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The aim of the game is to win…. Or is it? Mediation in football

Published: 05 January 2024
Time to read: 8 mins

The stage is set… it’s Scotland versus Hungary in the final match of the Group Stages of Euro 2024.  The score is currently 1-1.  Both teams need just one point to qualify for the knockout stages.  There are only 2 minutes left on the clock and at this point, I would like to think that the concept of winning could be moved to one side and both parties settle for a score draw, with each party sharing the spoils.

In many ways, the process of mediation can be viewed in the same light – the concept of winners and losers is moved to one side and the focus shifts to reaching a mutually acceptable solution, outside of the traditional courtroom.

Football is the most popular and richest sport in the world.  Legal issues and disputes in football have rapidly increased in the last 25 years. Disputes are often high value and by their nature, attract significant media attention.  Clubs and players, particularly in the United Kingdom, are likely to do business with each other more than once.  The importance of maintaining commercial relationships cannot be understated.  Mediation offers a sensible forum for resolution of these sorts of disagreements – speed, confidentiality, cost effectiveness and flexibility are its hallmarks.

No doubt that’s why football’s international governing body, FIFA, recently introduced its mediation guidelines.  But are there benefits to deploying mediation practice more widely to resolve football and other sport related disputes?

The current approach to resolving disputes in football

Football disputes tend to be resolved internally.  Recourse to courts of law for settling disputes is, as a general principle, expressly prohibited by FIFA, unless expressly provided for in its regulations.  Member Associations (the Scottish Football Association (SFA) in Scotland) agree to be bound by FIFA’s regulations and insert clauses in their regulations to confirm their compliance.

In Scotland, disputes are currently heard before an independent arbitral panel under Article 99 of the SFA’s Articles of Association via the provisions of the Arbitration (Scotland) Act 2010.  Members are prohibited from raising court proceedings without the prior approval of the Board of the SFA.  The decision of the arbitral panel is usually final and binding on the parties.  The result is generally that there are winners and losers, and this can damage commercial relationships.

In general, the UK Courts also recognise that sports bodies are best suited to resolve sports disputes, usually through Alternative Dispute Resolution (ADR).  The airing of disputes may carry a reputational risk to the game and its participants which sport’s governing bodies will be keen to avoid.  This a point which the Inner House itself has acknowledged (see the comments of Lord Carloway in Park’s of Hamilton (Holdings) Ltd v Scottish Football Association Ltd [2021] CSIH 61 at para 19).  Issues relating to matters such as players contracts, transfer fees or agent commissions are unlikely to be suitable for public litigation.

However, disputes (particularly those relating to unfair prejudice or procedural unfairness) between members in Scotland can on occasion be heard before the courts and when they are, tend to receive significant media attention (see for example the Petition of Rangers Football Club Plc for Judicial Review [2012] CSOH 95 and the interest in the online hearing of the Petition of Heart of Midlothian Football Club plc and The Partick Thistle Football Club Ltd [2020] CSOH 68 which was thought to have been a record attendance for the Court of Session).

The position mediation plays in football: an “international dimension”.

Mediation involves appointing an independent third party to facilitate negotiations between parties to a dispute in an effort to reach a mutually acceptable solution.  It can be quicker, more informal, and more cost‑effective than litigation.  A mediator is not there to make any determination. Rather, the parties are empowered to reach a decision themselves; the winners’ and losers’ mentality having been moved to one side.

However, mediation is not appropriate for all disputes in football.  It is best suited to employment, commercial or civil matters that can be resolved extra-judicially.  Disciplinary and regulatory matters require the expertise of an independent arbitrator (or panel of arbitrators), who are experts in the applicable regulations and law of the Member Association.

Mediation in sport is not new; it has been available through the Court of Arbitration for Sport (CAS) since 1 May 1994.  The appetite to use mediation in football however has been poor.

