Demystifying Legal Processes in Sport

Published on January 27, 2022

Part of our commitment to elevate sport is providing accessible information and practical guidance to the Canadian sport community, including clarifying frequently used terms. Given the potential for confusion regarding the different ways to manage conflict, maltreatment, and complaints in sport and how we can address deficiencies that cause or contribute to these issues, it is always helpful to be mindful of the terms being used. This article outlines some of the processes that are available to manage conflict, as well as commonly used terms encountered in those processes.

Background

Before discussing the different processes available, it is important to note that regardless of the process chosen, a key aspect is the Terms of Reference agreed to by the party engaged to do the work. These terms are critical as they set out essential details, such as the scope of the process, including the authority to compel testimony and documents, the timeframe for the process and any outputs or expected deliverables. Other details may address items such as the reporting structure and confidentiality.

About our services

With thirty years in the sport industry, our team has ties with sport organizations across the country. In some cases, we act as counsel for the sport organization, providing advice when dealing with complaints or litigation. In other circumstances, our role is providing consulting support as organizations navigate change through our proactive solutions offered by our Integral Coaches and change management consultants.

Regardless of the services provided, Sport Law only acts when we can do so free of any restrictions or conflicts of interest.

When we are engaged by a sport organization to provide a service, we begin by conducting an intake process to better understand the nature and extent of the request. This allows us to begin to identify any underlying sources of conflict or tension. With our multi-disciplinary team, we specialize in supporting sport organizations to develop mechanisms that provide employees, coaches, and athletes with proactive approaches to reduce needless escalation and to minimize harm. This initial intake also helps us determine whether we are able to act in a matter so that we can conduct our work without bias or conflict of interest.

As our team includes professionals subject to obligations established by their respective professional governing bodies, such as the Law Society of Ontario and the International Coaching Federation, we have an ethical and legal obligation to only assist organizations when we have determined we are conflict free.

Commonly used terms

We understand how challenging the current landscape is when it comes to resolving disputes. To support the sport community in demystifying some of the terms and processes, we are sharing some information here. The information provided is not intended to replace legal advice.

Appeals

  • Some organizations have Appeal Policies which allows an individual who has received a decision of the Sport Organization that affects their participation in the sport to appeal the decision. Similar to complaints, appeals may involve a wide range of subjects, including team selection , eligibility or membership.
  • An Appeal policy often requires that an Appeal Manager/Officer be appointed to oversee the appeal process, with similar administrative responsibilities to a Case Manager.
  • The ability to appeal certain decisions may be limited by the appeal policy. Appeals that are excluded, such as doping, employment matters or governance disputes, must be appealed to a third party, either through an organization such as the SDRCC or the court system. When a Sport Organization has an appeals policy, a participant is usually required to exhaust the internal appeals procedures available to them before appealing their matter to an outside body. Article 3.1(b) of the Canadian Sport Dispute Resolution Code (available here) requires that all internal dispute resolution procedures are exhausted before a matter can be heard by the SDRCC, with limited exceptions.

Arbitration

  • Arbitration is a dispute resolution process where parties involved in a dispute agree to have their disagreement heard by an independent third party. The parties must agree in advance that they will be bound by the arbitrator’s decision. The process shares many similarities with civil litigation before a judge, but arbitration has several advantages over the court system, including that the process and outcome can be private, takes less time and can be more cost effective than the court system.
  • Arbitrators often specialize in certain types of disputes – such as sport – allowing the parties to access a decision maker with specific subject matter expertise. In some cases, arbitrators are provided by a third-party service, such as the SDRCC, or they may be selected by mutual agreement or Case Manager.

Bias

  • Generally, bias means that an individual or organization is predisposed towards one side in a dispute or would prefer a particular result.  A commonly applied definition is that bias is the “condition or state of mind which sways judgment and renders a [decider] unable to exercise his or her functions impartially in a particular case.”[1]
  • A decision maker who is biased is unable to contemplate all potential outcomes, which means that they cannot fairly be involved in a proceeding. The test is whether a reasonably informed person, after reviewing the matter realistically and practically, would decide that it is likely that the decision maker would not be able to decide the matter fairly. It is important to note that a finding of bias is a relatively high bar to meet.

