9 Dispute Resolution: Procedural and Substantive Issues
Hilary Findlay
Marcus Mazzucco
Themes
Sports law
Dispute resolution in sport
Sport arbitration
Learning Objectives
When you have completed this chapter, you will be able to:
L01 Identify the typical parties to an arbitration hearing in the sport maltreatment context;
L02 Identify the scope of review options for an arbitrator;
L03 Describe a burden of proof and provide two examples of standards of proof;
L04 Explain the connection between the confidentiality of an arbitration process and the right to a fair hearing;
L05 Identify two different approaches that can be used by an arbitrator to interpret a code of conduct; and
L06 Explain the principle of proportionality in relation to disciplinary sanctions.
Overview
This chapter will examine the use of arbitration to resolve disputes arising from investigations into alleged violations of the Universal Code of Conduct to Prevent and Address Maltreatment in Sport. Key issues related to the procedural and substantive aspects of arbitration will be considered, including the rights of parties to request arbitration, the scope of an arbitrator’s authority, the confidentiality of arbitration proceedings, and the principles of law used by arbitrators to interpret codes of conduct and determine appropriate sanctions for violations. Existing sport arbitration institutions, including the Court of Arbitration for Sport and the Sport Dispute Resolution Centre of Canada, will be used as examples to discuss these issues.
Key Dates
As discussed in Chapter 8, once an investigation has concluded and a decision has been made about a violation of the Universal Code of Conduct to Prevent and Address Maltreatment in Sport (UCCMS), a dispute about that post-investigation decision may arise and will be resolved by arbitration.
Arbitration is commonly used to resolve disputes in sport as is evident by the creation of sport-specific arbitration institutions at the international and national levels, such as the international Court of Arbitration for Sport (CAS) and the Sport Dispute Resolution Centre of Canada (SDRCC). Please refer to Chapter 8 for a short backgrounder on CAS and SDRCC. In the maltreatment in sport context, arbitration is used to resolve disputes arising from investigations, as seen in the United States (U.S.) with the Judicial Arbitration Management Service (JAMS),[1] in the United Kingdom (U.K.) with the Sport Resolutions’ National Safeguarding Panel (NSP),[2] and in Canada with the SDRCC’s Safeguarding Tribunal.[3]
Chapter 8 examined the key institutional issues associated with arbitration. This chapter explores the following six issues related to the procedural and substantive aspects of arbitration in the sport maltreatment context:
- The rights of persons to request arbitration;
- The scope of review options for an arbitration proceeding and their procedural implications;
- Establishing burdens and standards of proof to ensure a fair and just arbitration process;
- The confidentiality of the arbitration process based on the right to a fair hearing and privacy considerations;
- The principles of law that could be used by arbitrators to interpret the UCCMS; and
- The principle of proportionality and sanctions under the UCCMS.
1. Rights to Request Arbitration
As mentioned in Chapter 8, the nature of a dispute involving a post-investigation decision and the parties involved will depend on various factors, including who conducted the investigation, who made the decision, and the substance of the decision itself. Consider the examples in Figure 9.1 below.
Figure 9.1 Dispute Scenarios for Post-Investigation Decisions
A key issue is determining who will have rights to challenge a post-investigation decision by arbitration. Some insight into this issue can be obtained from international comparators and the SDRCC’s Safeguarding Tribunal. In the U.S., for example, investigations conducted by the U.S. Center for SafeSport may result in a formal decision issued by the Center,[4] and only the respondent may request an arbitration hearing to challenge the decision.[5] In contrast, in the U.K., a national governing body[6] or any person who is subject to the rules and regulations of a national governing body and is affected by a decision made by the national governing body (or a decision-maker authorized by the body) may challenge a post-investigation decision relating to maltreatment.[7] This latter type of person could include the respondent or the complainant.
Finally, the SDRCC Safeguarding Tribunal allows the following persons to request an arbitration hearing to challenge a post-investigation decision: the respondent, the complainant,[8] the relevant sport organization, or a person who is pursuing the violation, if not the sport organization itself (e.g. an independent third party).[9] However, unlike the other parties, a complainant is only permitted to challenge a finding on a code of conduct violation, and is not permitted to challenge a proposed sanction issued under the code of conduct.[10]
In all three of the above examples, a respondent has a right to request an arbitration hearing if they want to challenge a finding that a code of conduct violation has occurred or challenge the severity of a sanction. This is not controversial as the respondent should have such rights as it is their reputation and participation in sport that is at risk. However, with respect to the rights of a complainant or sport organization to request an arbitration hearing, the U.S. SafeSport model is arguably inadequate.
A complainant whose complaint or report is investigated should have an opportunity to request a hearing if they believe that a finding on a violation of a code of conduct is wrong, or a sanction issued under that code of conduct is not severe enough. This is especially important where the complainant believes that the investigation into the code of conduct violation was flawed on procedural fairness grounds (see Chapter 7 for a discussion on procedural fairness protections for an investigation). Similarly, the relevant sport organization ought to have similar appeal rights as they may be familiar with the alleged maltreatment and will be impacted by a sanction that prevents a respondent from participating in the organization’s operations or activities.
Interestingly, the rules for the SDRCC’s Safeguarding Tribunal permit a sport organization to challenge a proposed sanction under a code of conduct but do not grant the same right to a complainant. Instead, the rules permit the complainant to attend the hearing as an observer and require an arbitrator to allow the complainant to submit a written impact statement and read it aloud at the hearing.[11] As discussed later on in this chapter, the sanctions issued under the UCCMS are intended to be proportionate and reasonable relative to the maltreatment that has occurred.
As a result, it is arguable that a complainant who is the subject of maltreatment should have the right to request an arbitration hearing to challenge a sanction imposed under the UCCMS. Otherwise, there may be circumstances where the rights of the complainant to participate in a hearing as an observer or presenter of a written impact statement cannot be exercised where no other party (respondent, sport organization, NIM) requests a hearing. The U.K. model seems to strike the right balance by providing a right to request a hearing to any person who is subject to the rules and regulations of a sport organization and is affected by a post-investigation decision made by or on behalf of the organization.[12]
A final consideration involves the ability of the NIM to request an arbitration hearing where an investigation is conducted by an independent third party and a post-investigation decision is made by the relevant sport organization. The NIM may wish to challenge the decision as the independent body responsible for the implementation of the UCCMS. The NIM’s right to challenge the decision would be similar to the World Anti-Doping Agency (WADA)’s authority to challenge anti-doping decisions made by national or international anti-doping organizations. Alternatively, the NIM could have a more passive role as an “observer” in the proceeding, which is also a right of WADA and international sport federations in the case of doping disputes heard by the SDRCC.[13]
This supervisory role of the NIM was noted by the McLaren Global Solutions Group (2020), which envisioned a similar role where a complaint falls outside the mandatory investigative jurisdiction of the NIM, and leads to an investigation by an independent third party that is overseen by a NIM investigator. A supervisory role would also address concerns raised by the sport sector about relying on the sport organization to review an independent third party’s investigative findings and determine an appropriate sanction.[14]
2. Scope of Review and its Procedural Implications
Scope of Review Options
The term “scope of review” relates to the breadth of an arbitrator’s authority to resolve a dispute involving a decision made by another decision-maker (the “original decision”). For the purposes of this chapter, the original decision would be a decision made by the NIM, the relevant sport organization or an adjudicator retained by the relevant sport organization, following an investigation into a violation of the UCCMS.
A narrow scope of review involves the arbitrator reviewing the original decision on specific grounds or for specific errors, such as an error made in interpreting or applying the applicable code of conduct or the use of an unfair procedure (see Chapter 7 for procedural fairness considerations for an investigation and post-investigation decision).
A broad scope of review involves the arbitrator conducting a whole new hearing of a matter without considering the original decision (known as a de novo hearing – which is Latin for “from the new”). In a de novo hearing, the arbitrator makes their own findings of fact based on admissible evidence (e.g. witness testimony or documentary evidence) and applies the relevant code of conduct to those facts to resolve the dispute as if the arbitrator was the original decision-maker. Figure 9.2 below depicts the scope of review options for an arbitrator in relation to the original decision as an hourglass.
Figure 9.2 Scope of Review Options
In Practice:
Step into the Shoes of an Arbitrator
The above section has discussed the role of arbitrators in making findings of fact in a de novo hearing. In making a finding of fact, an arbitrator answers a question of whether an alleged fact occurred (a question of fact). In contrast, arbitrators can also make conclusions of law that answer questions about the interpretation of a law or a legal principle (a question of law). Finally, arbitrators can make findings that answer questions that have factual and legal aspects (questions of mixed fact and law). Examples of a question of mixed fact and law could include interpreting a law and applying it to a set of facts or interpreting a contract.
Interpreting a contract is considered a question of mixed fact and law because the adjudicator is determining what the parties agreed upon (a factual question) based on the wording of the contract (a legal question).
To better understand an arbitrator’s role, complete the following activity by categorizing the following questions relating to the UCCMS as questions of fact, questions of law, or questions of mixed fact and law.
- What is the age of majority under Ontario laws?
- What does “psychological maltreatment” mean in the UCCMS?
- Did the respondent yell at the complainant?
- Did the respondent’s conduct constitute physical maltreatment under the UCCMS?
- What are the sport organization’s internal procedures for reporting inappropriate conduct?
- Did the organization report their concerns about the coach to the organization’s board of directors?
- Is there a duty to report under child protection legislation?
- Did the respondent fail to report the coach’s inappropriate conduct in accordance with the organization’s internal procedures in violation of the UCCMS?
- Did the respondent violate the UCCMS by directly or indirectly interfering with a UCCMS process?
- How is consent defined in Canada’s Criminal Code?
- Did the respondent tell the complainant not to report the incident?
- What does “attempting to discourage an individual’s proper participation in or use of the UCCMS’s processes” mean?
The scope of an arbitrator’s authority is agreed to by the parties. The parties’ agreement is documented in an arbitration agreement, the procedural rules of the arbitration institution (with which the parties agree to comply when they submit their dispute to the institution for resolution), or the applicable rules of the relevant sport organization (with which the parties agree to comply as a condition of participating in the sport), or a combination of these documents. For example, for appeals of selection, funding and eligibility decisions made by sport organizations, the SDRCC Ordinary Tribunal has the authority to conduct a de novo hearing, and must do so in certain circumstances, including where the process used by the previous decision-maker was procedurally unfair.[15]
However, where the SDRCC Ordinary Tribunal’s authority to conduct a de novo hearing is discretionary under the SDRCC’s procedural rules, its authority may be narrowed by the rules of the relevant sport organization that only permits an appeal to SDRCC on certain grounds.[16] In addition, where the option for a de novo hearing is discretionary and not restricted by the relevant sport organization’s rules, SDRCC Ordinary Tribunal arbitrators typically choose a narrower scope of review that is similar to the scope of review used by Canadian courts to review the decisions of statutory decision-makers, such as government officials or administrative tribunals (known as “judicial review”) (see the Case Study below for more information).[17]
In a scope of review that is similar to judicial review, the arbitrator will review the procedural and substantive aspects of the original decision.
The procedural aspects relate to the procedural fairness considerations discussed in Chapter 7, including a decision-making process that provides advanced notice to the respondent of an impending decision, an opportunity for the respondent to make representations to the decision-maker, and an unbiased decision-maker.
The substantive aspects relate to whether the original decision-maker had the power to make the decision and whether the decision was reasonable.
In the context of a sport organization, the authority of a decision-maker will be set out in the organization’s constitution, bylaws, or policies. The reasonableness of a decision focuses on the outcome of the decision and the decision-maker’s reasoning process, which must be transparent, understandable, and justified.[18] A decision will be unreasonable if it is arbitrary, illogical, based on improper considerations, or if it ignores relevant considerations.
Case Study:
Scope of Review in Canadian Sports Arbitration: An Accident of History or Justified?
