Sport Disputes After #MeToo: Now What?

Published August 7, 2018

A problematic issue has emerged in some sport dispute cases in the #metoo aftermath. We are sharing this blogpost to remind sport leaders that every individual’s fundamental legal rights must be protected and that sport organizations must respect their legal duties and obligations.

The SLSG has been addressing current events and their impact on sport for over 25 years. We often review contemporary topics and offer thoughtful advice to sport leaders on how best to implement policy and governance changes in response. On the topic of safe sport, we have written about harassment and other conduct issues in our Harassment in Sport Blog Series published in 2016.

Many of our blogposts offer practical advice to better understand complex information. This post is written with the same intent – to provide thoughtful advice to sport leaders uncertain how to manage the current climate that we are calling the #metoo aftermath.

Before sharing our perspective on this matter, we want to ensure that readers understand the context in which we share it. The SLSG has written many of the policies that underpin the governing documents of hundreds of sport organizations. These policies ensure that basic legal tenets are respected. Considering recent stories dealing with charges of harassment, bullying and abuse, and the maelstrom that has followed, we need to be resolute in defending two fundamental legal principles for all parties involved and for every case that arises:

• The law of Natural Justice. Natural justice is “an established principle that an individual standing to be adversely affected by a judicial or quasi-judicial decision is entitled to notice, an opportunity to make representations, and an unbiased decision maker” [1]
• Procedural Fairness. Being procedurally fair “means following a minimum of two basic rules:

1. the decision maker has a duty to give persons affected by the decision a reasonable opportunity to present their case (commonly referred to as the right to a hearing); and
2. the decision maker has a duty to listen fairly to both sides and to reach a decision untainted by bias (commonly referred to as the rule against bias)” [2]

In any dispute, including sport disputes, once an individual is charged with an allegation, they are entitled to both natural justice and procedural fairness, regardless of the allegation. We are unfortunately seeing sport organizations jump to conclusions and sometimes rush to sanction individuals before taking the necessary steps to ensure that the individuals are afforded natural justice and procedural fairness. With this being said, there may be specific scenarios where it is socially and morally responsible to suspend an individual during the disciplinary process.

Consider the cases of Teague Sherman and Jerome Messam, professional football players in the CFL who were recently charged with sexual assault and voyeurism, respectively, and who were immediately released by their teams. The CFL unilaterally decided that no other CFL team could sign either player. The charges – sexual assault and voyeurism – are serious and we would certainly support suspending the players pending the outcome of a trial. But what disturbs us about the process is the instant and permanent expulsion from the entire league despite the fact that neither player has yet been found guilty by either a criminal court or a disciplinary panel.

Were Teague Sherman and Jerome Messam afforded natural justice and procedural fairness?

Consider also the case of Steven Galloway, the writer who lost his job and his livelihood based on allegations of abuse that ended up being unfounded. His employer, the University of British Columbia, fired Galloway even after an investigator (a former judge) determined that the abuse claims had no merit. Literary icon Margaret Atwood was accused of being “a bad feminist” (and other things) for criticizing the process by which Galloway was treated. Atwood wrote an article about the treatment, and fundamental justice, in which she warned:

"But understandable and temporary vigilante justice can morph into a culturally solidified lynch-mob habit, in which the available mode of justice is thrown out the window, and extralegal power structures are put into place and maintained"

In Canadian amateur sport, we have (or should have) the “available mode of justice” in the form of policies and disciplinary procedures. These are written to serve both natural justice and procedural fairness and they typically have (or can contain) measures to handle even the most serious of charges without sacrificing adherence to basic legal principles.

An organization begins a dispute resolution process when an individual is accused of committing a crime or breaching an organizational policy. Regardless of the accusation, and to ensure the individual is afforded natural justice and procedural fairness, the organization can:

• Suspend the individual pending the outcome of the dispute;
• Attach conditions to the individual’s participation pending the outcome of the dispute;
• Put appropriate confidentiality measures in place to protect the identities and reputations of all parties involved;
• Ensure that those adjudicating the matter do not have interactions with the individual outside of the dispute resolution process;
• Work to ensure that the two parties (the individual who is the subject of the complaint and the accuser) are not required to interact or be in close proximity to each other;
• Ensure the dispute resolution policies are publicly available to all parties; and
• Provide an independent resource (i.e., Case Manager) who can answer any parties’ questions about the process.

The SLSG works with NSOs, PSOs, local sport organizations, and MSOs to ensure these measures are in place within their dispute resolution procedures. However, these measures are being tested by the #metoo environment that has created a rush to judgment – a ‘vigilante justice’ – that encourages skipping the process, ignoring the policy, and moving directly to the sanction.

We are mindful that many sport leaders are overwhelmed by the lack of reasonableness that seems to surround many situations related to harassment or abuse. To this end, we are recommending the following approaches that support all parties, and promote an ethical, safe, and – just as importantly – fair sport environment:

• Alignment of policies. We recommend having a consistent set of policies for all sport organizations. We are beginning to work with a few NSOs to ensure that policies are consistently written, understood, applied, and managed at all levels of the sport.
• Ethics-based education. Respect in Sport and Respect in the Workplace are two online educational resources that provide users information to help keep sport ethical, safe, and fair. Regular training and education for decision-makers and participants assists in creating a welcoming sport environment.
• Enforce accountability. Hold decision-makers and participants to a high standard of conduct and action. One way to do this is to endorse and apply the True Sport Principles, which govern field of play behaviours among participants. These principles help set the conditions for a quality sport experience when everyone involved adheres to a common set of high standards.
• Policy adherence. It may be tempting to skip directly to the sanction, cast out the trouble-maker, and wash your hands of the entire situation. But that is neither fair nor ethical, nor does it respect the fundamental tenets of our justice system. When your policies have been approved they should be applied to all circumstances, all cases, and all individuals – regardless of the allegations or charges.

Sport often acts as a mirror for societal norms, rules, and expectations. But sport can also be a beacon of hope that serves as an example for others to follow. In this #metoo environment that sport is currently mirroring, we encourage sport leaders to serve as stewards for the fundamental legal principles that continue to allow sport to be safe, ethical, and fair.

Dina Bell-Laroche (DBL@sportlaw.ca)
Kevin Lawrie (KRL@sportlaw.ca)

Steve Indig (SJI@sportlaw.ca)
Adam Klevinas (AJK@sportlaw.ca)

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[1] Findlay, Corbett, & Lech. (2008). Legal Issues in Sport: Tools and Techniques for the Sport Manager. p. 252.

[2] Findlay, Corbett, & Lech. (2008). Legal Issues in Sport: Tools and Techniques for the Sport Manager. p. 53.