Alternative Dispute Resolution in the Olympics

Olympic athletes don’t just compete on the track, pitch, pool, or ski slope—they also can compete in front of a mediator, arbitrator, or judge.

On Tuesday, our club was honored to host U.S. Olympic Committee (USOC) Athlete Ombudsman John Ruger in conjunction with the ILR LR/ICL 9800 Faculty Workshop Series. You can find a few pictures here. For nearly two hours, we discussed his job, the USOC, and Alternative Dispute Resolution (ADR) processes.

Since Ruger was appointed in 1999, his responsibilities include providing independent advice to athletes, mediating disputes between athletes and Olympic organizations, and assisting in the development and implementation of policies. A former Olympian himself in biathlon, he uses his experience as an athlete, coach, and administrator (as well as a bachelor’s degree in economics and an Executive Masters in Sports Organization Management) to understand and communicate relevant issues.

American Olympic athletes fall under unique legal protections. In the 1970s, when the NCAA and AAU were fighting each other in the courts over amateur athletics, the U.S. government did not want these organizations harming our country’s Olympic medal goals. As such, former Alaska Senator Ted Stevens sponsored the 1978 Olympic and Amateur Sports Act to charter and grant monopoly status to the USOC and requirements for National Governing Bodies (NGB). Following this act, amateurism was redefined to allow athletes who received professional pay to play in the Olympics (with the exception of boxing, because of their respective NGB). When the modern Olympics were founded at the end 19^th century with the noble intentions of global sports competition, the amateurism regulations also prevented blue-collar athletes from competing, since the working-class were the ones who needed to receive money to train and compete at the highest level. Nowadays, with that relevance outdated, the U.S. simply wants to find athletes who can bring home the medals.

In 1998, revisions to the Act created the USOC Athlete Ombudsman position and the Athletes’ Advisory Council (for which Chairman Matt Van Houten, an Olympian in Handball and Ithaca native, was also in attendance). Soccer is the only Olympic sport to be covered by a Collective Bargaining Agreement, and so in the absence of union protections, these functions act as representatives, advisors, and occasionally counsel to the athletes. Sports executives have even described the council as the “conscience of the USOC.”

With a duty to represent all athletes, the position can be challenging. Ruger sometimes has to advise athletes who are competing with each other for a single position on a team, which he compared to playing the role of divorce lawyer for both the husband and the wife. Truly, any “win-win” outcomes he facilitates from those situations must be impressive.

Working with athletes also presents an interesting ADR challenge. By the very nature of their professions and achievements, athletes are confident and expect to win. However, the circumstances that lead to them contacting Ruger—such as the possibility of being sent home the night before your gold medal competition—nearly always bring athletes down to earth and leads to respectful interactions. Additionally, personalities—and resulting ADR tactics—can vary by sport. In a team-based sport such as ice hockey, a player who feels he or she has been wronged is less likely to pursue a confrontational resolution strategy (such as arbitration) if the process is going to be drawn-out and potentially detrimental to the team’s morale and objectives. However, for an individual sport such as skiing, athletes may be more likely to act in their own self-interests first.

These differences between individual and team-based sports also extend to the nature of the disputes themselves, specifically, trials. Olympic trials are one of the most common types of disputes Ruger faces, as the issue of who makes the team and who doesn’t is often contested. In a way, these arbitrations can be compared to MLB Salary arbitration, as a third-party is called upon to essentially evaluate player performance. The standards for performance are derived from the nature of the sport itself. Swimming is simple, as the top two times go to the Olympics, with no further considerations. Judging performance in soccer, for example, is much more subjective, as player instincts and leadership must be weighed in combination with the physical measurables such as speed, strength, and agility.

The other frequent USOC dispute-type is constantly under media scrutiny: doping. The realities of the situation are such that every athlete has to tell the World Anti-Doping Agency (WADA) the exact address of the physical location they will be for one hour for every single day of the year, in order to have a truly random drug test. MLB and the MLB Players Association have made significant improvements in their PED testing policies, but certainly nothing approaching this level of thoroughness. At the same time, WADA’s policies are such that approximately 50% of doping violations are unintentional. Such athletes generally receive more lenient sentences, yet if they were to challenge the case in arbitration, the arbitrator can only rule on whether they violated the rule or not, and not whether the rule (the substance on the banned list) was unfair in the first place. The saddest example of this situation may have been Zach Lund, the top medal contender for skeleton in the 2006 games, who was banned after his hair-replacement was added to WADA’s list, even though it had no performance-enhancing properties.

It was removed after the games, but Lund cannot get those games (and his medal opportunity) back. The NFL, NBA, MLB, and NHL all bargain with their respective unions over drug policy and implementation, but the Olympics, without an athlete union, rely exclusively on WADA’s policies.

Three additional quick comments:

1. The formal USOC dispute resolution system is a three-step process, starting at the NGB level before the USOC investigates and potentially mediates. The American Arbitration Association is called upon as a last resort, but of course Ruger’s job is to resolve disputes at the lowest levels possible, first. His familiarity with the recurring issues makes him a valuable asset for suggesting policy changes at the NGB and USOC level, even though he has no legal authority to dictate procedures.

2. Ruger identified swimming and skiing as model NGB examples. What makes these successful? Beyond the popularity of these respective sports, these organizations have a strong leader, a board that provides appropriate checks-and-balances, and staff that is professional and motivated. This sounds like a universal formula for organizational effectiveness, whether in business, higher education, or sports.

3. The USOC is a relatively unique organization compared to other countries, and the U.S. was the first country to create the position of athlete ombudsman (Britain and Canada have since followed to a certain extent). Let’s hope effective ADR can bring us the gold.

Three potential questions for further discussion:

1. In what ways are dispute resolution involving athletes similar to and different than dispute resolution in the workplace?

2. What value does effective ADR provide to the USOC?

3. Should the Olympics negotiate with their athletes over drug policy as other pro sports leagues do? Or should they be held to a higher standard to enforce themselves?