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Alternative Dispute Resolution
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◦ Final agreements or decisions are not made by judges or courts
◦ Disagreements between parties are resolved by alternative methods
More effective and efficient and less costly
◦ Disagreements between parties are resolved by alternative methods
More effective and efficient and less costly
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Arbitration
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Big Four use ____ as a method to resolve grievances
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Court of Arbitration
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Olympic Movement uses ____ _ ____ for Sports to resolve disputes surrounding the Olympic Games
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Mediation
Arbitration
Arbitration
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2 Forms of Alternative Dispute Resolutions:
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Mediation
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Mediator plays the role of settlement-facilitator
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Arbitration
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Arbitrator is the decision-maker
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Litigation
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◦ Process which uses the legal system to resolve
Costly; can take years to reach a conclusion
Costly; can take years to reach a conclusion
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Alternative Dispute Resolution
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◦ Emphasis is less on lawyers and civil procedure and more on the needs of the parties themselves.
◦ Does not focus on right or wrong
◦ Does not focus on right or wrong
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Arbitration
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◦ Submitting a dispute to a neutral decision maker for a final resolution of a disagreement
◦ Agreement to arbitrate is usually contained in a clause found in a contract or collective bargaining agreement
◦ Arbitrator makes the final, binding decision unless otherwise agreed in advance by the parties
◦ Rules of evidence and civil procedure are relaxed
No judicial review of the decision unless the arbitrator committed fraud or some other clearly egregious misconduct
◦ Most often used on the sports contexts
◦ Agreement to arbitrate is usually contained in a clause found in a contract or collective bargaining agreement
◦ Arbitrator makes the final, binding decision unless otherwise agreed in advance by the parties
◦ Rules of evidence and civil procedure are relaxed
No judicial review of the decision unless the arbitrator committed fraud or some other clearly egregious misconduct
◦ Most often used on the sports contexts
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File a Grievance
Select an Arbitrator
Select an Arbitrator
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2 parts to the Process of Arbitration:
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File a Grievance
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Disagreements related to discipline, fines, franchise movement issues, injuries and salaries
Revocation of an agent's ability to represent a player within the league
Revocation of an agent's ability to represent a player within the league
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Select and Arbitrator
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Joint process
◦ Agree on one arbitrator or a group/panel
May specify certain requirements
◦ Minimum years of experience, particular field or industry
◦ Agree on one arbitrator or a group/panel
May specify certain requirements
◦ Minimum years of experience, particular field or industry
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Judicial Review
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◦ Generally not appealable to a court
◦ Exceptions
Award was procured by corruption, fraud, or undue means;
Evident partially or corruption in the arbitrators
Arbitrators are guilty of misconduct in refusing to hear pertinent and material evidence, or were guilty of any other misbehavior which may have prejudiced any party; or
Arbitrators exceeded their power so much so that mutual, final and definite award upon the subject matter submitted was not made
◦ Exceptions
Award was procured by corruption, fraud, or undue means;
Evident partially or corruption in the arbitrators
Arbitrators are guilty of misconduct in refusing to hear pertinent and material evidence, or were guilty of any other misbehavior which may have prejudiced any party; or
Arbitrators exceeded their power so much so that mutual, final and definite award upon the subject matter submitted was not made
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Mediation
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◦ Submission of a dispute to an impartial facilitator who assists the parties in negotiating a settlement of their dispute.
◦ Parties are in complete control of the process and can walk away at any time.
Parties decide for themselves
◦ May ask ____ for proposed solutions
◦ Parties are in complete control of the process and can walk away at any time.
Parties decide for themselves
◦ May ask ____ for proposed solutions
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2011 NFL Lockout
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Mediation:
-Ordered mediation in Brady v. NFL so that the NFL and NFLPA could attempt to resolve their dispute without courts
-Ordered mediation in Brady v. NFL so that the NFL and NFLPA could attempt to resolve their dispute without courts
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Shuttle Diplomacy
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Mediation:
Process:
Private Caucuses with parties
◦ Each party has chance to suggest possible solutions to conflict
◦ Mediators skills are useful in engaging with the parties to explore numerous options and suggestions for ultimate compromise
◦ Terms of a successful mediation will be reduced to a written contract between the parties.
Breach of contract can lead to litigation
Process:
Private Caucuses with parties
◦ Each party has chance to suggest possible solutions to conflict
◦ Mediators skills are useful in engaging with the parties to explore numerous options and suggestions for ultimate compromise
◦ Terms of a successful mediation will be reduced to a written contract between the parties.
