SAMEEHA ASLAM

Tahsin Hasan, a cheerleader for the University of Waterloo (located out of

Dhaka), has threatened to file a lawsuit against NSU for injuries sustained at
NSU during a volleyball game between the two universities a year ago.
Towards the end of the halftime break, the cheerleaders were entertaining
the crowd by forming a human pyramid, three levels high, and Tahsin was at
the top. As the NSU team returned, it passed very close to the group causing
the pyramid to fall and Tahsin sustained a ligament injury. Tahsins lawyers
claim that the NSU players acted deliberately or negligently to cause this
incident while the NSU players maintain that the pyramid itself was shaky
and would have fallen any way. Tahsins lawyers are demanding taka
175,000 in damages. Apart from finding an informal phone recording of two
registered NSU players, no other investigation has taken place.
The facts in favor of NSU and against Waterloo are that Waterloo despite
having a credible claim, has simply threatened a lawsuit and has not gone on
to file one as of yet. This is because they are aware of the costs associated
with a trial such as a financial one being travel costs since they are located
outside of Dhaka. There location confers a further benefit on NSU because
NSU has a voice in Dhaka and has the power to manipulate any further
proceedings in their favor. Furthermore the injury was sustained during a
sports activity not during a scuffle etc. and people get injured in sports all
the time. Players, cheerleaders etc. voluntarily assume the risks with playing
or carrying out their acts and Tahsin would have already known that there
are risks associated with standing three floors high on a human pyramid.
Also teams and cheerleaders have specific spaces allotted to them and if the
cheerleaders were performing too close to the entrance from where the team
was coming back to play then it is their fault. There was no contact between
the NSU players and the cheerleaders so it is also highly probable that the
Waterloo players themselves were negligent for not forming and sustaining
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their human pyramid properly. Lastly no proper investigation has been

undertaken so it is possible to find even more facts in favor of NSU.
However there are facts against NSU and for Waterloo. Tahsins lawyer claims
that the NSU players acted deliberately or negligently and that is a valid
point because Tahsin has sustained an injury. Waterloo cant prove the fact
that NSU players had malicious intentions but neither can NSU prove that
they were not negligent. Also since the event occurred on the NSU campus,
NSU had some implicit responsibilities towards the guests. Any such
allegations that NSUs negligence led to some injury would mean that NSUs
image shall suffer to the detriment of its relationship with its own students
and the society at large. Perhaps the biggest fact against NSU is that
Waterloo has a phone recording of a conversation between two of NSUs
players who are still registered students. NSU is in the dark as to what the
recording actually contains for it might just contain incriminating evidence
against the NSU players. Hence Waterloo has leverage on NSU.
Considering the facts for and against NSU, I propose that NSU go for informal
litigation specifically negotiation first. NSU could have gone straight for a trial
if they had been completely confident that they could win the case but
clearly some facts such as the recording are not in favor of NSU and they
might lose the trial despite their considerable influence in Dhaka. Also a trial
is the lengthy and expensive alternative to ADR and it is also done in a public
forum which will cause NSU social costs as well as private financial costs.
Suppose NSU loses the trial, the other universities might boycott them in
sports and they could lose their prospective students. NSU cant afford to let
their enmity with Waterloo fester due to the above considerations and a trial
would certainly aggravate the present situation.
What NSU needs is a quick and quiet fix; a win-win scenario instead of a winloss one in a formal litigation since the odds arent completely in their favor.
Hypothetically, if NSU does manage to sort out the problem through ADR and
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pay some compensation to Tahsin since he has suffered damages, then this
will foster NSUs public image. Hence ADR is the better alternative to trial
considering firstly who NSU has to compromise against and lastly after
calculating the opportunity cost associated with a formal trial. Among the
different methods of ADR, negotiation is the best option for NSU.
This is because at present there hasnt been a proper investigation and so
maybe if the parties are given a platform to air their differences without any
outside interference, they might be able to negotiate and come to a
compromise. So if there is any miscommunication or hard feelings then they
can be cleared in a private forum. Also since as mentioned before, despite
having credible grounds for a lawsuit, Waterloo hasnt as yet gone forward to
file a suit which means that even they may be open to informal litigation.
However we cant be certain that Waterloo can be convinced to go for ADR
but still if they were made to believe that NSU is willing to listen to their
grievances and that ADR is better for all the parties than they might consider
it. Negotiation is best for NSU among the other ADR methods because NSU is
the slightly more influential party and can establish their case more strongly.
Mediation confers further time and financial costs on both parties since they
have to hire a mediator and set the rules for mediation. Even Waterloo is less
likely to agree for mediation than negotiation since they know NSU is in a
better position to influence the mediator and manipulate the proceedings
according to their needs. Arbitration is basically an informal trial so it is
lengthy and expensive and should not be chosen if negotiation and
mediation are viable first options.
In essence both parties, NSU and Waterloo, have some leverage on the other.
Waterloos cheerleader sustained an injury and they have a possibly
incriminating phone recording while NSU can state that in sports there is a
voluntary assumption of risk and moreover they are the more dominant
power in Dhaka and can influence proceeding if needed. It is beneficial for
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both to handle this situation in a private and quick forum so that both parties
can compromise and come to a win-win solution. Once NSU can explain
these facts to Waterloo, then rationally Waterloo should agree to proceed
with ADR and specifically negotiation since mediation and arbitration are
more expensive, lengthy and have third parties involved who might not be in
their favor. If negotiation does not work out, NSU can use the time to do a
proper investigation, gather facts in their favor while they wait for Waterloo
to file a lawsuit against them.