Published May 29, 2007
By Rachel Corbett
Fourteen years ago in this space I wrote an article about injury prevention and liability in recreation (Could This Happen to You? Recreation Workers Can Take Steps to Prevent Injuries and Avoid Liability, Law Now 17:8. May 1993). My organization, the Centre for Sport and Law, was fairly new at that time. The focus of our work in the sport and recreation sector focused on risk management as it was then defined and interpreted. As we have expanded and evolved, so to has the traditional concept of risk management. Today, we help sport organizations approach risk management as a tool to improve organizational capacity through improved governance, dispute management and business management.
Since I first wrote for this magazine, the Centre has grown from two professionals to five. It has moved from its origins in Edmonton, Alberta to a network of virtual offices in Ontario where we work with local, provincial, national and international sport bodies. Public education around safety, injury and liability has been replaced with dispute management as the mainstay of our activity. This is not to suggest that safety is not important – it certainly is, but most recreation and sport organizations are finding the resources they need from funding bodies, government agencies and the insurance industry. The issue of conflict management, on the other hand, represents a ubiquitous problem and a constant challenge across the sport and recreation sector.
To put this into perspective, it is useful to examine two recent pieces of information. The first is “A Portrait of Sports and Recreation Organizations in Canada”, published by Imagine Canada in 2006 and based on data from the 2003 National Survey of Non-Profit and Voluntary Organizations. The second is the “Canadian Public Opinion Survey on Youth and Sport” conducted by the Canadian Centre for Ethics in Sport in 2002.
The sport and recreation sector is the second largest segment of the total non-profit community in Canada, slightly smaller than the social development sector but larger than the religion, arts/culture, health, environment and international sectors. According to Imagine Canada, the sport and recreation sector comprises over 33,000 organizations employing over 130,000 individuals, supported by 3 million volunteers and earning over $6 billion in revenues annually. However, sport and recreation organizations in Canada tend to be small and over half of them report annual revenues under $30,000. As well, they are less likely to have paid staff than any other type of non-profit organization in Canada. Nearly three-quarters of Canadian sport and recreation organizations have no paid staff whatsoever, relying solely on volunteers to oversee and manage their programs.
The results of the 2002 national survey on youth and sport revealed that while the vast majority of Canadians (92 %) feel that sport can make a positive contribution to the development of youth and the quality of life in our communities, less one in five Canadians (19 %) considers that sport is living up to this potential. This represents an alarming discrepancy between the perception of what is and what could be. The Canadian Centre for Ethics in Sport attributes the gap to the persistence of problems such as bullying, violence, harassment, parental conduct, doping, lack of access and exclusion in amateur sport.
When these two documents are considered together, it is not a surprise to me that conflict is pervasive within the sport and recreation sector. Volunteers are the lifeblood of the sector, but a total reliance on volunteers presents serious challenges from the perspective of organizational capacity. A volunteer, no matter how well-intentioned, is less likely than a paid staff person to have the time, knowledge and resources to prevent and manage disputes. We have also observed that there is a rapid turnover of key volunteers and leaders within organizations – so while this year’s executive and league convenors might be up to speed on techniques and tools to manage disputes, next year’s roster will be all new faces.
This observation that conflict and disputes might be pervasive in sport and recreation is consistent with our own experiences. Today, we spend the bulk of our time helping sport organizations better understand, plan for, manage and prevent conflict. We thought it would be useful in this space to share some observations of how we see that things have evolved over 15 years of being at the forefront of dispute resolution in Canadian sport
Firstly, it is most apparent that amateur sport Canada has become more litigious. Coaches and athletes are increasingly aware of their rights as they relate to membership privileges and benefits, and sport organizations have had to become more mindful of their responsibility to be procedurally fair in allocating these privileges and benefits. This changed reality is visible at the top of the sport pyramid and also at the very bottom of it in community-run minor sport programs. For example, parents today appear prepared to go to court because their child is spending time on the bench instead of on the field of play – something we could not have imagined even a decade ago.
A decade ago, we also rarely saw the level of violence and verbal abuse that can be observed in hockey rinks and on soccer fields today. For many sports, an increased tendency by parents to intervene has given rise to a need for more stringent policies and rules about the conduct of parents and other spectators. Many municipalities and school boards have become valuable partners in this effort by declaring themselves fair play facilities and enforcing prominently posted codes of conduct for teams and spectators. In many cases, it is now a condition of funding by government and a condition of use by facility owners that teams and leagues enforce codes of conduct and policies relating to harassment and abuse.
Related to this sort of behaviour is the emerging problem of bullying. Historically a schoolyard issue, we have come to observe that many of the same ingredients exist in the sport setting. As teachers and parents have become more informed and more proactive in addressing the problem in schools, we have also begun to use the same language in educating athletes and coaches. In fact, we have found that the vast majority of complaints from sport organizations that come to us and that are couched in the language of harassment and abuse, are really complaints about old-fashioned bullying. The tried and true remedy for bully situations is for a person in a position of authority to intervene – in other words, for adults to stop being bystanders – and this holds true at the hockey rink as well as in the schoolyard.
The landscape of how sports and human rights laws interact has changed dramatically. In the 1980s Justine Bailey of Ontario fought for her right to play hockey on a boys’ team because there was no girls’ team. In 2006, Amy and Jessie Pasternak of Manitoba fought and won their right to try out for their high school boys’ hockey team, because the girls’ team at their school wasn’t good enough. It is now clearly established in precedent that sport organizations are subject to provincial and territorial human rights codes and we are seeing more challenges about sex and age discrimination succeed. Amateur sport has always structured itself along lines of sex and age (hence the bewildering gamut of atom, peewee, midget, bantam, juvenile, junior and senior categories for competition), but those lines are becoming increasingly blurred today.