Perhaps mindful of this, on 1 October 2021 FIFA introduced the Football Tribunal (FT).  It consolidated existing FIFA decision-making bodies into a single umbrella body.  It consists of three chambers: i) the Players’ Status Chamber (PSC) ii) the Dispute Resolution Chamber (DRC) and iii) the Agents Chamber (AC).  The PSC and DRC are the FIFA decision making bodies that are competent to adjudicate on contractual and regulatory disputes between Member Associations, clubs, players, and coaches.  In the 2022/2023 season, 3,726 disputes were referred to the DRC.  As a comparator, CAS registers around 900 arbitration cases per year.

In response to the increasing number of disputes being referred to the DRC and in line with its objective to modernise football’s regulatory framework, FIFA incorporated recourse to mediation in its regulations.  It may only be used for the resolution of disputes that fall under the jurisdiction of the FT in accordance with the FIFA Regulations on the Status and Transfer of Players (RSTP).  These are generally disputes with what FIFA calls an “international dimension”.  Under Article 26 of the RSTP, if the chairperson of the FT considers it appropriate, they may invite parties to mediate the dispute.  The FIFA mediation service is voluntary, confidential and free of charge for the parties.  It may take place at any moment until a decision is taken by the relevant chamber of the FT.

In February 2023, FIFA released its mediation guidelines.  Under the guidelines, the mediator will:

  • Help the parties identify the issues in dispute;
  • Facilitate a discussion of the issues by the parties, either in joint or separate meetings; and
  • Assist the parties in the identification of possible solutions.

The FT proceedings continue whilst the mediation is ongoing so there is no significant delay to the process.  It is in each party’s interests to collaborate and reach a swift conclusion.  This suits football, given the speed with which the industry moves.  If the mediation is successful, parties sign a settlement agreement and send it to FIFA Administration for ratification.  FIFA also embody the mediation agreement in the decision of the FT so it can be enforced by the FT if a party fails to comply.

FIFA currently has 19 mediators and has overseen/facilitated 12 mediations to date.  The mediators have all played a role in providing feedback to support best practice, which FIFA has taken on board when implementing its guidelines.  The consensus is that the process has been a success and it is hoped that parties will continue to utilise this method.

National level: Compulsory mediation?

There is no automatic contractual or regulatory right to insist football mediation in Scotland and England (although it is open to parties to explore it between themselves should they wish to do so).  In June 2023, the UK Government confirmed that compulsory mediation would be introduced for small claims up to £10,000.  It remains to be seen if Scotland will follow in England’s footsteps.

However, the success rate for mediation is high.  The Centre for Effective Dispute Resolution (CEDR) mediation audit for England and Wales noted that 92% of cases settle (73% on the day and 20% shortly after).  The audit also reported that mediation has saved business approximately £5.9 billion in wasted time management, legal fees, productivity losses and damaged relationships per year.  It therefore makes sense for football to work to make mediation accessible at national level.

Final thoughts

Mediation in football is still in its early stages but more can be done to increase the uptake.  Could this be something the new UK Government backed independent football regulator takes into consideration?  Perhaps further cultural changes to dispute resolution are required in the first instance.  Enforcement may also be considered an issue, but a mediated settlement agreement can always be enforced as a contract.  The UK becoming a recent signatory to the Singapore Convention indicated the UK Government’s acknowledgement of the importance of mediation as a way of resolving internal disputes.

FIFA seems to be leading the way in promoting the use of mediation and it may be time for Member Associations to follow their lead in adopting the practice more widely.  One of the most significant benefits of the new guidelines is speed.  Arbitration can take several months (sometimes years) to reach its conclusion, whereas FIFA mediation can be concluded in a matter of weeks.

As practitioners, we understand that mediation may not be appropriate in all circumstances, however we remain advocates of a more conciliatory approach where possible.  In the context of football, cultivating commercial relationships is an important part of the industry and the use of mediation could contribute positively to maintaining and protecting these links between parties, for the overall benefit of the game.

The introduction of a mediation mechanism at a national level could give parties greater choice when seeking to resolve disputes, as well as the welcome discretion of avoiding court proceedings which are often costly, protracted and have negative connotations for those involved.

If you would like to discuss the process of mediation further, please get in touch with a member of our team.

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