E- Newsletter - Fall 2006

Tips for the Sport Leader

#1 Governance Guidance

It is always good advice to 'look before you leap'. In our world, that usually means 'think before you decide'. When dealing with governance matters and the decisions that sometimes have to be made as part of governance, we advise a four step process:

1. What do your bylaws say? This is always the first place to look for guidance.
2. If that doesn't answer the question, look to the legislation under which you are incorporated. These statutes provide a surprising number of  'do's and don’t's'
3. If you are batting oh-for-two, see if Roberts Rules of Order is helpful
4. If all three above fail, go for the 4th down and consider what 'common sense' would dictate in the circumstances.

At the end of the day, your critics will have a hard time faulting you for having gone through such a systematic thought process in arriving at your decision.

#2 Drafting Policies - do you know who your members are?

When drafting a policy, consider carefully to whom you wish it to apply. If you simply say the policy will apply to "members", check who your members are - your bylaws will tell you this. For some organizations the members are other sport bodies - and not necessarily the people who may be participating in the activities whom you really want captured by the policy. You may have to include in the policy a clause that sets out who will be covered. For example, such a clause could say 'this policy applies to members as well as to all participants enrolled in programs offered by...'

Feature Article

‘FORM FOLLOWS FUNCTION’ – SOME THOUGHTS ON SPORT GOVERNANCE

Many of our readers will agree that the business of amateur sport in Canada has become more complex and sophisticated in recent years, yet the governance structures in place to lead amateur sport bodies have lagged behind. In the last decade, the Centre for Sport and Law has had the opportunity to work with many provincial and national sport bodies on governance change, in order to overcome this gap between governance and operations.

It may be insightful here to look at a number of different models of board structure. This is a useful starting point for a discussion about ideal future governance models.

Boards may be small or large

• In our view a small board is a board having 12 members or less. Large boards have more than 12 members and may have as many as 30, 40, 50 or in the case of the Canadian Olympic Committee, over 75 members.

• It is our personal observation that small boards are more effective than large boards. This is due, in part, to the greater ease with which a small board can meet and communicate, and the higher degree of involvement and participation of board members in the work of the board. As well, small boards are less expensive to service and maintain.

Boards may be advisory, administrative-governing or policy-governing

• The first model (advisory role) is common in the corporate world, and also exists among mature and sophisticated non-profit organizations that are managed by strong executives. Maturity and sophistication are linked to the age of the organization, the resources available to it, and the historic nature of its management and leadership.

• The second model (administrative governing role) is typical among smaller non-profit organizations that have no staff or few staff. In this model, the board exercises a dual role of establishing policy as well as implementing policy through management functions. Usually, the board strives to keep these roles separate and distinct by fulfilling their management role through committees.

• The latter model (policy-governing role) is more common in medium-sized organizations, and exists where the board makes policy decisions, leaving policy implementation, management and administration to staff.

• Many organizations blend these approaches, where the board gives considerable deference to the executive staff of the organization, but on key strategic issues may have the final say. A blended approach works well where there is capable management and a high degree of trust among board members and between the board and management.

Boards may be representative or expert

• Representative boards are those boards on which the stakeholders of the organization, or the various interests that the organization serves, have representation. The typical example in amateur sport is the national sport organization whose membership comprises provincial/territorial sport organizations, each of which have a member on the board.

• Expert boards comprise individuals who have a position on the board by virtue of their expertise. Such individuals do not represent any particular interest but provide to the board their valuable experience, expertise and judgment, and their commitment to the overall mandate of the organization. Expert boards are appropriate for organizations having a narrow focus on a specific subject matter. The Canadian Centre for Ethics in Sport is an example of a sport-related organization that is governed by an expert board.

• In general, expert boards tend to be smaller than representative boards and are almost always appointed boards. There are also possibilities to combine expert and representative elements on a single board of directors.