For many years, it was believed that the decisions of private sport organizations could be challenged by way of judicial review in courts. However, the Supreme Court of Canada recently clarified that the decisions of private associations, such as sport organizations, are not subject to judicial review in courts (Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018).
Instead, courts will only review the decisions of a sport organization where a plaintiff has a cause of action and the subject matter of the dispute is justiciable – that is, appropriate for the court to decide. In the case of sport disputes, the most common type of cause of action is breach of contract .
For example, if a sport organization agrees to select athletes to a national team based on selection criteria set out in a policy or contract, and the organization does not follow the selection criteria, then an athlete could bring a lawsuit to challenge the decision on the basis of breach of contract.
However, if that selection policy or contract specifies that disputes about the team selection must be resolved by arbitration, then a court will decline to hear the matter on the basis that it is not justiciable. It is not justiciable because the parties have previously agreed to resolve their dispute by arbitration, and not in court.
The previous availability of judicial review to challenge the decisions of sport organizations may have been a factor in the selection of that scope of review by SDRCC arbitrators. The rationale may have been that, if the sport organization’s decision was subject to judicial review in the absence of an agreement to arbitrate, then arbitrators should treat the arbitration hearing as though it is a judicial review.
However, SDRCC arbitrators may also believe that a scope of review similar to judicial review is appropriate because sport organizations are similar to many administrative tribunals and government decision-makers whose decisions are subject to judicial review, and that the institutional role of SDRCC arbitrators to oversee the sport system is similar to a court.
Fact Finding
Several procedural considerations apply when selecting the appropriate scope of review. For example, one consideration for a de novo hearing is that it fixes any procedural unfairness associated with the original decision. This is because the arbitrator holds a new hearing and allows both parties to present their case on which facts exist and how the law applies to those facts, as opposed to making submissions on whether the original decision was right or wrong. This advantage has been noted by CAS arbitrators in the context of anti-doping appeals, which are heard by CAS on a de novo basis.[19] However, because a de novo hearing is a new hearing, it requires an arbitrator to make findings of fact as those made by the original decision-maker are not considered. An arbitrator can make findings of fact based on witness testimony, documentary evidence, and evidentiary presumptions.[20]
Having an arbitrator conduct a fact-finding process is helpful if the process used by the original decision-maker was flawed, but it can result in inefficiencies if the fact-finding process used by the original decision-maker was comprehensive and fair to both parties. In the context of the UCCMS, this risk of inefficiency may be high if an original decision is based on a lengthy investigation conducted by the NIM or an independent third party, and that investigative process needs to be repeated or supplemented in the arbitration hearing.
In contrast, in a scope of review that is similar to judicial review, there is no fact-finding process as the factual record before the original decision-maker is used by the arbitrator to review procedural and substantive aspects of the original decision, without considering any new facts that might have arisen after the original decision was made. Instead of a fact-finding inquiry, the arbitrator will review the procedural and substantive aspects of the original decision to identify errors, which raises a separate procedural issue – specifically, the applicable standard for determining whether the original decision-maker made an error (known as the “standard of review”).
Standards of Review
Examples of standards of review for reviewing an original decision (or an aspect thereof, such as a question of law, question of fact, or question of mixed law and fact) are correctness, reasonableness, and palpable and overriding error.
In court, the appropriate standard of review depends on whether the court is reviewing the original decision as an appeal or a judicial review. As noted above, in a judicial review context, a court will consider whether the original decision was reasonable, which involves an assessment of the outcome of the decision and the decision-maker’s reasoning process. In an appeal or judicial review context, a court’s assessment of whether an original decision was procedurally fair does not involve any of the above standards of review. Instead, the court will review what level of procedural fairness is necessary in the circumstances and whether that level has been met. Figure 9.3 below provides more information about the different standard of review used by courts in appeals and judicial reviews, including assessments of procedural fairness.
Figure 9.3 Standards of Review and Deference to Original Decision-Makers
Note 1: The following figure depicts various standards of review on a sliding scale based on the amount of deference given by the court to the original decision-maker. On the left side, the level of deference given to the original decision-maker is low, and therefore the court will scrutinize the original decision (or an aspect of it) to see whether an error was made. In contrast, on the right side of the scale, the level of deference given to the original decision-maker is high, and therefore the court will conduct a more superficial review of the decision (or an aspect of it) and only intervene if the court finds that the original decision contains a clear and obvious error.
Note 2: For each point on the sliding scale of deference (low, medium, high) is an example of the standard of review applied by courts in various settings. Procedural fairness is included near the middle because a court can defer to the choice of procedure adopted by an original decision-maker.
Shifting to the sport arbitration context, the most common standard of review used by the SDRCC Ordinary Tribunal is reasonableness due to the fact that the original decision-maker (i.e. the sport organization) has a certain level of expertise in the subject matter of the original decision and ought to be afforded deference by the arbitrator.[21] However, it is up to the party whose decision is being challenged to explain why such deference should be granted by the arbitrator when reviewing the original decision.[22] A sport organization can usually persuade an arbitrator that the appropriate standard is reasonableness in disputes involving team selection, funding and eligibility, as the sport organization has specialized knowledge in those areas.
In contrast, the procedural rules for the SDRCC Safeguarding Tribunal specify that, in the context of a challenge to a finding regarding a violation of a code of conduct, the standard of reasonableness applies to assessing whether the original decision-maker made certain errors (such as misinterpreting or misapplying the code of conduct), whether there was a breach of procedural fairness, or whether there is new evidence to consider.[23] This standard of reasonableness is arguably inappropriate for several reasons:
- First, it is unclear how this standard would apply to an assessment of whether new evidence should be considered by the arbitrator, as this assessment does not involve a review of the original decision for any error.
- Second, the standard is inconsistent with the assessment used by courts for determining the procedural fairness of an original decision. As noted above, a court will consider what level of procedural fairness is necessary in the circumstances and whether that level was met when the original decision was made.
- Third, a standard of reasonableness may provide too much deference to the original decision-maker in certain cases.
Where the original decision is made by the NIM following an investigation conducted by the NIM, a standard of reasonableness may be appropriate since NIM will presumably have expertise in interpreting and applying the UCCMS. In contrast, where the original decision is made by a sport organization or a third party adjudicator retained by the sport organization, a less deferential standard, such as correctness, may be more appropriate as the sport organization or other decision-maker may have less expertise in interpreting and applying the UCCMS, at least in the infancy of implementing the UCCMS.
Scope of Remedies
A final procedural consideration that applies when selecting the appropriate scope of review is the scope of remedies that may be granted by the arbitrator. In a de novo hearing, an arbitrator is not considering the original decision and will therefore issue a new decision that replaces the original decision. In contrast, in a narrower scope of review, an arbitrator may refer the matter back to the original decision-maker with instructions to correct any error identified by the arbitrator, if a resolution of the dispute is not urgent and the original decision-maker (i.e. the sport organization) has a particular expertise over the subject-matter underlying the dispute, such as a team selection decision involving the exercise of discretion.[24]
The procedural rules of a sport arbitration institution typically give an arbitrator a broad scope of authority to grant remedies – likely to reflect that the scope of the arbitrator’s review may vary depending on the circumstances. For example, for SDRCC’s procedural rules authorize the SDRCC Ordinary Tribunal to substitute its decision for the original decision or to grant such remedies that the Tribunal deems just and equitable in the circumstances,[25] which may include referring the matter back to the original decision-maker to re-make the decision after correcting any procedural or substantive errors identified by the arbitrator. Similarly, the SDRCC procedural rules authorize the Safeguarding Tribunal, in certain circumstances, to impose such consequences and/or risk management measures as seem fair and just, after considering the relevant sport organization’s rules.[26] (See Section 6 of this chapter “The Principle of Proportionality and Sanctions under the UCCMS” for further discussion on sanctions).
Recommended Scope of Review
What is the appropriate scope of review for disputes involving post-investigation decisions related to maltreatment in sport based on the procedural implications discussed above? To answer this question, it is helpful to look at the context in which the dispute will arise. As noted earlier, the dispute involves a decision made by the NIM or the relevant sport organization following an investigation into a violation of the UCCMS.
Chapter 7 discusses the elements required for a procedurally fair investigation and original decision. Assuming those elements are incorporated into the investigation and decision-making processes, it may be unnecessary to have a de novo arbitration hearing that makes new or fresh findings of fact. Repeating or supplementing a fact-finding process at the arbitration stage could re-traumatize complainants and witnesses, as well as substantially increase the time and resources required for the arbitration hearing. As a result, it may be appropriate to limit the availability of a de novo hearing to instances where the original decision was made in a procedurally unfair manner that can only be remedied by a new decision-making process conducted by the arbitrator.
Where a de novo hearing is not warranted, the arbitrator’s role could be limited to reviewing the original decision on specified grounds (e.g. an error in interpreting or applying the UCCMS or procedural unfairness). In other words, the arbitrator begins with a narrower scope of review and only expands to a de novo hearing to remedy procedural unfairness in the making of the original decision. In a narrower scope of review, consideration must be given to the appropriate standard of review .
To learn more about the different types of arbitration hearings available in the United States Safe Sport model, watch the video Hearing Process: Response and Relation.
This narrow-to-broad scope of review approach is taken by the SDRCC’s Safeguarding Tribunal and may provide insight into how the SDRCC would determine the scope of review of arbitrators that review decisions made by the NIM. However, this narrow-to-broad approach would be somewhat inconsistent with the safe sport arbitration models in the U.S. and the U.K. The U.S. model permits a de novo hearing where a respondent challenges the merits of the Center’s finding of a code violation, and a strict narrower scope of review where a respondent challenges a sanction or a finding of a code violation based on a criminal charge or disposition, such as a conviction.[27] In contrast, in the U.K. model, the NSP Safeguarding Panel’s arbitration rules are silent on the applicable scope of review, likely to allow the parties and arbitration panel to decide on the appropriate scope and related procedural matters prior to the hearing[28]
Table 9.1 below compares the scope of review and related procedures of arbitrators in the U.S. SafeSport, U.K National Safeguarding Panel, and SDRCC’s Safeguarding Tribunal models.
Table 9.1 International Comparison of Scope of Review and Procedural Rules
| Jurisdiction | Scope of Review | Related Procedures (Standard of Review, Evidence & Remedies) |
|---|---|---|
|
U.S. SafeSport Arbitration.[29] |
In the case of a merit-based hearing – de novo hearing |
No standard of review. Flexible and comprehensive rules of evidence to enable fact-finding on alleged violations of SafeSport Code. Arbitrator may grant such remedy or relief as they deem just and equitable within scope of the Code and sanctioning guidelines. |
|
In the case of a hearing concerning sanctions or violation of SafeSport Code due to criminal charges or dispositions – appeal/review on narrow ground (whether abuse of discretion occurred). |
No standard of review as arbitrator is assessing whether the Center abused its discretion, not whether the Center’s decision or an aspect of the decision involved an error. No fact-finding as violation of code and underlying facts are established and irrefutable. Arbitrator’s review is based on Center’s decision, parties written submissions, and oral submissions (if permitted by arbitrator). Arbitrator may modify sanction issued by Center if abuse of discretion is found. |
|
|
U.K. National Safeguarding Panel Arbitration.[30] |
Scope of review determined by arbitrator and parties prior to hearing |
Procedural rules silent on standard of review. (If not a de novo hearing, then, presumably, arbitrator would select standard of review based on parties’ submissions). Flexible and comprehensive rules of evidence to align with scope of review, including appointing independent experts and requiring production of documents. Arbitrator can issue sanctions or risk management measures as seem fair and just (which would replace original decision). |
|
SDRCC – Safeguarding Tribunal.[31] |
In the case of a challenge to a finding on a code violation – appeal on narrow grounds (specific errors, procedural unfairness, new evidence). |
Standard of review is reasonableness. Review based on documentation (not testimony), unless panel orders otherwise. Silent on scope of remedies. |
|
In the case of a challenge to a proposed sanction – similar to judicial review. |
SDRCC Code silent on standard of review. (presumably, arbitrator to select standard of review based on parties’ submissions). Presumably, no fact-finding if review focused on appropriateness of sanction. Arbitrator can issue sanctions or risk management measures as seem fair and just (which would replace original decision). |
|
|
If a challenge to finding on a code violation reveals bias, then arbitrator conducts a de novo hearing. |
No standard of review. Flexible and comprehensive rules of evidence to align with scope of review, including appointing independent experts and requiring production of documents. Silent on scope of remedies.
|
3. Establishing Burdens and Standards of Proof to Ensure a Fair and Just Arbitration Process
A burden of proof refers to a party’s responsibility to prove a particular fact or matter in a legal proceeding. Burdens of proof impact how a party behaves in a proceeding in terms of what arguments they make and what evidence they introduce. A party with a burden to prove a certain fact must take proactive steps to meet that burden.
