Getting Your Policies in Order

by Rachel Corbett.

I have been asked by the organizers of this symposium to provide a session on how to translate the many legal principles which are being discussed today into practical policies and procedures for you to use in your daily work with your sport organizations.

During the course of today's symposium you will be hearing of such legal terms as tribunal, contract, and procedural fairness. You will also hear about principles of administrative law -- the area of law governing tribunals. What I would like to do is interpret these terms for you, and give you practical suggestions on how to improve your organization's policies and procedures relating to selection and appeals, as a way to better manage your risks and minimize litigation.

As a way of introduction, I would like to elaborate in a non-lawyerly fashion, on the legal terms which have come out of today. After that, my presentation will be built around the four key areas I believe you have to pay close attention to, and I will then run through some critical issues specific to selection and appeal procedures - issues that we have come to understand better only through the painful lessons of practical experience.

What is a tribunal? In simple terms it is any organization (public or private) which has the power to make decisions which affect people. Administrative law is the body of law which applies to tribunals - much of administrative law focuses on whether or not the tribunal interpreted its rules properly, followed its rules, or properly received or delegated its authority with regard to the implementation of its rules. The important thing for you to know is that your sport organization is a tribunal which is subject to the principles of administrative law.

What is a contract? And how does it enter into matters of selection and discipline? A contract is a binding agreement between two or more parties which may be enforced legally. The notion of a contract is important to the sport organization because it describes the legal relationship between a sport organization and its members. This important distinction dates to a 1952 decision of the British House of Lords, in a case brought on by a vendor of knick-knacks against the association which ran the flea market where he sold his knick-knacks. Hardly the exciting stuff of sport, but nevertheless this decision advanced several principles which have been critical for sport every since. One of these is that the contractual relationship between an association and its members is defined in the organization's constitution, bylaws and governing documents.

And finally, what is procedural fairness? The idea of fairness comes easily to people in sport. But what does it mean legally? In the law, procedural fairness comprises three principles:

  • Authority -- the authority to make a decision must be properly vested in the decision-maker
  • Right to a hearing - the decision-maker has a duty to give the person affected by the decision a reasonable opportunity to present their case
  • Rule against bias - the decision-maker has a duty to listen fairly to both sides and to reach a decision untainted by bias.

Now, we all know that sport organizations get into trouble over a number of things, but specifically they get into trouble when:

  • They have not established rules and procedures to deal with something

We see this often is cases involving discipline where the sport organization has made a decision regarding discipline without having had any authority or any policy or procedures to do so. Without exception, these disciplinary actions are overturned when challenged in court.

  • They have established rules and procedures but they are vague, incomplete, ambiguous or contradictory

I have been involved in several examples of this happening, quite unintentionally. The sport organization, intending no harm, believed it had a good procedure until it came time to put into effect. To their horror they found that the procedure didn't work - in these cases, the challenge was to find a way to fix the flaws, even on the fly, while still meeting the standards of fairness for all parties.

  • They have established rules and procedures but then choose to deviate from them or not follow them at all.

When this happens, I am usually prepared to give the sport organization the benefit of the doubt by accepting that they truly believed that the reasons for deviating from the rules outweighed the reasons not to. There can be any number of reasons for changing the rules including unscheduled changes in selection meets (which are outside the control of the organization), bad weather or athlete injury. An example of this occurring was the case of Patrick Kelly v. Canadian Amateur Speed Skating Association - a sport body which had a perfectly sound appeal mechanism in place to deal with a dispute over selection, but then opted not to follow it for reasons that may have made sense at the time.

Having explained to you the legal meanings of the terms tribunal, contract and procedural fairness, I think one can see why these problems arise.

  • As a tribunal, the sport organization is subject to administrative law principles which govern issues such as authority, rule-making and rule interpretation.
  • The contract which exists between the organization and its members is fixed in the organization's governing documents and, like any binding contract, cannot be breached. If and when changes to the contract are required, they must be brought into effect using all the proper procedures to do so.
  • Finally, procedural fairness tells you that you must meet certain standards relating to making decisions based on full information, giving those affected by the decision an opportunity to know the case and to be heard, and ensuring that the decision is not tainted by bias or improper considerations.

