Interview with Professor Jill Pilgrim

Professor Pilgrim discusses the legal landscape in the Olympic sports industry and explains why arbitration serves as a good dispute resolution mechanism for the dynamic world of sport.

Photo: International Olympic Committee.

By: Joseph Wakeford, Staff member

Jill Pilgrim is an adjunct professor at Columbia Law School, an arbitrator for the American Arbitration Association, and a solo practitioner. As a professor, she has taught courses about the legal sports industry at Columbia and at the University of Miami School of Law. Apart from teaching, Professor Pilgrim also has big law and in-house legal experience. Professor Pilgrim has served as general counsel to the Ladies Professional Golf Association (LPGA) and general counsel and director of business affairs for USA Track & Field (USATF). She has worked for Willkie Farr & Gallagher, Cowan Liebowitz & Latman, and Kurzman, Karelson & Frank. Today, Professor Pilgrim is the Managing Attorney at Pilgrim & Associates Arbitration, Law & Mediation LLC.

In this interview, Professor Pilgrim discusses the legal landscape in the Olympic sports industry, current disputes that have arisen as the Olympic Games approach during the pandemic, and why arbitration serves as a good dispute resolution mechanism for the dynamic world of sport.

This interview has been edited for clarity and length.

It is my understanding sports are, for the most part, self-regulated. Can you briefly explain what the regulatory structure of sport looks like?

Sport governing bodies regulate how sport is conducted. Each sport has its own governing body. A sport governing body creates a number of different types of rules, but two, in particular, are competition rules and dispute resolution mechanisms. The competition rules allow for international competition. One benefit from a competitive standpoint is that these agreed-upon metrics allow people to compare athletes around the globe. Looking at dispute resolution frameworks, you can imagine that any time there is more than one person involved in organizing and running a competition, there is the possibility for disagreement. So, sport governing bodies create a regulatory framework for resolving those disputes and more.

It is important to note that each sport governing body has a different set of responsibilities. Although some sport governing bodies’ regulatory systems have common principles, each sport is unique. Team competition is different from individual competition. Water sports are different from land sports. The amount of real estate can differ from sport to sport. For example, table tennis does not need much real estate compared to football. And these different elements coincide with different regulations.

Focusing in on the dispute resolution component of sports regulation, is arbitration the main mechanism for resolving disputes in sport?

In the broadest sense of the word, arbitration means you are simply not in court. Under this understanding, yes. In the early days of sport, there would be somewhat of a rules committee that would render a decision regarding a dispute in sport. Today, athletes typically do not file a sporting dispute in court because oftentimes parties to a sporting dispute do not just want a decisionmaker with particular knowledge of that sport, but they also need a quick decision. Therefore, they file disputes with arbitration providers, internal dispute resolution committees, and hearing boards set up by the sport, such as an ethics committee or grievance committee.

As we approach the Olympic Games in the middle of a pandemic, will arbitration play a role in ensuring the Olympic Games take place this summer?

Arbitration already has played a role in ensuring the Olympics will take place this summer. For instance, there have already been cases regarding qualification disputes for the Olympic Games. Countries have responded differently to COVID-19. Some countries have imposed travel restrictions, some have canceled competitions, and some have required mandatory quarantines for incoming athletes. These changes in public health guidelines have led sport governing bodies to change qualifications rules which, in turn, have led to disputes. To remedy these grievances, athletes have filed, and will continue to file, arbitration demands.

To date, qualification disputes have arisen across a number of sports. From track & field to beach volleyball, either athletes have missed qualification competitions, or the qualified competitions have been canceled. When a dispute arises because some athlete missed the opportunity to compete due to travel restrictions, canceled competitions, or some other reason, those disputes have been and will be resolved via arbitration.

Sports arbitration will also handle other disputes. Another type of issue arbitration panels will have to resolve concerns doping. Because the Olympic Games were delayed a year, some athletes who would have been eligible to compete in 2020 have missed doping tests in 2021. Three missed doping tests are treated as a positive doping test. Had the Olympic Games taken place in 2020, those athletes would have been eligible to compete. Now, those athletes may claim eligibility to compete in Tokyo despite their missed tests. Arbitrators and attorneys will be needed to resolve these disputes.

Although it is harsh to say, there will be asterisks beside the winners of this Olympic Games. There will be exceptions to that statement, but you cannot deny that the competition has been affected. Some athletes, who would have competed in 2020, have retired. Some athletes have gotten sick with COVID-19. Also, the full set of competitions that get athletes primed for the Olympics are being canceled or delayed. The pre-Olympic preparation has suffered, so performances are unlikely to be what they would have been in 2020.

In terms of the role of arbitration in sport, do you see any long-term effects coming from COVID?

In one way or another, arbitration has been a part of sport since its beginning and is not going anywhere anytime soon. One aspect of arbitration that has changed in the 25 years that I have been involved in the industry is that athletes have come to understand that they have rights protected by arbitration. In combination with increased athlete awareness, more attorneys are willing to represent an athlete even if the athlete cannot afford to pay legal fees. So, there will continue to be arbitration in sport.

It is important to note that arbitration ebbs and flows based on what is happening in the world. To some degree, there is less arbitration occurring in sports because fewer sports are happening, but there are COVID-based arbitrations taking place that normally would not occur. It is a give-and-take.

Lastly, do you expect there will be any other developments in sport disputes as we approach the 2021 Olympic Games?

There will be attorneys and arbitrators working behind the scenes to ensure the Games take place. It will be interesting to see if the Court of Arbitration for Sport (the arbitration provider for the Olympic Games) takes up COVID challenges during the Games. Disputes may arise if athletes are prohibited from competing at the Games because they indirectly came into contact with someone who tested positive. However, I do not think any arbitrator will rule that an athlete who has COVID can be put in a scenario where others could be infected. Even if this particular type of dispute does not arise, there will be arbitrators on-call throughout the Games ready to render decisions whenever they are called.

Joseph Wakeford is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law.