In contrast, a party without a burden may decide to do nothing (as they don’t have to assist the other party in meeting the burden) or may decide to take reactive steps to rebut the arguments made or evidence introduced by the other party to prevent that other party from meeting their burden.
To use a sport analogy, a party with a burden of proof is on the offensive, while the other party is on the defensive. See Figure 9.4 below for further explanation.
Figure 9.4 Burdens of Proof as a Sporting Analogy
To determine whether a party has met their burden to prove a particular fact or matter, a threshold or standard must be applied (known as the standard of proof). To return to our sport analogy, the standard of proof would be the end zone that the offensive party must enter to score. The higher the standard, the further away the end zone is from the offensive party. There is a sliding scale of standards of proof in law. Figure 9.5 depicts the various standards of proof as different end zones on a sports field.
Figure 9.5 Standards of Proof Illustrated
Allocating Burdens of Proof
Burdens of proof can be assigned to both parties in a legal proceeding. In the sport maltreatment context, the allocation of a burden of proof will depend on an arbitrator’s scope of review (see Section 2 “Scope of Review and its Procedural Implications” above). For example, in a de novo hearing where the arbitrator is making factual findings to determine whether a violation of the UCMMS occurred, it is fair to assign the burden of proving a violation to the party pursuing the violation, which will be the NIM or the relevant sport organization whose original decision was challenged.
If a violation of the UCCMS is established, then each party would have the burden to prove why their proposed sanction should be accepted by the arbitrator by proving the existence or application of certain factors. However, if a presumptive sanction applies based on the UCCMS violation, such as a permanent ineligibility, then the respondent will have the burden to explain why that sanction is not fair and appropriate based on certain factors (see Section 6 “The Principle of Proportionality and Sanctions under the UCCMS” below for a discussion on the proportionality of sanctions).
In a narrower scope of review, there is no burden of proof to be assigned because the arbitrator is reviewing the original decision for specific errors, and not engaging in fact finding process that requires a party to prove a fact based on a certain standard. For example, if a party is challenging an original decision on specific grounds (such as an error made in interpreting or applying the UCCMS or procedural unfairness), then the focus is on the relevant standard of review (see Section 2 “Scope of Review and its Procedural Implications” above).
However, where an arbitrator concludes that an original decision is procedurally unfair or contains a substantive error, the arbitrator may assume a fact-finding role requiring the allocation of burdens of proof. For example, if an arbitrator concludes that an original decision should be overturned and replaced because the sanction imposed is unreasonable, then the arbitrator may require the parties to make submissions on appropriate sanctions that requires them to prove certain factors.
Similarly, if the arbitrator concludes that the original decision was procedurally unfair and that this should be remedied by a de novo hearing conducted by the arbitrator, then the above discussion about allocating burdens of proof in a de novo hearing applies.
To summarize, an arbitration institution’s procedural rules for allocating burden of proof will depend on an arbitrator’s scope of review and the type of hearing that flows from that scope. In the U.S., for example, because a de novo hearing is offered for merit-based challenges to an original decision made by the Center, the procedural rules for that type of hearing specify that the Center has the burden of proof. In contrast, for the SDRCC Safeguarding Tribunal, because there are different types of hearings contemplated (a de novo hearing or a narrower scope of review), the procedural rules include one general rule that the party asserting a particular fact or matter has the burden to prove it.
This latter type of procedural rule is appropriate where there is flexibility in the breadth of an arbitrator’s scope of review and type of hearing. However, it will be the responsibility of the arbitrator to clarify for the parties how the rule will be applied in the context of a de novo hearing compared to a narrow review of an original decision on specific grounds. This clarification should be provided during any preliminary meetings amongst the parties and arbitrator prior to the start of the hearing so that the parties know what to expect during the hearing.
Determining an Appropriate Standard of Proof
Once burdens of proof have been allocated between or amongst parties to an arbitration proceeding, the relevant standard(s) of proof must be determined. Figure 9.5 above provides examples of the different standards of proof that exist in law. What is the appropriate standard of proof in the sport maltreatment context?
In the U.S. and U.K. safe sport models, and in the SDRCC Safeguarding Tribunal, the relevant standard of proof is a “balance of probabilities.” As noted above, this standard is met when an arbitrator is satisfied that it is more likely that something is true than false (i.e. being 51% sure of something). This requires evidence that is clear, convincing, and persuasive.[32] A balance of probabilities is the only standard of proof used in civil lawsuits, including those involving sexual assault and battery.[33] It is also the standard used by child protection authorities in Ontario when conducting an investigation.[34]
In contrast, in the anti-doping and disciplinary contexts of sport, CAS has held that the applicable standard of proof is a “comfortable satisfaction”.[35] This standard is greater than a balance of probabilities but less that proof beyond a reasonable doubt, and it is met when an arbitrator is comfortably satisfied that it is far more likely that something is true than false. CAS has justified the standard due to the seriousness of allegations involved in doping and disciplinary disputes and their consequences.[36] Following CAS decisions, the standard of a comfortable satisfaction was incorporated into the World Anti-Doping Code. However, the standard only applies to an anti-doping organization’s burden to prove an anti-doping rule violation and, for all other burdens that might arise in a doping hearing, the applicable standard of proof is a balance of probabilities.[37]
The comfortable satisfaction standard is very similar to the standard of “clear and convincing evidence”. The clear and convincing standard is used in the discipline hearings of certain regulated professions in Canada, but only if the standard is set out in legislation (see, for example, Ontario’s Police Services Act ). In the U.S., the standard is also used in some civil proceedings involving morally blameworthy conduct, such as fraud or conduct giving rise to punitive damages.[38] It is also used in U.S. administrative proceedings where personal liberties are at stake, such as withdrawing life support[39] or child custody determinations.[40]
In the News:
Russian Doping Scandal
“The Russian Doping Scandal,” Commission on Security and Cooperation in Europe, Feb. 22, 2018.
“Russian Doping Scandal: Athletes Face Potential Ban from Global Sport,” BBC, Dec. 9, 2019.
“How Russian Doping Scandal Unfolded,” France24, Dec. 17, 2020.
Following investigative journalism into state-sponsored doping in Russia and a 2016 WADA investigation into the same issue, the IOC established a disciplinary commission to conduct hearings involving Russian athletes who were implicated in the WADA investigation. The IOC disciplinary commission concluded that the athletes had committed anti-doping rule violations through their participation in a state-sponsored doping scheme at the 2014 Olympic Games in Sochi and, as a consequence of those violations, disqualified the athletes’ results at the 2014 Olympic Games and banned them from competing at any future Olympic Games.
The athletes appealed the IOC disciplinary commission’s decision to CAS. CAS upheld the majority of the athletes’ appeals and overturned the IOC’s sanctions on the basis that the indirect evidence obtained from the 2016 WADA investigation did not meet the standard of proof for proving the alleged anti-doping rule violations (see, for example, Smolentseva v. IOC, 2017). This outcome was somewhat surprising as CAS had relied on indirect evidence to be comfortably satisfied of an anti-doping rule violation in previous decisions.[41]
Should the standard of proof of comfortable satisfaction or a balance of probabilities be applied to establishing a violation of the UCCMS?
The answer involves a balancing of rights and interests. From the perspective of a respondent, an alleged violation of the UCCMS is serious due to its moral blameworthiness and its potential consequences to the respondent’s reputation, livelihood, and ability to participate in sport. The seriousness of the allegations and their related consequences is comparable to that seen in doping disputes before CAS, which suggests that a standard of comfortable satisfaction may be more appropriate than a balance of probabilities.
However, it is important to keep in mind that the disputes heard by CAS involve international-level athletes and officials, and therefore the consequences of an alleged violation may be more serious than the consequences at lower levels of sport where a respondent may only be a volunteer.
Further, and perhaps more importantly, CAS may not be the most appropriate comparator for the sport maltreatment context, despite being an institution in the sport system. Domestic legal systems may be a better comparator due to their overlap with the subject matter of the sport maltreatment context. For example, a violation of the UCCMS may lead to a civil lawsuit for assault or battery where the standard of a balance of probabilities would apply.
Similarly, a violation of the UCCMS may also trigger an investigation or proceedings under provincial or territorial child protection legislation, where the balance of probabilities standard would be used. Finally, even in domestic legal proceedings outside of Canada that use a standard of clear and convincing evidence due to the liberty interests at stake (e.g. ending life support, suspending parental rights), the interests of a respondent under the UCCMS arguably do not reach the same level of importance.
From the perspective of the complainant, the NIM or other person pursuing the violation of the UCCMS, it is important to recognize the evidentiary burden associated with a standard of proof that is higher than a balance of probabilities, such as a comfortable satisfaction. The evidence available in a maltreatment case may be very different than the evidence available in a doping case, so imposing a standard higher than a balance of probabilities may be unfair to complainants and those pursuing violations. Evidence in maltreatment cases will typically involve the allegations of complainants and witnesses expressed through interviews with an investigator or testimony at an arbitration hearing.
In some cases, physical and documentary evidence may also exist to corroborate the allegations of complainants and witnesses. In the absence of such corroborating evidence, an arbitrator in a de novo hearing will assess the allegations of complainants and witnesses based on their credibility.
In contrast, the evidence in doping hearings to prove an anti-doping rule violation is usually an adverse analytical finding from an athlete’s urine sample, which will meet the comfortable satisfaction standard, provided that the specimen collection and laboratory analysis complied with applicable requirements. However, where other evidence is used in doping hearings to prove anti-doping rule violations, such as indirect evidence from an investigation into state-sponsored doping,[42] then the standard of a comfortable satisfaction may not be met (see “In the News: Russian Doping Scandal” above).
The evidentiary burden associated with a higher standard of proof also has practical implications for an arbitrator. As noted by the Supreme Court of Canada in the case of F.H. v. McDougall (2008), at para. 43:
An intermediate standard of proof presents practical problems. As expressed by Rothstein, Centa and Adams, at pp. 466-67 [in “Balancing Probabilities: The Overlooked Complexity of the Civil Standard of Proof,” in Special Lectures of the Law Society of Upper Canada 2003: The Law of Evidence]:
“[S]uggesting that the standard of proof is ‘higher’ than the ‘mere balance of probabilities’ inevitably leads one to inquire: what percentage of probability must be met? This is unhelpful because while the concept of ’51 percent probability,’ or ‘more likely than not’ can be understood by decisionmakers, the concept of 60 percent or 70 percent probability cannot.”
In other words, a standard of a comfortable satisfaction or clear and convincing evidence may be difficult to apply in practice. Although sport arbitrators may be familiar with this standard in the doping context, the type of evidence used to establish an anti-doping rule violation in doping hearings is different than the evidence used in the sport maltreatment context.
