Fair Treatment

Fair Treatment
Coaches Report - Spring 1996, Volume 2 Number 4
http://www.sportlaw.ca/articles/coach/coachtofc.htm
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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can also have legal consequences, as those affected by decisions pursue legal action to have decisions overturned or rescinded.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.

The Coach's "Discretion" in Making Selection Decisions

The Coach's "Discretion" in Making Selection Decisions
Coaches Report - Fall 1999, Volume 6 Number 2
From http://www.sportlaw.ca/articles/coach/coachtofc.htm
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How much discretion should a coach have in selection decisions? How much discretion can a coach have? In the period leading up to the Pan Am Games we dealt with a flurry of appeals about selection decisions, many involving the issue of discretion. While not a new issue, there are some subtleties about discretion that deserve further discussion.

"Discretion in selection" means giving the selector (let's assume that person is the coach) an opportunity to exercise judgment and choice in coming to a decision. How much discretion is a matter of degree. At one end of the continuum, the coach is given no discretion, because selection is based entirely on objective criteria such as time or rank. There is nothing to evaluate and no choices to be made.

At the other end of the continuum, the coach may be given complete, or absolute discretion. The coach chooses whomever she wants based on whatever factors she considers relevant. And, of course, there are all kinds of situations in between the two extremes where the coach has varying degrees of discretion.

Perhaps the most common of these situations involved a group such as a high performance committee or a board of directors establishing the selection process and criteria and then allowing the coach to exercise his discretion in weighting, interpreting and applying these criteria to make decisions.It has been our experience that legal problems arise not because the selector has been given discretion, but rather, because of concerns about the amount of discretion actually granted and the way that it is exercised.

How Much Discretion?
The sport organization's policy document that sets out how the selection process will proceed and the criteria that will be considered should be carefully drafted so that it reflects exactly what was intended in terms of who does what and how much discretion each party is intended to have. Ambiguous wording, incomplete directions and inadequate explanations give rise not only to misunderstandings, but may also provide grounds for appeals of decisions.

The coach must look very carefully at (and clarify) how much discretion he or she has been given and how that discretion might be constrained. In one recent appeal, the high performance committee established a list of criteria the coach was obliged to consider but did not define each criterion, rank each criterion or tell the coach how much weight to put on each factor. However, the coach was obliged to at least consider each factor; he could not ignore any one of the criterion. But what does "consider" mean?

Could the coach turn his mind to one of the factors, decide it had no relevance in the present situation and dismiss it by putting no weight at all on it? Probably not, but the way in which the criteria are to be considered should be carefully phrased in the selection process so that everyone – athletes and coach together -- understand what is to be considered. For example, wording such as "consider and take into account" tells the coach she must put some weight on each factor, but not how much.

Abuse of Discretion
The coach must work within the terms set out for the exercise of the discretion given to him. Not doing so is technically known as an abuse of discretion. An abuse of discretion is always reviewable through an internal appeal (or by a court if the sport organization has no internal appeal process).

Examples of an abuse of discretion that may be open to review are considering irrelevant factors that have nothing to do with the selection, or, alternatively, not considering relevant factors. Treating athletes within the selection process differently (for example, weighting a factor differently with different athletes, or making an injury exception for one athlete but not another) is improper, as is exercising the discretion arbitrarily or for an improper purpose. It might be argued that not selecting a certain athlete as a form of sanction for past indiscretions or behavioural problems is an exercise of one's discretion for an improper purpose (that is, for reasons of discipline, not selection). Behavioural problems should be dealt with through the discipline policy (for example, a particular sanction might preclude an athlete from eligibility for future selection).

Assuming the discretion is exercised properly, the greater the discretion given, the less room there is for a review. An appeal panel should not substitute its own view or interpretation of the criteria for that of the coach if the coach has been given the discretion to make those interpretations herself. The panel's only job is to make sure the discretion was exercised within the bounds dictated for it.

Given this, it might be tempting to say, "Well, lets give the coach absolute discretion to make selection decisions". From a legal standpoint, that may be perfectly acceptable. But from the perspective or making sure the competitive goals of the organization underlie the selection process and criteria and ensuring athletes know ahead of time the selection criteria, and perhaps have a part in their determination, according the coach absolute discretion may be ill-advised.

It is always an invitation to an allegation of arbitrariness in the selection (and thus reviewable) if effort is not spent reviewing how the discretion has been exercised and the selections made (regardless of the degree of discretion). It is always an excellent practice to provide a rationale for the selection or non-selection of each athlete, given that one of the greatest reasons for selection appeals is a lack of communication as to how and why an athlete was not selected.

