Mediation Of Disputes In Equestrian Sports: An English Perspective

Olympic equestrian sports comprise: showjumping; dressage:and eventing (and their Paralympic equivalents). With the exception only of the modem pentathlon, equestrian sports are unlike any other Olympic Sport because of one thing: they are the only Olympic Sports which involve an animal – the horse.

These equine athletes are rare and gifted and, in that way, very much like their human counterparts. They are elite athletes. But unlike their counterpart elite human athletes, there is an open market for their international trade and they often have a substantial capital value for their owner. The demand for these animals is high as countries seek to establish winning teams and individuals want to ride the best horses. Those with serious Olympic potential and required for national teams fetch significant prices, reaching six-figure sums.

Never before has Britain enjoyed such a profile in these sports on the world stage. At the 2012 London Olympics, in the showjumping, the team won gold, which was the first showjumping gold medal to be won by Britain in sixty years. British showjumpers hold the number one and two spots in the Rolex World Rankings, the British Team won the 2013 European Championships, and two members won the individual European silver and bronze medals. In London, the British Dressage Riders won team gold and also individual gold and individual bronze medals. The horse known as Valegro not only won the Olympic individual and team gold medals but dominated the European Championships, with gold medals in both the special and the freestyle Grand Prix and a team bronze medal to boot. He holds every international honour possible in the world of dressage, including the world record for the highest-ever score. To add to the Olympic occasion, the British Eventing Team was graced with a Royal presence and a selection of keen Royal Family members among its supporters. Zara Phillips followed in the footsteps of her mother, Princess Anne (The Princess Royal), and with her team mates she secured the team silver medals.

Glory days, indeed. But what happens if, in the middle of the victory over adversity, the rider, the horse, the horse’s owner, or all of them become embroiled in a dispute? In this era of sport and sporting participants having a vastly increased commercial value, and all the pressures which accompany this, these glory days are all too often interrupted by the misery of a court case.

Equestrian Sports Disputes

Of the equine medal winners at the Olympic Games in London, there have been at least three – two team gold medallists and one silver individual medallist – who have become embroiled in court battles with much attendant publicity and disruption. In the past, equally high-profile regulatory infractions have also beset equestrian sports. Doping has been a most contentious and publicly damaging problem. In Athens, Cian O’Connor was stripped of his individual gold medal with much intrigue, controversy and legal process to follow and, later in Beijing, four of the horses who qualified for the final showjumping round were disqualified – all having tested positive for the same banned substance.

Unlike many other athletes, riders can be fortunate in enjoying very long careers. The Canadian Ian Miller is an Olympic silver medallist and has twice won The World Cup. London was his eleventh Olympic Games. He was ninth in the individual event, and the Canadian Team was fifth. He has his sights firmly fixed on Rio when he will be 69 years old. The British Olympic Team members included Peter Charles, then aged 52 at his third Olympics, and Nick Skelton, then aged 54 and attending his sixth Olympic Games. Hiroshi Hoketsu rode for Japan in his first Olympics in 1964 and in the dressage at The London Games at the age of 71!

However, riders’ livelihoods are often precariously dependent on an uninterrupted life of high-level and successful competition. Riders will often support their competitive careers with commercial ventures, such as training and trading horses. The horses’ careers can quickly be derailed by a period of forced absence from competition, and their value reduced. The sports must also respect the interests of third-party owners and their invaluable support. Owners are required to invest substantial amounts of money in equestrian sports, which seldom offer prize money sufficient to meet the expenses, and which generally enjoy relatively modest ancillary income streams from sources such as sponsorship, broadcasting and advertising, while resisting the temptation to realise their horse’s value while they can.

As in any sport, there is aspiration. In equestrian sport, however, this is complicated by the enigma of the horse-and-rider combination and the possibility of purchasing success by purchasing horse power. Horses, however, are not machines, and there is no science to explain why one horse excels with one rider and fails dismally with another. If that is because of one rider being more talented than another, or whatever other reason there may be, as an owner, the fact that you have just lost a substantial amount of money by backing the “wrong horse” is a very bitter pill to swallow. Add to this, endless weeks of transporting horses, riders and grooms around the world to compete and all the other pressures encountered by elite athletes in top-level sports and you have a recipe for many disputes, between parties who are seldom suited to, or well served by, conventional adversarial methods of resolution.

