*traduction non officielle* OGILVY RENAULT LLP / S.E.N.C.R.I., s.r.l.

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1 *traduction non officielle* OGILVY RENAULT LLP / S.E.N.C.R.I., s.r.l. Direct line: (514) yfortier@ogilvyrenault.com VIA Montreal, February 28, 2006 Mr. Benoit Girardin Executive Director SDRCC 3100 Le Carrefour Suite 560 Laval, Quebec H7T 2K7 SUBJECT: McGill University vs. Quebec Student Sport Federation Dear Benoit, I am pleased to provide you with my opinion on this case. I. AUTHORITY OF THE CHIEF ARBITRATOR The Sport Dispute Resolution Centre of Canada ( SDRCC ) has appointed me as Co-Chief Arbitrator of the Panel. As such, I was asked to decide whether the SDRCC has the jurisdiction to hear a dispute between McGill University ( McGill ) and the Quebec Student Sport Federation (the Federation ). This authority is granted to me under Rule S-3.4 of the ARD-Sport-RED Code (the Code ), which states: S-3 THE TRIBUNAL S-3.4 Co-Chief Arbitrators (a) The SDRCC shall appoint two Co-Chief Arbitrators of the Tribunal who shall oversee the administration of the Tribunal. Any issues that arise prior to the constitution of a Panel shall be referred to one of the Chief Arbitrators. In the absence of such appointment or the inability of the Co-Chief Arbitrator to act for any reason, the Chairperson shall act as Chief Arbitrator.

2 (b) The Co-Chief Arbitrators shall have all the necessary powers to decide upon matters for which the rules do not provide any specific guidance. (my underlining) II. THE FACTS The dispute involves certain sanctions imposed on the McGill University football team by the Quebec Student Sport Federation. The facts can be summarized as follows: 1. Immoral activities took place during an initiation of players on the McGill football team. 2. Following an investigation, McGill decided, among other sanctions, to withdraw its football team from the final two games of the 2005 season. 3. McGill is a member of the Federation. The university by-laws of the Quebec Student Sport Federation (the By-laws) 1 apply when appealing the Federation s decision. 4. On November 23, 2005, in accordance with the By-laws, the Federation s university sectoral commission made a decision to impose both financial and sport sanctions on the football team following its withdrawal from the 2005 season. The sport-related sanctions consisted notably of not being permitted to host a Quebec conference playoff game in McGill was advised of this decision on November 28, 2005 (see letter dated November 28, 2005). I take it as a fact that this decision is that of a commissioner as per Article of the Rules, which state: Decision The commissioner s decision will be rendered within three business days of receiving the protest and communicated by telephone and in writing to member representatives and the provincial representative. 5. McGill requested a review of the decision on November 28, On December 7, 2005, in accordance with the By-laws, the board of directors of the Quebec Student Sport Federation met, ratified the decision of the university sectoral commission and decided that the sanctions imposed on the McGill football team following its withdrawal from the 2005 season would be maintained. McGill was advised of this decision on December 20, 2005 (see letter dated December 20, 2005). I take it as a fact that this decision reflects the appeal committee decision stipulated in Article 21.5 of the By-laws, which states: 21.5 Decision 1 The By-laws of the Quebec Student Sport Federation exist in French only. Therefore the applicable Bylaws have been translated for the purposes of this document. This does not constitute an official translation.

3 The decision is made by a vote of the three member representatives on the appeal committee. The provincial representative does not have a right to vote. The appeal committee s decision is made no more than three business days after receipt of the appeal letter. The provincial representative or an appeal committee representative forwards the decision in writing to the institution representative involved and to all others who received a copy of the protest. The decision is final and irrevocable. 7. On January 10, 2006, McGill submitted a request for arbitration to the SDRCC. McGill based its request on Article 21.6 of the By-laws, which states: 21.6 Internal mechanisms and procedures Any members who are not satisfied with the application of these By-laws or who believes another member has breached these By-laws must exhaust all internal mechanisms and procedures stipulated in the said Bylaws prior to undertaking proceedings before the Sport Dispute Resolution Centre (SDRCC). 8. For the purposes of jurisdictional analysis, I take it as a fact that the internal mechanisms and procedures outlined in the By-laws were exhausted by McGill. 9. McGill submitted an argument supporting its arbitration request on February 8, III QUESTION AT ISSUE As indicated above, I must decide on the following question: Does the SDRCC have the jurisdiction to hear this dispute? IV RULES GOVERNING THE SDRCC (June 1, 2004) The rules contained in the SDRCC Code that apply are as follows: S-1 DEFINITIONS (p) Member includes an athlete, coach, official, volunteer, director, employee and any persons affiliated with an NSO and any participant in an event or activity sanctioned by an NSO;

4 (s) (t) (r ) NSO means a registered Canadian amateur athletic association and includes: (i) (ii) National sports organizations recognized by the SDRCC, Sport Canada, the Canadian Paralympic Committee ( CPC ) or the Canadian Olympic Committee ( COC ); Multisport organizations, including the COC, Canadian CPC, Commonwealth Games Canada, Canadian Interuniversity Sport, Aboriginal Sport Circle, Arctic Winter Games, Canadian Special Olympics and Canada Games Council ; (iii) Representational sport-related groups including without limitation, the Canadian Blind Sports Association, the Canadian Deaf Sports Association, the Canadian Wheelchair Sports Association, the Canadian Colleges Athletic Association, Athletes Can, the Coaching Association of Canada, the Officials Association of Canada, the Canadian Association for Advancement of Women and Sport and Physical Activity; (iv) (v) Umbrella sport organizations, including without limitation, the Aquatic Federation of Canada and the Canadian Ski and Snowboard Association; and National Sport Centres; Party means a party to an arbitration or mediation contract, any intervener or joinder party accepted by the Parties or designated by the Tribunal in accordance with the Code and any party to a Doping Dispute as set out herein; Person means a natural person or an organization or other entity; S-2 ACCESS TO ARBITRATION AND MEDIATION S-2.1 Availability of Mediation and Arbitration The process of arbitration and mediation under this Code is made available to any Member, NSO and other affected parties with a right to apply to the Tribunal for resolution of a Sports-related dispute. S-2.2 Sports-Related Disputes (c) Sports-related disputes encompass any dispute related to sport to which a Member or NSO is a party. Such disputes specifically include those related to: (i) (ii) Team selection to Major Games; A decision made by a NSO board of directors, a committee thereof or an individual delegated with authority to make a decision on behalf of a NSO or its board, which affects any Member or participant of a NSO;

