and MAVERICK HATCH SAM SCHACTER JOSH BINSTOCK MARTIN READER CHAIM SCHALK SIMON FECTEAU-BOUTIN Before Richard W. Pound, Q.C.

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1 SDRCC/CRDSC Ordinary Division VOLLEYBALL CANADA Claimant v. RICHARD VAN HUIZEN Respondent and MAVERICK HATCH SAM SCHACTER JOSH BINSTOCK MARTIN READER CHAIM SCHALK SIMON FECTEAU-BOUTIN Affected Parties Before Richard W. Pound, Q.C. (sole arbitrator)

2 2 ARBITRAL ORDER This is an appeal (in the Canadian sport vernacular, a carding appeal ) against a decision (the Impugned Decision) rendered by an Arbitrator (the Appeal Arbitrator) within the context and in the course of the internal Appeal Procedure of Volleyball Canada (VC). The Impugned Decision set aside a determination made by VC that the Respondent was ineligible to be carded and thus to receive financial assistance under the Athlete Assistance Program (AAP) initiated by the government of Canada and administered by Sport Canada as an agency of the responsible governmental department. VC launched the proceedings now before me, in accordance with the applicable VC rules, seeking judicial review of the Impugned Decision, to have it set aside on the basis that it amounted to an excess of jurisdiction or that it was unreasonable in the circumstances. Resolution Facilitation As part of the usual process in such matters, the parties had the benefit of the services of a Resolution Facilitator (RF), in the person of Michel Picher, through whose efforts the parties eventually agreed upon a practical solution to the matter in dispute. The parties wish to have their agreement confirmed by an arbitral Order, which would give effect not only to the terms of settlement, but also declare that the Impugned Decision be thereby set aside and no longer remain in effect. Preliminary Considerations All of the parties are represented in this proceeding and were similarly represented in the discussions coordinated by the RF.

3 3 Telephone conferences were held on June 8 and June 12, 2012, during which all the parties were either present or represented by counsel. All of the representatives affirmed that they were duly authorized for all purposes relevant to the matter and to the proposed disposition of it. Background Little need be said about the process leading to the Impugned Decision. The parties acknowledge that matters proceeded in accordance with the applicable rules established by VC. The Respondent disputed VC s decision to declare him ineligible for carding and, in accordance with the applicable internal appeal process, the matter was eventually heard on its merits by the Appeal Arbitrator, who decided in favour of the Respondent. VC was unsatisfied with that decision, which led to its request for arbitration before the Sport Dispute Resolution Centre of Canada (SDRCC), in which proceedings it is the Claimant. There has been a fulsome exchange of pleadings, focused, in the case of the Claimant, on many alleged errors in the Impugned Decision and, in the case of the Respondent on its correctness and, failing that, its reasonableness, in the sense of that expression in matters of judicial review. The Affected Parties have simply stated that they support the position of VC. Current Proceedings In the ordinary course, the parties to a proceeding of this nature would have led their evidence, made their arguments regarding the correctness and/or reasonableness of the Impugned Decision, and I would have rendered a decision which would have supported, rejected or varied the Impugned Decision.

4 4 As a result of the efforts of the RF, however, much of the heat has been leeched from the situation. The Respondent is satisfied with the terms of the agreement to settle the matter. He does not care, therefore, whether the Impugned Decision lives or dies; it is now of no further concern to him, even though it had supported his position in the course of the internal appeal process. VC, however, despite the fact that it has reached a satisfactory settlement and has recovered the card for future allocation, is concerned that, notwithstanding settlement of this particular matter, the Impugned Decision is still a matter of record and might conceivably be invoked in future as a precedent in attacks by other athletes regarding VC s carding decisions. It wants the Impugned Decision to be effectively quashed by an Order in these proceedings, so that it can have no precedential value. To Issue or Not to Issue All of this leads to the question of whether, on the basis of the RF s brokered settlement agreement between the parties, I can issue such an Order. I can certainly issue an Order giving effect to the agreement between the parties and also note that the agreement has the effect of rendering the Impugned Decision moot. I would have no difficulty whatsoever in making such an Order. Indeed, if that were all that mattered, there would be no need for an Order. The parties could simply agree in writing on the particular terms and the proceedings could be abandoned. It is the question of principle regarding the substance and reasoning contained in the Impugned Decision which troubles VC. It regards the Impugned Decision as so fundamentally flawed, that only a subsequent Order

5 5 issued in SDRCC proceedings can effectively consign it to the dust heap of inapplicable and irrelevant quasi-judicial musings. Absent such an Order, it remains an ever-present invitation for other athletes to attack VC s carding decisions, either to receive carding or equivalent support, in much the same way as the Respondent in these proceedings. VC s concern with principles leads me to related concerns with principles from the perspective of Arbitrator. I have not had the benefit of having heard the facts and arguments presented to the Appeal Arbitrator who issued the Impugned Decision. Nor have the relevant facts and arguments been put forward to me on a de novo basis in these proceedings. I have simply read the written record which exists in the SDRCC file in this matter, including the Impugned Decision. While I express, therefore, no concluded opinion on the merits of the case, it does seem to me that, at the very least, the pleadings disclose a reasonable cause of action (as well as a plausible line of defence) and that, win or lose, based on the written record alone, neither the Claimant nor the Respondent would be embarrassed by having to present a case that had no possible chance of success. Nor, on its face, is the Impugned Decision so clearly wrong (if wrong at all) that it can or should be quashed out of hand. In such circumstances, I do not see how, on a principled basis, I can quash the Impugned Decision solely on the basis of the record now before me. The Path Through the Jungle I am equally conscious of the fact that I should not appear to be seeking ways to complicate the resolution of a sport-related dispute, especially in a forum such as SDRCC, which has been designed to achieve speedy, inexpensive and knowledgeable outcomes. On the other hand, as a matter of principle, while

6 6 I can be bound by an agreement between parties on the applicable facts, I cannot be bound, as Arbitrator, by their agreement on the proper legal interpretation of the applicable rules. After discussion among the parties, they agreed that the proceedings now before me should, instead of taking the form of a request for judicial review of the Impugned Decision, be instead heard as a de novo appeal, in which facts and positions not advanced before the Appeal Arbitrator could be put before me. Since this was a matter agreed to by all parties, I had no objection to proceeding on that basis. Material Facts The parties have agreed as follows: 1. The Respondent acknowledges the fact that the published VC 2012 Athlete Assistance Program (Carding Criteria) governs his eligibility for carding and raises no issue in these proceedings regarding the content of the applicable eligibility rules. 2. The Respondent acknowledges that, despite the position taken in the course of the internal appeal process, the fact that he was a full-time student at the time was a relevant fact, which affected his eligibility for carding, pursuant to the Carding Criteria. 3. The Impugned Decision was based on materially different facts from those thus presented before me. 4. The parties agree that the Order in the current proceedings should vacate and replace the Impugned Decision.

7 7 The decision of the Appeal Arbitrator might well have been different, had he been presented with the same facts as are now before me. Decision On the basis of the facts presented in the course of these proceedings and with the consent of all parties, I make the following Order: ORDER The Impugned Decision (as identified herein) is hereby vacated and replaced by the present Order. There is, by consent, to be no Order as to costs in these proceedings. Reservation of Rights I reserve my authority to deal with any matter arising from this Order and its interpretation. MONTREAL, 13 June 2012 Richard W. Pound, Q.C. Arbitrator