In any commercial world, conventional dispute resolution is time-consuming and a most costly experience in direct and indirect ways, not least emotionally. Sports thrive on emotions, but the same emotions replicated in an adversarial dispute forum can catastrophically cause the dispute to spiral out of control. Furthermore, in the world of sport, time lost by these disputes is often critical, and this is never more so than in equestrian sports where a dispute often affects whether a horse is permitted to continue to compete.

Mediation

Mediation is one of a number of processes by which disputes may be resolved without taking a case to court, or, for that matter, without having a sporting regulatory tribunal determine the outcome. It is non-adjudicative and the mediator is there as a neutral person, to assist the parties to find a solution and to move forwards. It is one of the so-called Alternative Dispute Resolution or “ADR” options now much encouraged in England by the judiciary. Other ADR options include arbitration, negotiation, early neutral evaluation, and conciliation.

Mediation is finding favour and success with practitioners and parties alike. It enables parties to a dispute to remain in control of the processes and the attendant costs required to find a solution. It can be immediate; it is also flexible even though conducted within a safe and confidential structure. Mediators use skills they have learned and been trained to use, to help the parties find a solution to their past problems and move forwards. The parties are in control of the resolution: they can be creative and find solutions which can go far and beyond any order a court could make in meeting their needs, rather than their rights, and thereby potentially preserving relationships, which are generally destroyed irreparably by the civil court process.

Following recent changes to the procedural rules in the English civil court, the courts’ powers to compel consideration of ADR stop just short of placing a mandatory obligation upon the parties to embark upon ADR. The Court of Appeal has gone so far as to approve an order by a lower court in which the parties were directed to consider alternative dispute resolution.¹ Not all cases can or should be resolved without adjudication, but, just as adjudication cannot be ruled out, ADR methods should not be ruled out either.

The English courts have adopted the approach that it will call upon a party, which considers a case is unsuitable for ADR, to explain on oath why it takes that position, with the explicit sanction that it will be the subject of an adverse costs order if the refusal is found to be unreasonable. That said, for parties to find resolutions they need to be willing and engaged participants in the process and, in the UK, it is a voluntary process. Records indicate that the success rate of finding a solution for those who are willing to embark upon the process is very high.

Times have changed since Princess Anne won a European gold medal with the British Eventing Team. With international broadcasting and ancillary income streams, commerce in sport has burgeoned and the trend of increased commerce in sport looks set to continue. As a result, disputes in the sporting world are just as varied as they are in any other business, although in the UK these disputes broadly fall into two categories: commercial disputes, which will generally but not exclusively be determined in the civil court, and regulatory disputes, which will be resolved by the relevant governing bodies.² Increasingly, commercial agreements include terms by which the parties pre-empt a future disagreement by specifying an agreed method of dispute resolution. There are a number of cases recording the courts’ willingness to uphold these provisions.³ Written agreements are a scarce commodity in the commercial world of equestrian sports, but their absence need not prevent parties contacting an ADR provider, such as CEDR, which will assist them to decide if ADR is suitable and which particular form is best. A provider will also generally be happy to assist in making all the necessary arrangements, including assisting the parties to sign an appropriate ADR agreement.

The Court of Arbitration for Sport (CAS) was set up in 1984. When it was first set up, the International Olympic Committee (IOC) comprised the CAS members, and the IOC funded its operating costs. The Federation Equestre Internationale (FEI), which is the international governing body of equestrian sports, was the first body to adopt the CAS model arbitration clause in its regulations and so led the way for the governing bodies to have the CAS resolve disputes arising from their regulatory decisions. It was also the equestrian world that led the way in challenging (and so promoting) the CAS’ independence from the IOC.⁴

The CAS will adjudicate upon any dispute directly or indirectly relating to sport, and so its arbitration process is one possible ADR route. It will adjudicate upon sports issues including doping, disciplinary and eligibility matters, and it will also adjudicate on commercial disputes. Any person, company or body can, if they agree in writing with their opponent, take their dispute to the CAS. The CAS arbitration process is widely used in sport worldwide; however, it is, like the courts, an adversarial process.

The CAS has also more recently created and offered a mediation process for both commercial disputes and regulatory disputes. It recommends ‘med-arb’ whereby the parties agree to mediate on terms whereby if, within a prescribed period of their commencing mediation, the terms are not agreed, then the remaining issues will be referred for settlement by arbitration. The CAS, however, declines to offer these services for disputes related to disciplinary matters such as doping issues, match fixing and corruption.

