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E- Newsletter - Fall 2009
IN THIS ISSUE WHAT'S NEW * Jerrod Grossman joins the Centre * Sport Canada establishes new policy on Women and Sport * Government of Canada creates new legislation for non-profit corporations * Canadian Team Sport Coalition set to release report * Ontario passes Apology Act TIPS FOR SPORT LEADERS - Is your organization ready for a crisis?
RECENT SPORT LAW CASES/DECISIONS - Sagen v. VANOC (ski jump case)
FEATURE ARTICLE - A better way for sport
WHAT'S NEW?
Jerrod Grossman Joins the Centre for Sport and Law
Steve Indig is pleased to announce that the Centre for Sport and Law has been hosting a student-at-law. Jerrod, a Canadian who completed his law studies in Australia, came on board with us in this capacity in August 2009. Presently completing his conversion exams, Jerrod has a keen interest in pursuing work in sports and entertainment law, contracts, employment and corporate law. His resume also shows him to be a snowboard, water ski and wakeboard instructor! Jerrod will work alongside Steve at our Toronto location. Welcome Jerrod!
Sport Canada Establishes a New Policy on Women and Sport
It only took 23 years, but Canada has a new policy on Women and Sport. Actively Engaged: a Policy on Sport for Women and Girls and the accompanying Action Plan, 2009-2012, were launched at the Canada Summer Games in PEI in August, but are back-dated to take effect January 1, 2009.The objective of the policy is to foster sport environments – from playground to podium – where women and girls, particularly as athlete participants, coaches, technical leaders and officials, and as governance leaders are provided with quality sport experiences and equitable support by sport organizations. The two documents are extensive and can be accessed from the Sport Canada web site, Actively Engaged and Action Plan.
We are pleased to see the policy addressing the gender issue from a much broader perspective than in 1986 (for example, moving beyond measures to increase female athletic participation to recognizing the many societal barriers that inhibit women from engaging in different roles in sport, including governance roles). However, the Policy remains toothless in terms of enabling intervention by Sport Canada within the countless organizations that they heavily fund. The language in the Policy is that the government of Canada will merely “support and encourage” these organizations to comply with the Policy.
Our experience in many gender equity battles over the years is that the roadblocks to the engagement and equitable treatment of women are engrained within the cultures of national sport organizations. A handful of these organizations continue to operate in direct defiance of federal policy and their own policies on gender equity – and do so without repercussions from their main funder. This is not likely to change under the new Policy regime.
The Government of Canada Creates New Legislation for Non-Profit Corporations
It only took 90 years, but Canada now has new legislation governing the not-for-profit sector. It took eight attempts, starting in the early 1970s, to pass Bill C-4, An Act respecting not for profit corporations and certain other corporations, which received royal assent in June 2009. This statute will replace Part II of the Canadian Corporations Act (created in 1917) although it has not yet been confirmed when the legislation will take effect (it may take as long as a year as Regulations have to be written and approved). The changes in the new Act are extensive and all federally incorporated non-profits (including NSOs) will need to pay attention.
Here are just a few highlights of what’s new coming up:
* NSOs will need to make application for continuance under the new act. The application will involve the submission of Articles (the new form of incorporating document) that encompass the existing Letters Patent and Bylaws of the NSO. The Articles will have to conform to the new legislation. This creates a great opportunity for NSOs to do a complete bylaws makeover.
* Corporations under the Act will have broader powers than previously – in fact, all the powers of a natural person, except as may be limited by the Articles (also a good reason to review those bylaws!).
* The new Act is much more flexible in allowing electronic and web-based meetings, and specifically authorizes absentee voting using electronic means.
* There are different audit requirements depending on the size of the corporation and whether or not it receives public funds.
* There are lengthy provisions in the new Act relating to Directors’ conflict of interest.
To learn more about Bill C-4, and about your NSO’s obligations under the statute, please contact Steve or Rachel.
Canadian Team Sport Coalition Set to Release its Report on the Benefits of Team Sport
Full Team Ahead: The Benefits of Team Sport to Canadian Sport is a report authored by Dina Bell-Laroche and Rachel Corbett of the Centre for Sport and Law, and independent researcher Kevin Lawrie, on behalf of the Canadian Team Sport Coalition. The purpose of the report was to investigate the unique contributions that team sport makes to Canadian society. The report is a culmination of a summer-long research project, involving a three-pronged methodology: we reviewed existing published literature, conducted structured interviews with 17 highly respected sport leaders, and administered a national survey of high performance athletes. The main report will be accompanied by a series of smaller briefs. For more information please contact John Paul Cody-Cox at the Coalition or Rachel Corbett at the Centre for Sport and Law.
Ontario Passes Apology Act
Earlier this year, Ontario passed the Apology Act, which now allows an individual or organization to offer an apology as part of a dispute resolution process without concern over legal liability. The Apology Act provides that an apology made in relation to a civil matter does not constitute an admission of fault or liability and would not be admissible in a civil proceeding.
For years, individuals and organizations involved in disputes avoided making apologies for mistakes and bad judgment because saying "sorry" could be taken as admitting guilt, opening the door to civil lawsuits, awards and judgments.
