Memorandum submitted by the Sports Dispute
Resolution Panel (SDRP)
1. ABOUT SDRP
1.1 The Sports Dispute Resolution Panel
("SDRP") is the independent organisation established
by the principal sports bodies representing athletes, governing
bodies and sponsors to provide a specialist UK-wide dispute resolution
service for sport. Formed as a not for profit company limited
by guarantee, SDRP began its work in late 1999 with initial grant
funding from UK Sport and the support of the home country sports
councils.
1.2 The original organisations behind SDRP
were the British Olympic Association (including the Athletes Commission),
the CCPR, the Institute of Professional Sport, the Institute of
Sports Sponsorship, the Northern Ireland Sports Forum, the Scottish
Sports Association, and the Welsh Sports Association. They remain
fully supportive along with other key stakeholders.
1.3 The SDRP Service is available to all
organisations and individuals within sport, both at elite and
grass roots levels, and is intended both to complement existing
dispute resolution procedures and provide an alternative independent
dispute resolution mechanism where appropriate.
1.4 SDRP's principal aims are to serve the
interests of sport by:
— providing a simple and independent
mechanism to resolve disputes fairly and speedily
— promoting best practice in sports
dispute resolution (as part of the broader modernisation agenda)
SDRP's mission, put simply, is "Just Sport".
1.5 SDRP offers a full range of dispute
resolution services, principally arbitration (including disciplinary
hearings and appeals) and mediation. Cases are dealt with under
SDRP's own procedures or alternatively SDRP acts as an appointing
body for cases that are dealt with under governing body procedures,
for example through the appointment of an independent legally
qualified Chair. The service is delivered through SDRP's own standing
panel of expert arbitrators and mediators, supported by a small
secretariat based in London.
1.6 In a short period of time, SDRP has
achieved its initial goal of gaining the full trust and confidence
of the various stakeholders in sport and is already widely recognised
as "The Dispute Resolution Service for Sport in the UK".
To date SDRP has been involved in helping to resolve over 100
matters without reference to the courts and has also dealt with
a further 120 enquiries. Referrals have come from some 25 different
sports (with enquiries in a further 20 sports) and have involved
a range of issues including discipline, selection, doping, eligibility,
contractual rights, commercial rights, employment, personal injury,
discrimination and child protection. In delivering its service
SDRP has set itself the target operationally of being independent,
expert, inclusive, flexible, comprehensive, speedy, robust and
cost effective.
2. SDRP AND ANTI-DOPING
2.1 Although the scope and remit of the
SDRP Service properly embraces all types of sports dispute, SDRP
recognises the particular significance and importance of anti-doping.
Indeed, one of the determining factors in Sport's decision to
establish its own unique service was the much reported case of
Diane Modahl. Furthermore, the Court of Arbitration for Sport
("CAS"), the international dispute resolution service
on which SDRP is loosely based, established its reputation by
dealing with anti-doping cases. This area remains central to the
work of CAS, not least through its position as the body nominated
to deal exclusively with appeals at the international level under
the WADA Code.
2.2 SDRP has already gained experience in
the Anti-Doping area through its casework, for example by:
— acting as the appointing body to
a number of governing body review panels, disciplinary tribunals
and appeal boards, for example by providing an independent legally
qualified Chair;
— hearing appeals under SDRP's procedures;
— appointing independent members to
the BOA and Commonwealth Games Council for England Appeal Panels
when considering applications for reinstatement of eligibility
for selection for Team GB and Team England following a doping
offence on the ground of significant mitigating circumstances.
2.3 The greater part of SDRP's work to date
has been referred on ad hoc basis rather than expressly under
the relevant governing body regulations. However, there is a growing
trend amongst governing bodies to make specific or general provision
for doping matters to be formally referred to SDRP or for it to
be used as an appointing body. SDRP's status as the recognised
independent mechanism for resolving doping disputes continues
to grow. This status is further enhanced by the fact that SDRP
has within the membership of its Panel of Arbitrators most of
the leading practitioners in the UK with experience of chairing
doping tribunals.