Further, where sport arbitrators have had to consider indirect or circumstantial evidence of an anti-doping rule violation, there seems to be inconsistency in how the standard is applied to such evidence (see “In the News: Russian Doping Scandal” above), which is an important consideration for the sport maltreatment context. Finally, it is worth repeating that, in the doping context, for burdens to prove something other than an anti-doping rule violation (such as an athlete’s level of fault or negligence when determining a period of ineligibility), the lower standard of a balance of probabilities applies, and the type of evidence used to satisfy those burdens is likely to be similar to the type of evidence relevant to a sport maltreatment hearing (e.g. testimonial evidence).
In summary, in the sport maltreatment context, a standard of a balance of probabilities is the most appropriate standard of proof having regard to the rights and interests at play and would be consistent with the standard of proof used in Canada where similar misconduct is alleged in civil litigation, as well as the arbitration rules used for the U.S. SafeSport model, the U.K. National Safeguarding Panel, and the SDRCC Safeguarding Tribunal.
4. Protecting Privacy Interests in the Arbitration Process
Case Study:
The Openness of Courts
Click here to watch a short news clip covering the criminal trial against Dr. Larry Nassar – the team doctor of the U.S. women’s national gymnastics team who was convicted of sexually assaulting child gymnasts from 1998 to 2005. Observe who from the courtroom is depicted in the news coverage.
Think about the level of access that the media needed in order to film the news segment. Finally, consider what information can be obtained about the individuals featured in the news clip in terms of their identity, experiences, views, and role in the proceedings.
The final procedural issue discussed in this chapter concerns the confidentiality of the arbitration process. When we think about the resolution of disputes in a legal proceeding, we may picture a busy courtroom with a judge, the parties and their representatives, as well as observers who have an interest in the case, such as the media or other members of the public.
As noted in the introduction to Chapter 8, one of the key differences between resolving disputes through litigation in courts compared to private arbitration is the publicness or openness of litigation in courts. In Canada, this openness extends to the proceeding in the courtroom, any written submissions or evidence filed by the parties in court, and the court’s decision. This principle of openness in courts is protected under the Canadian Charter of Rights and Freedoms, particularly in criminal cases, and is linked to the freedom granted to the press to report on what happens in court.[43] Aspects of a court proceeding can be protected from public disclosure through publication bans and court orders that seal elements of a court file to protect privacy rights and other interests; however, such measures are an exception to the general rule of openness.
In contrast, private arbitration proceedings can be confidential and closed to the public, if the parties to the arbitration agree. This confidentiality can apply to the arbitration hearing (including the submissions and evidence filed by the parties), and the arbitrator’s decision. Like other aspects of the sport arbitration process, the parties’ agreement on the confidentiality of an arbitration proceeding can be documented in an arbitration agreement, the procedural rules of the relevant arbitration institution, or the rules of the relevant sport organization, or a combination of these documents. Table 9.2 below provides a summary of the confidentiality rules in the procedural rules of CAS and SDRCC.
Table 9.2 Summary of CAS and SDRCC Confidentiality Rules
|
CAS |
SDRCC |
|
|---|---|---|
|
Arbitration Hearing |
General rule: confidential and closed to the public, unless both parties agree otherwise.[44] Exception: in the case of disciplinary and doping hearings, one party may request a public hearing, but this request may be denied in the interests of morals, public order, national security, to protect the interests of minors or privacy interests, to avoid harm to the interests of justice, or where the hearing is exclusively related to a question of law.[45]
|
General rule: confidential and closed to the public.[46] Exception: in the case of a doping hearing, one party may request a public hearing, but this request may be denied in the interests of morals, public order, national security, to protect the interests of minors or privacy interests, to avoid harm to the interests of justice, or where the hearing is exclusively related to a question of law.[47] |
|
Arbitration Decision |
Ordinary Arbitration Division – decision is confidential, unless both parties agree otherwise.[48] Appeals Arbitration Division – decision is made public, unless both agree otherwise.[49] Anti-Doping Division – decision is published.[50] |
Ordinary Tribunal – decision is made public, unless both agree otherwise.[51] Doping Tribunal – decision is published.[52] |
The confidentiality of arbitration proceedings in the sport maltreatment context raises three main questions listed below. The following sections address these three questions in turn.
Q1 Based on the concerns discussed in Chapter 6 relating to the forced or coerced nature of consent in sport contracts, how does that impact how consent-based confidentiality rules are viewed?
Q2 Are there any limitations on a party’s ability to consent to an open or non-confidential arbitration proceeding and how do they relate to the sport maltreatment context?
Q3 What unique confidentiality rules or exceptions may be needed for the sport maltreatment arbitration context?
Q1: How does the coerced nature of consent in the sport arbitration context impact how consent-based confidentiality rules are viewed?
The issue of consent was considered in a recent case spanning over 10 years and involving German speedskater Claudia Pechstein. At the 2009 World Championships organized by the International Skating Union (ISU), Pechstein underwent a doping control test that examined a sample of her blood. Although the test did not identify the presence of a prohibited substance, it revealed certain parameters that were deemed irregular based on a longitudinal analysis of her blood over a period of time (also known as a biologic passport). Based on this indirect evidence, the ISU’s disciplinary panel concluded that a doping violation had occurred, and suspended Pechstein from competition for two years.
Pechstein appealed the ISU’s decision to CAS. She challenged the reliability and accuracy of the doping control test and argued that any irregularity found was due to an inherited condition. Pechstein requested a public hearing, but her request was denied in accordance with the CAS procedural rules in force at the time. CAS dismissed Pechstein’s appeal and upheld the ISU’s decision. Subsequently, Pechstein appealed the CAS decision to the Swiss Federal Tribunal (SFT) and argued that the CAS arbitration panel was not independent and impartial. SFT dismissed the appeal, so Pechstein then sought relief from German courts.
Pechstein had varying degrees of success at the trial and appeal in German courts, but ultimately lost in German’s highest court – the German Federal Tribunal. Finally, Pechstein sought recourse from the European Court of Human Rights (EHCR) by alleging that CAS procedures, including those relating to confidential hearings, violated article 6 of the European Convention on Human Rights (Convention), which protects the right to a fair trial.
The EHCR noted that the public nature of legal proceedings was a fundamental aspect of the right to a fair trial protected under Article 6 of the Convention. The EHCR reasoned that holding a public hearing protects parties against justice being administered in secret without public scrutiny and was necessary to ensure public confidence in courts. It also held that this right may be limited in certain circumstances, such as:
- Where a hearing does not deal with issues of witness credibility or contested facts and can resolved based on the parties’ written submissions;
- Where the adjudicator has a narrow scope of review and is only reviewing an original decision on certain questions, such as whether the original decision was procedurally unfair or was based on an error of law; and
- Where the exceptions to a public hearing in article 6 of the Convention apply, such as in the interests of morals, public order, national security, to protect the interests of minors or privacy interests, or to avoid harm to the interests of justice.
The EHCR ultimately held that Pechstein’s rights under article 6 of the Convention had been breached by CAS. It held that the question of whether Pechstein was justifiably banned for doping and the hearing of expert testimony on that issue made it necessary to a hold a hearing under public scrutiny. The EHCR highlighted that the facts were disputed and that the ban imposed on Pechstein carried a degree of stigma and was likely to adversely affect her professional honour and reputation.
However, one of the most important aspects of the EHCR’s decision was the court’s interpretation of the right to a public hearing in the context of a consent-based arbitration process. The EHCR held that article 6 does not prevent an individual from waiving, of their own free will, the right to have their case heard in public. However, where arbitration is compulsory (as was the case for Pechstein), the individual should have the choice of a public hearing, unless one of the above limitations apply. This interpretation impacts how consent is viewed in the arbitration context.
As discussed throughout this chapter and Chapter 8, many aspects of the arbitration process (including the decision to arbitrate) depend on having the consent of both parties to the dispute. However, this consent model is problematic for two reasons. First, a sport participant’s consent to the rules of sport (including rules requiring the resolution of disputes through arbitration) is forced, and arguably illusory, because the rules are imposed unilaterally on the participant. The participant has the option to accept the rules or not participate in the sport, and for many participants, this may not be seen as a fair or free choice.
Second, even if a participant’s consent to sport rules is considered valid, the requirement for both parties to agree on the confidentiality of an arbitration proceeding means that one party can always override the other party’s wishes. This two-party consent model is incompatible with an individual’s right to a public hearing, as the individual cannot exercise the right independently and freely. As a result, in the context of the confidentiality of a public hearing, one party should have the ability to request a public hearing, and that request should not be conditional on the other party’s consent.
This reasoning should apply to the sport maltreatment arbitration context. As discussed in earlier sections, the arbitration proceeding in a sport maltreatment case may involve a de novo hearing where disputed facts and the credibility of witness are central. In addition, allegations of violations of the UCCMS are serious due to their immoral character and the potential consequences of a violation on a respondent’s reputation, livelihood, and ability to participate in sport. As a result, the right to a public hearing should be available in the sport maltreatment context, subject to the limitations discussed below.
Self-Reflection
- Imagine you are a complainant in a sport maltreatment arbitration proceeding. Would you want the arbitration hearing to be open to the public? Would your position be the same or different if you were a respondent accused of maltreatment?
- Reflect on your involvement in organized sport. Do you view the rules that govern your participation in the sport as a contract between you and the sport organization or do you view the rules as more like laws created by government?
Q2: Are there any limitations on a party’s ability to consent to an open or non-confidential arbitration proceeding? How do they relate to the sport maltreatment context?
Following the EHCR’s decision in the Pechstein case, CAS amended its procedural rules to specify that, in the case of doping and disciplinary hearings, one party may request a public hearing, and that the request should be granted, unless the limitations specified above apply (see Table 9. 2 above). Although the EHCR’s decision is not binding in Canada, it also led to similar changes to the SDRCC’s procedural rules for doping hearings in 2021 (also see Table 9. 2 above).
One key difference between the CAS and SDRCC rules relates to the process for denying a request to a public hearing. In the case of CAS doping and disciplinary hearings, the request for a public hearing can be denied if the arbitration panel concludes, on its own initiative, that a specified limitation applies.[53] In contrast, for SDRCC doping hearings, the other party to the proceeding must object to the public hearing in order for the arbitration panel to deny the request on one of the specified limitations.[54] This difference raises an interesting question about the role of the arbitration panel in reviewing requests for a public hearing.
Should the panel have the ability to decide, at is own initiative, that a public hearing not be granted, or should the panel’s authority only arise where the other party has objected to the request for a public hearing?
The former option requires the arbitrator to take on a proactive role, whereas the latter option requires the arbitrator to assume a more reactive role.
Which option is more appropriate?
Arguably, the CAS approach is more appropriate as it requires the arbitrator to take on a supervisory role over the proceeding, which is consistent with other typical powers of an arbitrator to control the hearing process. In addition, it avoids a potential issue with relying on a party to object to the request for a public hearing, when the rights or interests of that party do not overlap with any of the specified limitations to a public hearing. This issue also relates to our earlier discussion regarding the persons who can request an arbitration hearing (see Section 1).
If, for example, the parties to a sport maltreatment arbitration hearing are the respondent (who wants to exercise their right to a public hearing) and the NIM or relevant sport organization (whose original decision is being challenged), and a closed hearing is necessary to protect the interests of a minor who is a complainant or witness but not a party to the proceeding, then it will be up to the NIM or sport organization to raise an objection as an advocate for the minor’s interests. While the NIM or sport organization could certainly fulfill this advocacy role, it puts an obligation on them that may, in certain circumstances, conflict with their interests that might favour an open or transparent hearing. To avoid such conflicts, the arbitrator should have the discretion to reject a request for a public hearing on their own initiative.