The English governing bodies appear to share the CAS’ reservation about mediating disciplinary matters. This perhaps stems from a perception of conflict were they to “bargain” on sanctions. Even though they are not strictly bound to follow earlier decisions and they generally have broad discretions (though perhaps less so under WADA), they must act consistently, fairly and with transparency. By following the approach of the CAS, however, they also exclude the possibility of resolving by agreement the many other facets of disagreement there may be in a disciplinary case and which need to be resolved before a decision can be made on sanction. There is, for example, often disagreement upon the facts which surround the alleged offence; there may also be points of legal construction of the meaning and effect of the rules; and there may even be broader legal issues such as human rights or European legislation to be tackled, before a tribunal can reach its decision and consider the appropriate level of sanction.

Governing bodies, of course, are charged with the very difficult exercise of ensuring the proper governance of their sports while at the same time deploying their resources for the greatest benefit of their members, whose interests in the sport are diverse and range from grass-roots riders to world champions. Given the costs involved for all, it may very well be that, rather than a blanket exclusion akin to the CAS mediation process exclusion for disciplinary matters, governing bodies and their members could benefit by a process of ‘med-arb’ with mediation of all aspects of disciplinary matters – excluding only sanction, but coupled with an adversarial arbitration for the sanction to follow immediately after the mediation or in the event that it fails. Indeed, there seems to be no obvious reason why the CAS, which in any event champions the ‘med-arb’ process, could not adopt this approach too.

ADR is not yet commonly used in disputes related to equestrian sports in the UK, though it is on the increase in commercial cases through the court-led increase in ADR in civil disputes generally. The central governing body for horse sports in the UK is the British Equestrian Federation (BEF). It is affiliated to the FEI. The BEF website notes its role as being to provide leadership, vision and purpose in steering the direction of equestrianism. It represents the interests of 4.2 million riders through 18 independent member bodies. It recites that, as a national governing body, it works on policy issues with the FEI and co-ordinates the British Sports Law’s (ed Jack Anderson) 2013 TMC Asser Press, The Hague, The Netherlands, at pp. 65-74 calendar of international events, disciplinary procedures, and doping control, and oversees the training of British international judges, stewards, vets and course designers. It is also responsible for distributing government funding to equestrian sports. Of the 18 independent body members, British Show Jumping, British Dressage, and British Eventing regulate those disciplines at a national level. Each of these bodies has its own regulations and each, in turn, must answer to its members.

In the rules of the abovementioned UK member federations, just as the FEI refers to the CAS as its ultimate appellate body in respect of its regulatory decisions, the BEF and Sport Resolutions are noted as the appellate bodies in respect of the member federations’ and, in turn, the BEF’s decisions. Like the CAS, Sport Resolutions UK not only provides this appellate function but also offers ADR services and advice, including a mediation service for commercial and regulatory disputes. It is not clear whether Sport Resolutions UK excludes from that service mediation for disciplinary matters, including doping issues, in the same way as the CAS. However, none of the regulations make any obvious reference to the availability of the mediation services which each of those bodies provides.

Conclusions

There would be wide-ranging potential benefits to all in equestrian sports if the options for resolution of commercial disputes and regulatory issues, potentially including disciplinary matters, were to be broadened. It would be a progressive step for the governing bodies to make a concerted effort to educate their members as to the availability and suitability of ADR, including mediation, and to consider its possibilities in respect of regulatory issues, including disciplinary cases and commercial disputes connected to equestrian sports which are otherwise heading for the court. They could follow the trend of the English court system, and for that matter the CAS example, by incorporating suitable ADR clauses into their regulations. They might also provide their members with examples of model ADR clauses for inclusion in commercial contracts and suitable suggestions for service providers.

Governing bodies are missing an opportunity to assist their members, from the grass-roots participants to their top athletes who fly the flag for their sports, if they do not embrace such reforms into their regulations and educate their members as to the availability and effectiveness of mediation and other ADR options.

It is a brave new world in sport and to make the best of the opportunities it offers, brave new approaches to the myriad of disputes, which seem inevitably to accompany the changing times in which we live, must be considered. To miss out on mediation is to miss out on an opportunity for equestrian sports.