2.4 SDRP has been asked to express its views
on the current management of doping cases in the UK. We offer
a number of observations based on our direct and indirect experience.
In so doing we acknowledge that the UK has rightly acquired a
reputation for being at the forefront of the fight against drugs
in sport, for example through the introduction of the UK Sport
Statement of Anti-Doping Policy in January 2002. It follows that,
in making our comments, we do not intend to detract from the positive
work that has been carried out to date both by UK Sport and the
sports governing bodies. However, it is our considered view, one
endorsed by the PMP report to which we refer below, that there
is scope for further improvement if the system in the UK for managing
doping cases in the UK is to retain the full confidence of stakeholders,
both nationally and internationally. This is especially the case
in the light of the imminent implementation of the WADA Code to
which we also refer below.
2.5 Our principal observations are as follows:
— Differences in size and resource—There
is a significant difference in the size and resource of the sports
governing bodies coming within the Drug-Free Sport programme.
This inevitably leads to a difference of approach in managing
doping cases which can lead in turn to inconsistency.
— Separation of roles—It
is difficult, especially for the smaller governing bodies, to
achieve the separation of roles that is an essential requirement
of a fair and independent process. For example, it is not appropriate
for a single individual to be involved in the preparation and
presentation of the case, the support of the athlete, the representation
of the governing body's interests, and the servicing of the disciplinary
tribunal.
— Financial considerations—In
the majority of situations the management of cases is driven by
the budgetary constraints that prevail within the sports concerned.
This can lead to decisions which may have an adverse effect on
the process. In other situations, the costs incurred in particular
cases can be significant.
— Speed of process—The
speed of process can sometimes be slow and could fall short of
the standard that might reasonably be expected under the WADA
Code. Unfamiliarity with the process is one contributing factor
in those sports where alleged doping violations are uncommon.
— Lack of experience—For
the same reason the level of experience and expertise in dealing
with doping cases is not surprisingly limited in many sports.
— Lack of independence—There
is often the perception, if not the reality, of a lack of independence
of those involved in the process, particularly concerning those
sitting on tribunals.
— Lack of representation—The
availability of suitable representation or support to the athlete
(and in some cases to the sports governing body) is not uniform
and may in some situations be regarded as inadequate.
It is also worth noting that these observations
might equally apply in other areas of dispute besides doping.
It forms part of SDRP's broader theme that sport should aim to
have available to it a planned and structured mechanism to deal
effectively with all forms of dispute.
3. THE WADA CODE
3.1 The importance of these factors has
been further highlighted following the adoption in 2003 of the
World Anti-Doping Code ("the Code") which is scheduled
for implementation in the UK this summer prior to the Olympic
Games in Athens. The Code provides the mechanism under which the
Athletes' fundamental right to participate in doping-free sport
is to be protected through an effective and harmonised programme,
internationally and nationally.
3.2 In recognising the significance of this
development and the implications involved in achieving compliance
within the UK, SDRP has committed to working in partnership with
UK Sport (and others) in helping to plan and implement an effective
framework for results management and hearings in the UK.
3.3 At UK Sport's invitation we produced
a discussion paper and outline proposal last autumn on the implementation
of the Code in the UK with specific reference to results management,
hearings and related matters.
3.4 In approaching that task we were guided
by a number of key principles when assessing the requirements
for an effective results management and hearings framework in
the UK:
— The arrangements adopted must be
in accordance with the provisions of the Code, the UK Anti-Doping
Policy and the relevant International Federation Rules.
— The system must have the full confidence
of WADA, CAS, UK Sport, the International Federations, the UK/National
Governing Bodies and, most importantly, the Athletes.
— The framework should be practical,
effective and affordable.
— There should be a consistency of
approach at national and international levels.
— The aim should be for alleged doping
violations to be dealt with, and where possible concluded, at
the earliest stage but in a manner where a fair and reasonable
outcome is achieved and is seen to be achieved.
