So What Is The American Arbitration Association...

[rack]

and how did they end up with this mess? I tried googling it, but its website doesn't seem to like me and I couldn't get into it to find out anything about it.

If I knew more about what it was, I might understand why they ruled against Kyoko Ina.

Does anyone here know anything about it?:?:

[Reckless]

The American Arbitration Association is an organization that provides arbitrators (basically, private judges) to resolve civil disputes. Arbitrators typically get paid by the hour and are often retired judges. Basically, an arbitration is a mini-trial in which both sides can present their case and get a ruling from the arbitrator much faster and more inexpensively than through a judicial action. An arbitration also normally is final, since most state and federal law will not overrule an arbitrator even if his or her ruling is wrong on the law or facts. That last point can be both a benefit and detriment of using arbitration.

AAA normally gets involved in resolving cases because people sign contracts or agree to rules that contain agreements to arbitrate before an arbitrator from the AAA. The organization tends to get named (i.e., "the matter will be submitted to an arbitrator from the American Arbitration Association") by default since it's easier to specify the AAA, which has rules governing its procedures, than to try to create rules after a dispute develops.

Hope that helps.

[rack]

It certainly does help. Thank you.

[conc]

One additional thought... my understanding is that, if possible, arbitration primarily attempts to get the two parties to come to some sort of settlement which both parties can agree upon. Only if no agreement can be reached does the arbitrator issue a "third party" ruling.

[AxelAnnie22]

I would like to add that there are two types of arbitration: Binding and Non-Binding. When you sign a contract you often agree to (or don't agree to) arbitration. And, for the most part, an insurance company, for example, would like you to agree to Binding Arbitration. Non-binding Arbitration can be taken to trial, because it is non-binding (duh!). Binding Arb., leaves the decision in the hands of a professional (either a retired judge or an attorney, btw), and eliminates the "emotional" component of a jury. Non-binding, gives you an opportunity to get your case out there, and see what the other guy has. Also, the Arbitrator will let both parties know that they really should settle, etc.

This entire thing, as told by Ina, makes no sense. It sounds like the Arbitration did not go in her favor. There has got to be something we don't know - or a lot of things we don't know.

[coco]

I agree, you would think that just by being uncredentialed and no one answering the 24 hour hotline, the USDAA failed to live up to their end of the agreement and the whole thing is a do over.

However, it all depends on what she signed ORIGINALLY. Specifically, what did she and every other athlete agree to? Perhaps by not objecting to the lack of credentials at the time, she waived her right to object to that ever.

It's entirely possible that there was no decision on the actual merits, and the AAA simply went by some black letter principle (if refusal form is signed it's a refusal). Otherwise, yes, it sounds like something is missing.

I suspect that this wasn't decided on the facts, but rather on procedural grounds. Arbitration is a very crude means of adjudication and it fails miserably when the situation is unique like this.

Since Ina let the uncredentialed person in, the issue of credentials is really only relevant to the information the tester gave ina, and ina's subsequent reliance on it. The woman appears to not have been qualified to tell her what to do when she couldn't produce a sample. Sigh....

[Reckless]

I would add a few things.

First, arbitration before the AAA typically is binding arbitration. Most non-binding arbitration happens when a court orders it before trial. AAA arbitration can be extremely expensive so people generally require it to be binding. In sports, that's especially true since the goal of using arbitration is to resolve things very quickly without involving the courts. If anyone here remembers the fights before the last few Olympics over wrestling and track and field, the court battles turned into major embarrassments for the sports.

Second, I also suspect that the decision was made on fairly technical grounds. One thing that stands out is that Kyoko said she the person told her that signing the refusal form would result in a two-year ban. In light of that, the claim that she wouldn't have signed if she had not known it was a four-year to life ban might ring hollow to an arbitrator who doesn't really recognize the relevant importance of the Olympics to the skating world. While we understand that two years out of amateur competition with no affect the Olympics is not the end of the world for someone like Kyoko, an arbitrator might assume that since Kyoko knew a ban might result from signing the refusal form, the length of the ban really didn't change things. I also seriously doubt that the lack of credentials would have made a difference to the arbitrator. Since Kyoko didn't know about that, she couldn't have relied on any misrepresentation.

