www.sportlaw.ca. directors director an individual who is a member of the board of an organization...
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www.sportlaw.ca
Directors
DIRECTORAn individual who is a member of the board
of an organization
Responsible for overseeing the operation of the organization on behalf of its members
Have a relationship of ‘trust’ with the members, from which arise legal duties
Role no different than for-profit corporation
LEGAL DUTIES OF DIRECTORS
Diligence to act reasonably, prudently, in good faith and with a view to the best interests of the organization
Loyalty to not use one’s position as a director to further private interests
Obedience to act within the governing bylaws and within the laws and rules that apply to the organization
‘FIDUCIARY’ DUTY
To represent the interests of the members in directing the affairs of the organization, and to do so within the law.
PERFORMANCE EXPECTATIONS OF BOARD MEMBERS
Give ample notice, with reasons, if you are unable to attend a meeting
Everything that you would like to present to the Board, put in writing
Read minutes before the meeting, identify errors, and note actions that were to be followed up
PERFORMANCE EXPECTATIONS OF BOARD MEMBERS (cont’d)
Develop a working knowledge of meeting procedures
Keep delicate matters confidentialParticipate in the maintenance of
friendly, positive working relationships
Speak positively of the organization to the public
Boards
DEFINITION OF A GOVERNING BOARD
“The governing board is the legal entity and authority for the organization it serves. It is an empowered body of persons charged, before the law, with the responsibility for and authority over the organizational structure created to fulfill the organization’s goals”
ROLE OF THE BOARD
PURPOSEEstablish and
implement the organization’s mission through policy governance
PROGRESSSet rate of progress of
organization towards achieving mission through planning programs and services
CONTINUITYProvide continuity
by managing human and financial resources
IDENTITYConfirm the
organization’s identity in the community through advocacy
FUNCTIONS OF GOVERNING BOARD
POLICY setting governing documents and long-term plans
PROGRAMS planning, overseeing and evaluating activities
and services
PERSONNEL ensuring adequate volunteer and staff resources
FINANCE obtaining and managing $$$
ADVOCACY liaising with members, funders, sponsors and the community
LINK OF ROLE AND FUNCTIONPURPOSE established and
implemented through POLICY
PROGRESS purpose is achieved through
PROGRAMSCONTINUITY administration/work
of the organization requiresPERSONNEL and FINANCE
IDENTITY confirmed through ADVOCACY
BOARD MODELSAdvisory BoardA group that has no governing role, but simply
advises another entity that has authorityAdministrative BoardA “working” board, where board members perform
both governance and management functionsPolicy Board A Board that focuses on governance, leaving
management to staffCollectiveA group of people working together as a team to
achieve an objective
CREATING POLICY IS THE PRIMARY ROLE AND FUNCTION OF A
POLICY BOARD
THE POLICY BOARD
The role of the Policy Board is to develop, approve, monitor, review and update POLICY.
The is also called GOVERNANCE.
The role of staff (and committees) is to implement policy.
This is called MANAGEMENT.
GOVERNANCE IS NOT MANAGEMENT
TYPES OF POLICIES
FRAMEWORK POLICIES – vision, values, beliefs, mission and mandate
GOVERNANCE POLICIES – organizational structure, roles and responsibilities, award and revoke privileges of membership, dispute resolution
OPERATIONAL POLICIES – operational details of programs, personnel, finance and advocacy
TYPES OF POLICIES
FRAMEWORK POLICIES – answers the question “why”
GOVERNANCE POLICIES – answers the questions “who”
OPERATIONAL POLICIES – answers the question “how”
BOARD-STAFF PARADOX
The Board has to both direct staff and support staff in their work.
