Consideration of the dot Sport Limited v. ICANN Independent Review Process Final Declaration

dot Sport Limited (dSL) initiated Independent Review Process (IRP) proceedings challenging the Expert Determination upholding the community objection filed against dSL's application by SportAccord, and the Board's denial of dSL's two Reconsideration Requests. In both the Reconsideration Requests and the IRP, dSL claimed that the Expert Panelist "was not properly trained and […] had created a reasonable appearance of bias."

dSL and SportAccord each applied to operate the .SPORT gTLD. On 13 March 2013, SportAccord, an umbrella organization for international sports federations and other sport-related international associations, filed a community objection against dSL's application (Application), asserting that there was "substantial opposition to the Application from a significant portion of the community to which the gTLD string may be explicitly or implicitly targeted" (Community Objection).

On 20 June 2013, the International Chamber of Commerce (ICC) – the relevant dispute resolution provider – appointed Jonathan P. Taylor as the expert to assess SportAccord's Community Objection. dSL objected to Mr. Taylor's appointment on 27 June 2013, on the basis that Mr. Taylor was a sports lawyer and noted that he had represented the International Rugby Board and worked for the International Olympics Committee (IOC). On 25 July 2013, the ICC determined not to confirm the appointment of Mr. Taylor. On 29 July 2013, the ICC nominated Dr. Guido Santiago Tawil to consider SportAccord's Community Objection and notified the parties of the appointment. Dr. Santiago Tawil provided his CV and filled out a Declaration of Acceptance and Availability and Statement of Impartiality and Independence, stating that he had nothing to disclose and could be impartial and independent. Dr. Santiago Tawil's practice focuses not on sports law, but on international arbitration, administrative law, and regulator practice. dSL did not object to Dr. Tawil's appointment (Expert).

On 23 October 2013, the Expert rendered a determination upholding SportAccord's Community Objection (Expert Determination). Following the issuance of the Expert Determination, dSL indicated that it had discovered that Dr. Santiago Tawil had co-chaired a panel at a conference in February 2011 (Conference) entitled "The quest for optimizing the dispute resolution process in major sport-hosting events."

On 2 November 2013, dSL filed Reconsideration Request 13-16 (Request 13-16), seeking reconsideration of the Expert Determination on the grounds that: (1) the Expert applied the wrong standard for assessing community objections; and (ii) the Expert failed to disclose material information relevant to his appointment, meaning his involvement in the Conference. dSL argued that the Expert's involvement in the Conference indicated that the Expert was attempting to create connections within the organized sporting industry, an industry of which SportAccord was a part. On 8 January 2014, ICANN's Board Governance Committee (BGC) denied Request 13-16. With respect to dSL's argument about the Expert's alleged failure to disclosure information relevant to his involvement in the Conference, the BGC noted that pursuant to the Guidebook, the ICC Rules of Expertise govern challenges to the appointment of experts, and that dSL had provided no evidence that either the Expert, or the ICC itself, had failed to follow the ICC's rules.

On 6 February 2014, dSL filed a complaint with ICANN's Ombudsman ("Complaint") reiterating the arguments dSL had raised in Request 13-16 regarding the substantive findings of the Expert Determination.

According to dSL, on 25 March 2014, it discovered that: (i) DirecTV, a client of the Expert's firm, acquired broadcasting rights for the Olympics from the IOC on 7 February 2014; and (ii) a partner in the Expert's law firm is the president of Torneos y Competencias S.A. (TyC), a company that has a history of securing Olympic broadcasting rights. dSL forwarded this information to ICANN's Ombudsman in support of its Complaint.

In addition, on 27 March 2014, dSL sent a letter to the ICC regarding this information, stating that in dSL's view there was "little question… that Dr. Tawil provided false and/or information [sic] in respect to his declaration of impartiality" and requesting further information regarding the "specific steps leading to the selection and the appointment of Dr. Guido Tawil by the relevant ICC Standing Committee, including but not limited to any correspondence, minutes and the CVs of other potential candidates who may have been suggested." On 29 March 2014, the ICC responded and informed dSL that the ICC's Rules and the Practice Note "set a specific time limit for objections," and that the case had been closed and "neither the [Practice Note] nor the [ICC's] Rules provide[d] a basis for reopening of a matter or a challenge of the Expert after closure of the matter."

