By Prof Dr Ian Blackshaw
A recent decision handed down by the Trinidad and Tobago High Court well illustrates the point that sports arbitration by sports governing bodies, as a form of alternative dispute resolution, must, in the final analysis, operate under the general law, as interpreted and applied in the ordinary Courts.
In other words, in certain circumstances, resort to the Courts to settle a sports-related dispute may be ordered in lieu of the parties going to arbitration, as required under the rules of the relevant sports body and/ or under the provisions of the relevant contract, even though such references to arbitration may be expressed to be “exclusive” (see below).
In Thema Yakaena Williams v. Trinidad and Tobago Gymnastics Federation & Others (25 April, 2017, Claim No. CV2016-02608), the claimant, a gymnast, was seeking damages from her national governing body as a result of her being excluded from participating in the 2016 Rio Summer Olympic Games.
Although the parties had agreed exclusively to arbitration, the gymnast wished the arbitration proceedings to be put on one side (i.e. ‘stayed’) and the dispute, because of its nature and complexity, to be decided by the Court, whilst the Federation opposed this application and wanted the dispute to be decided by arbitration under their regime.
The matter fell to be decided under Section 7 of the Arbitration Act (Chap. 5:01) (the Act), under which the Court is vested with the power to stay proceedings which have been commenced before it in circumstances where the claimant is a party to an agreement, which specifically provides for the resolution of disputes by arbitration, and where the Court is satisfied that no valid reason exists for the matter not to be adjudicated in accordance with the provisions for dispute resolution to which the parties are contractually bound.
In other words, in the present case, the Court had to decide whether there were sufficient reasons why the dispute should not be resolved by arbitration, but by judicial proceedings. In order to do so, the Court had to look at the dispute resolution clause in question, which, in the present case, provided as follows:
“All disputes arising our of or connected ·with this agreement are subject to resolution exclusively through the procedures set forth in the TTGF by-laws and/or, as appropriate through the grievance procedures of the Trinidad & Tobago Olympic Committee.”
Having reviewed the by-laws referred to, the Court was of the opinion that they did not adequately outline the processes or procedures to be followed in relation to grievance procedures. In fact, they were limited to disciplinary matters only and, therefore, did not cover the complex legal issues, which fell to be decided in the present case and which were not of a disciplinary nature.
Interestingly, the Court also applied a ‘public interest’ argument for refusing arbitration, a form of private justice, stating that the present case raised issues of national importance, namely, “the selection process for representation at the Olympics is an issue that extends beyond the insular concerns of the parties to this matter and is one in which every citizen has a vested interest.”
Thus, the Court granted the gymnast’s application to stay the arbitration proceedings and to have the dispute decided by the Court and not by arbitration pursuant to the corresponding Sports’ Governing Body or Bodies’ rules and procedures.
The moral of the story is for Sports Governing Bodies to have in place adequate – that is to say, precise, comprehensive, fair, independent and impartial – arbitration rules and procedures for the settlement of disputes, in order to exclude any intervention by the ordinary Courts.
Otherwise, sporting justice cannot be guaranteed by Arbitration by Sports Governing Bodies, but only through the Courts’ system.
Although the Williams’ case was decided under Common Law principles, it is fair to say that similar considerations would also be applied under the Civil Law.
Prof Dr Ian Blackshaw may be contacted by e-mail at ‘firstname.lastname@example.org’