3.5 Our overall preliminary conclusion was
that the availability of a designated, independent National Tribunal
Service represented the best way forward (a role which SDRP is
well placed to fulfil). In reaching this conclusion we took particular
note of the importance of achieving a uniformity of approach,
independence and expertise in dealing with matters nationally,
partly with a view to avoiding a regular succession of appeals
internationally to CAS.
3.6 We also identified the fact that the
precise shape of the revised framework would be dependent on the
outcome of certain key policy decisions namely:
— Whether, and if so how far, there
should be any mandate or incentive (eg from UK Sport) to require
or encourage the use of a designated National Tribunal Service
in particular situations. Similarly there was a need to determine
the appropriate balance between the use of internal and external
procedures which both: (a) recognised the responsibility of the
sports governing bodies to regulate their sport (in a manner that
was consistent with the requirements of the Code, the UK Anti-Doping
Policy and the relevant international federation rules); and (b)
demonstrated an appropriate level of independence, expertise and
consistency of decision making.
— Whether an Independent Anti-Doping
Agency was to be established and whether its remit would include
the preparation and presentation of cases.
— Whether public funding was to be
made available to cover all or part of the costs of the hearings
process.
3.7 The importance and value of SDRP's contribution
to the debate has been recognised and we have now been asked by
UK Sport to undertake a further project during April and May to
identify costed options for a workable model framework for the
management of anti-doping results and disciplinary matters within
the UK to determine how the framework might operate to best effect
in practice. The project will cover each stage of the results
management process from the original notification of an adverse
analytical finding or other alleged doping violation. It will
also assess the full range of available options. We expect to
report back to UK Sport by the end of May.
4. THE PMP REVIEW
4.1 As the Committee is aware, UK Sport
separately commissioned PMP at the beginning of the year to conduct
an independent review of the UK Sport Drug Free Sport Directorate
and "to consider the optimum arrangements for the governance,
structure and operations of the national anti-doping organisation
in the UK and to produce a report for the Chair of UK Sport to
present to the Sports Cabinet in Spring 2004".
4.2 SDRP has been asked to assist the Committee's
inquiry by giving its response to the conclusions and recommendations
of the PMP report which were published in March. In so doing,
we first wish to clarify our position by making the following
observations:
— The PMP report has still to be considered
by the Sports Cabinet on 20 April and it would be inappropriate
for SDRP to prejudge the outcome of those discussions. Furthermore,
it is of course not ultimately SDRP's role to determine the revised
framework that emerges although we have contributed along with
many others to the PMP review.
— As the neutral independent tribunal
service established by sport SDRP does not consider it appropriate
to have a formal view on the central question addressed by PMP
of whether an independent anti-doping agency ("IADA")
should be established. Our aim (and indeed responsibility), irrespective
of the eventual decision on that issue, is to work alongside the
designated body to play our part in delivering an effective independent
hearings framework in the UK for doping cases as part of our broader
role as the recognised national dispute resolution service for
disputes generally.
Subject to these observations we are happy to
comment in general terms on the conclusions and recommendations
of the PMP report insofar as they relate to SDRP's specific area
of involvement and expertise.
4.3 Recommendation 14 of the report anticipates
both the contracting out of hearings and appeals to SDRP or alternatively
the use by governing bodies of an accredited national register
of panel members, perhaps administered by SDRP. In welcoming the
broad thrust of this recommendation, we also note PMP's acknowledgement
that it is not intended to be definitive or final and that further
work was appropriate (and indeed was already underway at UK Sport's
instigation) to consider the practical implications and the precise
allocation of roles within the hearings process. This approach
is a sensible one and the project in which SDRP is now engaged,
and to which we have already made reference, is intended to assist
in taking that process forward.
