Accountability in Appeals Management: Who Watches the Watcher?

The Sport Law & Strategy Group has been handling internal appeals for sport organizations for over twenty years. Our task is to ensure procedural fairness during the process. This task typically involves the SLSG acting as a Case Manager to perform the following functions, per the organization’s policy for appeals:

  • Determine if an appeal is based on appealable grounds;
  • Determine if the appeal has been submitted within the proper timelines;
  • Appoint a neutral and qualified Adjudicator;
  • Facilitate the exchange of documents and prepare for the hearing; and
  • Ensure the decision is delivered smoothly and without incident.

We were recently challenged to think about our effectiveness in this role. How do we determine our success rate? What does success look like? How do we know if we have done a good job? To whom are we accountable?

Performance Metrics

It’s important to know that the success or failure of an appeal does not reflect upon the Case Manager. The Case Manager does decide whether an appeal has been filed on appealable grounds, but the Adjudicator makes the determination, without the Case Manager’s input, whether the appeal is allowed (succeeds) or dismissed (fails). Occasionally, and generally only applicable to National Sport Organizations (NSOs), the Adjudicator’s decision can be appealed to the Sport Dispute Resolution Centre of Canada (SDRCC) – but the Case Manager has no input on that process either.

The number of appeals that are filed also does not reflect on a Case Manager. An NSO can have zero appeals of its decisions in a given year or it could have twelve appeals. The number of appeals is determined by how well the NSO’s procedures and policies are written and whether individuals believe there are grounds for a decision to be appealed.

The following statistics show the number of appeals that were filed and heard by one NSO between 2007 and 2014.

Carding:

38 appeals filed

18 heard (3 allowed, 15 dismissed)

Team Selection:

8 heard (2 allowed, 6 dismissed)

Discipline:

4 heard

These numbers vary from year-to-year. For carding appeals, in 2008 there were three appeals filed and two were heard, in 2011 there were five appeals filed and none were heard, and in 2011 there were five appeals filed and all were heard.

Timeliness can be an indicator of effective appeals management – but deadlines and timelines are often extended to accommodate the needs of the parties. In some cases an appellant athlete will be traveling or competing and extensions could be granted on that basis. In one recent appeal that we managed, the organization expressed desire to resolve the appeal expediently, but soon found itself unable to locate key documents needed for the appeal because an important staff member was on vacation. Professionally-managed appeals do tend to reach a decision more quickly than volunteer-managed appeals, however, as one NSO found in 2007 when it took eight months for a written decision to arrive from a volunteer Adjudicator who was appointed by a volunteer Case Manager.

Measuring Effectiveness

We would argue that determinations on the effectiveness of a Case Manager should be based on the job description in the organization’s policy for appeals. That is, does the Case Manager properly perform the functions as described in the opening paragraph of this post?  We suggest judging appeals management effectiveness on the following points:

  • Determine if an appeal is based on appealable grounds

In a recent analysis of NSO appeals policies, we found that the same six grounds for appeal were used across 33 different NSOs. The uniform use of similar grounds for appeal should make it easier for the Case Manager to determine whether a filed appeal is based on an appealable ground. We have often seen appeals filed based on personal issues between the appellant and the decision-maker, issues that are clearly stated in the policy for appeals not to be appealable (such as volunteer coach appointments, decisions made by another organization, or issues that occurred during the course of a game), and, frequently, because the appellant simply did not agree with the decision. These appeals are stopped by the Case Manager – who uses experience and interpretation of the policy for appeals to make this determination – in order to avoid lengthy appeals processes that will unquestionably end with the appeal being dismissed.

The decision made by a Case Manager to stop the appeal before it gets heard by an Adjudicator is usually in itself not appealable and is therefore a decision not taken lightly. Is it certain that all appeals rejected by a Case Manager at this stage of the process would be dismissed by an Adjudicator?  No… but it is extremely, extremely likely. If there is any doubt, the preferred practice should be to permit the appeal and let the Adjudicator decide.

  • Determine if the appeal has been submitted within the proper timelines

Determining if the appeal has been filed within the proper timelines is another decision made by the Case Manager that is not appealable, and this decision requires less interpretation than deciding if the appeal is based on an appealable ground. In our recent analysis of NSO appeals policies, we found that the 33 NSOs in our sample offered a range of between 7 and 21 days to file an appeal after a decision was made. One NSO had a short timeline of only 3 days and the maximum number of days provided by an NSO was 21. Simply, if the appeal is submitted outside of the timeline then the Case Manager can reject it.

We feel an effective Case Manager would grant more lenience to an appeal that was required to be filed within a short timeline or if there were understandable delays in the process that would permit a reasonable extension. An ineffective Case Manager would send every appeal to a hearing – regardless of timelines – which would mean that any decision made by the organization would always be impermanent because it could potentially be overturned on appeal.

  • Appoint a neutral and qualified Adjudicator

One challenge with a volunteer Case Manager appointing a volunteer Adjudicator is that the appointee could have some relationship or favoured disposition toward one of the parties – or simply a lack of experience with regard to administrative tribunal procedure.

We feel that an effective Case Manager can draw upon a range of Adjudicators and former (or current) sport leaders who have the necessary background and experience to make a comprehensive decision. Our analysis of NSO appeals policies showed that 22 of the 33 NSOs in the sample required three individuals to serve as an Appeal Panel and, composing a Panel of different backgrounds, viewpoints, and experiences, is also a hallmark of an effective Case Manager.