[coco]

She certainly has reliance damages from relying on that misinformation from the tester. That could get her far in a civil suit, but courts rarely mess w/arbitration results. If she can't get to/or loses at the Court of Arb for Sports, she's pretty much stuck. Hopefully the system will be amended for situations like this. Although I saw an article on this in the Sydney Morning Herald, I haven't seen major coverage in CNNSI or ESPN. That's too bad. This story needs to get more play for changes to ever take place.

[Reckless]

I'm not so sure she could ever prove any reliance damages. She would need to show some type of economic loss from the fraud. But she admits she knew she might lose two years of eligibility if she signed the refusal form so she couldn't have believed she wouldn't lose any eligibility. Instead, she would have to show some economic loss from what she might have done more than two years after being suspended. Most likely, that would require her to prove that in two years time, she and Jason would have had success in competition to either provide some economic gain directly (e.g., money from winning) or indirectly (e.g., from sponsorship). Given the uncertainties of skating, that is asking a court to engage in a highly speculative endeavor that most will refuse to perform.

[duane]

very informative thread--with excellent, informative replies.

[coco]

reckless...am I using the term reliance damages incorrectly? She relied on this info from the negligent tester to her detriment and was damaged. I thought that she believed she was NOT refusing the test when she signed the form and therefore wouldn't get ANY suspension whatsoever, in which case her damages should begin accruing asap. Would the test then be whether or not her belief was reasonable?

Also, even if she thought when she signed it that she would be suspended for 2 years, beyond whatever she can prove what she might have earned beginning in 2004, can't she recover the diminution in value of her reputation. This would make her the first skater banned for life for drugs, right? Even though most of us are assming it's bogus, there are others who are suspicious that she was using diuretics or something.

[Reckless]

Coco,

In most states (thought it might vary from state to state), a person claiming fraud must show that they actually and justifiably relied on a misrepresentation and that the misrepresentation caused them to suffer damages. Fraud also only protects economic loss -- things like emotional suffering are not compensable.

Obviously, it's not totally clear what happened at Kyoko's house or what she wrote on the form. But the form was a refusal form and I believe I saw Kyoko quoted as saying that she understood signing a refusal form would result in a two-year ban. With that admission, it's hard for her to claim that she wasn't *really* signing a refusal form. Really, she's probably arguing that she signed the form after being fraudulently induced to do so by the statements of the USADA representative or because she and the USADA representative were under the mutually mistaken belief that signing and explaining it wasn't a refusal would excuse her from the test for the night. That might be an argument in favor of rescinding the signature on the form. But if the document itself laid out what it was and what the effect of signing was, it would be extremely difficult to convince someone to throw it out. Imagine if people could get out of agreements by saying "I didn't sign that thinking it meant what it said" or "I didn't read the contract." Courts -- and arbitrators -- are very reluctant to go down that road.

As for economic loss to diminished reputation beyond two years, Kyoko might be able to make a showing, but it would probably be difficult and speculative. If Kyoko loses sponsorships or a part in a tour show because of an ISU ban, that would be an economic loss. But she might have to prove that she would not have lost them it were only a two-year ban, as opposed to a four-year to life ban. IMHO, that might be pretty hard to prove.

I would add that I'm not totally convinced Kyoko will suffer a loss of reputation from this. I agree with you and think nearly everybody thinks Kyoko's been screwed by the USADA. I haven't heard anyone say they thinks she was doping. Given that, I doubt she will lose sponsorships or tour roles. (If she does, fans should express their outrage.) I suspect that she might even get additional pro tours because she will be a cause celebre -- a martyr to the ISU's stupidity.