Breach of contract can lead to litigation
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Mediation-Arbitration
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◦ Hybrid of mediation and arbitration
◦ Used in complex disputes
◦ Parties agree to resolve disputes first during mediation phase
Unresolved issues then presented to arbitrator
◦ Used in complex disputes
◦ Parties agree to resolve disputes first during mediation phase
Unresolved issues then presented to arbitrator
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Minitrials
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◦ Structured dispute resolution method in which senior executives meet in the presence of a neutral advisor
After hearing presentations or merits of each side of dispute, attempts to formulate a voluntary settlement
After hearing presentations or merits of each side of dispute, attempts to formulate a voluntary settlement
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Collective Bargaining Agreements
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Professional Sports:
◦ Mediation rarely used in team sport disputes since CBAs mandate arbitration.
Still first resort in contractual agreements between private sponsor and professional athletes
◦ Mediation rarely used in team sport disputes since CBAs mandate arbitration.
Still first resort in contractual agreements between private sponsor and professional athletes
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◦ Seitz Decision
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Professional Sports:
Collective Bargaining Agreements:
Arbitration decision influenced the commencement of free agency in other professional sports leagues
Collective Bargaining Agreements:
Arbitration decision influenced the commencement of free agency in other professional sports leagues
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◦ Terrell Owens
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Professional Sports:
Collective Bargaining Agreements:
NFL:
Filed grievance with support of NFLPA alleging four game suspension was too harsh
4 game suspension with pay, Owens decision not to return to team, and deactivations was justified
lost arbitration and $80K
Collective Bargaining Agreements:
NFL:
Filed grievance with support of NFLPA alleging four game suspension was too harsh
4 game suspension with pay, Owens decision not to return to team, and deactivations was justified
lost arbitration and $80K
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◦ Latrell Sprewell
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Professional Sports:
Collective Bargaining Agreements:
NBA:
Suspended full year and guaranteed contract terminated for allegedly choking coach.
Arbitrator issues a ruling in favor of the NBPA and ____
◦ Reinstated guaranteed contract and reduced suspension
Collective Bargaining Agreements:
NBA:
Suspended full year and guaranteed contract terminated for allegedly choking coach.
Arbitrator issues a ruling in favor of the NBPA and ____
◦ Reinstated guaranteed contract and reduced suspension
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◦ MLBPA v. Steve Garvey
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Professional Sports:
Collective Bargaining Agreements:
MLB:
Alleged contract not extended due to collusion
◦ Letter from Padres President and CEO supporting claim
Arbitrator denied claim
◦ Stark contrast in letter and prior testimony
Appeals court reviewed because said arbitrator "dispensed his own brand of industrial justice"
◦ Refusal to credit letter inexplicable and bordered on the irrational
Record had provided strong support for truthfulness
Supreme Court - if an arbitrator is even arguably construing or applying the contract and acting within the scope of his authority the fact that a court is convinced he committed serious error does not suffice to overturn his decision.
◦ Appeals court erred in vacating award and directing judgment for Garvey
Collective Bargaining Agreements:
MLB:
Alleged contract not extended due to collusion
◦ Letter from Padres President and CEO supporting claim
Arbitrator denied claim
◦ Stark contrast in letter and prior testimony
Appeals court reviewed because said arbitrator "dispensed his own brand of industrial justice"
◦ Refusal to credit letter inexplicable and bordered on the irrational
Record had provided strong support for truthfulness
Supreme Court - if an arbitrator is even arguably construing or applying the contract and acting within the scope of his authority the fact that a court is convinced he committed serious error does not suffice to overturn his decision.
◦ Appeals court erred in vacating award and directing judgment for Garvey
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NCAA
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Own form of private justice
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Committee of Infractions
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NCAA:
Hears allegations
Hears allegations
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Infractions Appeals Committee
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NCAA:
◦ Hears appeals of findings of major violations
◦ Hears appeals of findings of major violations
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◦ Coaching terminations
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NCAA:
____ ____ can either be Arbitration or Mediation
____ ____ can either be Arbitration or Mediation
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◦ Ted Stevens Olympic and Amateur Sports Act
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Olympic Movement:
Arbitration:
Grants USOC authority "to provide swift resolution of conflicts and disputes involving amateur athletes"
Arbitration:
Grants USOC authority "to provide swift resolution of conflicts and disputes involving amateur athletes"
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1. Eligibility of athlete
2. Determination of appropriate NGB for particular sport
3. Positive finding of drug use during out-of-competition testing
2. Determination of appropriate NGB for particular sport
3. Positive finding of drug use during out-of-competition testing
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Olympic Movement:
Arbitration:
◦ Three major classes of disputes:
Arbitration:
◦ Three major classes of disputes:
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◦ Osbudsman
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Olympic Movement:
Arbitration:
Provides free advice to athletes
Arbitration:
Provides free advice to athletes
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◦ Lindland v. United States Wrestling Assoc.