We continue to recommend that one Adjudicator can handle most appeals; with three individuals being appointed if necessary – but only 6 NSOs in our sample of 33 NSOs currently take that approach. The SLSG’s pool of Adjudicators has over 25 names and contains a diverse mix of individuals from different professions (legal, sport executive, and former athlete), sports (team, individual, winter, and summer), and experience with making decisions on appeals (between two and twenty years).

  • Facilitate the exchange of documents and prepare for the hearing

Most hearings take the form of an exchange of documentary submissions (i.e., submission by the appellant, submission by the respondent, rebuttal from the appellant, and submissions by any affected parties) along with, often, an oral hearing conducted by teleconference. It is the Case Manager’s role to facilitate this exchange of documents without the parties interacting with each other or with the Adjudicator. Each party and the Adjudicator should independently receive the same information.

We feel that an effective Case Manager will communicate in the same manner with both parties and guide the parties to make proper submissions. In many cases, the appellant (usually an athlete not represented by counsel) will be unfamiliar with the process of the appeal. An unprepared athlete who cannot make his or her case to the Adjudicator will be frustrated with the lack of direction and, ultimately, with whether he or she “told my story” – which is an important factor in procedural justice. Gentle guidance by the Case Manager – such as by informing the appellant to focus on the grounds for appeal rather than concentrate on personal emotion (“I feel cheated!”) – will help both the process flow smoother and aid the Adjudicator’s decision-making.

The hearing itself should be hosted by the Case Manager – not by the organization on the organization’s conference call system – but should be facilitated by the Adjudicator (or the Chair of a Panel, when three Adjudicators are required). The Case Manager should trust the Adjudicator/Chair to focus on the relevant issues, keep the hearing running smoothly, prevent the parties from rambling or repeating their written submissions, reduce discord between the parties, and ask pertinent questions. A Chair of a Panel of three Adjudicators should also permit the other Panel members to ask questions. Generally, a hearing should not last longer than one hour.

  • Ensure the decision is delivered smoothly and without incident

The Case Manager must ensure that the Adjudicator will be able to produce a written decision within the timeline provided by the organization’s policy for appeals (usually 14 days). Once the decision is produced, it should be communicated equally to both parties and any questions for the Adjudicator regarding the decision or its implementation should be directed through the Case Manager. Apart from channeling questions to the Adjudicator, once the decision is communicated to the parties, the Case Manager’s role is over.

We feel an effective Case Manager will have imparted a feeling of procedural fairness within both parties; regardless of the decision. Both parties should feel as if they “told their story”, were satisfied with the process, and perceived it to be fair. We occasionally receive comments about the process after the decision has been issued. One athlete (whose appeal was dismissed) wrote:

“Thank you very much for being patient, informative, and understanding during the past few weeks proceedings. We were new to this process, especially me, and you were great in creating a comfortable environment.  It was great to be met with professionalism from [the Adjudicator] and yourself and we understand and accept the ruling decision. I hope this has improved [our sport] on a whole for Canada and for future athletes like myself”

Oversight and Accountability

Most NSOs permit a decision heard under their internal appeals process to be appealed to the SDRCC. It has been our experience that approximately 15% of internal appeals decisions are taken to the SDRCC and that a great number of the decisions made by the SDRCC do not disturb the original decision made under the internal appeals process. The SDRCC is permitted to have a wider latitude for decision-making and, for decisions made under the internal appeals process that have been thrown out, the SDRCC decision often contemplated new information, involved additional parties (like Sport Canada or the Canadian Olympic Committee), or attempted to reach a compromise.

In some ways, the SDRCC acts as the oversight mechanism for an NSO’s internal appeals policy; more specifically for the decision rendered by the Adjudicator. But rarely, if ever, has the SDRCC commented on the procedural fairness shown during the internal appeals process by the Case Manager. So to whom is the Case Manager accountable?

The Case Manager’s accountability comes in the form of job effectiveness based on the job description. After being tasked with the five functions per the organization’s appeals policy, it is left to the determination of the parties if the appeal was managed in a satisfactory manner. We propose the following questions about effectiveness:

  • Is the Case Manager permitting only appeals that are based on appealable grounds?
  • Is the Case Manager rejecting only appeals that are not based on appealable grounds?
  • Is the Case Manager permitting only appeals that are within the timelines for appeals?
  • Did the Case Manager appoint a neutral and qualified Adjudicator?
  • Did the parties submit documents that were relevant to the appealable ground?
  • Did the parties submit documents within a reasonable timeframe?
  • Did the parties avoid direct communication with each other during the document exchange?
  • Did the parties interact civilly during the oral hearing (if applicable)?
  • Was the oral hearing (if applicable) free from confusion and/or technical issues?
  • Was the Adjudicator present and prepared for the oral hearing (if applicable) and was it managed properly?
  • Was the decision rendered by the Adjudicator within the required timeline?
  • Was the decision communicated to all parties in the same manner and at the same time?
  • Did the parties both perceive the process to be fair?
  • Are the parties satisfied that they each “told their story”?

If the answer to some of these questions is negative, then the organization should consider replacing the Case Manager with someone who more effectively fulfills the functions required by the organization’s policy for appeals. If those questions are all answered positive, then the Case Manager has been accountable to the effectiveness standards required by the position.

Kevin Lawrie – KRL@sportlaw.ca

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