Published January 11, 2008
Fifteen years ago the Centre for Sport and Law began writing appeal policies for sport organizations. In 1995 we published a handbook on the topic (Administrative Appeals - A Handbook for Sport Organizations) and in 2000 we did a second handbook (So You’ve Got a Complaint – The Hearing Process from Start to Finish). Now, in 2008, we find ourselves reviewing these early policy documents and recommending improvements.
As many sports are now beginning the process of team selection for Beijing, we thought it might be useful to share some of these new ‘best practices’ in writing appeal policies and managing appeals.
Have an independent professional manage your appeal
There are two reasons for this: one, as a party to an appeal it is difficult for the sport organization to maintain an appearance of impartiality while also managing the appeal: and two, running a smooth appeal requires experience and skill. Consider writing into your appeal policy a role for an ‘appeal administrator’ or ‘case manager’ or whatever you wish to call it. This person can do the heavy administrative work, organize logistics and provide support to the panel, leaving you, as the sport organization, free to focus your energies on being a respondent in your appeal.
Leave some flexibility to appoint your appeals panel
If your policy says that appeal panel members must be members of your organization or must meet other affiliation requirements, you may find yourself unable to put together an appeal panel quickly. We recommend that your appeal panel be made up of any persons you choose to appoint. In fact, it has been our experience that people from outside your sport can provide an excellent independent perspective and improve the quality of your appeal decisions.
Appoint one panel member who is experienced in law and procedure
If your appeal is contentious or complex, which most are, this experience can be invaluable. Such people can also be an excellent resource when it is time to write the appeal decision. Over time, your sport organization should strive to cultivate ongoing relationships with such unique volunteers. Consider offering them an honorarium in exchange for their important services.
Allow flexibility in the format and timing of your appeal
It is difficult to anticipate all the dispute circumstances that you will face. Your appeal policy should permit flexibility in terms of how the appeal is to be run, and the timelines it should follow. In terms of format, appeals can be through documents alone, by telephone, in person or by a combination of all these methods. In terms of time, some appeals need to happen in hours, while others may unfold over weeks or months, without prejudice to a party. Decisions on format and timing should be decided by your appeals administrator or appeal panel.
Include a confidentiality clause in your appeal policy
It never occurred to us that this would be important until we managed a high profile appeal during which the appellant waged a separate campaign through the community while the appeal was underway. The appellant, quite correctly, pointed out that the appeal policy of the organization had no requirement of confidentiality. While it is standard practice in arbitrations and court proceedings that those proceedings are confidential to the parties, such a clause is not common in appeal policies. We think it should be there – because an appeal cannot proceed properly and fairly in a public fishbowl.
Think about what’s NOT appealable
Not every decision can be appealed. Good policies specify what may be appealed and what may not. Internal appeal policies are not the appropriate forum to deal with issues such as budgeting, staffing, governance structure, program design, or any matter normally decided by the membership as a whole. As well, employment, discrimination and commercial matters are common disputes best left to traditional dispute resolution methods. Generally, appeal policies in sport organizations should be limited to eligibility, selection, discipline and carding matters.
Don’t confuse ‘grounds for an appeal’ with ‘merit of the appeal’
Most appeal policies have a screening step, where someone first decides whether an appeal may be allowed. Such screening steps may serve to exclude a number of appeals. It is important that this screening function be properly exercised and be restricted to examining the grounds of the appeal, not its merits or its likelihood of winning. A very common and fatal mistake is for the person doing the screening to assess the worth of the appeal, and if the appeal is weak, to not allow it. Proper grounds mean simply that the issue or error raised by the appellant is a valid one – regardless of whether the appellant can ultimately prove it.
Consider requiring appellants to clarify their issues
Most appeal policies simply require appellants to list the grounds of their appeal. This is fairly easy to do no matter what the issue, because a notice of appeal can simply state, for example, ‘the committee failed to implement the selection properly’. It’s better for all concerned to have the appellant provide details of their issues in the notice of appeal – then there are fewer surprises later.
Think carefully before bypassing your internal appeal to go to arbitration
The SDRCC (Sport Dispute Resolution Centre of Canada) will hear arbitrations of disputes without them first going to an internal appeal, if the parties consent. Many NSOs choose this route because they believe it to be quicker and less costly. However, other factors should be considered when choosing to go to SDRCC directly – including the fact that the SDRCC rules are very different from normal appeal rules. There is a different onus of proof (for selection disputes), a different standard of review and different remedies available, all of which put the sport organization at a distinct disadvantage in this forum.
Originally published: Centre for Sport and Law Newsletter (2008) Vol. 4(1)