5 (d) (iii) (iv) Any disputes for which an agreement to arbitrate or mediate has been entered into by the Parties; and A decision made in respect of a Doping Dispute. For the avoidance of doubt, the Code does not apply to: (i) (ii) sports-related disputes arising from a provincial, territorial or international organization, with the exception of team selection for the Canada Games; or criminal law offences. ARBITRATION PROCEDURAL RULES (NON-DOPING RELATED DISPUTES) GENERAL PROVISIONS RA-1 Application of the Arbitration Procedural Rules (e) (f) (g) The arbitration procedural rules (Rules) set out in this Article RA apply whenever a Party brings a Sports-related dispute to the Tribunal without an agreement to mediate. Such disputes may arise out of a contract containing an arbitration clause, be the subject of a later arbitration agreement or involve an appeal against a decision of an NSO whose statutes, by-laws or regulations provide for an appeal to the Tribunal. Unless otherwise agreed, where a Party applies to the Tribunal for the resolution of a Sports-related dispute, the Party must first have exhausted any applicable internal dispute procedures provided by the rules of the NSO. In agreeing to submit any non-doping related dispute subject to appeal arbitration proceedings to these Rules, the Parties expressly waive their rights to request such measures from: (i) the courts of any province or of Canada; (ii) the domestic courts of any other country; or, (iii) any international court or any other judicial body to which an appeal may be properly made. V ANALYSIS It is my opinion that the SDRCC does not have the jurisdiction to hear this dispute. McGill s request does not meet the conditions of Rules S-2.1 and RA-1(a) to allow the SDRCC jurisdiction, as is evident in the following analysis. NSO, Member or other affected party The process of arbitration offered by the SDRCC is made available to any Member, NSO and other affected party in accordance with Rule S-2.1 of the Code. As we have seen, each of these

6 terms is defined in Rule S-1 of the Code. McGill is not an NSO as defined by Rule S-1(r). However, as it states in its argument, McGill is affiliated to an NSO, i.e. Canadian Interuniversity Sport. Canadian Interuniversity Sport is expressly mentioned in Rule S-1(r)(ii) as an NSO. Therefore, McGill is a Member according to the definition in Rule S-1(p) as a person affiliated with an NSO, Person being defined in Rule S-1(t). Although this condition has been met, we will see that other conditions stated in Rules S-2.1 and RA-1(a) of the Code are not. Sports-related disputes (Rules S-2.1 and RA-1(a)) Rule S-2.1 also stipulates that the parties must have the right to apply to the Tribunal for resolution of a Sports-related dispute. Rule RA-1(a) states that the arbitration procedural rules (Rules) set out in this Article RA apply whenever a Party brings a Sports-related dispute to the Tribunal without an agreement to mediate (my underlining). In this particular case, there is no agreement to mediate. We must therefore focus on the definition of Sports-related dispute as defined in Rule S-2.2. For our purposes, there is no need to analyze whether the Federation s decision is a sports-related dispute as defined (a) in Rule S-2.2. However, I confirm that the dispute noted in the subject of the request does not correspond to any of the cases listed in clauses (a)(i) to (a)(iv). In my opinion, an analysis of the definition (b)(i) is sufficient for me to respond to the question I have been asked. This definition expressly excludes sports-related disputes arising from a provincial organization. In this case, it should be remembered that McGill is contesting financial and sport sanctions of the Quebec Student Sport Federation. The Quebec Student Sport Federation is a provincial organization. The fact that it is affiliated with an NSO, i.e. Canadian Interuniversity Sport, as McGill states in its argument, does nothing to change the situation. Therefore, because the sports-related dispute stems from a provincial organization, the SDRCC has no jurisdiction covering this dispute. Such disputes may arise out of a contract containing an arbitration clause, be the subject of a later arbitration agreement or involve an appeal against a decision of an NSO whose statutes, by-laws or regulations provide for an appeal to the Tribunal (Rule RA-1(a)). Rule RA-1(a) also stipulates that the dispute may result from a contract containing an arbitration clause or be the subject of a later arbitration, which does not apply to this particular case. It therefore remains to determine whether, according to this Rule, the matter involves an appeal of an NSO decision, the rules of which allow for an appeal to the Tribunal. In this particular case, the university by-laws of the Quebec Student Sport Federation allow, in Article 21.6, for an appeal to the Tribunal. However, as mentioned above, the Quebec Student Sport Federation, while affiliated with an NSO, does not in itself constitute an NSO as defined by Rule S-1(r). In

7 this case, therefore, an appeal of a decision by an NSO whose rules allow for an appeal to the Tribunal does not apply. This further supports my conclusion that the SDRCC has no jurisdiction to hear this dispute. VI DECISION My conclusion is that the request for arbitration is not one that involves a sports-related dispute falling within the parameters of the Code. My recommendation is therefore that the Executive Director refuse to accept and handle the request. Please do not hesitate to contact me if you wish to discuss this case further. Sincerely, L. Yves Fortier, C.C., Q.C.