In discussing practical aspects of selection and appeal procedures, I would like to separate my comments into four categories. These are:

  1. Constitution/Bylaws
  2. Delegation of Authority
  3. Policy
  4. Implementation

My emphasis will be placed on the first two of these items (bylaws and delegation of authority) because I truly believe that this is where some of the greatest problems have occurred.

CONSTITUTION/BYLAWS

This is the foundation of the sport organization's contract with its members. From this foundation must flow all the powers of the organization and all the benefits and privileges of its members. Although dreadfully dry and boring, bylaws are critical and I can't stress strongly enough that you should examine then in close detail to ensure that they allow you to make decision in the areas of selection (that is, the bestowing of benefits upon members), discipline (that is, the removal of benefits already bestowed) as well as appeals.

While the temptation to adopt generic bylaws such as those put forward by Consumer and Corporate Affairs Departments across the provinces, is strong, to do so can be a grave mistake. I recall that the standard bylaws advocated in Alberta (from where I have most recently come), as well as the Societies Act in Alberta, did in fact allow a board to discipline members -- by assessing a $5 penalty - but they allowed no other form of discipline. Any organization incorporated under this legislation and who had not crafted their own bylaws which specifically authorized disciplinary action, was severely restricted in the disciplinary decisions which they could make.

Some of you may have heard of John Carver, author of "Boards that Make a Difference". As a guru of non-profit governance and leadership, Carver has much to say about bylaws, including this telling comment:

It is best that legal counsel not write bylaws, but only review the board's product. [Lawyers] are qualified to opine on the legality and risk exposure of bylaws, but are not qualified to determine how the board wishes to be.

Briefly, good bylaws are those written by yourselves (not lawyers), and they should be two things:

  • Lean - they should only address the basic structure of the organization and the empowerment of the board, committees and members. Forget all the other detail. Remembers that anything which can be stated as well in policy should be omitted from your bylaws.
  • General - whenever possible, minimize the details such as titles and duties of officers, names and descriptions of committees, and any reference to staff.

In terms of authority to make decisions relating to members, the bylaws should be as concise and general as possible, leaving to policy the details of how decisions will be made. A powerful set of enabling clauses would the following, or something similar:

  • Except as provided in the Act the Board has the powers of the Association and may delegate any of its powers, duties and functions as it sees fit
  • The Board may make policies and procedures for managing the affairs of the Association in accordance with these bylaws.

Other examples of good bylaw wordings related to selection, dispute resolution and appeals would be the following:

  • The Board may make policies and procedures relating to how disputes shall be managed and all disputes shall be heard in accordance with such policies and procedures.
  • The Board may establish policies, timelines and criteria relating to selection to representative teams.
  • The Board may make policies and procedures relating to discipline and shall have the authority to discipline members in accordance with such policies and procedures.
  • Anyone who is affected by a decision of the Association may appeal that decision in accordance with the Association's appeal policy, as amended from time to time.

DELEGATION OF AUTHORITY

The above bylaw suggestions lead directly into a few comments on delegation of authority. Generally, it is a given that the Board has whatever authority the organization has. The trick is to then delegate that authority downward to levels of the organization which are practical and sensible - because without specific delegation, a decision is not authorized. Delegation most often occurs in written policy, but it can also occur in a resolution or motion of the Board or of a Committee.

Delegation of authority has been particularly problematic in selection matters. One earlier case turned specifically on this issue. Lorie Kane, an amateur golfer at the time, challenged the Canadian Ladies Golf Association in a PEI court over a matter relating to authority to change selection criteria. The National Teams Committee mistakenly believed that it had the authority to add a new subjective criterion to the selection mix - the "potential to win at competition" which was based upon "international experience" and "exceptional performance". As it turned out, they didn't have this authority - they only had the authority to apply the existing criteria and make the selections. The distinction between these two powers is subtle to the uninformed. Be sure that your selection policies are clear about who determines the process and criteria, as compared to who actually carries out the selections.