Boards may be elected or appointed

• The truly democratic approach to board structure is to have the entire board elected by the membership. This is workable where the membership is comprised solely of individuals. Several national sport organizations such as swimming, field hockey and diving have implemented this model.

• Board members may also be appointed – this is more common where the “members”, or stakeholders, of the organization include other organizations.

• Very often, boards are a combination of elected and appointed members, reflecting the organization’s diverse membership structure of individual members and institutional members.

• Boards that are appointed often find that the public perceives them to be closed, insular and undemocratic. Boards that are elected may have difficulty attracting quality members who can bring the right skills and qualifications to their positions on the board.

Board members may be institutional representatives or individuals

• Most boards reflect the membership of the organization. Where the organization’s members are other organizations, board members will tend to be representatives of those organizations and are expected to represent those organizations’ interests to the board. This can create significant conflict for the board member, who will try to be loyal to both the organization he or she represents and the organization he or she serves.

• Where the membership of the organization is individuals, board members tend to be individuals who represent no institutional interest.

• Some boards are a combination of individuals and institutional representatives. This would be the case of many national sport organizations.

In summary, the concept of a 'corporate board structure' has held appeal for many sport leaders, who for some time have been striving to be more business-like in managing their affairs. In many cases, after going through a governance review, the traditional structure of a Canadian sport organization has given way to smaller, leaner, more independent and more effective boards.

For more information on governance and board matters, please contact Rachel Corbett.

The phrase ‘form follows function’ is attributed to Louis Sullivan, an influential American architect associated with the Chicago School, and a mentor of Frank Lloyd Wright.

Recent Sport & Law Cases/Decisions

Pasternak v. Manitoba High School Sports Association (2006) 

Most people have now heard about the Pasternak twins, who complained to the Manitoba Human Rights Commission when the Manitoba High School Sports Association (MHSSA) would not let them play on their high school boys’ ice hockey team. The Manitoba Human Rights Tribunal found that the Pasternak girls had been discriminated against on the basis of their sex.

Previous cases have shown us that, had the Pasternak’s school offered no girls team, they would have to be allowed to play on the boys’ team. This case is set apart from previous case law by the fact that there already was a girls’ team at the school. However, the Pasternaks argued that this team did not play at a skill level that was appropriate for them.

The MHSSA argued that any decision in favour of the Pasternaks would mean the demise of school sport distinguished on the basis of sex, and might even result in breaking down distinctions based on age.

The MHSSA’s case rested on two arguments. First, the rules of MHSSA allowed for exceptions to the rule that girls play on girls’ teams and boys on boys’ teams. Such exceptions could be granted through an appeal process to the Board of Directors. However, the Pasternaks had not pursued an appeal and MHSSA argued that the Tribunal should not hear a human rights complaint until an appeal had been heard. The Tribunal disagreed and stated that recourse to a human rights commission was available at any time.

MHSSA’s second argument was that the high school girls’ team was new and it needed the leadership and skill of the Pasternak twins. There were also other alternatives available to the twins outside of high school, including community teams. The Tribunal rejected these arguments, stating that the girls did not sign up to be leaders or pioneers, but to be players on a school team commensurate with their level of skill.

The MHSSA is currently appealing the decision.

This decision raises important issues. Does it open the door for boys to join girls’ teams? Will it result in the top female athletes being skimmed off female teams, hindering those teams’ development? Will it blur the lines between age categories? Does is dilute the argument for affirmative action programs? In Manitoba, probably not. Section 11 of the Manitoba Human Rights Act allows affirmative action programs, including programs restricted to girls only. This decision does confirm, however, that girls can play on boys' teams if they are at the same skill level.

One last point - while we watch the appeal of this decision unfold it is critical to keep in mind that human rights legislation varies from province to province. This decision may not carry the same weight in Ontario, for example, as Section 20(3) of the Ontario Human Rights Code allows a recreational club to differentiate its services on the basis of a prohibited ground, including sex. However, this exemption would not apply to a high school.

For a full copy of the Pasternak decision, click here.