Complaints

  • Most Sport Organizations, either through a Code of Conduct or Complaints policy have a mechanism for reporting maltreatment or inappropriate conduct by a participant. Complaints can cover a wide range of behaviours, from allegations of sexual, physical, and psychological maltreatment to improper conduct on social media to concerns about violations of the rules of the sport. The process followed by an organization following the submission of a complaint depends on the nature of the allegations in the complaint.
  • A Case Manager or Safe Sport Officer is often the designated contact for anyone submitting a complaint with a Sport Organization. The roles and responsibilities of these individuals in receiving and managing complaints is set out in the applicable policy. The Case Manager’s primary role is administering the complaints process fairly and determining what process to follow. They may order an investigation to be completed by a third party or appoint a disciplinary panel. The Case Manager has limited decision making power, often restricted to addressing jurisdictional or procedural concerns rather than the merits of a complaint.
  • Some complaints must be reported by a Sport Organization to the police, depending on the nature of the allegation and the statutory obligations that may apply. For example, any who has professional or official duties involving children has a duty to report suspected abuse or neglect under the Child, Youth and Family Services Act or other applicable legislation, depending on the province or territory.

Conflict of Interest

  • Conflicts of interest arise when an individual or organization cannot be impartial, in most cases because they stand to gain personally at the expense of one of the parties involved in a dispute or investigation process.
  • Similar to issues of bias, the party’s mind is closed or may appear to be closed to all possible outcomes because of their vested interest in an issue. Conflict of interest can involve monetary or non-monetary personal gain.
  • Most professional oversight bodies such as law societies require that lawyers only act in situations where the lawyer’s loyalty to or ability to represent a client is not materially and adversely affected by their own interest or their duties to anyone else. The risk here has to be more than a mere possibility; there has to be a genuine, serious risk to the clear duty of loyalty.

Inquiry

  • An inquiry typically involves an independent body created to examine an incident or matter of public interest and to provide recommendations on this topic. Often the body will have the ability to compel documents and testimony and documents from witnesses or other parties.
  • The landmark Commission of Inquiry into the Use of Drugs and Banned Practices Intended to Increase Athletic Performance, often called the Dubin Inquiry, is a prime example of this type of process. This inquiry, which was initiated by an Order in Council, took years to complete. With a staff of over forty, the inquiry involved public hearings with over 119 expert witnesses and 295 exbibits which resulted in Chief Justice Dubin’s seminal report (available here).
  • This report shaped Canada’s approach to managing and mitigating the use of doping in sport.

Investigations

  • Investigations are most often initiated by a complaint or concerns identified regarding conduct within a team or workplace. Where appropriate, investigators may be a member of the organization itself, or they may be an external third party. In either case, the investigator can have no connection to the issue or any of the individuals identified as parties in the complaint to remain neutral and conduct an independent investigation.
  • An investigation may involve different procedures. Some common steps include:
    • Interviews with the Complainant and Respondent
    • Witness interviews
    • Written responses from the Complainant and Respondent or other interested parties.
  • At the end of their investigation, the investigator prepares a report and provides it to their designated contact. This report should include a summary of evidence from the parties, the legal standard applied regarding proof of allegations and any conclusions or findings made by the investigator.

Mediation

  • Mediation is a dispute resolution process where parties involved in a dispute voluntarily agree to seek the assistance of a neutral third party to help facilitate a resolution to their dispute. Unlike arbitration, there is typically no formal presentation of evidence or cross examination, and the process does not end with the third party making a binding decision.
  • Most mediations are closed, meaning that anything discussed during the process is confidential and may not be disclosed or used in any subsequent legal proceeding.
  • In mediation, the parties develop a mutually agreeable resolution and must freely choose to accept any settlement or not.

Review

  • Reviews are initiated by an organization and are most often conducted by independent third parties, but they can be done by an internal panel. The scope and procedural aspects of a review vary widely and largely depend on the subject matter in question. A review can involve a paper-based analysis of policies and procedures or involve numerous interviews with stakeholders. Reviews can also be conducted to assess organizational culture and ways in which organizations can improve their performance on the field of play or within their workplace. In some cases, reviews are initiated in response to an identified organizational concern, but they can also be cyclical to ensure that an organization is following current best practices.
  • A typical review identifies concerns or deficiencies or aspirations and sets out recommendations for addressing gaps or improving processes. A second stage of a review may involve the independent party developing new policies and procedures based on the findings of the review.
  • Generally, reviews are process oriented and unlike investigations, do not assess evidence, weigh credibility of witnesses or make findings about culpability.

We hope you find this useful and please feel free to reach out to Will Russell at WDR@sportlaw.ca if you wish to discuss the legal needs of your organization.


[1] Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259

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