Introduction

One of the most prominent issues in the arena of sports law today is the issue of safe sport for all participants. Sports organizations and clubs at all levels regularly encounter disputes arising from harassment or abuse amongst its member athletes, coaches, volunteers and parents. These disputes can sometimes manifest as civil, criminal or human rights claims, but often sports organizations are left to their own internal processes to resolve the disputes. Resolution of these disputes can be a complicated process and many sport organizations are ill-equipped to facilitate dispute resolution within their internal policies and procedures. Despite these difficulties, in order to maintain integrity in sport and to protect participants, it is essential to find effective ways to investigate and prosecute safe sport violations across all levels of sport.  This paper is intended to provide an overview of the landscape for litigating and resolving Safe Sport disputes in Canada.

Background to the Safe Sport Movement

Safe Sport is set of principles aimed at the protection of all athletes and sport participants from abuse, harassment and general maltreatment. The principles recognize that relationships between athletes and coaches can be extremely personal and dependant, and these conditions can create an environment where athletes become vulnerable to abuse, manipulation and harassment. However, Safe Sport principles are meant to apply broadly to also protect coaches, volunteers and other participants. For example, coaches have increasingly been the victims of harassment from parents. These principles look not only to combat flagrant criminal conduct (such as sexual abuse or assault), but also more nuanced and emotional abuse arising from “tough love” coaching techniques (verbal abuse, hazing, discrimination and inappropriate training demands for example).

Safe Sport issues started to come to light in the 1990s as a wave of athlete sexual abuse survivors came forward to report their experiences. In response, Sport Canada instituted a policy in 1996 that required all national sports organizations (NSOs) to have a harassment and complaints policy in place in order to qualify for federal funding for their organization. While the funding stipulation was well-intentioned, NSOs by and large lacked the available resources and a clear understanding and of how to establish and implement these anti-abuse policies. As a result, athletes and other participants were left without a effective avenue for filing complaints or carrying through with procedures to prosecute their complaints.1

In 2003, The Physical Activity and Sport Act, S.C. 2003 c 2, created the Sport Dispute Resolution of Canada (SDRCC), a national organization aimed at resolving disputes between parties involved in Canadian sport. The SDRCC provides resolution facilitation, mediation and arbitration services. It also has jurisdiction to review internal decisions made by NSOs2 and some NSOs have now included provisions in their internal policies to allow them to refer matters to the SDRCC. However, enforcement of certain SDRCC decisions often remains within the NSO itself.

In June of 2018, former sport minister Kirsty Duncan announced “stronger measures to eliminate harassment in the Canadian sport system.”3 Federally funded sport organizations were immediately required to “take all necessary measures to create a workplace free from harassment, abuse, or discrimination or all kind.” She also required that all NSOs disclose any incidents of harassment, abuse or discrimination to her directly or they would lose their funding.

However, a coalition of Canadian athletes, including former NHL player Sheldon Kennedy and cross-country skiing gold medalist Chandra Crawford, signed an open letter to Ms. Duncan in 2019 stating that the existing Sport Canada policy to prevent harassment and abuse in sport has not been effective. They called for an independent, arm's length system of education, investigation and compliance, to institute Safe Sport principles within national sport organizations.4

More recently, Canada's new sport minister, Pascale St.-Onge, has referred to the current situation as a “safe sport crisis” in light of recent complaints by athletes of systemic issues in Bobsleigh Canada, Hockey Canada and Gymnastics Canada, to name a few. St. Onge announced a number of new measures to hold sport organizations accountable, including a change in the contribution agreements with sport organizations that meet new Sport Canada funding framework eligibility requirements.5

In short, there has been a recent outpouring of complaints and demands for accountability from athletes across numerous sports to crack down on Safe Sport violations. The challenge that sport in Canada now faces is to find a way to effectively receive, investigate, hear and resolve these complaints.

The challenges of hearing Safe Sport complaints

As previously noted, the original response of sporting organizations to Sport Canada's requirement that each NSO have an internal harassment and complaints policy, was to try to set up an internal procedure for receiving and hearing these complaints. There are several reasons why it is extremely difficult and problematic for a sports organization to resolve their own disputes internally. The first is the significant resources needed to investigate, prosecute and decide a claim. Many organizations simply do not have the resources or expertise to properly investigate, hear and decide these disputes fairly or efficiently. Often, organizations do not have a strong understanding of conflicts or due process which is required to ensure fairness and balance in dealing with disputes. In many cases, funding for the organization is tied to an athlete or team's performance, and if the complaint is about a senior member of a team or a coach, the organization may be inclined to prefer to keep the respondent in place, creating an obvious conflict of interest.