On 31 March 2014, without seeking comment from the ICC, and relying solely on the ICC's letter to dSL, the Ombudsman sent an email to ICANN, copying dSL, regarding dSL's Complaint and recommending that the Community Objection be reheard with a different expert. On 1 April 2014, the ICC sent a letter to ICANN, objecting that the Ombudsman had never contacted the ICC for comment regarding the issue of the Expert and that it "was not given the opportunity to provide [the Ombudsman] with information relevant to the issues raised in the letter or to request additional comments from the concerned expert." In response, the Ombudsman clarified for dSL that his email was not a final report and recommendation, and offered the ICC a chance to comment.

On 2 April 2014, dSL filed Reconsideration Request 14-10 (Request 14-10), seeking reconsideration of: (i) the BGC's denial of Request 13-16; (ii) the Expert Determination, and (iii) the ICC's appointment of the Expert. As a result, the Ombudsman closed dSL's pending Complaint – pursuant to Article V, Section 2 of ICANN's Bylaws, a complaint with the Ombudsman may not be pursued concurrently with another accountability mechanism, such as a request for reconsideration. On or about 13 May 2014, the Ombudsman advised ICANN that dSL had confirmed that it was fully aware of this Bylaws provision and chose to pursue its Request 14-10, rather than its Complaint with the Ombudsman.

On 21 June 2014, the BGC recommended that the Request 14-10 be denied, finding that dSL's arguments regarding the allegedly newly- discovered information regarding the Expert's conflict of interest were not timely, under the ICC's rules, and did not support reconsideration because neither the DirecTV contract nor the TyC relationship was evidence of a conflict of interest sufficient to support reconsideration. On 18 July 2014, ICANN's New gTLD Program Committee ("NGPC") accepted the BGC's recommendation.

dSL then initiated a Cooperative Engagement Process (CEP) with ICANN, and subsequently filed an IRP. dSL's IRP Request, submitted on 24 March 2015, requested that ICANN be "required either to overturn the determination […] and allow the Claimant's application to proceed on its own merits, or to have the community objection reheard by an independent and impartial expert who has received proper and transparent training."

On 31 January 2017, the three-member IRP Panel (Panel) issued its Final Declaration. After consideration and discussion, pursuant to Article IV, Section 3.21 of the operative ICANN Bylaws, the Board adopts certain findings of the Panel, which are summarized below, and can be found in full at https://www.icann.org/en/system/files/files/irp-dot-sport-final-declarat... [PDF, 518 KB].

The IRP Panel declared dSL to be the prevailing party, and determined that the "action of the ICANN Board in failing substantively to consider the evidence of apparent bias of the Expert arising after the Expert Determination had been rendered was inconsistent with the Articles [of Incorporation], Bylaws and/or the Applicant Guidebook." (Final Declaration at ¶ 9.1(a).)

Specifically, the IRP Panel declared that "it is for the ICANN Board, through its NGPC, BGC and/or Ombudsman, to preserve and enhance the reliability of the system, the competitive environment of the registration process and the neutrality, objectivity, integrity and fairness of the decision-making system." (Final Declaration [PDF, 518 KB] at ¶ 7.71 (emphasis in original).) The IRP Panel further stated that the "duty of impartiality and independence is an ongoing one; the duty to disclose information that may, in the eyes of a party, give rise to concerns as to the impartiality or independence of the Expert continues throughout the dispute resolution process until a final decision is rendered." (Final Declaration [PDF, 518 KB] at ¶ 7.57.) The IRP Panel further indicated that "[h]ad the BGC considered and assessed the new information and determined that it did not give rise to a material concern as to lack of independence or impartiality so as to undermine the integrity or fairness of the Expert Determination, and refused reconsideration on that basis, that action or decision may have been unreviewable." (Final Declaration [PDF, 518 KB] at ¶ 7.73.)

