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RACHEL CORBETT NAMED AS TEAM OMBUDSPERSON, COMMONWEALTH GAMES
Rachel Corbett, co-founder of the Centre for Sport and Law, has been appointed as the Team Ombudsperson for the Canadian Team, competing at the Commonwealth Games in Delhi, India, in October 2010. The appointment was recently announced by Commonwealth Games Canada, in association with AthletesCAN and Coaches of Canada. Rachel joins 48 other Mission Staff members, supporting a team of over 260 athletes and nearly 100 coaches. |
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E- Newsletter - Fall 2008
IN THIS ISSUE: WHAT'S NEW
Lunch and Learn at the Sport Alliance Building, November 4th
Join us Tuesday, November 4th from 12 noon to 2:00 PM at the Sport Alliance for a workshop on Managing Disputes. For more information about the workshop click here. To register, contact Robin Witty.
Sport Leadership Conference, November 7th – 9th
Steve Indig and Rachel Corbett will be attending the Sport Leadership Conference in Calgary. Check us out at the Sport Exchange (the trade show) on Friday from 11:30 to 1:30, and grab your lunch at the same time. We will also be hosting a Round Table Discussion, with Dina Bell-Laroche, on Sunday from 8:00 to 9:30 AM. Our topic – Managing By Values: A New Way of Doing Business in Sport.
Hilary Findlay Takes a Leave of Absence from the Centre for Sport and Law
Hilary Findlay, co-founder of the Centre and an Associate Professor in the Department of Sport Management at Brock University, is taking a leave of absence from the Centre effective October 1st. This leave will allow her to focus energies on several planned research and writing projects related to the topics of dispute resolution, procedural justice and discrimination in the sport milieu, as well as on her teaching at Brock. During her leave, please feel free to direct any inquiries to Steve Indig or Rachel Corbett.
So You’ve Got a Complaint: The Hearing Process from Start to Finish – special promotion!
In this Olympic year we have been busy managing appeals, and many of our client organizations have also been busy on the disputes front. We are pleased to offer a special promotion on this excellent installment in our handbook series: 74 pages of practical ‘how-to’ information on receiving, investigating, hearing and deciding complaints, and doing it all in a way that is efficient, fair and hopefully, appeal-proof. This book is for any volunteer or administrator who has had anything to do with complaints, discipline sanctions, selection disputes or hearings of any description. Regular price $13.95, on sale now for $10.00. To order, email Rachel Corbett.
TIPS FOR SPORT LEADERS
IMPROVING YOUR SELECTION POLICIES
Selection issues are important any time of the year and in any year. In the past six months we were very occupied with selection disputes relating to the Beijing Olympic and Paralympic Games. Sport bodies are also involved in developing selection criteria for Quest For Gold, Canada Summer Games and the Vancouver 2010 Olympics and Paralympics. We thought we would share some thoughts on what have been learning about writing selection policies and criteria, starting from the general rules of good policy writing and moving to more specific nuances of athlete and team selection.
Five Essential Rules of Selection Policy Writing
1. Be clear – write the policy in plain language so that it is understandable to everyone. Make it a practice to have an outsider review a draft of your selection policy, to see if they understand it. If someone from outside the organization and unfamiliar with a sport can understand the document, then likely most of the organization’s members will also.
2. Be concise – selection policies and criteria are often vague, incomplete, contradictory or even silent on certain important points. For example, criteria are not weighted relative to each other and the selector must make an informed guess; tie-breakers do not actually work in breaking the tie; appeal procedures do not exist; and eligibility criteria are confused with selection criteria.
3. Be consistent – terms and phrases must be used consistently throughout a selection policy document. For example, if the policy refers to “tournaments” in one section, do not use a different term such as “championships” in another. If a selection scheme is considering ‘performance’ then don’t confuse this term with ‘results’ or ‘ranking’ – they do not mean the same thing. A policy must be consistent in its use of terms, as a lack of consistency will often lead to disputes.