It is the hope that this legislation may open the door for organizations or individuals to consider more active reputation management strategies starting with expressions of regret and compassion. It is intended to jump-start the healing process by acknowledging that harm has been done, and to promote an atmosphere of accountability and open communication among the parties involved in the dispute.
A number of studies have been released touting the merits of an apology as part of the dispute resolution process and the Uniform Law Conference of Canada in 2007 passed a resolution recommending that all provinces adopt some form of apology legislation. Ontario became the fifth jurisdiction in Canada to do so.
TIPS FOR SPORT LEADERS
IS YOUR ORGANIZATION READY FOR A CRISIS?
The adage “failing to plan means planning to fail” applies to risk management in sport. Many sport organizations have learned the hard way that they might have benefited enormously from having planned ahead to deal with a sudden incident, emergency, scandal or crisis.
The current buzz about the H1N1 virus has caused us to reflect on what we as a sport community, and more particularly as leaders of sport organizations, ought to be doing to be better prepared should this pandemic become endemic. We know that many international sporting events have been cancelled as a result of this flu. As well, as we ready our families to return to school, there is a great deal of media attention on the H1N1 influenza.
If your sport organization is planning on hosting a large-scale event, or if you have teams that are planning international travel, we would suggest that you pay attention to what is being said about H1N1, and examine what best practices are being promoted to address this risk. There are a number of resources available, including the recent publication by the Conference Board of Canada: H1N1 Influenza: Preparing Your Organization for a Pandemic, which can be downloaded for free from their web site at www.conferenceboard.ca. For sport organizations interested in accessing more detailed information, visit www.flu.gov and download a toolkit to help your organization better plan for and manage this risk.
Interestingly, many of the suggestions for helping your organization to be better prepared for a flu pandemic can be applied more broadly to many crisis situations. As risk management consultants, we have spent two decades helping sport organizations to identify, assess and manage risks. An important risk management tool for any sport manager is an “emergency response plan” which specifies the steps to be taken in the event of an emergency.
An emergency can be a pandemic, a serious or fatal injury to an individual or individuals, a positive doping test, or a criminal or moral scandal involving a representative of your organization. An emergency action plan addresses not only what needs to be done to respond to ensure the safety and well-being of the parties involved, but also what messages should be communicated and by whom, to members, the media and the public. Terms such as “crisis management plan” or “issues management plan” may also be used to describe how an organization should respond to the public and to the media in an emergency.
Emergencies, crises, scandals and pandemics all have the potential to cause enormous harm to the brand and image of a sport organization. However, that harm can be mitigated through thoughtful, appropriate and well-timed communications. It is always better to plan these responses ahead of time, rather than making them up in the heat of the crisis.
We encourage all sport organizations to think about emergencies that might confront them and to take the fairly simple step of setting out the protocols for dealing with such emergencies. Think, in advance, about who will be the public spokesperson for the organization, and who will make quick decisions (often this will be a management team or a small subset of the Board of Directors – in either case, it should be a group that can convene and deliberate quickly). You should set out the steps that will be followed to make, and communicate, decisions. You should only have one spokesperson and should impose the necessary discipline to ensure that others from your organization are not speaking to the media.
Another useful tool is an “interruption management plan”, which is a simple plan to address who assumes responsibilities for someone who might become incapacitated through injury, illness or other absence. This can apply to both staff and volunteer roles. So for example, if your Head Coach is taken out of commission, who steps up to fill this role? Similarly, if your ED, CEO or Vice President of High Performance are not able to perform their jobs, how are their responsibilities covered? Plotting this out ahead of time will save time and energy later, and will ensure that confusion is minimized and that there is a smooth transition causing minimal interruption to normal operations.
At its core, risk management is about minimizing loss, harm and liabilities. But risk management can also serve as a more positive tool to help sport leaders manage resources wisely, lead and govern effectively, make decisions soundly and project positive images to sponsors, government funders and the public.
Whether you are managing risks for a flu pandemic, a tournament you are hosting or an international tour your athletes and coaches are planning to undertake, the principles at play are all really the same.
For more information on risk management strategies and best practices, contact Rachel or Dina at the Centre for Sport and Law.
RECENT SPORT LAW CASES/DECISIONS
Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Games, 2009 B.C.S.C. 942
As most readers will know, the ski jump case (officially cited as 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, in a decision released on July 10, 2009, the fifteen female ski jumpers lost their bid for inclusion in the 2010 Olympic 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 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 Games and is ultimately in charge of deciding what events are on the Olympic program. There was no legal remedy for the ski jumpers.
Hilary Findlay of the Centre for Sport and Law wrote a more detailed brief on this case, which is available by clicking here. Justice Fenlon's full decision is available here. There are also recent reports that the plaintiffs intend to appeal the Court’s decision. We will be watching any such appeal carefully. The Fenlon judgment is troubling in that it condones a Canadian corporation (VANOC) implementing a policy of an international corporation (IOC), in Canada, that results in discrimination under Canadian law. This raises the question -- what jurisdiction does Canada have over decisions implemented in its own back yard? It seems odd that the answer should be 'none'.