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Argument on who should represent US at Olympics
◦ Lindland protested results of match he lost
Arbitrator Burns ordered a rematch which he won
◦ Arbitrator Campbell approved the result of the original bout and ignore result of rematch.
Not a result of corruption, fraud, etc.
If Campbell Award vacates prior confirmation of Burns award, no conflicting judicial instructions
◦ Campbell Award cannot be confirmed
Ultra vires proceedings and Violates Commercial Rules of AAA
Exceeded his powers
◦ Instituted arbitration to contest Burns Award
Stevens Act does not authorize arbitration about propriety of another arbitrator's decision.
◦ Letter from member of Congress tell a judge how to decide a pending case reflects a misunderstanding of the difference between legislative and judicial functions.
"It is best...for each institution to hew to its constitutional function."
◦ Ultimate clash between litigation and ADR
◦ Lindland protested results of match he lost
Arbitrator Burns ordered a rematch which he won
◦ Arbitrator Campbell approved the result of the original bout and ignore result of rematch.
Not a result of corruption, fraud, etc.
If Campbell Award vacates prior confirmation of Burns award, no conflicting judicial instructions
◦ Campbell Award cannot be confirmed
Ultra vires proceedings and Violates Commercial Rules of AAA
Exceeded his powers
◦ Instituted arbitration to contest Burns Award
Stevens Act does not authorize arbitration about propriety of another arbitrator's decision.
◦ Letter from member of Congress tell a judge how to decide a pending case reflects a misunderstanding of the difference between legislative and judicial functions.
"It is best...for each institution to hew to its constitutional function."
◦ Ultimate clash between litigation and ADR
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◦ Court of Arbitration for Sports (CAS)
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Sports-specific forum intended to be final, neutral decision-making arbitration body and the only means for Olympic athletes and international federations to resolve their disputes
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International Council for Sports Arbitration
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◦ Established to oversee the Court of Arbitration for Sports to avoid perceived conflicts of (rest of it not in notes)
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◦ Doping Disputes: Landis
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Stripped of 2006 Tour de France title after testing positive for synthetic testosterone levels
Attempted to show work of French lab was problematic
Three-man panel upheld the decision
Attempted to show work of French lab was problematic
Three-man panel upheld the decision
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◦ Field of Play Decision: Ohno
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Korea appealed the blocking disqualification of skater.
Appealed CAS ad hoc Division
◦ Must be direct evidence of bad faith to review
Appealed CAS ad hoc Division
◦ Must be direct evidence of bad faith to review
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◦ Hamm
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Error identified with the benefit of hindsight, whether admitted or not, cannot be grounds for reversing the result of field of play decisions during competition.
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NFL
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Video Replay:
◦ Indisputable visual evidence in order to overturn an on-field call.
◦ Indisputable visual evidence in order to overturn an on-field call.
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MLB
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Video Replay:
◦ Clear and convincing evidence to overrule call
Instant replay for home run and fan interference calls
◦ Not blown call that denied Armando Galarraga perfect game
◦ Clear and convincing evidence to overrule call
Instant replay for home run and fan interference calls
◦ Not blown call that denied Armando Galarraga perfect game
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NHL
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Video Replay:
◦ Check Goals
◦ Check Goals
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NBA
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Video Replay:
◦ Last second shots
◦ Last second shots
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World Intellectual Property Organization (WIPO)
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◦ Offers clauses, rules and neutrals related to ADR procedures
◦ Administers procedures for resolution of disputes relations to abusive registration and otherwise illegitimate domain names
Luis Zalvals
◦ Registered 800 celebrity names
◦ Chris Bosh sued and won
◦ Administers procedures for resolution of disputes relations to abusive registration and otherwise illegitimate domain names
Luis Zalvals
◦ Registered 800 celebrity names
◦ Chris Bosh sued and won
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Online Dispute Resolution
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◦ Virtual method to resolve disputes
Benefits: convenience, cost, time savings, intimidation
Disadvantages: security breaches, tone, inflection and facial expressions
Benefits: convenience, cost, time savings, intimidation
Disadvantages: security breaches, tone, inflection and facial expressions
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