4. Be complete – the selection policy must anticipate every circumstance and must cover every aspect of an issue. There cannot be gaps, holes or loose ends. The selection policy must cover procedural steps from beginning to the end. For example, a selection policy should address what happens in the event of injury or bad weather conditions canceling a qualifying event. It should also address what an athlete, once selected, must do to remain selected.
5. Be friendly to the reader – clarity, conciseness and consistency will make a selection policy easier to understand, but the format and layout will make it easier to read. Use titles, headings, subheadings, and bullet point lists wherever possible.
A Selection Policy Template
The following is a useful ten-point policy template to get you started:
1. Purpose of the policy – this is a brief statement of the reason for the policy. Although the purpose or objective of a policy may be quite evident to those writing it, it may not be clear to your members.
2. A statement of the purpose of the selection – that is, whether it is for a pool of athletes from which subsequent selection will be made, or if it is for a team for a specific event or events. This statement should conform with your overall strategic direction for high performance.
3. Goals for the team or program – this is especially important if the goal is not necessarily to select the strongest team but to rebuild or develop a team or give experience to younger players. Not every team selected is an Olympic team – many other selections serve a development purpose.
4. Your scheme for selection – are you going with a one-off, all or nothing trial, or with a series of events at which athletes will be evaluated? Perhaps your selection scheme involves naming a squad or pool of athletes, from which a team will then be chosen. Or perhaps your athletes are given a window of time during which they pursue a performance standard or standards. What is your timeline? Many different approaches are possible.
5. Eligibility – this is a clear statement of who is eligible to be considered for selection. There may be age, citizenship, membership or residency restrictions. Candidates may be required to have met a minimum performance standard in order to be considered. The athlete perhaps must be a member in good standing of a provincial body or a club. This section of the policy should clearly outline the conditions to be met before the athlete even gets through the door of the selection process.
6. Authority for selection – state clearly who has approved the process and criteria and who will make the decisions. Initially all decision-making powers of the organization are vested in the Board of Directors. Through proper delegation, authority to make decisions is spread more efficiently through the organization. Thus, the Board may pass a motion to delegate the authority to select athletes to a coach or committee. The policy should state clearly who has authority for team selection.
7. The criteria – these are central to your policy. Be sure not to confuse criteria to be considered for selection (see eligibility above) and criteria to be selected. Criteria to be selected should be as objective as possible, but where they are subjective the policy should include some guidelines for applying the criteria. If selecting a team, a number of other factors may need to be considered: team size, team chemistry, positional needs (specialist versus utility players); maximizing use of a restrictive team quota (i.e. selecting players capable of performance as singles, doubles or as members of a larger team).
8. Post-selection considerations - After selection, criteria or requirements to be met to remain selected: usually, these relate to levels of fitness and compulsory participation in certain events and team activities.
9. Exceptional Circumstances – or exceptions to the selection policy, if any (for example, injury or matters which lie outside the control of the organization of the athlete). What is the procedure for dealing with these, as some can be anticipated while others cannot. As well, be cautious in your use of terms: do the terms ‘exceptional circumstances’, ‘extraordinary circumstances’ and ‘unforeseen circumstances’ all mean the same thing? Likely not.
10. Appeals – the policy should make reference to avenues that may be pursued if an athlete wishes to appeal a decision. Timelines should be noted. It is useful to allow a buffer of time between finalizing selections and announcing selection results, so that any legitimate appeals may be accommodated.
Summary
In closing, developing sound selection policies is not easy – we recommend that each year, you review your scheme, check it against successes and challenges, and strive to continually improve your process. Ask your colleagues in other sports what their experiences have been, and look at their policies. As well, stay in tune with developing jurisprudence on selection disputes: these can provide very helpful insight. Many cases are documented on the web site of the Sport Dispute Resolution Centre of Canada, or SDRCC.