Further, many of the issues that come forth from these complaints require a significant amount of expertise, not only regarding the substantive legal aspects of the dispute but also about fair procedure. Fair process and transparency in dispute resolution is one of Safe Sport's basic principles. For example, in the case of Wayne Gordon v Canadian Amateur Boxing Association (SDRCC 2003), a boxing coach appealed the decision of the boxing association to suspend him for four years for inappropriate behaviour involving a female athlete. The SDRCC arbitrator determined that two of the members of the boxing association who were involved in the investigation were also judges in determining the outcome and sanction for the coach, and this did not accord with the principles of fair procedure. Further, the arbitrator found that the coach had not been given adequate disclosure of the allegations against him and that the boxing association had exceeded its jurisdiction in delivering a sanction of four years. The arbitrator set aside the boxing association's decision and determined that a six month sanction was appropriate in the circumstances. This case is a good example of various missteps easily made within the dispute resolution procedures of a sport organization which can essentially result in the organization's decision being overturned.

The investigation step of the complaints process is also one that requires an independent party with proper legal training. Ideally, this task is outsourced to an individual who has specific training in conducting interviews in a fair and confidential manner, because if done incorrectly, it can also corrupt the dispute resolution process. For example, in the recent case of Humphries and Bobsleigh Canada and Hays,6 the arbitrator found that the investigator who had interviewed witnesses for the case had done so in a manner that was neither thorough nor reasonable. As such, the decision of Bobsleigh Canada to accept the investigator's witness evidence reports was not able to stand and his findings were set aside.

Independent Regulation

The need for an independent regulator of Safe Sport principles is widely recognized by sports organizations. The USA and United Kingdom have already taken steps to establish their own independent offices to conduct investigation, prosecution and resolution of Safe Sport disputes. The US Center for SafeSport has three independent arms, complaint triage, investigations, and adjudication panels.  All three are separate from each other and the sport organizations.  The US helpline can refer complaints directly for investigation, unlike the Canadian system that sends a complainant to the NSO, with the SDRCC stepping in only when the NSO system hasn't resolved the issue or upon specific request from the NSO. The UK Child Protection in Sport also has an enforcement arm, and is an independent body.

Recently, in Canada, the SDRCC created and launched Abuse-Free Sport, an independent program aimed at removing all forms of harassment, discrimination and abuse from Canadian sport. In addition, the SDRCC has appointed Canada's first Sport Integrity Commissioner to oversee the new program. The Office of the Sport Integrity Commissioner (OSIC) will operate independently to receive complaints about alleged violations of the Universal Code of Conduct to Address and Precent Maltreatment in Sport (UCCMS). The UCCMS, which sets out guiding principles for safe sport, defines maltreatment and identifies prohibited behaviours and sanctioning considerations. It is essentially Canada's first piece of Safe Sport legislation that will govern Safe Sport disputes involving members of its signatory organizations. Although there has been widespread support of this new independent Safe Sport mechanism, there are only four signatories to date, including Volleyball Canada and Weightlifting Canada. In its current form, it appears that dispute resolution services provided by the OSIC and SDRCC are reserved for federally-funded sports organizations at this time. However, Provincial Sport Organizations (PSOs) may be able to refer some cases to Abuse Free Sport if their corresponding NSO is a signatory to the UCCMS (for example, Volleyball BC may refer matters since Volleyball Canada is a signatory).

In British Columbia currently, sports organizations can obtain some dispute resolution support from viaSPORT, a provincial organization aimed at providing assistance and leadership to amateur sport organizations. While viaSPORT does not have its own internal dispute resolution mechanism, they do refer to the Sport Law Connect Program (SPLC) which was created by the SDRCC. The SLCP is a free resource that allows organizations to submit a dispute and have trained participants (mostly law students and dispute resolution professionals) conduct a fair and timely dispute resolution process. ViaSPORT also has a trained mediator that organizations can access if needed.

Litigating Safe Sport cases

As inferred from the above, one of the main roles of counsel (or a self-represented party) in litigating a Safe Sport dispute, will be to ensure that the process is done in a fair and balanced way and in keeping with the principles of natural justice. For example, this requires that parties know exactly and in detail the complaint made against them so that they are able to properly respond. It also requires that witnesses be interviewed thoroughly and independently. Importantly, and especially when the complaint process is being administered by an NSO or a PSO, it is crucial that all decision-makers are free of conflicts and impartial.

It is also important that counsel and parties have a good understanding of Safe Sport principles and the relevant laws and policies that apply to them with reference to the subject matter of the complaint. In addition to the definitions set out in section 5 the UCCMS, there are some cases that have been litigated in Canada and the USA that can provide guidance for coaches, athletes and sports administrators as to what types of behaviour violate Safe Sport principles and the types of sanctions that may be handed down as a result.

