Sunday, August 26, 2007

Arbitration Policymaking?

In a comment to a post on Trust But Verify, bill writes:
Comments about how long the arbitrators are taking keep appearing here from a variety of sources. But, when you consider the daunting task the arbitrators are facing, their protracted silence is quite understandable. Their options are to:

1. Find in Floyd's favor while minimizing the damage to the anti-doping establishment or

2. Return an adverse finding against Floyd that overcomes (or ignores) the substantial evidentiary (sic) record of errors, omissions, and outright fabrications at multiple levels within the anti-doping establishment.

Clearly a Hobson's Choice if ever there was one.

I tend to agree that the arbitrators hearing the Floyd Landis case have a difficult task. There's an underlying assumption that the arbs are considering the effect of their decision on not only the parties (USADA and Floyd), but on ProCycling, the anti-doping movement, and professional and amateur athletics as well. They may well be, but is this their job?

Public policy choices by courts of law are the cornerstone of the common law heritage we enjoy in the United States, and indeed, most countries connected to the British Commonwealth. Judges are expected to form their own judicial philosophy, be it ultra-restrained or completely activist, or somewhere in between. Many liken judicial philosophy to "conservative" of "liberal" views, but this isn't wholly accurate. What is clear is that many judges lean toward a view that public policy choices are the province of the legislatures, or other elected representatives of the republic. Many others see the role of the judiciary as an important representation of the people in a basic sense, protecting the rights of the minority and serving the changing needs of society. And of course, there's everything in between, with a huge standard deviation in the analysis - many judges also exhibit varying forms depending on the equities of a case before them. They "swing both ways" as it were. When faced with deciding a case, activist judges may feel that the law they make should reflect the needs of the people, while others are much more restrained, feeling this is a change to be affected by legislatures, but not by the courts.

But arbitration proceedings are not "courts of law." Arbitrations are creatures of contract. People agree to submit their disputes under some very specific rules to a private party decision maker. While some disputes are required by law to be submitted to arbitration, the vast majority of arbitration proceedings are conducted by the "consent" of the parties. Consent is very much a pliable term - many contracts that contain arbitration clauses are hardly negotiable on this issue. Try obtaining a credit card by striking the mandatory binding arbitration clause in the application!

It is likely the arbitration proceeding involving USADA and Floyd Landis is a creature of the contract that Floyd agreed to when he applied for a racing license through USA Cycling. This is required to participate in the Olympic sport of cycling, as USA Cycling is the US National Governing Body for the sport. All this was created by federal statute (Congress) and the rules of the IOC.

With all this as a background, it occurs to me that it is something of a Leap of Faith to assume that we should expect or allow arbitration proceedings to set public policy in a way that courts of law do. Arbitrators, either in a panel or solo, don't need to, nor do they make rulings with stare decisis value - they aren't bound by binding precedent. Indeed, if the arbitrators make an error, the appeal to the Court for Arbitration of Sport (CAS) is a proceeding de novo - they start over. This being the case, shouldn't arbitration panels only answer the very specific question presented them: who should prevail *in this case.* Arbitrators are not elected, nor are they subject to judicial censure and/or impeachment. Indeed, they are "hired guns" in that they depend on selection by parties with a dispute for future employment. Given that the anti-doping movement has many, many more resources than athletes, either collectively or individually, isn't it possible that arbitrators may wish to preserve their employability by venturing into making public policy that suits the needs of their most likely employer? Perhaps. I do think arbitrators are bound by a professional code of ethics, but given that ethics can be a pliable thing, I'm unsure of the "checks and balances" in place. To allow privately employed individuals to make policy, even policy that reflects our entertainment culture, is wrong. They answer to no one, are not accountable for their mistakes or lack of judgment. There is a significant possibility for unethical behavior and double-dealing. We can do better.

When amateur athletics really were amateur, maybe this made sense. The stakes now are much higher. We've come to a point where entire sports are at risk, not just athletes' reputations, sponsorships, and the future of an entire organized sport. Some sports have chosen to simply not go down this path. Non-Olympic professional sports have their own respective drug and substance abuse adjudicative procedures, established in cooperation with the athletes' respective labor unions. Some pro sports that are Olympic status (e.g. the NHL) have both systems.

Perhaps a solution is to replace the arbitration proceedings with a level of adjudication that reflects a much more modern approach. In a perfect world, we'd simply employ our courts to resolve our disputes. But judicial resources are scarce, and fairly, there are other more pressing matters in society. A reasonable alternative should be a quasi-judicial administrative proceeding, with rights of appeal to the federal courts.

This would require action by the U.S. Congress for athletes answerable to the US NGBs. To be effective elsewhere in the world, it would have to an effort by the IOC. The IOC's influence in the various nation states' legal systems is certainly questionable, but the IOC could require NGBs to provide a system of dispute resolution that requires due process and impartiality of decision makers.

Would this cost money to implement? Plenty. As it stands now, there is a significant disparity in the funding resources for the anti-doping movement and the athletes. This already puts athletes at a severe disadvantage. When fighting city hall, this is not unusual, but in the US, a potential litigant in an government agency dispute with the US Government potentially can recover some costs through the Equal Access to Justice Act (EAJA.)

Who benefits from clean sport, without corruptive influence? Well...we all do. Who can best bear the costs of an improved judicially centered dispute resolution system for athletes? Perhaps the sport organizations that have the most to gain: the leagues, teams, promoters. The IOC, UCI, ASO, USOC, USA name a few.

Or do they have the most to gain? Rolling over athletes makes the problem go away, and no one is the wiser. But when the system in place allows changes to be made in the middle of the game (I wonder just what kind of race we would have seen if Michael Rasmussen hadn't started Le Tour, as was seemingly required under "The Rules") people (particularly those footing the bill) do become wiser. And they wonder just what kind of monkey we were sold to watch.

An important responsibility of government is protection of the vulnerable. The viability of an entire sport is at risk and vulnerable - we all have a vested interest in preserving clean sport, with clean athletes free from corrupt influence. The policy choices must be made answerable to the people, not by "hired guns" to save money for the already wealthy.

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