The Court case taken by retired Insurance official, Tom Talbot against his golf club, the Hermitage and the Golfing Union of Ireland (GUI) for allegedly defaming him for lowering his handicap has lasted 21 days in the High Court before Judge Herbert.
Estimated legal costs for the Hermitage are €200,000.00 and the GUI faces a legal bill of close to €300,000.00. That’s close on €500,000.00 in legal costs to defend the action taken by Talbot, who appears for himself as a ‘lay litigant’.
Win, lose or draw the Hermitage golf club and the GUI will suffer a hemorrhaging balance sheet and are likely to do so for years to come. The reason for this is simple: – even if the club and GUI win the case and get an Order compelling Talbot to pay their costs, they may be reluctant to enforce that judgment against a pensioner for fear of adverse publicity or Talbot may not have the means to satisfy that colossal sum of money.
Just how then did it get to this? Surely there is a better way, a quicker, more amicable way, a less: dramatic; high stakes and high costs way of resolving this type of dispute within a club structure. Well, there is!
For years members of sports governing bodies and clubs have signed up to alternative means than the High Court of resolving sports disputes by way of internal complaints and disciplinary proceedings, mediation or arbitration.
Every club of whatever sporting code should take responsibility and work in an ADR clause into its constitution or Memorandum and Articles of Association. That is to say that if a dispute arises between members of a club or between a member and their club, then there should be an internal infrastructure to resolve such a dispute ’within the family’.
This works on the following basis: –
(i) The disputing parties should be obliged to refer appropriate disputes to mediation in the first instance. Mediation is a process whereby a third party neutral person facilitates disputing parties to a negotiated settlement. Mediation gives great flexibility to the type of redress that an aggrieved party can achieve. E.g. recognition or an apology.
(ii) If mediation is not successful in resolving the dispute then the parties should be obliged to refer the dispute to an internal complaints or disciplinary committee to decide on the matter. This hearings committee will convene an oral hearing and will issue a written decision based on the internal rules and the evidence put before it at hearing.
(iii) The decision of the internal hearings committee can be appealed to an internal appeals committee.
(iv) If the dispute has not been resolved at this stage then the last resort for either party is to challenge the legality of the decision made or procedure used before an arbitrator. Arbitration is a substitute for the High Court. However the arbitrator is a specialist judge who is familiar with the subject matter. Unlike the High Court arbitration is private and so adverse publicity does not arise. The arbitrator’s decision is final and binding unlike a decision of the High Court which can be appealed to the Supreme Court. Arbitration of domestic sports disputes is significantly less costly than High Court actions.
The big three sports governing bodies in Ireland (GAA, IRFU, FAI) have adopted arbitration as the default position for challenging internal decisions. More recently Just Sport Ireland (JSI), a sports specific dispute resolution body was established to administer disputes in the sports world by skilled sports mediators and arbitrators. JSI has been adopted by the more progressive sports bodies such as Swim Ireland, Irish Hockey, Gymnastics Ireland to name a few.
What is frustrating is the relatively slow take up by other sports governing bodies of a simple Alternative Dispute Resolution (ADR) clause which would ensure that no disputes ever find their way into the High Court. The High Court has long since recognised that where parties contract to use a different means of resolving disputes than the High Court then the High Court cannot interfere with that agreement. It is incredible that such clauses are not mandatory and conditional upon ongoing funding. The money allocated to Sport should not be wasted on lawyers.
I have continually seen in my short career low end disputes of a relatively petty nature escalate and mushroom into eye wateringly expensive suits in the High Court. The chief reason why this occurs is the absence of proper structures in sports bodies to resolve the dispute and to do so early on in the life of the dispute.
That said there are certain types of disputes which are the subject matter of pure disciplinary sanction, which cannot be negotiated or mediated. Instead they must be decided on and sanctions must be imposed. However those decisions that cannot be negotiated should nonetheless never end up in the High Court.
Whatever the outcome of ‘Handicapgate’ it would be remiss of the GUI and the Hermitage Club not to conduct a root and branch risk audit of their internal governance documents with a heavy emphasis on the dispute resolution process to ensure that no High Court action never occurs on their watch again.
Any readers of this article involved in sports administration should check themselves if they are thinking ‘this could never happen to us’. It can, it does and it may. The key ingredients are (i) an aggrieved principled person and (ii) a haphazard dispute resolution process. The prevention is so simple, so quick and so utterly cost effective. It’s a no brainer.
*Larry Fenelon is a partner in Leman Solicitors, sports law specialists located at 8 – 34 Percy Place, Dublin 4.