In Leyla Smirnova v Skate Canada, SDRCC 2016, allegations were made by a collection of young skaters that their coach (Smirnova) engaged in inappropriate conduct by verbally and physically abusing young skaters on a regular basis. Specifically, the athletes gave evidence that the coach would grab the athletes by the shoulders and shake them, as well as squeeze, pinch or pull skaters in anger. Further, the coach's behaviour often included “tough-love” training techniques including yelling and insulting name calling. This included calling the students “sukka,” “loser”, or “stupid”, in addition to swearing and screaming.  The SDRCC upheld Skate Canada's decision that the coach's conduct constituted an abuse of power and personal harassment in violation of both the Membership Complaints Policy and the Coaches Code of Ethics Policy. She was suspended for a period of over two and a half years.

In the case of Complainant v Randy Brookes7  complaints were made by two female athletes that Brookes, their coach, sexually harassed them and created a poisoned training environment. Along with making sexual advances against the claimants, the coach participated in manipulative behaviours including grooming and gaslighting. The Panel determined that Brooks should be suspended for two years.

In The Parent obo the Athlete v The Sport Club and the Coach,8 a case brought before the BC Human Rights Tribunal, a parent filed a complaint on behalf of her daughter (a minor) alleging discrimination by a synchronized swimming club and its coaches to accommodate the athlete's anxiety disorder. The athlete was diagnosed with the disorder but did not immediately disclose it to the club. The team had a strict “no absences” policy, but as a result of the athlete's condition, she was forced to miss a practice. The parent informed the coach of her daughter's struggles but the coach's response was dismissive, stating that the athlete “didn't try”, was “bailing on the team”, and directly threatened to replace her position on the team. The sports club and coach applied to dismiss the complaint on the basis that the coach's behaviour could not establish discrimination. The Human Rights Tribunal found that, taken on its face, the complaint could constitute a breach of the Code, as the athlete's mental disability was a protected ground under the Code and she allegedly suffered an adverse impact as a result of the coach's treatment of her.

South of the border, in early 2020, USA Gymnastics decided to suspend coach Maggie Haney for a period of eight years following a hearing conducted by an independent panel. Several athletes had reported being abused, bullied and harassed by Haney, which included being persuaded to train while injured, being screamed at for minor mistakes and being called “weak” or “lazy”.

In addition to providing some guidance as to what types of behaviours violate Safe Sport principles, what these cases demonstrate is that these prohibited behaviours are diverse and often nuanced. These cases almost always involve an assessment of credibility between the complainant and the respondent. Investigation into these complaints can further be complicated by the fact that often complainants are the subject of trauma or abuse which requires expertise in interviewing and handling of the information. Complainants may also be at fear of losing favour with their coach or organization, and in turn jeopardizing their positions or sporting careers. These pressures can inhibit complainants from disclosing important information, or even from coming forward with their complaints in the first instance.

Finally, it is important that parties are aware of the sanctions that can be sought in each case. Under some NSO's policies, the organization can implement interim measures such as suspension and revocation of licensing while a Safe Sport matter is being investigated and decided. Further, organizations are often awarded a broad discretion under their policies to hand down sanctions ranging from required education to permanent ineligibility.

Conclusion

The Safe Sport movement has been gathering momentum in recent years, particularly as sports organizations and participants recognize the vulnerabilities of athletes, coaches, and volunteers, that can inherently arise out of relationships in sport. Now that a collective understanding has emerged as to the principles of Safe Sport that are required to protect those involved in sport, the real challenge comes with fairly and effectively investigating, prosecuting and resolving Safe Sport disputes when the necessary resources and expertise are often lacking. Hopefully, some of these issues will be overcome with the establishment of the OSIC and the SDRCC, at least at the national level. While the infrastructure in place for a federal independent dispute resolution model is still green, it is a step in the right direction.

Footnotes

1 Peter Donnelly, Gretchen Kerr, Amanda Heron & Danielle DiCarlo (2016) Protecting youth in sport: an examination of harassment policies, International Journal of Sport Policy and Politics, 8:1, 33-50

2 Article 6.17 of the SDRCC Code

3 Minister Duncan Announces Stronger Measures to Eliminate Harassment, Abuse and Discrimination in Sport  https://www.canada.ca/en/canadian-heritage/news/2018/06/minister-duncan-announces-stronger-measures-to-eliminate-harassment-abuse-and-discrimination-in-sport.html

4 Minister Duncan Announces Stronger Measures to Eliminate Harassment, Abuse and Discrimination in Sport  https://www.canada.ca/en/canadian-heritage/news/2018/06/minister-duncan-announces-stronger-measures-to-eliminate-harassment-abuse-and-discrimination-in-sport.html

5 Canada's sport minister announces new measures to protect athletes from maltreatment, abuse https://www.cbc.ca/sports/olympics/heroux-safe-sport-new-measures-1.6486139

6 SDRCC File no. 19-0421

7 Athletics Ontario Complaint Hearing Panel 2019

8 2017 BCHRT 190

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