Law Times

www.lawtimesnews.com LAW TIMES 12 COVERING ONTARIO'S LEGAL SCENE | JANUARY 21, 2019 Speed needed for quick resolutions Sports dispute resolution demonstrates creativity BY DALE SMITH For Law Times F ederated sports in Canada are mandated to use an alternative dispute resolu- tion offered through the Sport Dispute Resolution Centre of Canada. The centre, which functions as an administrative law tribu- nal, sees athletes and their law- yers work through issues like federal funding allocation, team selection, and doping infrac- tions, using ADR processes and tools. Lawyers who are involved with the centre say using ADR techniques to address problems is far faster than the previous route of civil litigation. Steven Gaon, a lawyer and principal at ADR Ottawa Inc., serves as one of the SDRCC's mediators. Gaon says that unlike most court-related mediation processes he engages in outside of the SDRCC, which tend to be distributive by nature — one party trying to gain advantage at the other side's expense — sports mediations tend to be more inte- grative. "We have to be creative, and we have to brainstorm ideas for resolution," says Gaon. "It's very different. It's much more of a classic mediation model." The SDRCC was created by federal statute in 2003 by Bill C-12, and formally established in 2004. It is fully funded by the federal government through the Department of Canadian Heri- tage, and the contribution agree- ments from federated sports organizations stipulate that dis- putes must be handled by the centre, whose mandate includes providing the sport community with ADR service by means of its tribunal. While the centre itself is head- quartered in Montreal, virtually all of its ADR services are done by phone or online, and the bulk of the mediators and arbitrators are in Ontario, according to its public roster. The SDRCC not only has a phone-based system that allows for conferencing and caucusing as part of the mediation process, it also has an electronic docu- ment management system that ensures that everyone has ac- cess to necessary documents, and that confidentiality is main- tained, says the SDRCC's chief executive officer Marie-Claude Asselin. Paige Backman, a partner at Aird & Berlis LLP in Toronto, who co-chairs the firm's sports and media group, says over the last several years, "appeals by athletes and coaches and other interested parties in the sport community have been on the rise." "As in any situation where disagreements arise, some dis- putes have merits and some do not," says Backman, who typi- cally acts for respondents like national sports organizations. "The SDRCC offers a better process for the interested par- ties in the sporting communities than trying to work through the courts. It's relatively quick, cheap and opposite the court system, it's relatively easy to navigate," she says. Backman, who is currently on the board of the Canadian Fencing Federation, says that prior to the SDRCC, players felt the system was extremely slow with a high cost of entry to dispute. As well, she says they would face courts or adjudicators who didn't know or understand the sports' system or its specific issues. "This [rise in cases] has man- dated that increased resources in sports be allocated to dispute processes," says Backman. "In my view, this is largely due to increased stakes in the sport- ing world, parties understand- ing their rights, and individuals willing to push issues." The matters are high-stakes and move at a fast pace, say law- yers familiar with the process. Most athletes who come be- fore the SDRCC will be repre- sented by sports lawyers, using the phone and the web-based process for hearings, says Gaon. "If you are a sports lawyer, you need to be in a position to prepare your case for arbitration right away," says Gaon. "There's very little prep time." At the start of the process, parties select a mediator or an arbitrator from the SDRCC's roster, and if one can't be decid- ed on, one will be assigned from an established rotation schedule, says Asselin. Conference calls are set up, a date and time for a mandatory meeting known as a resolution facilitation is set up, as well as a date for the actual arbitration, says Gaon. Because of the speed in- volved, Gaon says that both the sports lawyers and the SDRCC's mediators or arbitrators need to be prepared to drop everything to attend to the matter at hand. "If you are dealing with a team-selection issue for an up- coming Olympics, the athlete needs to know [immediately] if they're going to Beijing or wher- ever the Olympics are being held," says Gaon. David Bennett, a lawyer and chartered mediator with David Bennett Mediation and Dispute Resolution Services in Ottawa, serves as an arbitrator for the SDRCC. Bennett says that the speed of the process distinguishes the kinds of arbitration he does for SDRCC as opposed to in his private practice. "For the Rio Olympics, I got a call on a Sunday at about 2 p.m., saying, 'Can [you] be involved in a team selection issue?'" re- counts Bennett. "We had a pre- liminary call, talked about what documents people needed to see, what I needed to look at. We had the hearing by 7 p.m. that night, and called the different witnesses." "We had a deadline of mid- night, and managed to get it extended for an hour," says Ben- nett. "I finished the hearing by ten-thirty, it gave me an hour- and-a-half to make a decision on a very complicated issue of a team selection." Bennett says that he has dealt with cases where athletes par- ticipated from the airport while waiting for their determination as to whether they would be at- tending an event or not. Another unique function of the SDRCC's process is that arbitrators give an immediate decision following the arbitra- tion hearing, and then have up to 15 days to provide written reasons, which can make it more challenging. Bennett credits the SDRCC's administration, as well as their phone system and electronic document management system for helping the speed of the pro- cess, and for dealing with the case management aspects that he would have to deal with in his private practice. Asselin says that doping cases are different than other matters handled by the SDRCC because they fall under the auspices of the Canadian Centre for Ethics in Sport, which has strict guide- lines for those found guilty of a doping offence. The SDRCC acts as the tri- bunal for doping cases referred to the centre by the CCES, and Gaon says that there is very little room to negotiate a penalty. "Even in doping cases, there are tools that can be used, and the CCES is quite effective in explain- ing the process and what tools can be used to provide a more creative solution," says Gaon. These solutions can include providing "substantial assis- tance" — the term for informa- tion necessary to help catch oth- er dopers — or to begin serving the mandated penalties in the process, pending the resolution facilitation or arbitration, which is akin to time-served. Bennett notes that unlike team-selection cases, doping ones are more complicated, and that six months can pass between the resolution facilita- tion and the arbitration because there may need to be additional independent lab tests. Backman says she sees "the SDRCC as a net positive to the sporting community." "The experience and quality of the people hearing the com- plaints or appeals vary, but that is no different than the courts or any administrative tribunal process," says Backman. LT Neinstein_LT_Jan21_19.indd 1 2019-01-15 4:43 PM Steven Gaon says sports mediations are 'very different' from other court-related processes. "The SDRCC offers a better process for the interested parties in the sporting communities than trying to work through the courts." Paige Backman SPECIAL FEATURE: ADR BOUTIQUES

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