The world of sport has been dramatically impacted by COVID-19 both at home and abroad: games cancelled, seasons disrupted, games played in empty stadiums, and athletes, sports organizations, agents and fans waiting for the next shoe to drop. While it is not yet clear what the future will hold for the sports sector, parties can gain some forward momentum, and certainty, by choosing to arbitrate their disputes by videoconferencing.
The Business of Sport
The world of sport is propelled forward through a myriad of business transactions. Here are just a few examples. The representation of athletes, owners and organizations generates contracts. Broadcasting sporting events generates contracts pertaining to such issues as the sales of media rights. Sponsorship, advertising, and use of likeness require extensive documentation. And of course, ticketing and hospitality for sporting events generate lots of work for the lawyers carefully drafting the terms of the relationships between the parties. This list leaves out large categories of business transactions and does not even begin to touch upon the other important relationships, such as vendor contracts and contracts describing employment relationships with both exempt and non-exempt employees essential to the business of sport.
Stipulating to Arbitration and Choosing an Experienced Sports Arbitrator
The resolution of many of the disputes arising from the above business and employment relationships can still move forward while the world is left watching and waiting for a way forward with sport. We do not have an answer as to what the long-term effects of COVID-19 will be on sport, but parties can get an answer as to their rights and responsibilities in certain of their important sports-related relationships. Here is one game plan.
The parties to a dispute can tender the dispute to arbitration, whether or not a written agreement to arbitrate exists. They will be able to view a roster of neutrals who have a demonstrated interest in sport and a background in resolving sports disputes. If the dispute will be arbitrated virtually, it is important that the parties select an arbitrator who is proficient in conducting remote arbitrations. The case manager for the arbitrator will be able to verify this proficiency for you.
Developing the “Virtual” Arbitration Playbook for Your Case
The chosen arbitrator will preside over a preliminary phone call or videoconference to encourage the parties to exchange all of the relevant documents, and, together with the attorneys for the parties, develop a schedule that makes sense for an efficient and cost-effective process. Some matters will not need depositions or motion practice. Others may. One size does not fit all, and the Arbitrator will discuss the needs of the parties at the initial conference in that regard. It may be possible to use expedited or streamlined procedures and have a hearing set very quickly, if all parties agree, even if expedited procedures are not called for in an otherwise applicable arbitration agreement. The hallmark of arbitration, after all, is self-determination. Your chosen arbitrator should be flexible enough to work with you to customize a process that makes sense for the dispute.
Hearing Best Practices and Procedures
The arbitration hearing itself can be conducted on Zoom or any remote platform of the choosing of the parties. Prior to the hearing, the parties can be offered a chance to have a “dry run” or practice sessions, with or without clients. Many arbitrators have written protocols for the conduct of remote arbitrations which discuss such things as how documents will be handled, and procedures to ensure that the witness is not reading a script while testifying. From this point forward, the Arbitration Hearing will proceed in much the same way that it would proceed if the parties were meeting face-to-face---or rather, mask-to-mask.
The dispute resolution provider should have a moderator set up separate “breakout rooms” for counsel to meet with clients before session and during recesses. Witnesses can be directed to a separate breakout room. The moderator will be available throughout the session to help with any logistical issues and make sure that people are in the right place at the right time. When it is time for the session to begin, the arbitrator, together with counsel and parties, will be in the same virtual room.
A court reporter may or may not be present depending on the desires of the parties. The arbitrator may invite oral opening statements, or counsel may choose to rely on their pre-hearing briefs and proceed directly to the witness testimony. Witnesses will be sworn, admonished regarding the protocols, and examined by all sides.
Documents can be displayed in a number of ways. The three most common ways are (1) through “screen sharing” on the videoconferencing platform; (2) through a separate exhibit sharing app and window provided by the vendor chosen by the parties; or (3) through the use of hard-copy exhibits in binders delivered to the arbitrator, all counsel, and witnesses in advance. Most counsel find it is best to use the “belt and suspenders” method of providing exhibit binders in advance even if they intend to display the exhibits electronically.
After the conclusion of the testimony, closing arguments may be presented orally and/or in writing, depending on the protocols established by the arbitrator. A timely written award will be rendered. The parties will have their decision.
The reader will notice a number of alternative options were discussed in describing the procedures for a remote arbitration. It is a best practice for the protocols to be established in writing well before the commencement of the hearing in order to avoid surprises and to have an efficient, cost-effective proceeding. Counsel may wish to provide a stipulation and proposed order to the arbitrator reflecting their agreed-upon protocol or may wish to rely on the protocol suggested by the arbitrator. It will be important to recognize the need for flexibility in the protocol if, for example, the Wi-Fi goes out. Some counsel may consider this to be the equivalent of bringing two typewriters to the bar exam. It is always a good idea to have a plan B.
What About Mediation?
It is important to note that the above discussion did not address the concept of remote mediation. The author is a strong advocate for discussing settlement early, and often, even after an arbitration demand has been filed. Much has been written touting the benefits of remote mediation and the logistics for effectively mediating remotely. However, for those cases where the parties need someone to rule on their dispute, remote arbitrations are an effective way to move forward in the world of sport during a time of great uncertainty.