POLICY

I happen to be someone who enjoys the challenge of writing clear, concise policies. I recall a lawyer once telling me that he enjoyed drafting contracts and that he likened the experience to taking apart a bicycle right down to the nuts, bolts and bearings, and putting it back together again - ensuring, of course, that there were no parts leftover. A good policy is like a good contract - no loose ends, no unanticipated gaps, general enough to accommodate the majority of circumstances but specific enough to provide a practical guide to those who have to implement it.

Good policy should also be:

  • based upon a statement of intent - every policy should have a preamble which states in general terms what the policy is setting out to achieve. This can assist enormously down the road if there is difficulty relating to interpretation of the policy's terms.
  • concise -- I maintain that there's an inverse relationship between the soundness of a policy and its length. Strive to be short and clear.
  • literal - the policy should say exactly what it means.

Policies are very hard to write from scratch. Fortunately, there are good models to start with and in particular, I would recommend that you begin with the model appeal policy developed by the Centre for Sport and Law and featured in our handbook on administrative appeals. We have also had experience drafting disciplinary policies and these are useful models because the norms of behaviour are fairly common across sports, and the procedural mechanisms for making disciplinary decisions are dictated by requirements of fairness and these are fixed.

Model policies for selection are much more problematic because so many of the issues that relate to selection are sport specific. These policies must address the performance standard which is required, how achievement of that standard is measured, if there are several criteria how will they be weighted, if there are subjective criteria how will discretion be controlled, how the process will be communicated and how injuries or other unforeseen circumstances will be accommodated. Many of these aspects are unique to the sport so the organization must do its homework in terms of developing a manageable, thorough and fair selection policy. Unfortunately, for this reason there are few models which can be used as a starting point.

IMPLEMENTATION

This final element refers to the actual task of carrying out selections, discipline and appeals. This phase is where there is great potential for error, even if the bylaws, delegation and policies are letter-perfect. Typically, implementation would be overseen by the Senior administrator of the organization, with input from the Executive or from key committees. Unfortunately there's no textbook on how to do this, but the organization should not hesitate to seek outside advice where it anticipates problems. This is an area where lawyers are extremely valuable, and the saying "an ounce of prevention is worth a pound of cure", very certainly applies.

There are also untapped opportunities to own up to and correct errors, including going back to Step 1 of the process, if necessary, whether it be a process of selection, discipline or appeals. Many organizations have the mistaken belief that once started down a path they have to follow it to the end, which is clearly not the case. "Doing it right" may mean doing it over. If to continue the process jeopardizes fairness then it is clearly preferable to begin again, correcting the errors.

CRITICAL ISSUES FOR SELECTION

Listed below are what I believe to be some key policy issues for selection.

Clarify what is delegated

I have already referred to the subtle but critical distinction between authority to determine criteria, and authority to apply criteria. As well, before implementing a selection procedure, ensure that delegation has been properly carried out.

Objective v. subjective criteria

There is nothing wrong with subjective criteria for selection. I think that some people have become "gun-shy" and have moved completely away from subjective criteria to objective performance measures, even where these might not produce the best "team". In team sports subjective criteria may be essential. The challenge to a fair selection process involving subjective criteria is to ensure that the decision-makers' discretion in carrying out a subjective evaluation is controlled. For example, if some of the measures to be considered include "coachability", "maturity", "attitude" or "leadership" it is wise to provide the decision-maker with structured guidelines to assess these characteristics.

Weighting of criteria

If there are several criteria being considered, you should give thought as to how they will be weighted. If your policy is silent about this, then is only reasonable for an outsider to assume that all criteria have equal weight, which certainly may not be the case.

Dealing with unforeseen circumstances

Try to anticipate how your policy will deal with unexpected circumstances. For example, if your sport occurs outdoors and there is a possibility that a selection event might be affected by adverse weather conditions, ensure that there are contingency plans in place for dealing with this. If there is a possibility that your selection process will deliver up a "tie" you should be prepared with a mechanism for tie-breaking.