Public attitudes have also changed about moral issues like hazing and drugs. Hazing, or extreme forms of initiation rites for rookies on sports teams, has until recently been quietly tolerated in schools, clubs and on teams. Initiation and hazing has been considered part of the sport culture and while not actively promoted, many coaches, managers and sport administrators have tacitly condoned them. More recently, this has changed. Parents and the public are now quick to condemn hazing and most schools and sport organizations have instituted zero-tolerance policies to combat hazing. It helps when a premier institution like McGill University acknowledges publicly that “serious hazing had occurred” in its football program in August 2005, and that “Hazing is based on humiliation and degradation – it has no place at McGill”. The Canadian public also listens when a sports hero like Wayne Gretzky condemns hazing in the Calgary Sun newspaper by saying that there is absolutely no room for it in sport.
Over the last 15 years, there has been a marked evolution in how Canadians perceive performance enhancing drugs in sport and how the sport sector deals with disputes around drug use. Following the Ben Johnson steroid scandal and the Dubin Inquiry into drug use in sport, Canada became a global leader in its regime of random testing, and throughout the 1990s we also imposed the strictest penalties. A prominent Canadian, Richard Pound, has done much to unite other countries in a harmonized effort to combat drug use in sport and to subscribe to a single, uniform anti-doping code. Today there is strong public support for Canada’s anti-doping programs and penalties. There is also widespread public condemnation for drug cheats as evidenced by slugger Mark McGwire’s failure to be nominated to the Baseball Hall of Fame (his crime was using a substance that, at the time, was not even banned by Major League Baseball).
Another significant change that we have observed, particularly in the last ten years, is a growing awareness of the ugly underbelly of amateur sport. NHL player Sheldon Kennedy’s startling admission in 1997 that he had been sexually abused over many years by his junior hockey coach likely did more than any other single event to raise the standard of care for community sport and recreation organizations that serve youth and other vulnerable populations. Submitting to police records checks is now the norm for many volunteers in community sport programs. Yet, fulfilling this standard has caused administrative hardship for these organizations, which as noted above are primarily volunteer-led and managed.
Finally, there have been important changes in how disputes in sport are handled on the national scene. As a natural evolution paralleling the advent of ADR (alternate dispute resolution) techniques to deal with disputes, a government-sanctioned program for sport dispute resolution has now been implemented nationally in Canada. Designed to accommodate disputes between national sport organizations and their members (coaches, athletes, officials), including doping disputes, the program is quite unique in the world. Rather than incurring the time and expenses of legal action in court, the parties in sport disputes can take their issue to an independent, expert arbitrator or mediator, who will help them deal with their dispute quickly and cost-effectively.
Since being launched in an interim fashion just prior to the Salt Lake City Winter Olympic Games in 2002, and in a formal fashion with the adoption of the Sport and Physical Activity Act in June 2003, the Sport Dispute Resolution Centre of Canada has heard and decided about 80 cases. All of these decisions are public and provide a valuable body of jurisprudence. While the program is voluntary, the government of Canada has made it very clear that government funding to a sport governing body will be tied to its participation in this program. As a result, it has become a part of the national landscape and it will be interesting to see if there is a desire to expand such a program to the provincial level where it is also sorely needed.
Yet, while many things change with time, others do not. I remain convinced that the causes of disputes in sport are no different today than 15 years ago. In the 1990s we carried out a study for Sport Canada on the sources of conflict within local and provincial sport bodies. We were able to group the results into three general categories: personalities, policies and knowledge. Essentially, personalities do not change, but knowledge can be obtained and policies can be improved. This is where there remains important work to be done in helping sport organizations and their members deal with their disputes in more cost-effective and timely ways, and hopefully with less acrimony.
Our work in this field since 1990 has shown us that effective dispute management and effective governance go hand in hand. We believe that four elements are important: the first is prior planning to ensure that the policy house is in order. A strong policy framework is essential for guiding the dispute management process. The second element is proper execution of policies – in other words, making sure that policies are interpreted and implemented properly. The third element is providing a review mechanism, where appropriate, through a legally sound internal appeals policy. The final element of effective dispute management is knowing when to seek outside help. There is a fair amount of it available; community mediation services; lawyers and arbitrators in the local community, many of whom have organized themselves into practice groups and are willing to provide services to sport at reasonable rates; local sport councils; the local municipal recreation department that oversees minor sport programs in a community; and multi-sport federations that exist in each province.
In the dispute field, the saying an ounce of prevention is worth a pound of cure is very true. Organizations should not be hesitant to consider obtaining the services of an outside person to assist with investigation, mediation or arbitration. Because a dispute is by definition messy and ugly, referring it to a skilled outsider is often the best way to preserve internal relationships, open channels of communication, and safeguard future goodwill. Another word of advice to sport organizations - when confronted with a complaint or a problem, act swiftly and responsibly. These are not the kinds of situations that will go away by themselves or mellow with age. Sometimes, a swift and well-judged immediate response can resolve a dispute, and in all cases, such a response will prevent a dispute from escalating.
Originally published: Law Now (May/June 2007) Vol. 31(5)