Other Resources
In addition to case reported on the SDRCC web site, we have also written quite extensively on improving your success in selection. See the following articles on this web site for more help:
The Coach’s Discretion in Making Selection Decisions (1999)
Lessons from a Decade of Selection Disputes (2002)
Principles Underlying the Adjudication of Selection Disputes Preceding the Salt Lake City Winter Olympics: Notes for Adjudicators (2002)
When is a Deadline Not a Deadline? (2005)
Preparing for Beijing: Are You Dispute-Ready? Workshop Notes (2008)
RECENT SPORT LAW CASES/DECISIONS
FOOTBALL CANADA AND THE TAXMAN
Registered Canadian amateur athletic associations (also termed RCAAAs) are non-profit organizations that were established for the primary purpose of promoting amateur athletics in Canada on a nationwide basis. These organizations are registered as such under the Income Tax Act (the Act) and have the authority to issue official donation receipts for income tax purposes. Virtually all NSOs in Canada enjoy RCAAA status.
On September 3, 2008, the Canada Revenue Agency (CRA) revoked the status of the Canadian Amateur Football Association (CAFA) as a registered Canadian amateur athletic association, effective August 30, 2008 therefore revoking its right to issue official donation receipts for income tax purposes. The relevant portion of the Act is Section 168(1)(d) which reads:
168(1)(d) – Where a registered charity or a registered Canadian amateur athletic association issues a receipt for a gift or donation otherwise in accordance with this Act and the regulations or that contains false information, the Minister may, by registered mail, give notice to the registered charity or registered Canadian amateur athletic association that the Minister proposes to revoke its registration.
Paul Waldie of the Globe and Mail reported on September 4th, 2008, that the CRA revoked Football Canada’s charitable status mainly because of its involvement in a tax-shelter program that had raised more than $70-million under the names of several amateur sport organizations. Operated by ParkLane Financial Group, based in Burlington, nearly all of the money is held in an investment fund, the donors receive a large tax receipt and the sport organizations receive an annual ‘royalty’ payment that it fairly significant (approximately $100,000 per year in the case of Football Canada).
The CRA is currently reviewing the participation of the other organizations in ParkLane Financial Group, namely Canadian Lacrosse Association, Wrestling Canada, Biathlon Canada, Little League Canada and the Canadian Wheelchair Basketball Association. In particular, CRA is seeking information to substantiate the amount of funds in the shelter, the value of tax receipts issued, and to whom they have been issued.
According to media reports it is unlikely that any of the organizations involved in the tax shelter will have to pay back the money they have received to date. However, the CRA’s decision will have an impact on future royalty payments from the money raised, and may result in the tax shelter being closed. As well, as Football Canada has learned, this scheme places a RCAAA status in jeopardy, and this will negatively impact future fundraising. The CRA is currently reviewing the participation of some of the other organizations in the tax shelter but it is unlikely that the groups will have to pay back any money. However, the CRA’s decision could have an impact on future payments from the money raised or result in a closure of the investment fund and any related royalty payments.
We are not tax or charity experts, and all we can offer in response to this situation is to be very cautious about fundraising schemes that appear so clever yet easy on the surface. The RCAAA status is precious and once lost, not likely to be restored. The arrangement with ParkLane was “too good to be true”: the participating sport organizations were merely lending their good name (and RCAAA tag) to a third party investment scheme and were being compensated for this through an annual payment. We will continue to monitor this case and hope to do a more thorough reporting in our next newsletter.
FEATURE ARTICLE
DO YOU KNOW WHO YOUR MEMBERS ARE?
During the last several months, the Centre for Sport and Law has been asked by sport organizations to help in the implementation of their discipline and appeal policies, specifically as they relate to member behaviour that is in violation of the organization’s code of conduct or code of ethics. Adding to the challenge and complexity inherent in such an assignment is the reality that more and more individuals are seeking out lawyers to help in the preparation of their defense. Invariably these lawyers have carefully scrutinized the organization’s policies looking for every possible loop-hole that can bolster their client’s case. Often, they are successful in finding it.
Once we are engaged on the file, it is not uncommon for us to find that that the sport organization’s intent was not properly conveyed in the words of their governing documents. Also, their jurisdiction to exercise control over the conduct of members has been poorly defined in that the parameters of membership are fuzzy and it is not clear what policies apply in what situations, and to whom. This feature article will explain the contractual relationship established between sport organizations and their members, and in particular will stress how important it is that membership is defined clearly so that legal jurisdiction is established.