Finally, your sport will have to make a decision about how to accommodate an athlete's injury - this is both a philosophical decision as well as a practical decision. At different times during the selection process, an injury may be more or less manageable. As well, serious injuries may have to be treated differently than mild injuries, and the injured athlete perhaps should be required to meet ongoing fitness requirements to maintain their eligibility for selection. There may also have to be provision for independent medical advice to determine the extent and seriousness of the injury. There are no guiding rules for dealing with injury in selection - the key is simply to think about it beforehand so that when the situation arises your sport can deal with it decisively.

CRITICAL ISSUES FOR APPEALS

Listed below are some key policy issues relating to appeals:

Confining the scope and the grounds of the appeal

By scope of appeal I am referring to the types of decisions which may be appealed, and by grounds I am referring to the situations in which a decision may be appealed. On the first matter I recommend a broad approach -- for example, any decision of the Board or any committee of the Board may be appealed. On the second matter I recommend a much narrower view. On the whole, we must presume that decision-makers are doing their jobs properly in the first place - and that an appeal will only proceed if that decision is somehow flawed. Appeals are not for deciding matters over again simply because someone doesn't like the decision.

Determining scope and grounds for appeal is perhaps the single most important thing your appeal policy should do. Permissable grounds for an appeal should be stated clearly in the appeal policy and the onus should be on the appellant to show how his or her appeal relates to these grounds. Suggested wording for your policy might include something like:

A decision cannot be appealed on its merits alone. An appeal may be heard only if there are sufficient grounds for the appeal. Sufficient grounds include the respondent:

  • making a decision for which it did not have authority or jurisdiction as set out in governing documents
  • failing to follow procedures as laid out in the approved policies of the association
  • making a decision which was influenced by bias
  • exercising its discretion for an improper purpose
  • making a decision which was grossly unreasonable

Determining parties to the appeal

Figuring out who should be a part of an appeal process is critical if the appeal relates to a selection matter, because if the size of a team is finite (as it almost always is) there will always be an individual adversely affected if the appeal is successful. To deal with this, the policy should require that anyone potentially affected by the decision on an appeal participate in the appeal. Failing to do this could create an endless cycle of decisions and appeals with no closure in sight.

Jurisdiction of the Appeal Panel

The appeal body should have no greater authority than the original decision-maker. It is useful if the appeal policy restricts the panel's authority to voiding or confirming the decision being appealed; varying the decision where it is found that an error occurred and such an error cannot be corrected or referring the matter back to the initial decision-maker for a new decision.

Timelines

We are all aware that disputes in sport have a way of occurring at the last minute - you can ask Mr. Carr-Harris how busy he was in the first two weeks of July! It is critical that your appeal policy have the ability to handle a dispute in a prompt and timely manner. This can be done by giving your appeal panel the authority to dictate shorter timelines if the timelines in your policy are inadequate.

Simplicity - so the parties may come alone

Your appeal policy should be simple, accessible and non-adversarial so that parties can participate in the process un-represented. This means ensuring that the policy is clearly communicated and that the procedures of the appeal are as non-intimidating as possible. The appeal panel will have to exercise its own judgment on the formality of the proceedings - for example, experience has shown us that athletes and sport administrators may not fully understand matters of evidence and may blur the lines between what is evidence and what is argument. The appeal panel may have to be ready to modify its procedures to ensure that all evidence is presented and both sides are fully heard.

SOME CRITICAL ISSUES FOR ALL POLICIES:

In conclusion:

  • Always be able to give reasons for your decisions, and if necessary, be prepared to put the decision and reasons into writing.
  • Write into your policies that any dispute will be dealt with first by the organization's appeal mechanism and then by independent arbitration.
  • Discretion is both necessary and dangerous - necessary because it allows flexibility and responsiveness in decision-making, but dangerous because it is so easily abused if exercised without guidelines or controls. The key is to ensure that discretion is exercised conscientiously.
  • Include a privative clause in your appeal and arbitration policies. A privative clause doesn't prevent an appeal to the courts but does limit the scope for judicial review.
  • Finally, consider getting outside help to ensure your process is carried out properly. For example, some sport organizations are now including an outside person on their appeal panel - someone who can bring skills, experience and independence to the process.

Presented at the Symposium "Doin' it Right - Lessons from the Olympic Selection Process" November 1996, Ottawa

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