Turning to the limitations on the right to a public hearing, it is necessary to apply the limitations to the sport maltreatment arbitration context. With respect to the interests of morals and public order, discussing specific allegations of maltreatment in a public hearing may incite violence or threats of violence towards the parties to the hearing, such as the respondent or a sport organization. For example, in the Larry Nassar trial featured in the Case Study video above, one of the parents of Nassar’s victims physically attacked Nassar in the courtroom and his lawyers (and their children) received death threats.[55]
With respect to the protections of minors and privacy interests, these limitations are particularly relevant. Allegations of maltreatment under the UCCMS are likely to involve minors, as well as sensitive personal information about complainants and witnesses, such as their physical integrity, mental health, and sexual history – all of which are associated with a high expectation of privacy in society. The protection of this information from disclosure through a public hearing would also reduce the risk of re-traumatizing complainants and witnesses, which is a guiding principle contained in the UCCMS.
A public hearing could also cause harm to the interests of justice from the perspective of a respondent and future complainants. In the case of a respondent, a public hearing that attracts media attention and leads to members of the public expressing their views on the case could jeopardize a respondent’s right to a fair hearing before an independent and impartial adjudicator. In the case of future complainants, a public hearing that injures the reputation of a complainant or witness could discourage the reporting of complaints under the UCCMS or the participation of individuals as witnesses in future UCCMS investigations and arbitration hearings, which would be contrary to the interests of justice. Finally, a public hearing may not be warranted in an arbitration proceeding that is not a de novo hearing, such as a narrow scope of review where the arbitrator is not engaged in fact-finding and is only reviewing the procedural and substantive aspects of the original decision.
In summary, all of the limitations to a public hearing noted by the EHCR in the Pechstein case are applicable to the sport maltreatment arbitration context. However, it may be inappropriate to assume that this will always be the case and, therefore, consideration should be given as to whether a party to an arbitration proceeding should have a right to request a public hearing, subject to the arbitrator’s discretion to reject the request based on the application of the above limitations to the specific context of the hearing.
Consideration should also be given to whether any risks associated with a public hearing could be mitigated by its format and the issuance of a publication ban. For example, in the case of SDRCC doping cases, public attendance in the hearing is limited to listening through an audio link, as opposed to in-person attendance or video link.[56] A publication ban would prohibit any person who attends the hearing from publishing any information about a complainant or witness, and would be less restrictive than the current SDRCC rule that prohibits any attendee of a hearing from disclosing any information obtained during the hearing to a third party, with some exceptions.[57]
Q3: What unique confidentiality rules or exceptions may be needed for the sport maltreatment arbitration context?
If a sport maltreatment arbitration hearing is confidential and closed to the public, then two additional considerations exist. First, what accommodations may be needed to support a minor or vulnerable person who participates in the hearing? Under the SDRCC procedural rules, the only persons permitted to attend a closed arbitration hearing are the arbitrator, the parties, the parties’ representatives and advisors, and witnesses.[58]
However, for the SDRCC Safeguarding Tribunal, an arbitrator can accommodate a person’s vulnerability by allowing a support person to be present or to participate in the hearing.[59] A minor, vulnerable person, and any adult witness who is not a minor or vulnerable person, but over whom a respondent has authority or power, may request this procedural accommodation.[60] As a general rule, this procedural must be granted by the arbitrator, unless the arbitrator believes it would interfere with the proper administration of justice.[61]
The second consideration relates to the publication of the arbitrator’s decision. To ensure a procedurally fair arbitration process, the arbitrator’s decision must be disclosed to the parties so that they know the reasons for the arbitrator’s decision. However, outside of this disclosure to the parties, there are various options for the publication of decisions. For example, a full or summary version of the decision could be published, with or without redactions that anonymize the parties. Alternatively, the publication could be restricted and only involve the disclosure of the decision (full, summary, anonymized) to select third parties on a need-to-know basis.
The central question to any option for disclosing an arbitration decision is identifying the purpose(s) of the disclosure, its relation to any rights or interests of persons who may be impacted by the disclosure, whether any of those rights or interests outweigh the purpose of the disclosure, and whether the purpose of the disclosure can be met by a level of disclosure that least intrudes on the affected rights and interests. For example, in Chapter 8 we examined the value of a system of precedent for arbitration decisions in the sport maltreatment context, and how a system of precedent could be enhanced by the publication of arbitration decisions. However, in Chapter 6 we also discussed how the benefits of a system of precedent could be obtained without publishing full arbitration decisions, such as through annotated versions of the UCCMS or SDRCC procedural rules that explain key rules and principles based on arbitration decisions.
An additional purpose of disclosing an arbitration decision could be to assist with the enforcement of a sanction under the UCCMS. However, as discussed in Chapter 8, enforcement of UCCMS sanctions can be effectively achieved by publishing the identity of a respondent, the type of maltreatment they committed, and their sanction, without additional particulars.
With respect to the relevant rights and interests that would be impacted by the disclosure of a decision, many of the considerations for rejecting a request for a public hearing would be relevant and may trump certain purposes of disclosing a decision. Table 9.3 below provides examples of purposes of disclosure and the countervailing considerations.
Table 9.3 Purposes of Disclosing Arbitration Decisions and Relevant Considerations
| Purpose of Disclosing Arbitration Decision | Countervailing Consideration |
|---|---|
|
|
To summarize, the confidentiality of arbitration proceedings raises complex policy considerations that intersect with the rights and interests of the parties involved. With respect to the confidentiality of a hearing, there is a strong rationale for providing a party with a right to request a public hearing, subject to certain limitations. With respect to the publication or disclosure of decisions, several options exist, and the appropriate option requires a balancing of the purpose of the disclosure and the rights and interests of persons likely to be impacted by the disclosure. Table 9.4 below provides a summary of the confidentiality rules for sport maltreatment arbitration proceedings in the United States, the United Kingdom and the SDRCC’s Safeguarding Tribunal.
Table 9.4 Privacy Rules in Sport Maltreatment Arbitration Context
|
United States SafeSport |
United Kingdom National Safeguarding Panel (NSP) |
SDRCC Safeguarding Tribunal |
|
|---|---|---|---|
|
Arbitration Hearing |
Confidential and closed to the public.[62] |
Confidential and closed to the public, unless a party provides good cause for a more open hearing. Procedural accommodations that allow support persons for minors and vulnerable persons.[63] |
Confidential and closed to the public. Procedural accommodations that allow support persons for minors and vulnerable persons.[64] |
|
Arbitration Decision |
Decision delivered to parties is redacted to remove identifying information about the complainant and witnesses. If the arbitrator concludes that the respondent has not violated the code, then the respondent may request the redaction of their identifying information. Summary of decision can be disclosed to U.S. Olympic and Paralympic Committee and national sport organizations on a need-to-know basis to assist with enforcement.[65] |
Several options:
|
Several options:
|
5. Substantive Principles of Law for Interpreting the UCCMS
Have you ever read a rule in a sport regulation or a contract that was unclear in its meaning or had more than one possible interpretation? Was the meaning of the rule confusing, in general, or was it only confusing when applied to a unique set of facts? How did you resolve the unclear or ambiguous wording? Did you search for meaning in the text itself or did you seek out an external resource?
Unclear or ambiguous rules in laws, contracts and other documents are a common source of legal disputes. One party may have an opinion on the interpretation of the rule and another party may have a different interpretation. The difference in opinion can be long-standing and pre-date any dispute, or it can arise at the dispute resolution stage when one party is accused of violating the rule and is looking for an interpretation that avoids a finding that a violation occurred.
The focus of this section is on the substantive principles of law that are likely to be applied by arbitrators to resolve disputes involving the interpretation of the UCCMS.[68]
Figure 9.6 Ambiguities in Language
Ambiguities in Language
Read the two facts listed below and respond to the questions provided in the response tool.[69]
Fact 1: A federal law requires a 10-year mandatory prison sentence in certain cases where the defendant had previously been convicted of crimes “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”
Fact 2: A convicted defendant argues that the qualifier, “involving a minor or ward,” applies not just to the third-listed item (abusive sexual conduct), but also to the first two (aggravated sexual abuse and sexual abuse).
Optional Reading: See the case of Lockhart v. United States, No. 14-8358 (U.S. March 1, 2016). The U.S. Supreme Court rejected the defendant’s interpretation. Interestingly, the courts below the Supreme Court each had differing views on the interpretation of the law.
Scholars have reviewed sport arbitration decisions issued by international and national arbitration institutions to identify patterns in decision-making and categorize the substantive legal principles applied by arbitrators in hearings to determine whether they are specific to sport (and therefore a type of specialized sports law) or just the application of legal principles rooted in domestic legal systems.[70] With some possible exceptions,[71] it can be argued that arbitrators apply legal principles rooted in domestic laws.[72] In the case of the SDRCC, the relevant domestic law to be applied is Ontario law.[73] Thus, the key question is: what sources or general principles of Ontario law will be used by arbitrators to interpret the UCCMS?
Substantive principles of interpretation will be relevant for an arbitrator regardless of their scope of review in a hearing. For example, in a de novo hearing, the arbitrator must interpret the UCCMS and apply it to findings of fact made by the arbitrator. In a narrower scope of review where the arbitrator is reviewing an original decision made by the NIM or a sport organization, the arbitrator must still interpret the UCCMS to determine whether the original decision was reasonable or contained an error. However, there are different sources and principles of Ontario law that arbitrators may rely upon to interpret the UCCMS.
Contract Law Principles of Interpretation
One possible source of interpretive principles is contract law. This requires the arbitrator to interpret the UCCMS as a contract, which it is for the jurisdictional reasons discussed in Chapter 6. Principles of contract interpretation are commonly relied upon by SDRCC arbitrators.[74] Some SDRCC arbitrators have also relied upon principles of contract interpretation based on the use of such principles by CAS arbitrators (see Chapter 8 discussion on precedent).[75]
The general principles of contract interpretation focus on determining the intent of the parties and what they intended to agree upon.[76] This involves reading the contract as a whole and giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time the contract was formed.[77]
However, when an ambiguity in a contract exists that cannot be resolved by applying the general principles above, then the doctrine of contra proferentum applies.[78] Contra proferentum is Latin for “against the offeror” and it provides that an ambiguous term should be interpreted against the interests of the party that drafted the term or requested its inclusion in the contract. The doctrine has been applied by SDRCC arbitrators in past decisions.[79]
In the context of the UCCMS, the general principles of contract interpretation will be helpful for an arbitrator to determine the meaning of a provision whose meaning is disputed. The requirement to read the contract as a whole will allow for careful consideration of the general principles and commitments set out in the UCCMS. In addition, the surrounding circumstances may include any educational or training resources used to educate participants about the UCCMS. However, the application of the doctrine of contra proferentum may be limited to hearings where the relevant sport organization is a party, as it is the sport organization that imposed the terms of the UCCMS into a contract with the respondent, as discussed in Chapter 6.
Statutory Interpretation
Some scholars have criticized the use of contract law principles to interpret sport rules (or even contracts between sport organizations and participants). It is challenging to view the relationship between a sport organization and participant as contractual because of the power imbalance that exists between the two parties. In the context of CAS decisions interpreting the rules and regulations of international sport federations, Foster (2003) notes:
“Although the relationship between an international sport federation and an athlete is nominally said to be contractual, the sociological analysis is entirely different. The power relationship between a powerful global international sporting federation, exercising a monopoly over competitive opportunities in the sport and a single athlete is so unbalanced as to suggest that the legal form of the relationship should not be contractual. Rather like the employment contract, a formal equality disguises a substantive inequality and a reciprocal form belies am asymmetrical relationship.”[80].
As Findlay and Mazzucco (2010) note, this unbalanced power relationship is equally present at the Canadian national sport level between an athlete and their respective national sport organization. Participants have practically no authority to participate in the negotiation of a contract, or a sport policy that is incorporated by reference into a contract. This is not to suggest that a sport organization shouldn’t have control over the rules and regulations it drafts and imposes on participants. In many cases, such as the sport maltreatment context, such control is necessary to ensure the proper implementation of minimum standards and rules for the sport sector.