4.4 In listing and assessing the options
for the management of cases at page 50 of the report, PMP rightly
draw a distinction between the "preparation / prosecution"
function and the "hearings" function (although the latter
might perhaps have been better described as the "tribunal"
function given that there are a number of separate functions that
broadly fall within the hearings framework) and, in so doing,
PMP raise in passing, as one option, the possibility of the preparation
and presentation of cases being undertaken by an independent agency
such as SDRP.
4.5 Responsibility for the preparation and
presentation of cases is one of the more difficult issues to address
when considering the preferred framework. At this stage, we retain
an open mind on what is the best way of approaching it. However,
we agree that the tribunal and presentation functions must be
kept separate and that SDRP, as currently constituted, could not
itself act as the prosecutor. That said, if other options are
ruled out it is certainly conceivable that, subject to appropriate
safeguards being put in place to guarantee the proper separation
of roles, SDRP could maintain a register of case presenters for
use by the sports governing bodies in the same way as a register
of panel members.
4.6 We make one further observation on a
matter associated with the issue of the establishment of an independent
anti-doping agency. In debating this issue reference has on occasion
been made to the need for an independent hearings agency when
discussing the possibility of an independent anti-doping agency.
An absolute distinction must be drawn between the two functions
which are quite separate. Indeed the operation of the hearings
body should be kept apart from and should not be directly accountable
to the National Anti-Doping Organisation, whether it is housed
within UK Sport or is established as an independent anti-doping
agency. This view appears to be supported by one of the conclusions
set out in paragraph 6.15 of the PMP report.
5. THE FUTURE
ROLE OF
SDRP
5.1 We have also been invited to give our
views on SDRP's possible future role in the area of anti-doping.
In principle, SDRP expects to offer a full range of services in
this area under any revised framework as part of our broader dispute
resolution remit within the sports sector. In that context we
would emphasise our firm belief that the independent dispute resolution
framework for anti-doping should form an integral, albeit specialist,
part of the broader national sports dispute resolution service
in much the same way as CAS performs this role at the international
level.
5.2 SDRP's role could include the appointment
of independent suitably qualified individuals and tribunals to
undertake each stage of the process (with the exception of International-Level
Athlete appeals which are reserved exclusively to CAS) and the
administration of the same, as required. It is anticipated that
this would be achieved through a combination of formal reference
to SDRP under its own procedures as the designated National Tribunal
Service or by SDRP providing independent services to internal
national governing body tribunals, for example through the administration
of an accredited national register of panel members. (It may also
be of interest to the Committee to know that SDRP has had preliminary
discussions with CAS with a view to SDRP providing the administration
for CAS appeals heard in the UK.)
5.3 The precise basis on which this service
might operate has still to be determined and an appropriate allocation
of roles established as between SDRP, UK Sport/NADO, and the sports
governing bodies. The SDRP project to which we have referred is
intended as a first important step in moving matters forward and
establishing an appropriate consensus of views from all stakeholders.
5.4 As the body established by Sport to
protect its interests in the field of dispute resolution we do
not see it as our objective to try and take over every aspect
of the process, irrespective of whether this is merited or not.
Whilst remaining wholly independent, we seek to work in partnership
with all stakeholders in ensuring that a truly effective, fair
and robust framework evolves. In assessing the available options
we include the following amongst the key criteria: compliance
with the WADA Code; compatibility with international federation
rules; adherence to UK Sport Anti-Doping policy; stakeholder preference
and confidence; uniformity and consistency of approach; limiting
the likelihood of subsequent challenge; speed; practicality; and
cost.
5.5 The issue of cost is a difficult and
sensitive one where competing priorities have to be balanced.
Ultimately, it is for Government, the Sports Councils and the
sports governing bodies to determine the level of investment to
be made in putting in place an effective framework and making
best use of SDRP, as appropriate.
5.6 For its part, SDRP believes that effective
dispute resolution planning and practice forms a natural and integral
part of the modernisation and best practice agenda. The early
and final resolution of disputes, and a reduction in their impact
and incidence, offers the genuine prospect of a significant return
on the investment that the stakeholders in sport choose to make.
19 April 2004
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