The IRP Panel further declared that: (i) the ICANN Board "did not follow or refer to [the Ombudsman's] recommendation in considering the Reconsideration Request," which the IRP Panel determined was a "relevant factor for this IRP Panel's consideration as to whether or not the ICANN Board acted in accordance with its governing documents" (Final Declaration [PDF, 518 KB] at ¶¶ 7.76-7.77)1; and (ii) "the BGC did not consider the IBA Conflict Guidelines (although it accepts in its submissions in this IRP that they are the standard governing neutrals), or any other standards for the requirements of independence and impartiality in neutral, binding, decision-making bodies" (Final Declaration [PDF, 518 KB] at ¶ 7.88).

The IRP Panel also declared that "[t]he BGC failed to take into account the problems that arise from what the Expert did not disclose in his Statement of Impartiality and Independence. He did not disclose the panel participation that gave rise to the first Reconsideration Request, nor any existing DirecTV relationship that ultimately gave rise to the DirecTV Contract or the TyC Relationship. […] All or some of these matters may give rise to apparent bias and the fact that they were not disclosed cannot be preclusive of any reconsideration in relation to them." (Final Declaration [PDF, 518 KB] at ¶ 7.83 (emphasis in original).)

The IRP Panel further declared that "the IRP Panel is of the view that in order to have upheld the integrity of the system, in accordance with its Core Values, the ICANN Board was required properly to consider whether allegations of apparent bias in fact gave rise to a basis for reconsideration of an Expert Determination. It failed to do so and, consequently, is in breach of its governing documents." (Final Declaration [PDF, 518 KB] at ¶ 7.90.)

The IRP Panel further declared that: (i) the ICDR and Panel fees and expenses "shall be borne entirely by ICANN"; (ii) "ICANN shall reimburse to the Claimant its share of fees and expenses of the Panel and ICDR in the sum of US$79,211.64 upon demonstration by Claimant that these incurred fees and expenses have been paid"; and (iii) each party "shall be responsible for its own fees and expenses." (Final Declaration at ¶¶ 8.5 and 9.1(c).)

The IRP Panel further declared that: (i) "neither the NGPC acceptance of the Expert Determination nor the IRP itself is intended to be an appeal process or forum for substantive review of Expert Determinations"; (ii) "at present no such appeal process [for Expert Determinations] exists"; and (iii) "[a]ccordingly, it is not currently possible for the Claimant to seek or obtain substantive review of the Expert Determination." (Final Declaration [PDF, 518 KB] at ¶¶ 7.49-7.50.)

The IRP Panel recommended that the "Board reconsider its decisions on the Reconsideration Requests, in the aggregate, weighing the new evidence in its entirety against the standard applicable to neutrals as set out in the IBA Conflict Guidelines." (Final Declaration [PDF, 518 KB] at ¶ 9.1(b).)2

As required, the Board has considered the Final Declaration. As this Board has previously indicated, the Board takes very seriously the results of one of ICANN's long-standing accountability mechanisms. The Board notes that the scope of the relevant reconsideration requests was limited to determining whether established policies or processes were followed (in this instance, by third-party providers) as compared to a substantive review of the underlying impartiality allegation. However, for the reasons set forth in this Resolution and Rationale, the Board has accepted the IRP Panel's Final Declaration as indicated above. In implementing the IRP Panel's recommendation, dSL's Reconsideration Requests will be re-reviewed in accordance with the Bylaws in effect when the Board made its previous determinations on dSL's Reconsideration Requests, as those are the Bylaws that were in place when the Board (via the BGC and NGPC, respectively) made its determinations at issue in the IRP.

Taking this decision is not expected to have a direct financial impact on the organization, although if it does, such impact has been contemplated. Adopting the IRP Panel's Final Declaration will not have any direct impact on the security, stability or resiliency of the domain name system.

This is an Organizational Administrative function that does not require public comment.