Organizations need to consider very carefully how much discretion they wish the coach to have in the selection process and the implications of granting such discretion. The scope of that discretion needs to be clearly and fully set out for everyone to see, as well as any factors the coach must consider and how she must consider them. And the coach must be very clear about the extent of her discretion and be able to support the fact that the discretion was exercised properly. The easiest way to do that is to provide a full rationale for selection decisions in light of selection criteria.

The Coach and The Selection Process

The Coach and the Selection Process
Coaches Report - Summer 1996, Volume 3 Number 1
From http://www.sportlaw.ca/articles/coach/coachtofc.htm
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How much freedom does a coach have in the selection process? Should the coach even be making selection decisions? The natural inclination is to say the coach should be intimately involved in the selection of athletes and should have great discretion in making selection decisions. After all, the coach has the knowledge and experience to make such decisions and will be the person working most closely with the athletes. While this may be true, there are some legal considerations which may unknowingly constrain the coaches role in this regard.

A legal contract exists between the sport organization and its members (specifically athletes), the terms of which are set out in the by-laws, policies, rules and regulations of the organization. An inherent element of this contract is procedural fairness, which has three components:

• The decision-maker must be properly authorized to make the decision.
• The decision-maker must not be biased, or appear to be biased.
• The person affected by the decision (typically an athlete) has a right to know the terms which will govern the decision and should have an opportunity to try to meet those terms (i.e. a "right to a hearing").

While the concept of procedural fairness is fairly simple, putting it into action can be tricky, especially in the area of sport.
Initially all decision-making powers of the organization are vested in the board of directors and its executive. Through proper delegation, authority to make decisions is spread more efficiently through the organization. Thus, the executive may pass a motion to delegate the authority to select athletes to a coach. In this way, the coach has the proper and legal authority to make selection decisions. However, the coach should be clear about what authority has been delegated -- the authority to determine selection criteria, the authority to apply criteria, or both?

For example, in Kane v. Canadian Ladies Golf Association (1992), authority to select was not properly delegated. Just prior to an international competition, the Chair of the National Teams Committee, wrongly believing she had the authority to change selection criteria, added an additional element which had the result of excluding Lori Kane from the national team. Kane challenged the revised criteria in court, arguing that the association had broken its own rules by using new selection criteria which had not been approved by the proper authority, i.e. the board of directors. The court agreed, and directed the Association to either revert to the original selection criteria or change the criteria properly.

The second element, bias, is sometimes unavoidable as the sport community is fairly small. However, where discretion in selection is necessary and unavoidable, bias must be controlled as much as possible. Persons having a professional or personal relationship with any of the candidates for selection should disqualify themselves from the selection panel. Bias is also reduced by having a number of individuals make the decision jointly, and by having the decision ratified by a higher authority.

In Garrett v. Canadian Weightlifting Federation (1990), Brent Garrett received notice of his selection to the national team. Just prior to the team's departure to the Commonwealth Games, Garrett was told he was no longer on the team, but could attempt to make the team by participating in a "lift-off " with a reserve athlete he had bettered through out the year-long selection process. Garrett tied with the other athlete in the lift-off, but was still not placed on the team by the national coach. Garrett sought recourse in the courts. While the decision of the court turned on other matters, it should be noted that the national coach was also the coach of the reserve athlete. In this instance there was clear bias, and the association would have been well-advised to minimize or control it.

The third component of procedural fairness requires that athletes clearly know the basis for selection sufficiently in advance to properly prepare, and have an opportunity to try to meet the selection criteria. While changes to the selection criteria are sometimes necessary, such changes should take into consideration the athletes' training cycles and allow reasonable time for athletes to adjust their training and competitive schedules to the change.

In Kelly v. Canadian Amateur Speed Skating Association (1995), the selection criteria specified the top four skaters at the Canadian Championships would compete at the World Championships. One week before the Canadians the association altered the criteria and announced only the top two athletes would qualify; the remaining two positions would be chosen at a later time. It had been Patrick Kelly's training plan to finish third or fourth at the Canadian Championships and then "peak" at the World Championships some seven weeks later. Kelly finished fourth at the Canadian Championships and thus did not qualify for the Worlds. Kelly successfully challenged the change in the selection criteria on the basis that it was a breach of the contract he had with the association.