Bear with us through a quick review of administrative law principles 101. The vast majority of Canadian sport organizations are ‘private tribunals’ – that is, they are autonomous, self-governing, private organizations that have the power to write rules, make decisions, and take actions that affect their members and participants. Historically, the courts have been reluctant to interfere in the affairs of private tribunals. The relationship among the members of an association was viewed as personal, particularly where membership was voluntary. In more recent years this has changed, and the courts are prepared to be more hands-on and to review decisions of private tribunals that turn on a question of law, including any question as to the association’s constitution.
In Canada, the 1952 British case Lee v. Showmen’s Guild of Great Britain is viewed as a starting point when considering the legal context for decision-making within sport organizations. Athletes and others seeking legal remedies for the adverse decisions of their sport organization have, almost without exception, relied on the principles set out in the Lee case. An applicable principle from this case reads as follows:
An association’s governing documents represent a contract among the association’s members, enabling the association and its members to clarify their rights, privileges, and obligations in order to better regulate the association’s affairs.
As private tribunals, sport organizations are self-governing and derive their authority from their constitution, bylaws, policies, procedures and rules. Taken together, these are the governing documents of the organization and form a contract between the organization and its members. This contract provides the sport organization with the legal authority to establish the rights, privileges, and obligations of membership. These governing documents can be amazingly complex and multidimensional – it is also not uncommon for them to be outdated. Governing documents are also widely perceived as being dull yet necessary evils. This is why navigating through the jurisdictional landscape is challenging to the sport administrator.
Jurisdiction refers to a body’s legal authority over a particular matter – in other words, determining what rules apply, or do not apply, in a particular circumstance. Very often multiple sets of rules may apply and determining which rules will prevail, if any, can be tricky. For example, sport is organized in a hierarchical fashion from local club to regional league to provincial organization to national organization. Each level has its own rules and regulations but is also subject to many of the rules and regulations of the organization above it in the hierarchy.
When an individual joins a sport organization, he or she accepts the inherent authority of the sport organization and the terms of the contract expressed in the organizations’ governing documents. In most cases, athletes, coaches and officials are members of their respective sport organizations and thus are parties to a contractual relationship with the sport organization. This contract works to the benefit of both parties by establishing and clarifying their respective rights and obligations. Occasionally, however, the contract may work to the detriment of the parties if the policies that make up the contract are poorly designed, vague, contradictory, or ill-suited to be the organization’s needs, resources or realities.
A sport organization’s governing documents are critical as they provide the foundation of the organization’s structure, jurisdiction and authority and contain all the rules by which the organization and its members govern themselves. Typically, sport organizations pay too little attention to their governing documents and realize their importance only when the deficiencies in these documents land them squarely in the middle of a dispute with a member. Quoting from one of our publications in the risk management handbook series, “for many sport organizations, it is a sobering lesson to learn that policy is what’s written on the paper and not what’s in the mind of the drafters of the policy, or in the organization’s collective memory”.
The bylaws are the most important of the governing documents as they provide the organization with the legal authority to enforce rights and obligations of membership. A common weakness in bylaws is defining clearly who is a member. Are members individuals, teams, leagues, clubs, other entities? Some NSOs have as few as ten to 14 members, being the provinces and territories of Canada. In these situations, the NSO has no jurisdiction over a club or an individual. Other NSOs have sport clubs as members, but have no member link to a PSO/TSO or to an individual such as an athlete, coach or official. In these situations, jurisdiction over members is similarly constrained. Very few youth sport organizations have parents as members, although parents are usually the source of the organization’s problems and jurisdiction over parents would be a desirable thing. The lesson from this mish-mash -- every sport organization should consider who it wants within its jurisdiction, and from that point, should then define the categories of members in the bylaws.
