From Coaches Report - Spring 1996, Volume 2 Number 4
Just as the Centre for Sport and Law is in a state of transition [see "Speaking Personally, page 12] so is this column. In the last five issues, we have focused on issues relating to negligence and liability of coaches. In this issue, we make a switch to the other side of risk management.
As described in our first column [Coaches Report Volume 1, Number 3], organizers of sport programs (including coaches) have two obligations: one, to ensure a safe environment and two, to ensure fair treatment. Failure to satisfy the first obligation can have legal consequences, as those who are physically harmed seek compensation for injuries. Failure to satisfy the second obligation can also have legal consequences, as those affected by decisions pursue legal action to have decisions overturned or rescinded.
This column looks at the second obligation. Very often, coaches are involved in making decisions that affect athletes, and an understanding of the legal meaning of "fair treatment" is an essential part of the coach's personal risk management skills.
Procedural fairness (also known as natural justice or due process) is a legal term with legal meaning. What this term means for coaches and sport organizations can be traced to the 1952 "landmark" case, Lee v. Showmen's Guild of Great Britain. The case did not involve sport, but it nonetheless has great significance for sport organizations, coaches and athletes.
Lee was a man who sold pots and pans in a public market. The Showmen's Guild was a merchants' organization of which Lee was a member. Lee had a dispute with a fellow merchant in the market and the Guild punished him by suspending his membership. Lee fought his suspension in court and won, and the judge's decision established two critical principles for sport: one, the jurisdiction of a domestic tribunal is founded on a contract, and two, a domestic tribunal is subject to the rules of natural justice.
In plain language, these principles have the following meaning. First, a domestic tribunal (that is, a sport organization) derives its authority form the contractual relationship it has with its members. The terms of this contract are set out in the bylaws and governing documents of the organization. The organization can do no more, and no less, than what this contract specifies. And it can only change the contract by following special procedures which are laid out in advance. Secondly, the decision-maker has a duty to be fair. This duty is defined by certain rules of fairness, which stipulate that the decision-maker must have authority to act, must act without bias, and must give the person affected the opportunity to be heard.
There are numerous examples of sport situations where these simple rules were not followed, often with grave consequences for the organization which found itself on the losing end of an expensive lawsuit:
Many coaches have disciplined athletes by suspending or revoking membership, even though the organization had no power to discipline in such a manner because it wasn't written into the contract.
Many organizations instruct coaches to select athletes for teams without the benefit of any criteria or guidelines, with the result that the coaches is making arbitrary, subjective decisions which cannot be supported when challenged.
Often, decisions are made by those who have a vested interest in the outcome, because of a personal relationship or other association. Also, it's not uncommon to see appeals of decisions sent back to original decision-makers rather than to an independent and unbiased decision-making body.
For the coach who is expected to make decisions about athlete eligibility, selection, and disciplines, here are a few pointers:
-Insist that selection criteria are approved in advance and are as objective and concise as possible. If criteria are subjective, develop your own guidelines to evaluation athletes.
-If your organization doesn't have a policy on discipline, encourage it to adopt one. Ensure that athletes and coaches have input into the policy.
-Recommend that all selection decisions be made by a panel, not just by one person such as yourself.
-Make a habit of putting all your decisions in writing, with reasons, even when aren't required to supply a written decision. The act of writing reasons always results in a better decision.
-Look at creative ways to discipline for minor infractions, including verbal and written apologies or reprimands, assigning extra duties, or removing perks and privileges. Reserve the most serious sanction for the most serious offence.
-If called upon to make a decision in a situation where you feel you cannot be completely impartial, excuse yourself and ask that an unbiased decision-maker be appointed.
-Encourage your organization to adopt a clear, fair policy on appeals.
-If all these risk management measures fail and an appeal procedure does not resolve the situation, the coach can use his or her position of influence to persuade the parties to consider arbitration as an alternative to going to court. The Alternate Dispute Resolution (ADR) Program for Amateur Sport is now underway. If the parties agree to refer their dispute to ADR, the Centre will set them up with a panel of skilled, independent arbitrators who will resolve the issue in less time, at less cost and with less overall harm than is possible in court.