Looking Forward - 2009

Published September 11, 2009

For this column, we thought each of us from the Centre for Sport and Law would pitch in, sharing our thoughts on some recent legal events and looking forward to some new developments in Canadian sport.

Earlier this spring, we listened with interest to the news stories about the trial following the death of Manny Castillo, a teenage high school rugby player. Castillo, age 15, died a few days after another player picked him up and forcibly slammed him to the ground in the dying moments of a school match in May 2007.

Steve Indig of the Centre for Sport and Law did a number of media interviews on the topic of what risks athletes consent to when they step onto the field. In this case, the Judge found the teen guilty of manslaughter, declaring that he intentionally applied force that was outside the rules of the game or any standard by which the game is played.

Such a verdict is unusual in cases like this. As if to compensate for the harsh verdict, the Judge imposed a soft sentence: one year of probation, 100 hours of community service, and anger management counseling. The Judge wrote “[The accused] did not set out to commit a crime’, and the death occurred in the ‘heat of the moment’ and was ‘fueled by highly competitive instincts’.

Soon after the rugby case, we anticipated the release of the Judge’s decision in the ski jumping case in Vancouver. The judgment, all 42 pages of it, came down on Friday, July 10th. Hilary Findlay of the Centre for Sport and Law prepared a lengthy case comment on the judgment that appeared on our web site. We thought we would elaborate further in this column, as this case may be significant to sport in Canada.

As most readers will know, the ski jump case and appeal (Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Games) attracted a lot of media attention over a lengthy period of time. In the end, the fifteen female ski jumpers lost their bid for inclusion in the 2010 Olympics Winter Games. However, the Judge made a number of findings that may be significant going forward. Most notable among these was a ruling that VANOC is subject to the Canadian Charter of Rights and Freedoms.

Contrary to conventional belief, very little sport activity in this country is subject to the jurisdiction of the Charter. The Charter applies to government action, and there is a long line of legal cases showing that, even though most sport organizations in Canada receive government funding, they are not subject to the Charter. In Canadian sport, the Charter has only limited application to municipal sport and recreation programs and facilities: PSOs, TSOs, NSOs, universities and colleges, MSOs and games organizations are all considered to be private organizations falling outside the jurisdiction of the Charter.

In this ruling, the Judge had to examine whether VANOC (a private corporation) was subject to ‘routine or regular control’ by government, and/or was carrying out ‘a government program or policy’. On the first point, she found that even though the governments of Canada and British Columbia, as well as municipalities (Richmond, Vancouver, Whistler) were significantly involved in VANOC, this involvement fell short of the routine daily control necessary to bring VANOC into Charter territory.

On the second point, Justice Fenlon determined that the staging of the 2010 Olympics was a government activity. While normally ‘government activity’ refers to implementation of a government statute or policy, in this case the Judge found the staging of an Olympic Games to be a ‘rare but uniquely government activity’, for the reason that federal, provincial and municipal governments were integrally involved in the process of bidding for and staging the Games, activities that could not realistically be undertaken by any other entity.

Those who followed the case or read Hilary’s case comment will know that, in the end, although VANOC was subject to the Charter and the decision of the IOC to not include female ski-jumping was discriminatory, the jurisdiction of the Canadian Court did not extend to the IOC, the entity that owns the Olympic Game and is ultimately in charge of deciding what events are on the Olympic program. There was no legal remedy for the ski jumpers.

And lastly, Dina Bell-Laroche of the Centre for Sport and Law is inspired to share some thoughts in response to Minister Lunn’s announcement of the ‘2010 and Beyond Panel’. Initiated by the Sport Matters Group, there is a growing dialogue among sport leaders about ‘finding a better way for sport’ in Canada. Dina believes that we can do better in these areas:

• We can communicate better – we need a communications plan for sport that connects, coordinates and articulates shared key messages that we can use to attract, retain and renew investment in sport.

• We can manage our organizations better – most sport organizations, like most non-profit organizations generally, are employing ‘management by objectives’ approach which has administrators focus on what they should be achieving, but which does not take into account the complex, ever-shifting environment in which we work. The future calls for a more people-centric and values based management philosophy.

• We can promote ourselves better – the True Sport Report reminds us that sport can make a powerful contribution to health, individual well-being, families, communities, the economy and the environment – but this needs to be done explicitly and intentionally. The landscape and messages are cluttered: for true impact, we need to create a single package that embraces True Sport, LTAD/CS4L and ParticipACTION principles.

• We can plan better – some NSOs and PSOs are using more innovative planning practices. For example, risk management is proving to be a useful tool to address those challenges and opportunities that dot the path leading to successful outcomes.

• We can develop better leaders – we currently use sport to develop leaders but do not do so very strategically. The good news is that sport, when used intentionally, can develop authentic leaders capable of leading successful organizations.

While the above are not traditional ‘legal topics’ usually featured in this column, remember that the law, ethics and values are often intertwined, and there is a legal framework underpinning everything that a sport administrator does on a daily basis. The Centre for Sport and Law looks forward to continuing to help Canadian sport organizations improve their organizational effectiveness.

Originally published: Coaches Plan (2009) Vol. 16(3)