughly similar throughout North America, Europe, and Latin America), through local clubs and organizations often run by parents and volunteers, who hold a variety of views on the proper ways things should be handled for the organization’s best interests, their own or their children’s best interests, or a combination. An arbitral tribunal or the courts can always provide a final answer to these disputes, however unsatisfactory to some or all of the participants; however, the deep-seated reasons the dispute arose in the first place likely will still exist and give rise to further disputes, and expense. Mediation offers the prospect of solving issues like these at their core, once and for all.

There are some shining lights, however. Since 1998, the US Olympic Committee, by Federal statute, has been required to have on staff an Athlete Ombudsman whose statutory job description includes the obligation to assist in mediating disputes involving athletes. But more needs to be done, and more can be done. Sports organizations should look at having an ombudsperson on staff full time specific to their particular sport or league. Law schools can assist the sporting endeavor by offering students the chance to actively resolve sports disputes while getting credits toward graduation. And authors could help the entire industry by writing about the process and their experiences.

Nothing is more competitive than the dollars and sense world of international business, yet every day companies take their business disputes to mediators to try to resolve them less expensively and with more certainty and control over the process than is afforded parties in litigation or arbitration. It is high time the participants in the sports process looked upon mediation as a viable way to resolve their own highly competitive disputes and embrace mediation to make it unique to the industry.

by Jeffrey G. Benz

Jeff Benz is a Los Angeles-based arbitrator and mediator who serves on the panels for the American Arbitration Association, Hong Kong International Arbitration Center, Beijing Arbitration Commission, Republic of China Arbitration Association, London Court of International Arbitration, International Chamber of Commerce, Court of Arbitration for Sport, and others.