Sport et règlement de différends en temps de COVID-19 : facteurs à considérer pour les athlètes canadiens de haut niveau (disponible en anglais)

I. Introduction

The global pandemic has made things increasingly complicated for amateur sports. This has been particularly challenging for high performance athletes in Canada to navigate. It has created an environment with a greater potential for disputes.

Sport disputes can arise in various circumstances. It is important for high performance athletes to know:

• When there could be a dispute;
• What mechanisms are available to resolve the dispute;
• How the dispute is resolved; and
• The impact of COVID-19 on sport dispute resolution.

II. When do disputes arise?

Commonly, disputes arise during team selection or carding for high performance athletes.

Team selection

National Sport Organizations (NSOs) are the national governing bodies for each sport in Canada and they are generally responsible for selecting and managing their national teams.^[1]  Accordingly, NSOs set out criteria for purpose of selecting the best athletes for optimal performance of the team for international sports events such as the Olympics, Paralympics, World Championships and World Cups.

Provincial/Territorial (P/T) sport or multi-sport organizations (P/T SOs) are the P/T governing bodies for each sport in the Provinces or Territories.^[2] They select athletes according either to criteria established by their government ministry or agency or to criteria they have developed internally for national sport events such as Canada Games.^[3]

In setting the criteria, both NSOs and P/T SOs are required to ensure that the criteria is reasonable, unbiased, transparent, complete and accurate. Athletes have the right to know on what criteria their performance will be evaluated for selection long before the start of qualification period. If the criteria is incomplete, unclear or flawed, the athletes should raise potential issues at the earliest possible time.

Carding

NSOs also recommend a list of athletes for Athlete Assistance Program under Sport Canada (SC) that allows international caliber athletes to receive financial assistance for their training and competition needs. Athletes are entitled to know in advance what they must accomplish in terms of performance to be nominated by the NSO and be approved by the SC.

Governance

Sport organizations in Canada from local clubs to national organizations are often led by volunteer boards. Depending on the level of sophistication of and resources available to a sport organization, they are not always properly prepared to make proficient decisions for various reasons including lack of professional training. Regardless of an organization's resources, athletes have a right to due process of decision-making and bring a claim on grounds of improper decision process or abuse of power.

Doping and disciplinary measures

Behaviors that violate code of conducts may be subject to sanctions, including anti-doping offences. Doping sanctions may occur from a positive test, or failure to comply with testing protocols. Any sanctions should be justifiable, coherent with the seriousness of the violation, and consistent with previous cases of similar nature.

III. Where to resolve disputes

An athlete may have a valid claim when he or she: disputes the selection decision of national team members; is dissatisfied with the nomination of athletes who can assess the financial support; casts doubt on the integrity or legitimacy of the decision-making process; disavows the doping related allegation; or objects to any disciplinary measures.

There are several options for the athletes to resolve the disputes, including: (1) an internal appeal to a sport organization; (2) Mediation, Med/Arb or Arbitration at the Sport Dispute Resolution Centre of Canada (SDRCC); (3) Mediation or Arbitration at the Court of Arbitration for Sport (CAS).

Internal appeal

Many NSO members have in place an internal appeal process to resolve the disputes. Generally, the internal appeal policy prescribes the scope, timing, grounds, screening and decision of the appeal.^[4]

By way of example, Athletics Canada (AC) allows athletes to appeal carding, selection, eligibility and complaints of violations of AC's Code of Conduct and Ethics to its Commissioner's Office. It sets out the procedures to submit an appeal including the timeframe, grounds of appeal, mediation and hearing. Furthermore, it empowers the Commissioner's Office to make written decisions. Lastly, it stipulates that these decisions are subject to review by the SDRCC.[5]

Different organizations will have varying resources to dedicate to this process. Sometimes for smaller organizations, it is challenging for this process to be completely robust. However, these internal processes are a necessary step to be completed before proceeding to formal disputes resolution at the SDRCC.

