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4 ESLJ 1 (2006-2007)

handle is hein.journals/entersport4 and id is 1 raw text is: ISSN 1748-944X

,With an increasing number of sport disputes being heard by way
Refeirees                              of arbitration, some have called it a 'growth industry. Much has
LnsTo Ebeen written on the relative benefits of sport-specific arbitration
processes as compared to the litigation process but few
contributions have probed more deeply to address the function
and design of such a process. The purpose of this paper is to examine how certain prescribed rules of an
arbitration process can serve as instruments of sport policy.
Three rules of the arbitration process, each of which goes beyond a basic rule of procedure operation and has
important policy implications for the sport organisation and sport in general, are discussed. The three rules
relate to the proper scope of review of the adjudicator, the standard of review to be used in defining an error
and the scope of authority of the adjudicator in crafting a remedy. Each of the rules can affect not just the
outcome of a decision, but also the role decision-makers play within the sport organisation.
The underlying premise of this paper is the view that the arbitration process and, more specifically, the rules of
arbitration should be designed to support and to facilitate the desired function of independent sport arbitration.
What that function is must be considered in light of the sport organisation's own governance and policy-making
role. Policy-based rules of procedure such as the three discussed here, can either support that role or make
incursions into the independent functioning of the sport organisation.
Sport - Sports Law - Policy - Arbitration - Canada
An increasing number of sport disputes are being dealt with through private systems of justice. These  1
systems have the potential to offer alternative methods that are often more responsive and more effective
than litigation. In the sport context, arbitration has emerged as the dominant method of dispute
resolution in several countries including the United States, the United Kingdom, New Zealand, Australia,
Japan, China and Canada, as well as internationally through the international Court of Arbitration for
Sport (CAS). James Nafziger (2001, p. 357) calls sport arbitration a 'growth industry' and views the
expanded role of CAS as one of the most important developments in sports law in the past several years.
The advantages of sport-specific independent arbitration are well established and documented elsewhere  2
(Haslip, 2001; Hayes, 2004; McLaren, 1998). The underlying premise of this paper is that the arbitration
process and, more specifically, the rules of arbitration should be designed to support, and indeed,
facilitate the desired function of independent arbitration. This paper discusses the intersection between
certain rules of the arbitration mechanism and the underlying policy rationale for such a mechanism in the
first place. Specifically, three questions will be asked and, hopefully, a start at carving out answers will be
Question one: what is the appropriate scope of review of a decision within the context of an
independent arbitration of a sport dispute? In other words, how broad are the grounds upon which
an original decision should be reviewed upon arbitration?
Question two: what standard of review should be applied to such a hearing - what is the threshold
for a finding that an error has been made by the original decision-maker?
Question three, what scope of authority should an arbitrator have in applying a remedy where an


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