A sport organization should also have control over admission to membership. It should not be automatic upon payment of membership dues – otherwise, an organization is compelled to accept anyone as a member, including individuals who may have been a problem in the past or have the potential to harm the organization in the future. As a private entity, a sport organization has the power to limit or restrict membership by establishing a minimum membership qualification, provided these qualifications are not discriminatory under human rights legislation and are consistently enforced. Suggested wording is as follows:
Admission of Members - No individual or entity will be admitted as a Member of the Association unless:
- The candidate member has made an application for membership in a manner prescribed by the Association;
- The candidate member has been approved by majority vote as a member by the Board or by any committee or individual delegated this authority by the Board;
- If, at the time of applying for membership the candidate member is currently a Member, the candidate member is a Member in good standing;
- If the candidate member was at any time previously a Member, the candidate member was a Member in good standing at the time of ceasing to be a Member; and
- The candidate member has paid dues as prescribed by the Board.
This clause would need to be interpreted in conjunction with a section of the bylaws describing the qualifications of membership. Depending on the nature of the organization, a clause describing qualifications may need to be worded very carefully. For example, a provincial sport organization may wish to govern both its member clubs and those individuals associated with member clubs, but may fail to include a section of membership for the individuals. Suggested wording to include clubs and its members is as follows:
- Club Member – A sport club that has bylaws and policies that are consistent with those of the Association.
- Individual Member – Any individual who is a registered with a Club Member.
Another consideration on membership is its duration. Once a member, always a member? Or does membership begin and end? There are advantages to having membership issued on an annual basis and then lapse, thus requiring a reapplication for membership each year. Otherwise, an organization may be stuck with a member that it does not want. The legal advantages of this structure may outweigh the administrative inconveniences. This was made painfully clear to Judo Ontario in the case of Canadian Universities Reciprocal Insurance Exchange (CURIE) v. CGU Insurance Company of Canada (2007), where the court ruled that a former member club, that had not renewed membership or paid dues, was a member for the purposes of insurance coverage.
A perennial weakness that we have observed in governing documents is inadequate definitions of “good standing”. Common bylaw templates state only that a member ceases to be in good standing when they cease to pay their dues. This is woefully inadequate in the sport setting. Bylaws should state clearly what members must do, or not do, to remain members in good standing, including what sort of membership status they should maintain with other entities in the sport spectrum. Here is an example:
A Member will be deemed to be in good standing provided that the Member:
- Owes no outstanding membership dues or other debts to the Association;
- Has not ceased to be a Member;
- Has not been suspended or expelled from membership;
- Has complied with the Bylaws, policies and rules of the Association;
- Is not subject to a disciplinary action or investigation of the Association, or if subject to disciplinary action or investigation of Association previously, has fulfilled all terms and conditions of such disciplinary action to the satisfaction of Association;
- If a Club Member, is a member in good standing of a Provincial/Territorial Association; and
- If an Individual Member, is a member in good standing of his or her respective Club Member.
Members who cease to be in good standing will not be entitled to the benefits and privileges of membership, including the right to vote of meetings of Members. A Member may be restored to good standing upon meeting the definition of good standing set out in this Bylaw, to the satisfaction of the Board.
Lastly, several sport organizations have agreements or affiliations with other entities that may govern coaches or officials within the sport organization. Do the sport organization’s governing documents reflect that governance, jurisdiction and/or implementation of sanctions will be carried out by the other entities, and that the two entities will mutually respect and honour such sanctions? As indicated above, multiple sets of rules may apply and they may be tricky to enforce. It is important to have the appropriate contracts and governing documents that are linked together properly and that reflect the intent of both organizations.
An essential element of risk management is being prepared to handle unexpected situations as they arise. Every sport organization should pay attention to the fine print of their governing documents, now, before they are put in the middle of litigation with the lawyer on the other side looking for (and invariably finding) a loop-hole. Please take the time to review your governing documents with a careful eye to the issue of jurisdiction over membership: who is a member, how do they become a member, can you deny a member, can you remove a member, what is the duration of membership, what do members need to do to be in good standing, etc. Some homework now has the potential to save you a lot of grief later.
Watch for our next newsletter – Winter 2009
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