The SDRCC

The SDRCC is constituted by a federal act and is funded by the Government of Canada (Sport Canada). It helps prevent and resolve disputes at the highest levels of the Canadian sport system. However, it will not have jurisdiction unless athletes have exhausted any internal dispute resolution procedures required by the rules of the applicable NSO.^[6] Under certain circumstances including when an NSO has rejected the right to have an internal appeal, the NSO internal dispute resolution procedure is deemed exhausted.

Upon receiving a claim, the SDRCC will ask the parties to declare whether they prefer to use Mediation, Arbitration or Med/Arb. The SDRCC will provide lists of Mediators, Arbitrators and Med/Arb Neutrals for the parties to appoint to resolve the dispute.^[7]

Mediation is a without prejudice process for the parties to try to foster a settlement, where parties appoint one Mediator to help settle the dispute. The Mediation does not bind the parties, and the Mediation process is confidential. In the event that the parties reach no settlement, then a more formal dispute resolution may need to proceed, such as Arbitration.

Med/Arb is a dispute resolution process that combines Mediation and Arbitration. Initially, the parties try to reach a settlement through Mediation. If there are issues that are not resolved through Mediation, an Arbitrator makes a decision for the parties.^[8] Typically a Mediator would not be an Arbitrator because of the without prejudice/confidential nature of a Mediation, but in Med/Arb, the parties agree to the same appointee to facilitate the Med/Arb. This is an efficient way to try to get disputes resolved.

Where parties request Arbitration (including the Arbitration portion of Med/Arb), they automatically waive their rights to seek alternative relief from domestic courts in any country or international courts.^[9] It is mandatory that the parties go through the Resolution Facilitation process before Arbitration commences. The Resolution Facilitation is a simple and informal process offered to Parties to a sport-related dispute whereby a Resolution Facilitator appointed by the SDRCC works with Parties towards an agreement, focusing on effective communication and the interests of the Parties.^[10] The parties must be prepared to spend at least 3 hours with the Resolution Facilitator to resolve the issue prior to the date for an Arbitration. This is similar to the mandatory mediation processes contained in the Superior Courts in Ottawa, Toronto and Windsor, which is required for most civil matters before a matter can be set down for trial.

The Resolution Facilitator may provide a written opinion of the likely outcome of an Arbitration of the dispute. If a dispute remains unresolved, the Parties may continue to work with the Resolution Facilitator in preparation for the Arbitration, including developing an agreed statement of facts.^[11]

In the Arbitration process, the parties appoint one or three Arbitrators for the SDRCC to confirm.^[12] A Panel is then established after confirmation, empowered to convene a preliminary meeting, set out its own procedures and require witnesses to testify.^[13] The Panel has full power to review the facts, apply the law and deliver the awards to the parties. The decision is final and binding upon the parties unless the dispute is a Doping Dispute, in which case the decision could be appealed to the CAS.

The CAS

The CAS is an international independent institution that facilitates the sport-related disputes through Arbitration or Mediation. The threshold to initiate the CAS dispute resolution process is higher than the SDRCC because the CAS only has jurisdiction to arbitrate on a sport-related dispute when both parties have agreed to refer a dispute to the CAS. A reference may arise from an Arbitration clause in a contract or regulations (Ordinary Arbitration), or may involve an appeal against a decision rendered by a federation, association or sport-related body whose statutes or regulations provide for an appeal to the CAS (Appeal Arbitration).^[14]

The CAS provides different procedural rules depending on whether it is an Ordinary Arbitration or Appeal Arbitration. However, the procedural rules generally govern the request for Arbitration^[15] or appeal^[16], formation of the Panel,^[17] and procedures before the Panel include written submission, hearing and evidentiary proceedings.^[18] The parties can choose the applicable law to be considered on the Appeal.^[19] The Panel is empowered to deliver written decisions, which are final and binding subject to certain conditions.^[20]

IV. How to resolve disputes – Case commentaries

(I) An example of the arbitration process

Diana Weicker v. Wrestling Canada Lutte and Samantha Stewart and Jade Parsons^[21] was a dispute about selection of national team wrestlers to represent Canada in the 53 kg freestyle weight class at the Summer Olympic Games in Tokyo, Japan. Ms. Weicker disputed Wrestling Canada Lutte's (WCL) decision to deny her request for a retroactive Injury Provision wrestle-off, which in turn deprived her ability to apply the WCL Internal Nomination Procedures for the Olympic Games.