However, the concern is that because the rules do not take the form of a freely negotiated contract, the principles of contract interpretation may not be the most appropriate method for resolving interpretative disputes. For example, if the principles of contract interpretation are focused on discerning the intent of both parties to the contract, then this becomes a bit of a fiction in the sport context where the sport organization’s rules are imposed unilaterally on one party.
As an alternative to contracts, sport rules can be seen as more similar to legislation (i.e. a statute or regulation made by elected members of government). For example, anti-doping rules, such as the World Anti-doping Code, can be viewed as quasi-legislative in nature.[81] Similar to legislation, sport rules are made by officials (e.g. a board of directors) who are elected by members of the organization. However, a challenge with this interpretation is that not all subjects of a sport organization’s authority are members of the organization. Depending on the type of organization and its level in the organizational structure of the sport system, the members of the organization may be other organizations and not individual participants, such as athletes. This type of membership structure minimizes the democratic accountability of the elected officials to the ultimate subjects of their authority. This concern has led some scholars to characterize the monopolistic authority exercised by sport organizations, particularly at the international level, as undemocratic and illegitimate[82]
Despite these concerns, viewing sport rules and regulations as quasi-legislative may be helpful insofar is it allows arbitrators to utilize principles of statutory interpretation to resolve disputes over the interpretation of a sport rule. SDRCC arbitrators have applied principles of statutory interpretation to interpret ambiguous sport rules.[83]
In Canada, the modern approach to statutory interpretation used by courts involves reading the words of a statute in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the statute, the object of the statute, and the intention of the legislative body that enacted the statute.[84] This modern approach is also supported by provincial and territorial statutes governing the interpretation of legislation, which generally provide that legislation shall be interpreted as being remedial and shall be given such fair, large, and liberal interpretation as best ensures the attainment of its objects.[85]
However, where this modern approach to statutory interpretation does not resolve ambiguity in the reading of legislation, then additional interpretive principles may apply. Ambiguity arises where the words of a provision are reasonably capable of more than one interpretation, after considering the context of the entire provision and its objectives.[86] One interpretive principle that applies to resolve ambiguity involving provisions that impose penalties, is interpreting the ambiguous provision strictly.[87] This means that, when faced with two reasonable interpretations of a provision, the more lenient interpretation that avoids the imposition of the penalty applies.[88] Another interpretive principle used to resolve ambiguity is the use of external interpretive aids, such as recordings of debates in the legislature about the passage of the statute.
The above principles of statutory interpretation would be helpful for arbitrators in interpreting the UCCMS. The modern approach to interpretation would require arbitrators to read the entire UCCMS in its context, including its definitions, guiding principles and commitments, to determine the meaning of a particular provision. In addition, where true ambiguity arises in the meaning of a provision, then arbitrators may consider adopting a strict, but reasonable, interpretation that avoids the imposition of a penalty against a respondent, as well as external interpretive aids. The relevant external aids may include the UCCMS itself, in cases where a sport organization has drafted a policy or contract that includes the provisions of the UCCMS, with some necessary modifications to suit the needs of the sport or organization. Other external aids may include previous drafts of the UCCMS, training and education materials used to implement the UCCMS, and documents arising from the various working groups and consultations that gave rise to the UCCMS.
Administrative Law Principles
Administrative law is a final source of interpretive principles that might be relevant to arbitrators in interpreting the UCCMS. Administrative law principles would be relevant where the arbitrator has a narrow scope of review that is similar to judicial review. As discussed in Section 2 of this chapter (“Scope of Review and its Procedural Implications”), in a scope of review that is similar to judicial review, an arbitrator will review an original decision made by another body to determine whether the decision, as a whole, or a specific interpretation or findings in the original decision is reasonable. In other words, reasonability becomes the standard at which the arbitrator reviews the original decision (the standard of review). As previously noted, SDRCC arbitrators have a tendency to select this scope and standard of review when reviewing the decisions of sport organizations. In addition, the SDRCC Safeguarding Tribunal’s procedural rules specify that a standard of reasonableness applies where an arbitrator is reviewing an original decision for certain errors, such as misinterpretation or misapplication of a code of conduct.[89]
In the recent case of Canada (Minister of Citizenship and Immigration) v. Vavilov (2019), the Supreme Court of Canada clarified how the standard of review should be applied in the context of a judicial review. SDRCC arbitrators are likely to rely on this case when applying a standard of reasonableness, as was seen in the case of Moore v. Wrestling Canada Lutte (2020). Figure 9.7 below outlines the principles articulated by the court in Vavilov (2019) would be relevant to an arbitrator’s review of an original decision that contains interpretations of the UCCMS.
Figure 9.7 Principles Relevant to an Arbitrator’s Review of an Original Decision with UCCMS Interpretation
In summary, there are various interpretive principles that could be used by arbitrators to resolve disputes about the interpretation of the UCCMS. These interpretive principles derive from contract law, the interpretation of statutes, and administrative law. However, there is inconsistency in how arbitrators rely on these principles of interpretation to resolve disputes. For example, in the context of de novo hearings, some arbitrators have utilized principles of contract interpretation, whereas others have relied on principles of statutory interpretation. In contrast, in hearings with a narrower scope of review that is similar to judicial review, arbitrators have relied upon the principles used by courts when determining the reasonability of an original decision or an interpretation contained in an original decision.
While the various interpretive approaches and principles share certain commonalities, there is a potential for inconsistency in the interpretation of the UCCMS if one common approach to interpretation is not followed. As a result, it is recommended that the UCCMS be amended to include universal rules or principles for its interpretation. Such rules or principles could provide a roadmap for an arbitrator (or any other reader) when interpreting the UCCMS, including explaining how the intent or objects underlying the UCCMS can be extracted, what provisions in the UCCMS take precedence over others in the event of a conflict, and how external interpretive aids may be used, if at all.
6. The Principle of Proportionality and Sanctions under the UCCMS
The final section of this chapter relates to the sanctions that may be issued against respondents who have been found to violate the UCCMS and what authority an arbitrator has to modify or replace a sanction issued under the UCCMS.
Types of Sanctions
In a disciplinary context, such as the UCCMS, there can be different types of sanctions or penalties that can be issued against a person who has engaged in misconduct: discretionary sanctions, mandatory sanctions, and presumptive sanctions.
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- Discretionary sanctions are those that may be issued where misconduct occurs and they usually involve a range of options, such a warning, remedial training or education, suspension, or expulsion.
- Mandatory sanctions are those that automatically apply if certain (often serious) misconduct occurs, or the individual’s misconduct is accompanied by a prior history of proven misconduct (e.g. a three-strike-rule).
- Presumptive sanctions are similar to mandatory sanctions as they are automatically triggered and presumed to apply once a certain type of misconduct is proven. However, the presumptive sanction can be rebutted, and replaced with a lesser sanction based on mitigating factors (e.g. first-time violation, admission of violation, cooperation with investigation).
Mandatory sanctions can be perceived as unfair as they do not allow for flexibility or the exercise of discretion. For example, under anti-doping rules, a doping violation in individual sports in connection with an in-competition doping control test automatically leads to the disqualification of the result in that competition, and the forfeiture of any medals, points and prizes.[90] This mandatory penalty has led to unfortunate outcomes where athletes have committed an anti-doping rule violation due to the accidental ingestion of a prohibited substance in a mislabelled or contaminated product at a major competition, such as the Olympic Games (see the case of Andreea Răducan discussed below).” Presumptive sanctions are often preferable to mandatory sanctions as they allow flexibility to ensure that a sanction is reasonable and proportionate in the circumstances.
The UCCMS only includes discretionary and presumptive sanctions, not mandatory sanctions. Discretionary sanctions include verbal or written warnings, education, probation (i.e. a probationary period during which additional sanctions can be imposed if further violations of the UCCMS occur), suspension, eligibility restrictions, loss of privileges, no contact directives, monetary fines, and permanent ineligibility.[91] The UCCMS also includes various factors that decision-makers can consider when determining which discretionary sanction is reasonable and appropriate in the circumstances, including:
- The nature and duration of the respondent’s relationship with the complainant, such as a power imbalance;
- The respondent’s prior history and pattern of any inappropriate behaviour or maltreatment;
- The ages of the individuals involved;
- Whether the respondent poses an ongoing and/or potential risk to the safety of others;
- The respondent’s voluntary admission or acceptance of findings of maltreatment;
- The real or perceived impact of the incident on the complainant, sport organization or sport community;
- Circumstances specific to the respondent, such as their lack of knowledge or training about the UCCMS or their addiction, disability, or illness;
- The respondent’s position of trust, involvement in intimate contact with participants, or high-impact decision-making role; and
- Other mitigating or aggravating circumstances.
The UCCMS also includes certain presumptive sanctions that are presumed to be fair and appropriate, unless the respondent can prove that they are not. For example, sexual maltreatment involving a minor complainant carries a presumptive sanction of permanent ineligibility. As another example, sexual maltreatment, physical maltreatment involving contact, and maltreatment related to the UCCMS process (e.g. failing to report maltreatment or obstructing an investigation) have a presumptive sanction of either a suspension or eligibility restrictions.
Case Study:
Râducan v. IOC (2000)
“Andreea Râducan’s Story” by Kimberly Casella, YouTube, November 26, 2010.
“Court Supports IOC over Râducan” BBC Sports, September 28, 2000.
At the 2000 Olympics in Sydney, Australia, 16-year old Romanian gymnast Andreea Râducan won gold in the women’s individual all-around event. However, a doping control test after the competition revealed the presence of a prohibited substance (pseudoephedrine) in her urine sample. This resulted from Râducan’s ingestion of an over-the-counter cold and flu tablet provided by her team doctor to treat a headache on the day of the competition, and the day prior. In accordance with anti-doping rules, this violation resulted in the IOC disqualifying Râducan’s results from the women’s individual all-around final and the forfeiture of her gold medal.
Râducan appealed the IOC’s decision to CAS on several grounds, including that a more reasonable sanction would be a warning. CAS dismissed the appeal and upheld the IOC’s decision based on the strict wording of the anti-doping rules that imposed mandatory disqualification. In response to the incident, Jacques Rogge, who was a member of the IOC Executive Board at the time, commented: “This is one of the worst experiences I have had in my Olympic life. Having to strip the gold medal from the individual gymnastic champion for something she did not intentionally do is very tough. But the rules are the rules”.[92]
Arbitrator Jurisdiction
With respect to an arbitrator’s authority over sanctions issued under the UCCMS, this topic was addressed generally in Section 2 of this chapter when discussing the scope of an arbitrator’s remedies in relation to their scope of review.
In a de novo hearing context, an arbitrator is making findings of fact and then applying the UCCMS to those facts to determine if maltreatment exists and, if so, what the applicable sanction should be. This involves interpreting the UCCMS provisions regarding the discretionary and presumptive sanctions described above using the interpretive principles discussed in Section 5. Whatever sanction is imposed by the arbitrator will replace any sanction in the original decision.
In a hearing with a narrower scope of review, such as one similar to judicial review, an arbitrator is assessing whether any sanction imposed in the original decision is reasonable having regard to the rules described above for discretionary and presumptive sanctions, the objectives of the UCCMS, and their relation to any findings of maltreatment made by the original decision-maker. If the arbitrator concludes that a sanction in the original decision is unreasonable or incorrect, then the arbitrator can issue a new sanction that replaces the sanction imposed in the original decision, or send the matter back to the original decision-maker to issue a new sanction after correcting any error identified by the arbitrator.
At first glance, the above principles seem generally consistent with the procedural rules for the SDRCC Safeguarding Tribunal, which provide that, in the context of a challenge to a proposed sanction in an original decision, where the arbitrator determines that the respondent has presented or presents a risk to the welfare of minors or vulnerable persons, the arbitrator shall impose such consequences and/or risk management measures as seem fair and just, after considering the relevant sport organization’s rules.[93] This procedural rule is virtually identical to the rules of the U.K. National Safeguarding Panel.[94] However, upon deeper analysis, there are two limitations of the rule that the SDRCC should consider addressing as it assumes responsibility for arbitrating disputes under the UCCMS .
