Avoiding Uncertainty in Policies and Contracts

We know ... writing and reading policy documents and contracts can be boring and tedious. I can attest to this as I have spent the last several months as a member of a team negotiating a collective bargaining agreement at a Canadian University. But these documents are important and they are essential elements of making the business of your sport happen.  Policies guide the actions of our members, committees, boards and staff, and contracts are the way that we manage relationships with stakeholders, partners, suppliers, and contractors. So don't turn away from this blog! It is not boring or tedious! It contains important information on how to make your drafting of documents better and your reading of them more discerning. This can only help you to be a better sport manager.

Uncertainty is fact of modern life and we have all adapted to being managers and leaders in uncertain and complex times. But uncertainty in a contract or policy invites additional problems that can be avoided through careful drafting of policy and contract language. Ken Adams, who writes prolifically on legal drafting, says that uncertainty arises from six sources - ambiguity, undue generality, inconsistency, redundancy, conflict and vagueness. Often ambiguity, the first of the six sources, is used as a catch-all for the other five sources of uncertainty. But all six are different, and to lump them together simply obscures the problem and does little to help a manager improve his or her own drafting skills.

Each of these six sources is discussed further below.

AMBIGUITY

Something is ambiguous if it is capable of conveying two or more meanings. Ambiguity can arise from several sources. One is the order in which words and phrases appear. I have become very familiar with this as part of my current role in negotiating the collective bargaining agreement. The process requires that we negotiate by putting forward versions of the proposed contract language for the collective agreement. One word, or even comma, misplaced can change the whole meaning of a contract clause!  To illustrate how something so little can have an effect so large, but without going into details, in the year 2000 the status of a very well-known national team athlete with  the Canadian Olympic team turned entirely on the improper placement of a two letter word in the Standard Operating Procedures of the Canadian anti-doping policy in effect at that time.

A second source of ambiguity arises where there is not sufficient context given so as to interpret certain words. As noted by Adams, "ambiguity generally passes unnoticed during the drafting process". Think of times you may have thought you made something crystal clear only to have someone see it from a totally different vantage point - one you hadn't considered. Having someone else review documents before release will often catch some of this ambiguity.

GENERALITY

Sometimes a clause is drafted so generally that it catches far more than was ever intended. For example, don’t refer to “all team members” if you are meaning only athletes and coaches – because “all team members” could include team leaders, managers and support personnel in addition to athletes and coaches.

This almost happened in our negotiations and we had to quickly retract a certain proposal. The generality of our language led to serious consequences when it was applied beyond what we had intended. Our general language caused confusion in the eyes of the membership as to what we had originally intended.

This sort of uncertainty often occurs by describing jurisdictions too broadly (e.g., "all clubs", "anyone with a criminal record", “all team members”) or activities too broadly (“conduct while a member of the team”).  The key is to ask what problem or situation one is intending to address and limiting language to that.

INCONSISTENCY

Inconsistency in drafting comes from employing one word or phrase to convey two different meanings or, the same meaning. We have witnessed many policy disputes as a result of inconsistent use of terms: do “tournament” and “championship” mean the same thing? Do “results” and “performance” and “ranking” mean the same thing? Likely not. As a general rule, it is best to use just a single term, and define it if you can. We also suggest avoiding saying the same thing twice, in different places, in one document. Doing this just invites inconsistency.

Inconsistency also arises where one clause contradicts or creates uncertainty with the meaning of another clause. This usually happens because an existing policy or agreement is amended to address a new or different situation, and in making this amendment no effort was made to be sure the amendment did not have repercussions through the rest of the document. In the extreme, some documents or policies exhibit what we call the “topsy-turvy” effect – there has been so much added to it over time, in little bits and pieces, but these additional provisions have never been reconciled with the rest of the document or with other documents, with the result that the whole thing becomes unbalanced and unworkable.  In this case, the only way forward is to start over with a clean slate.

REDUNDANCY

This arises where multiple words are used - usually to 'cover the bases', but often just from following some template or familiar legalese. We have all seen the headings such as  "Hold Harmless, Indemnification Agreement". That can be contrasted with "Consent, Hold Harmless, Waiver Agreement." The latter is quite different! Many people drafting documents use phrases that are ubiquitously familiar but for which they really have no understanding. We need to understand what we are writing and what each word means and why it is there.

There is another form of redundancy - if I say it again it will be seen as more important. Perhaps there is some human truth in this, but it is legally risky. In my own collective bargaining negotiations, much to my chagrin but probably quite sensibly for the readers of the eventual collective agreement, there is some redundancy simply to reinforce or remind the reader of certain provisions. It is not economical and is certainly not necessary, but perhaps it is important for the better usage of this extensive document. But this comes with a caution – we have to be absolutely sure there is no ambiguity in our redundancy! You can thus see how uncertainty can creep in ...

CONFLICT

Conflict occurs when certain provisions in an agreement or policy contradict each other outright. In one party of a Games Team Member Agreement, it will say that disputes about team selection will be dealt with by the National Sport Organization (NSO) while in another part, it says that disputes about team selection will be referred to the Games organization's appeal policy. This is an outright contradiction – although the contradiction could be corrected by addressing some other sources of inconsistency and making some wording changes (perhaps a dispute about team “nomination” is heard by the NSO, while a dispute about team “selection” is heard by the Games organization? …). Another common source of conflict is that an organization has one form of discipline procedure to apply to members generally but a different discipline procedure set out in a team member contract or in a team code of conduct, and no stated direction as to which one takes precedence – so which procedure applies?

VAGUENESS

Vagueness arises whenever a concept provides for the possibility of 'borderline' cases. For example, the term "injured" is vague, "shows leadership" is vague  - one cannot say exactly what criterion someone might need to reach to meet to be deemed injured or to show leadership. These are relative terms.

Drafters often use vague terms - they can actually be very useful. As Adams suggests, "drafters invoke vagueness whenever future circumstances are sufficiently uncertain as to render precise terms unworkable." Well, that opens the doors...! There are some legal understandings for some terms: "reasonable notice", "substantial completion" mean something at law, but there is less understanding around many sport-specific, yet vague terms (for example, the selection criteria may be relaxed in extraordinary circumstance… is equipment malfunction an extraordinary circumstance? Death in the family? Attending a wedding? Being ill that particular day?)

There is a notion, at law, of the "reasonable person" against which the term reasonable is judged. This "reasonable person" is viewed from an objective standard. In fact, in interpreting the clause of a "reasonable person", one must adopt the perspective of a reasonable person in the position of that party rather than the actual perspective of the party (and all the baggage it might carry). In fact, the "reasonable person" test can be a very useful one, but people have to understand its objective perspective as opposed to the subjective and somewhat personalized perspective of many who try to implement policies or contract provisions in the sporting world.

I have written this piece because I have been immersed in a process of negotiating a collective bargaining agreement, but over my 20 years with the Sport Law & Strategy Group I have often seen the unfortunate results of careless document drafting. This is the time of year that many summer sport NSOs are developing their criteria for selection to the 2012 Olympic Team. Our suggestion is to be diligent and careful in this process, seek input from others (who are not immersed in it as you are, and who can bring that reasonable person perspective to the task) and before publishing it, consider having it quickly reviewed by someone who has a sharp legal eye for these things.

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Ken Adams is the author of A Manual of Style for Contract Drafting, an excellent resource for any drafting wonks out there.

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