Ms. Weicker argued that the NSO did not properly apply its Concussion Policy, and that as a result she should be entitled to the injury provision retroactively, which would entitle her to a wrestle-off against one or both of the parties that obtained national team spots.

This dispute occurred before the SDRCC. In February 2020, Ms. Weicker pursued the internal appeal process before proceeding to the SDRCC. On February 28, 2020, given the time intensity for the scheduled final Tokyo World Olympic Games Qualifier in Bulgaria, the parties agreed to bypass the internal appeal process and be heard directly by the SDRCC.

The process moved swiftly, with SDRCC receiving the request for Arbitration on March 5, 2020, an agreement on the appointment of the Arbitrator on March 11, and a preliminary call on procedural matters on March 17, 2020. A teleconference hearing was held on May 4 and 12, 2020, and the decision was delivered on May 19, 2020.

In the decision, the Arbitrator dismissed Ms. Weicker's application on the grounds that WCL's decision to not grant Ms. Weicker a wrestle-off was taken in accordance with its properly established Internal Nomination Procedures and there had no unfairness, bias, discrimination, bad faith or arbitrariness in the decision.

(II) Substantive perspective

Ron Jacks v. Swimming Natation Canada and Dominique Longtin is a case about the selection of a national team coach for the world championships. Ron Jacks disputed Swimming Natation Canada's decision not to select him as a coach for the 2017 FINA Championships in the Open Water Competition.

Mr. Jacks was a highly accomplished swimming coach, producing many medals at the Olympics and Paralympic Games between 1976 and 2012. He was not selected as a coach for various reasons including that the National Coach of the Respondent developed a dislike for his professionalism after meeting with him in person. The Arbitrator granted the appeal on the grounds that pursuant to the Respondent's selection policy, the National Coach did not have any authority to make a selection decision while in effect he made the decision, and that his "dislike" arising from his impression that Mr. Jacks disagreed with substantially everything about his plans for the program, was a subjective criteria which was not included in Respondent's selection policy. The findings that there was a "dislike" for Mr. Jacks was based on e-mail exchanges and testimony at the hearing.

Although the Arbitrator acknowledged that he could have the decision sent back to the Respondent Swimming Natation Canada for redetermination, he said it was an untenable option because the Respondent had expressed its full support for the selection decision and was likely not to make a change. For that reason, the Arbitrator directly appointed Mr. Jacks as coach to the Canadian National Team for the 2017 FINA Championship.

V. The impact of COVID-19 on sport dispute resolution

The COVID-19 pandemic has had a colossal impact on every aspect of life, including sports. Sport events are postponed (e.g. Tokyo 2020 Olympic Games), cancelled (e.g. 2020 Wimbledon) or prematurely concluded (e.g. 2020 Belgian Pro League). This leaves challenging questions like: (1) what if national team selection already occurred for the 2020 Olympics; (2) what if national team selection was halfway completed for the 2020 Olympics.

More sport related disputes are likely to arise in relation to a wide variety of legal relationships including employer and employee, funder and funded, and governor and governed. The dispute resolution mechanism is adaptable and continues to provide resolution services. SDRCC continues to perform a virtual full-service online,^[22] while the CAS has its procedure rules updated to facilitate dispute resolution in COVID-19.^[23] High performance athletes are encouraged to know their rights, particularly in this changing and complicated framework. Further, the nature of these disputes is that there is almost always a time sensitivity, so potential appellants should seek legal advice and pursue their appeal rights promptly.