Procedural Fairness in Sport - The Flip Side of the Risk Management Coin

Published December 23, 2009

Question:
My son is active in club sports. He would like to switch to a different team to join his friends, but a representative of the league says he cannot unless we get a release, which is highly unlikely. He’s only a kid wanting to have fun – are these rules for real?

Answer:
In short, yes, such rules are for real. As a risk management consultant working in the amateur sport world, less that half of my work has to do with the usual risk management topics of safety, liability, injury prevention and the like. More and more frequently, I am asked for advice about the other side of the risk management coin: namely, fairness in rules and policies.

A sport organization can be said to owe two general responsibilities to its members: firstly, provide a safe environment for participation, and secondly, be procedurally fair in how it treats members. The first responsibility is quite self-evident, as organizers of sport activities involving minors are typically said to be in loco parentis, or in the place of a parent, and are expected to exercise the same precautions that they would exercise with their own children. This duty to be reasonably safe is readily understood by most adults.

The duty to be fair, on the other hand, might not be as evident or intuitive. Just as sport organizations are held to a legal standard of care in how they conduct potentially risky activities, they are also held to well-established principles of procedural fairness. These principles flow from a body of law called administrative law, and they provide guidance for the writing and interpreting of rules that apply to members. These principles make possible the rules that govern the eligibility, selection and mobility of members, including athletes and coaches.

Thus, it is not uncommon for athletes in many team sports, as well as in school sports, to be restricted by team or league rules. These rules serve as powerful disincentives for the easy movement of players from one team to another, and are designed specifically to maintain continuity within teams and a competitive balance within a league. Similar rules also exist to limit the mobility of coaches, confining them to coaching a certain level of team or coaching within a prescribed geographic area.

Over the years, many people have challenged rules such as these, but very few have succeeded. In most cases the courts have upheld such rules as being fair to all, and as constituting a legitimate measure to fulfill organizational objectives. Even Wayne Gretzky, as a highly-skilled 14-year old, tried to switch to a more competitive league mid-season, and was soundly rebuffed by an Ontario court.

The origin of these legal principles goes back a long way in common law, but a 1952 British case, Lee v. The Showmen’s Guild of Great Britain, is considered a landmark decision here in Canada. The judgment, written by famous jurist Lord Denning, established two principles that apply to all membership based, non-profit organizations, including sport organizations.

These two principles are as follows. Note that I have paraphrased so as to give the principles a more modern turn of phrase:

• The authority of an organization is founded on a contract with its members, where this contract is expressed in the organization’s bylaws, policies and rules
• An organization must be fair in how it interprets this contract and in its dealings with members

It is these principles that make it possible for a soccer league, lacrosse team, minor hockey club, or school sport federation to establish and enforce rules that prevent (or strongly discourage) players, even children, from moving freely from one team to the next, from playing outside the geographic region in which they live, or from switching schools so as to get a better sport experience.

These restrictions might seem unfair to the individual who suffers them, but they are part of the contract that the individual signed up for when he or she joined the sport organization, and there is no question that such rules are beneficial for the organization as a whole.

In fact, it can be said that amateur sport is a monopoly – and a legal one at that. Along with most professional sports leagues, the amateur sport system in Canada (ranging from school sports and community clubs to national sport governing bodies and the Canadian Olympic Committee) is permitted to carry out it business in ways that other Canadian businesses cannot.

Monopolies are inherently unfair, which is why we have laws that prohibit them. However, sport can and does operate in a monopolistic fashion, and our legal system permits this. This means that organizational rules and collective rights will usually trump individual rights or entitlements. So in answer to the question, the child who just wants to have fun with his friends and switch to a different team might be prevented from doing so.

My advice to any parent who has children active in school or club sports is to make yourself aware of the terms of the contract that you have entered into. Ask for a copy of the club’s bylaws, read applicable policies on the organization’s web site, and ask in particular that you be directed to any specific rules relative to eligibility, transfer, or selection to representative teams. This way, there will be fewer unpleasant surprises later.

Originally published: Imagine Canada - Risk Management Expert Column (December 2009)