The first limitation is that the provision may be too narrow as it is specific to a request for arbitration to challenge a proposed sanction in an original decision. However, the rules describe other types of requests for arbitration that may lead an arbitrator to review the appropriateness of a sanction, even though a party’s request for arbitration was not specific to the sanction.
For example, the procedural rules contemplate a request for arbitration on the grounds that an original decision was procedurally unfair, which can lead to a de novo hearing if the procedural unfairness involves a biased original decision-maker.[95] At the stage of a de novo hearing, the arbitrator’s scope of authority will need to be broad enough to include the ability to issue a sanction. However, the procedural rules are silent on the scope of the arbitrator’s authority to issue a sanction in this scenario.
As another example of this limitation, the procedural rules only permit a complainant to request arbitration if they are challenging a finding on a code of conduct violation in the original decision. The complainant is not permitted to request arbitration to challenge a proposed sanction in the original decision (see Section 1 of this chapter). As a result, if the complainant is successful in proving that the original decision-maker should have found a code violation, then it is unclear what remedy could be granted by the arbitrator in relation to the appropriate sanction.
The SDRCC rules state that, to the extent that a procedure or rule is not specifically addressed for the Safeguarding Tribunal, then other rules applicable to the Ordinary Tribunal shall apply. Although the Ordinary Tribunal includes a broad scope of remedies for an arbitrator (as discussed in Section 2 of this chapter), it is unclear how that broad scope of remedies should be applied to the Safeguarding Tribunal.
To remedy the above issues, the SDRCC procedural rules could be revised to clarify an arbitrator’s authority to issue or modify sanctions for any request for arbitration .
The second limitation of the procedural rule relates to its specific language. As mentioned above, the rule is almost identical to that used by the U.K. National Safeguarding Panel. However, the language is unnecessarily narrow as it would limit the arbitrator’s authority to issue a sanction only after determining that the respondent has presented or presents a risk to the welfare of minors or vulnerable persons. This language is not aligned with the rule in the UCCMS that a sanction may be issued for any maltreatment that violates the UCCMS and does not reflect that a respondent may pose a threat to individuals other than minors and adults with a vulnerability. To remedy this concern, the SDRCC procedural rules could be amended to ensure alignment with the many circumstances in which a sanction may be imposed under the UCCMS .
Principle of Proportionality
Assuming the SDRCC’s procedural rules will be amended to expand an arbitrator’s scope of authority to replace or modify sanctions imposed in original decisions, it is necessary to consider whether an arbitrator could impose a sanction not provided for in the UCCMS based on the principle of proportionality.
The principle of proportionality provides that a measure must be both appropriate and necessary for the purpose of achieving a legitimate objective and a proper balance must be struck between the objective and the right or interest that it infringes upon. This principle is embedded in many areas of law and legal systems. For example, in the criminal law context, the principle is expressed in section 12 of the Canadian Charter of Rights and Freedoms, which protects an individual’s freedom from cruel and unusual punishments in Canada. Courts have used section 12 of the Charter to strike down provisions in statutes that imposed minimum penalties that were grossly disproportionate in the circumstances.[96] Grossly disproportionate means that the punishment would offend standards of decency and be considered intolerable to society.[97]
In the sport arbitration context, the principle of proportionality has been applied by CAS arbitrators in doping and disciplinary hearings. CAS has held that the severity of a penalty must be in proportion with the seriousness of the violation,[98] and that it has the authority to intervene if a penalty provided by the relevant sport rules can be deemed excessive or unfair on their face.[99]
One of the best-known examples of CAS’s intervention to set aside a penalty imposed by a sport rule is in the case of Puerta v. ITF (2006) discussed in Chapter 8. Puerta failed a doping control test at the 2005 French Open, after accidentally ingesting trace amounts of his wife’s medicine. The anti-doping rule violation was the second violation in Puerta’s career; the first violation occurring in 2003 and involving the accidental use of an inhaler containing a prohibited substance to treat an asthma attack. Because the violation was Puerta’s second, the anti-doping rules in force at the time imposed a lifetime ban, unless the anti-doping rule violation was not the result of any significant fault or negligence on Puerta’s part, in which case the period of ineligibility would be reduced to eight years. The ITF’s discipline tribunal agreed that an eight-year ban was applicable based on Puerta’s lack of significant fault or negligence.
Puerta appealed the ITF’s decision to CAS on the basis that the sanction was disproportionate. CAS agreed and reduced the period of ineligibility to two years. CAS observed that, in this particular case, a ban of eight years would be disproportionate as the two anti-doping rule violations were not due to any significant fault or negligence by Puerta, and that an eight year ban would be practically the same as a lifetime ban for Puerta due to this age and expected career length. CAS cautioned that, in all but very rare cases such as this one, anti-doping rules provide a just and proportionate sanction based on an athlete’s level of fault or negligence. However, in the very rare case where anti-doping rules do not provide a just and proportionate sanction, there is a gap that must be filled by the arbitrator based on the principle of justice and proportionality upon which all systems of law are based.
Following the CAS decision in the Puerta case, WADA amended the World Anti-Doping Code to include more flexibility in how periods of ineligibility are determined for consecutive anti-doping rule violations.
The Puerta case illustrates how the principle of proportionality is most likely to be triggered where a rule imposes a penalty in a strict manner that prevents a decision-maker from tailoring the penalty to the seriousness of a violation and any mitigating factors.
In the case of the UCCMS, the principle of proportionality seems to be well incorporated through the use of rules for discretionary sanctions that give a decision-maker sufficient flexibility to impose a sanction from a range of options based on relevant considerations, including mitigating and aggravating factors. Similarly, the presumptive sanctions, although strict, can be rebutted by a respondent on the grounds that they are not fair and appropriate in the circumstances. As a result, it seems unlikely that an arbitrator would need to rely on the principle of proportionality to fill a gap in the UCCMS. However, if the UCCMS is revised over time, those involved should keep the principle of proportionality in mind to ensure it continues to be reflected in the rules for determining sanctions.
Key Terms
Suggested Assignments
- Drafting an Arbitration Agreement: You are an administrator for a sport organization and have been asked to assist with drafting a template arbitration agreement that will be used if a respondent wants to challenge a decision made by your organization regarding violations and sanctions under the UCCMS. What terms would you include in the agreement to address the following procedural aspects of the arbitration process?
- The scope of the arbitrator’s review
- The standard of proof for proving facts
- The confidentiality of the proceeding
- Options for Disclosure: Think about what purposes, rights and interests in Table 9.3 were most persuasive to you. Based on that assessment, select which publication option below you think is most appropriate. Why did you make this choice? Here are some examples of options for disclosure:
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- Publication of full decision (similar to doping decisions)
- Publication of full decision, but only if parties agree
- Publication of summary of decision that does not identify the respondent, the complainant, or any witness
- Limited disclosure of decision to parties and SDRCC
- Limited disclosure of decision to child protection agencies and law enforcement
- Limited disclosure to select sport organizations
Image Descriptions
Figure 9.1 This interactive figure demonstrates the dispute scenarios for post-investigation decisions. The first branching scenario lists the National Independent Mechanism (NIM) Investigation & Decision at the top, branching into the UCCMS Violation & Sanction and the No UCCMS Violation options. From the UCCMS violation there are three more branches including respondent challenge, sport organization challenge, and complainant challenge. From the no UCCMS violation there are two branches including complainant challenge and sport organization challenge. The second branching scenario lists the ITP Investigation & Sport Organization Decision at the top, branching into the UCCMS Violation & Sanction and the No UCCMS Violation options. From the UCCMS violation there are three more branches including respondent challenge, NIM challenge, and complainant challenge. From the no UCCMS violation there are two branches including complainant challenge and NIM challenge. [return to text]
Figure 9.2 This figure demonstrates the scope of review options, using an hourglass to aid with visualization. At the top of the hourglass is the original decision. The decision maker makes findings of fact and applies UCCMS to those facts to reach a decision. In the middle of the hourglass is Arbitrator – Narrow scope of Review, where the arbitrator only reviews the original decision for certain errors. If no errors are identified, then the original decision is upheld. At the bottom of the hourglass is Arbitrator – Broad Scope of Review, where the arbitrator conducts a new hearing. The arbitrator makes findings of fact and applies UCCMS to those facts to reach a decision. [return to text]
Figure 9.3 This diagram demonstrates the standards of review and deference to original decision-makers, listing examples of Standard of Review from low to high. At the low end of the scale is Correctness. Was the original decision right or wrong? This refers to the applicable standard for reviewing questions of law in appeals (including legal aspects of questions of mixed law and fact). It can be the standard of review in a judicial review, if a standard or reasonableness does not apply. Next is Procedural Fairness. Was the original decision made in a procedurally fair manner? This refers to the approach for assessing procedural fairness in judicial reviews and appeals. Even higher on the deference scale is Reasonableness. Was the original decision (or an aspect of it) transparent, understandable, and justified? This refers to the default standard in judicial reviews, unless a standard of correctness applies. At the highest part of this scale is Palpable & Overriding Error. Did the original decision contain an error that was plain, obvious, and affected the outcome? This refers to the applicable standard for reviewing questions of fact in appeals (including factual aspects of a question of mixed law and fact). [return to text]
Figure 9.4 This figure demonstrates burdens of proof as a sporting analogy. An image of three young males playing ultimate frisbee accompanies the following text. “If the offensive party has strong arguments and evidence, then the defensive party will need to work harder to ensure that the offensive party doesn’t ‘score; by meeting their burden. However, if the offensive party doesn’t have strong evidence or arguments, then the defensive party may not have to work as hard to prevent the offensive party from ‘scoring’ and meeting their burden.” [return to text]
Figure 9.5 This interactive figure demonstrates the standards of proof illustrated. The beginning point is the “standards of proof,” which is the starting point for the party with the burden of proof (offensive party). From that point, the next step is the scintilla, which is a small amount of evidence used in some legal systems as a threshold that must be reached to proceed to a full hearing or trial in certain cases. After that comes the air of reality, or a minimum foundation of evidence that is assumed to be true; used in criminal law to determine whether a defense to a crime should be presented to the person making findings of fact (e.g. judge or jury). Next comes reasonable suspicion, or a justifiable suspicion that something possibly occurred based on specific facts or circumstances; used by law enforcement to exercise certain powers, such as roadside screening. After that is probable cause, or reasonable and probable grounds – something more than a justifiable suspicion, but less than a firm belief, that is based on specific facts or circumstances; used by law enforcement to exercise certain powers that are more intrusive than those exercised based on a reasonable suspicion, such as arrests and searches. Next comes the balance of probabilities, also known as preponderance of evidence – being satisfied that it is more likely than not that an event occurred (e.g. being 51% sure of something); used in civil lawsuits, such as those related to breach of contract and torts. Then we have comfortable satisfaction, which is similar to the standard of clear and convincing evidence – being comfortably satisfied that something occurred or being convinced that it is far more likely than not that an event occurred; used to establish anti-doping rule violations in sport, also used outside of Canada in criminal and civil legal proceedings that involve morally blameworthy conduct or restrictions on liberties. After that comes proof beyond a reasonable doubt, or being satisfied that something is true without any reasonable doubt; used in Canadian criminal trials in order to convict someone of a criminal offence. The end point for the standards of proof is proof beyond a shadow of a doubt. This means being certain that something is true without any doubts; rarely recognized in legal systems because of its impossibility to achieve. [return to text]