FEATURE ARTICLE
A BETTER WAY FOR SPORT
Further to the growing dialogue on “A better way for sport” and in the wake of the Sport Matters Group’s invitation to have us all think about what we can do to enhance our individual contributions for maximum collective impact, the Centre for Sport and Law encourages our readers to reflect on the power and potential of sport to break new and exciting ground.
We believe that we can do better in the following areas, and the Centre is committed to helping sport organizations determine their best path forward as they consider how to be more effective in delivering on the promise of sport.
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. At no time in our history have we had access to data and information such as we have today – yet, ironically, we may be communicating less effectively than we ever have.
To communicate better, we need to distinguish among data, information, knowledge and wisdom. The internet has allowed us to exchange huge volumes of data quickly, and has also made it easier for us to share information – where information is data that has undergone some analysis and packaging. Knowledge, on the other hand, is data that has gone through a series of deliberate filters to make the data more relevant to the intended target. “Knowledge management” means that we are consciously altering the communication and the medium to better target our audience: for example, using face-to-face dialogue and telephone communication where appropriate, but also embracing social networking platforms and text-messaging to engage a younger audience.
We would suggest that shared wisdom is what results when data, information and knowledge are managed and shared in ways that enable true dialogue. This can only happen as part of a deliberate communications strategy.
We can manage our organizations better
The dawn of the 21st century is calling on all of us to think differently about what we do and why we do it. “Chaordic” organizations are masters of adaptability, considering the benefits of the short-term but not at the expense of longer-term sustainability. Chaordic, a term that combines two inherently contradictory ideas – order and chaos - means embracing the chaos inherent in every ordered system and harnessing that energy to find better ways to achieve stated objectives.
Most sport organizations today are employing a “management by objectives” approach, which has administrators focusing on what they should be achieving, but not taking into account the complex, uncertain and ever-evolving environment in which we work. Increasingly, organizations are employing a more people-centric management philosophy that leverages our greatest asset in this knowledge economy – our people.
With global trends such as increased diversity, globalization, environmental sustainability, the economic crisis, terrorism, an intergenerational workforce, and an overall aging demographic, organizations will need to adapt, respond, and plan on a daily basis if they are to survive. This requires a management philosophy that invests heavily in people.
We can leverage our assets better
Flowing from the above comments about management philosophy, our greatest assets are our people and this is truer in sport than for other sectors. A management philosophy that connects people to a shared set of organizational values has been proven to increase productivity, increase employee retention and satisfaction, increase workplace well-being, reduce workplace conflict and absenteeism, and overall, increase the successful achievement of outcomes.
Alongside this, leveraging our assets means being open to new relationships, new ways of working together, and new ways of seeing old issues. As some great people in sport have said, it’s not just a question of having more money, but rather a question of making better use of the money and resources that we have.
This leads us to ask, “what are we doing to develop better administrators in sport?”. We expect our athletes and coaches to improve every day, but we don’t ask the same of our administrators. Other sectors and professions invest in their people in a cycle of continual improvement. One way to leverage our assets is to invest in them through planned professional development opportunities and a shared commitment to continual learning.
We can promote and market ourselves better
The True Sport Report reminds us that sport offers a number of important drivers (physical, psychological, social, economic and environmental) that if used explicitly and intentionally, can contribute to health, foster social cohesion and build vibrant communities. There are many different key messages being floated out to the consumers of sport in a random fashion, creating clutter and confusion, and detracting from our main objective.
So how do we package True Sport, Canadian Sport For Life, ParticipACTION and the broader objectives of the Canadian Sport Policy in a meaningful and simple way so as to achieve maximum retention and staying power? A strategy and action plan are needed to help leverage our individual contributions for maximum collective impact.
We can plan better
A number of sport organizations are now using innovative management practices that increase efficiencies and improve outcomes. For instance, risk management is widely acknowledged in other sectors as a means to be more proactive in assessing risks and in determining appropriate solutions to ensure our objectives are met. The True Sport risk management approach does not focus solely on the negative things that can happen, but also reveals what positive opportunities we might be overlooking. In other words, modern risk management is not just about preventing bad things from occurring, but is also about promoting good things.
This True Sport approach to risk management also allows administrators to consider the important role of values in their plans, decisions and actions. A better way calls for sport administrators to benefit from and employ a wide range of management practices to help them do their job better. The back end (administrators) of the house of sport is deserving of the same attention and investment as the front end (athletes and coaches).
We can develop better leaders
Leadership comes in many forms and currently we use sport as a tool to develop leaders, but we do not do so in a strategic or planned way. The good news is that sport, when used intentionally, can develop authentic leaders who then manifest these authentic leadership skills far beyond the playing field.
Gaining a better sense of the kind of leadership skills that are generated on the field, the kind of leadership required to optimize performance, and the kind of leadership required to lead successful organizations would be a huge step forwards for the sport sector, and is necessary to break new ground when envisioning a “better way for sport”.
If you are interested in exploring these concepts further, please contact Dina Bell-Laroche at the Centre for Sport and Law.
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