Figure 9.7 This figure demonstrates the administrative law principles relevant to an arbitrator’s review of an original decision that interprets the UCCMS. Governing policy means the original decision must comply with any constraints by the governing policy, such as definitions and principles that describe the extent of the original decision-maker’s discretion and how it should be exercised. As noted earlier, the UCCMS sets out guiding principles, commitments, presumptions, and definitions that would set the parameters for any interpretation of a provision. Principles of interpretation means the interpretation of any terms in the policy should be consistent with the text, context, and purpose of the policy. The text, context, and purpose of the UCCMS would be found within the document itself and could be supplemented by the external interpretive aids mentioned earlier in this section in the context of contractual and statutory principles of interpretation. Representation of the parties means the original decision-maker should take into account representations made by the parties, if any, and explain why certain representations central to the issues under consideration are accepted or rejected. The representations of the parties should be reflected in the original decision made by the NIM or the relevant sport organization, in accordance with the procedural fairness principles discussed in Chapter 7. Past and present decisions means if the original decision-maker has exercised their discretion in a certain way in past cases, then they should consider whether that precedent should be followed for consistency or departed from with justification. This principle may be particularly relevant where an original decision made by the NIM is being reviewed, as the NIM is likely to be the most frequent decision-maker given its intended jurisdiction. [return to text]
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- JAMS, n.d. ↵
- Sport Resolutions, 2021 ↵
- SDRCC, n.d. ↵
- Other outcomes are the administrative closure of a matter or the informal resolution of a matter whereby a respondent accepts responsibility for a policy violation. ↵
- U.S. Center for SafeSport, 2021 ↵
- In the U.K., a national governing body may also request that the Sport Resolutions National Safeguarding Panel hold an arbitration hearing to review investigative findings and issue a decision based on those findings. In such cases, the Panel would be acting as a first-instance decision-maker. First-instance decisions issued by the Panel can also be appealed to a separate Appeal Panel within Sport Resolutions. ↵
- Sport Resolutions, 2021 ↵
- In this chapter, “complainant” refers to the individual who reports or files a complaint about another person’s alleged violation of the UCCMS, including an individual who is the subject of alleged maltreatment. However, the SDRCC’s procedural rules use the term “alleged victim(s) of the alleged violation” to describe a complainant. As a result, references in this chapter to a “complainant” in the context of the SDRCC Safeguarding Tribunal refer to the alleged victim of the alleged violation. ↵
- The rights of persons to request an arbitration under the SDRCC’s procedural rules are subject to the applicable conduct rules of the sport organization, which may narrow the rights of the persons to challenge a post-investigation decision (SDRCC, 2021a). ↵
- SDRCC, 2021a ↵
- SDRCC, 2021a ↵
- Sport Resolutions, 2021 ↵
- SDRCC, 2021a ↵
- McLaren Global Solutions Group, 2020 ↵
- SDRCC, 2021a ↵
- For example, Swimming Natation Canada’s appeal policy only permits appeals to SDRCC on certain grounds: unauthorized decision, unauthorized process, bias, improper use of discretion, decision unsupported by evidence, decision grossly unreasonable (Swimming Canada, 2017) ↵
- For example, see Mehmedovic and Tritton v. Judo Canada, 2012 ↵
- Canada v. Vavilov, 2019 ↵
- Arbitration CUSA Shooting & Q. v. Union Internationale de Tir, 1994 ↵
- For example, see the powers of arbitrators in section 5.7 of the SDRCC’s procedural rules (SDRCC, 2021a). ↵
- For example, see the SDRCC’s remarks in Béchard v. CABA (2006); Marchant and DuChene v. Athletics Canada (2012); Mehmedovic and Tritton v. Judo Canada (2012); and Beaulieu v. Gardner (2013) ↵
- SDRCC, 2021a ↵
- SDRCC, 2021a ↵
- For examples where SDRCC arbitrators have referred matters back to original decision-makers in team selection disputes, see Dutton v. Speed Skating Canada (2018); Wilton v. Softball Canada, SDRCC (2004) ↵
- SDRCC, 2021a ↵
- SDRCC, 2021a ↵
- U.S. Center for SafeSport, 2021 ↵
- Sport Resolutions, 2021 ↵
- U.S. Center for SafeSport, 2021. ↵
- Sport Resolutions, 2021. ↵
- SDRCC, 2021c ↵
- F.H. v. McDougall, 2008 ↵
- F.H. v. McDougall, 2008 ↵
- Government of Ontario, 2016 ↵
- FK Pobeda et al v. UEFA, 2009 ↵
- Lindholm, 2019 ↵
- WADA, 2021 ↵
- For example, see California Civil Code, section 3294. Punitive monetary damages seek to punish a person for their intentional or malicious behaviour and can be differentiated to the more common compensatory monetary damages that seek to compensate a victim. ↵
- Cruzan v. Director, 1990 ↵
- Santosky v. Kramer, 1982 ↵
- Lensykj, 2018 ↵
- CAS has held that indirect evidence of blood doping obtained from longitudinal analysis meets the comfortable satisfaction standard: see Pechstein case. ↵
- Re Vancouver Sun, 2004 ↵
- CAS, 2021a; CAS, 2021b ↵
- CAS, 2021a; CAS, 2021b ↵
- SDRCC, 2021a ↵
- SDRCC, 2021a ↵
- CAS, 2021a ↵
- CAS, 2021a ↵
- CAS, 2021b ↵
- SDRCC, 2021a ↵
- SDRCC, 2021a ↵
- CAS, 2021a; CAS, 2021b ↵
- SDRCC, 2021a ↵
- Baldas, 2018 ↵
- SDRCC, 2021a ↵
- SDRCC, 2021a ↵
- (SDRCC, 2021a) For doping hearings, observers are also permitted. Observers include WADA, the relevant international sport federation, and the Government of Canada (SDRCC, 2021a). ↵
- SDRCC, 2021a ↵
- SDRCC, 2021a ↵
- SDRCC, 2021a ↵
- U.S. Center for SafeSport, 2021 ↵
- Sport Resolutions, 2021 ↵
- SDRCC, 2021a ↵
- U.S. Center for SafeSport, 2021 ↵
- Sport Resolutions, 2021 ↵
- SDRCC, n.d. ↵
- Interpretive principles are only one type of substantive law that might be applied by arbitrators in the sport maltreatment context. Another example of substantive law is the assessment of whether an investigation and post-investigation decision are procedurally fair. This topic was covered in Chapter 7 and will not be repeated here. Another substantive principle of law that will discussed in Section 6 “The Principle of Proportionality and Sanctions under the UCCMS” is the principle of proportionality and how it applies to the determination of sanctions under sport maltreatment codes of conduct. ↵
- Exercise adapted from Toedt III, 2018 ↵
- In the case of CAS decisions, see Foster (2006) and Erbsen (2006). In the case of SDRCC, see Findlay & Mazzucco (2010). ↵
- An example of a sport-specific principle may be the “field of play” doctrine. This doctrine refers to a sport arbitrator’s unwillingness to review the decisions of game or match officials (e.g. referees, umpires, judges), unless there is evidence that the official exercised bad faith, bias, or improper motive. Despite the seeming specificity of this doctrine, it can be linked to a domestic court’s authority to deny jurisdiction over a dispute on the basis that the subject-matter of the dispute (i.e. determining whether a game official’s decision was right or wrong) is not appropriate for a court to decide. ↵
- Lindholm, 2019 ↵
- SDRCC, 2021a ↵
- i.e., Laberge v. Bobsleigh Canada Skelton, 2013 ↵
- For example, see University of Regina v. Canadian Interuniversity Sport (2006) ↵
- Sattva Capital Corp. v Creston Moly Corp., 2014 ↵
- Sattva Capital Corp. v. Creston Moly Corp., 2014 ↵
- Sabean v. Portage LaPrairie Mutual Insurance Company (2017 SCC 7), at para. 12 ↵
- i.e., McAulay v. Canadian Curling Association, 2012; University of Regina v. CIS, 2009 ↵
- Foster, 2003, pp.15-16 ↵
- Teetzel & Mazzucco, 2014 ↵
- Freeburn, 2018 ↵
- For example, see Mehmedovic and Tritton v. Judo Canada (2012) ↵
- Re Rizzo & Rizzo Shoes Ltd., 1998 ↵
- See, for example, section 64 of Ontario’s Legislation Act, 2006. ↵
- Bell ExpressVu Limited Partnership v. Rex, 2002 ↵
- Bell ExpressVu Limited Partnership v. Rex, 2002 ↵
- R. v. Goulis, 1981 ↵
- SDRCC, 2021a ↵
- WADA, 2021 ↵
- UCCMS, section 3.1 ↵
- BBC, 2000 ↵
- SDRCC, 2021a ↵
- Sport Resolutions, 2021 ↵
- SDRCC, 2021a ↵
- R. v. Smith, 1987 ↵
- R. v. Morrisey, 2000 ↵
- W. v. International Equestrian Federation, 1999 ↵
- FIN v. FINA, 1996 ↵
“Institutional” refers to the structure and operations of an organization that provides arbitration services.
“Procedural” refers to rules that govern the process of an arbitration hearing, including the rules that the arbitrator and parties must follow.
“Substantive” refers to the principles of law that an arbitrator applies to resolve a dispute, and which form the basis for the parties’ submissions or legal arguments for the arbitration hearing.
A process whereby parties refer their dispute to a mutually acceptable, knowledgeable, independent person (an arbitrator) to determine a resolution.
Refers to individual who is alleged to have violated the UCCMS.
The individual who reports or files a complaint about another person’s alleged violation of the UCCMS, including an individual who is the subject of alleged maltreatment.
Independent body charged with overseeing operational aspects of the Universal Code of Conduct to Prevent and Address Maltreatment in Sport (UCCMS). In Canada, the SDRCC has been named as the NIM to oversee the UCCMS. A regulatory body with the authority to implement safe sport policies.
The breadth of an arbitrator’s authority to resolve a dispute involving a decision made by another decision-maker; examples include conducting a new hearing or reviewing the other decision-maker’s decision for certain errors.
Involves the arbitrator reviewing the original decision on specific grounds or for specific errors, such as an error made in interpreting or applying the applicable code of conduct or the use of an unfair procedure.
Involves the arbitrator conducting a whole new hearing of a matter without considering the original decision (known as a de novo hearing – which is Latin for “from the new”).
A standard for determining whether the original decision-maker made an error; examples include correctness, reasonableness, or palpable and overriding error.
Decision is the only right answer in light of the law and the facts.
A “reasonable” decision is based on a logical chain of reasoning. It has to make sense in light of the law and the facts.
Easily perceptible, plain, obvious, readily visible, noticeable.
A standard of appellate review, an error that must have altered the result or may well have altered the result.
The procedures that protect the rights or interests of a complainant or respondent in an investigation.
A party’s responsibility to prove a particular fact or matter in a legal proceeding.
A standard for determining whether a party has met a burden of proof; examples include a balance of probabilities and a comfortable satisfaction.
Describes the way a judge makes decisions about some legal issues. It is more likely than not to happen.
Lying in between the criminal 'beyond reasonable doubt' and the civil 'balance of probabilities'.
The burden to determine "whether an issue should be left to the trier of fact".
A minor is an individual who has not reached the age of majority or is not considered of legal age under the laws applicable in that individual’s province or territory of residence (SDRCC, 2021a).
A vulnerable person is an individual who is not a minor whose ability to present evidence before the Safeguarding Tribunal is materially impaired by reason of, mental or physical illness, or sexual or physical abuse (SDRCC, 2021a).
Independent agency to provide athletes and other participants in the national sports system with an opportunity to have independent arbitrators consider their appeals against decisions they feel were unfair. Now charged with the responsibility to provide an independent mechanism to address maltreatment in Canadian sports.
The art or process of determining the intended meaning of a written document, such as a constitution, statute, contract, deed, or will.
Sanctions automatically apply if certain misconduct occurs or the individual’s misconduct is accompanied by a prior history of proven misconduct.
Sanctions that are presumed to apply once a certain type of misconduct is proven, but that can be rebutted and replaced with a lesser sanction based on mitigating factors.
Sanctions are those that may be issued where misconduct occurs; examples include a warning, remedial training or education, suspension, or expulsion.