Many Board members do not understand the difference between governance and management
A Board too involved in management may be “meddlesome”
A Board too focused on governance may be “careless” in their oversight role
BOARD-STAFF PARTNERSHIP
VOLUNTEERKnowledge of the
community, the membership, partners
Public credibility and influence
Collective wisdom and broad expertise
Forward thinking
STAFFDetailed knowledge
of the organizationFull-time
commitmentSpecific expertiseAbility to respond
to volunteer strengths and weaknesses
Day-to-day thinking
ROLES & RESPONSIBILITIES
PLANNING ROLEDirect the planning process StaffProvide input to long range goals BothApprove long range goals BoardFormulate annual objectives StaffApprove annual objectives BoardPrepare performance reports StaffMonitor achievement of goals
and objectives Both
ROLES & RESPONSIBILITIES
PROGRAMS AND SERVICES ROLEAssess membership needs StaffTrain leaders/volunteers StaffEvaluate programs and services BothPrepare program reports StaffPrepare budgets StaffApprove budgets BoardMonitor expenses within budget StaffApprove extraordinary expenses BoardOversee audit of accounts Board
ROLES & RESPONSIBILITIES
PERSONNEL ROLERecruit and hire executive staff BoardRecruit and hire all other staff StaffDetermine staff compensation BoardDirect work of other staff StaffChange staffing structure BoardSettle disputes among staff StaffManage volunteers StaffRecruit new Board members BoardRecognize volunteers Both
ROLES & RESPONSIBILITIESBOARD AND COMMITEES ROLEAppoint committee members BoardLiaise with committee chair BoardPlan committee structure BothPlan agenda for Board meetings BothTake minutes at meetings StaffPrepare Board meeting materials StaffExecute legal documents BoardFollow-up on implementation of
Board and committee decisions Staff
HELPING THE BOARD GOVERN MORE AND MANAGE LESS
With the Board, develop a comprehensive strategic plan and report regularly on progress made.
Give materials will in advance of Board meetings and identify specifically what items require Board attention.
Facilitate Board discussions to ensure Board stays focused on policy issues.
Governance
DEFINITIONS
GOVERNANCE:“The processes and
structures that a Board uses to direct and manage its general operations, programs and activities”
GOOD GOVERNANCE:“… is about
achieving desired results and achieving them the right way”
GOVERNANCE STARTS WITH THE BOARD …
“The governing board is the legal entity and authority for the organization it serves. It is an
empowered body of persons charged, before the law, with the responsibility for and authority over the
organizational structure created to fulfill the organization’s goals”
BUT IT’S ALSO ABOUT COMMITTEES, VOLUNTEERS,
STAFF, PROVINCIAL ASSOCIATIONS, PARTNERS,
MEMBERS
ORGANIZATIONAL MODELS
‘KITCHEN TABLE’
‘BOARD ROOM’
‘EXECUTIVE OFFICE’
ORGANIZING
Decision-making by volunteer executives
Decision-making by volunteer
board, assisted by professional
staff
Decision-making by professional
staff in alignment with Board-determined
strategic priorities
PLANNING Ad-hoc planning
Some planning
Formal planning
MEASURE SUCCESS
Member satisfaction
Administrative efficiency
Competitive success
COMMON ‘GREMLINS’
Conflict of interest (too many ‘hats’)Lack of trust (between directors, between board
and staff, between board and executive, etc.)Personal self-interest and political agendasBoard too big, committees too numerous, terms
too long, governance process too slow and cumbersome
Board too meddlesome or conversely, Board not sufficiently engaged in governance
Unclear roles among Board, committees and staffWrong people on the Board in terms of skills,
knowledge, interests or commitmentLack of common focus or direction
FIXING THE ‘GREMLINS’
Improve communication and transparency Methods to improve board culture and attitudeEducate to better understand Board dutiesStreamline boards and committeesGet the right people on the BoardReduce board sizeChange board governance modelDo a strategic plan Get Board to focus on policy developmentOther?
SEVEN SINS OF ORGANIZATIONAL DYSFUNCTION
‘Practicing a Trade Without a License’ – this describes the board director who has done no preparation to become better informed about his/her role as a director. The most common manifestations are the director who forgets that the board acts as a single unit, who blabs confidential information, or who wears so many hats that the director has forgotten his ‘duty of loyalty’.
SEVEN SINS (cont’d)The ‘Squeaky Wheel’ – this occurs
when an individual or a small group is disaffected or negative and the organization consumes enormous amounts of time attempting to placate them or otherwise deal with their problems (you have a problem when 2% of your members cause 98% of your problems).
SEVEN SINS (cont’d)‘Park Your Brains at the Door’ –
this phrase is used by John Carver (governance guru), who laments the fact that non-profit board members and committee members behave in ways in the boardroom that they would never behave in their professional lives, or within their own families.
SEVEN SINS (cont’d)‘Culture of Secrecy’ – this occurs
when there is an inside group or ‘clique’ that governs from a sense of entitlement, using secrecy, control, fear and intimidation to keep others, and other ideas, outside the inner circle.
SEVEN SINS (cont’d)Sport’s own ‘Peter Principle’ – this is the well-
document phenomenon in management where people get promoted beyond their level of competence. In sport we see it as the volunteer who is a good club leader getting elected to be a club president and then a provincial president (although they might not have the skill set or the desire to lead at that level) and from there getting elected to a national board. This creates a disconnect between the volunteer and the position in terms of the volunteer’s motivation, competencies and desires and the legitimate demands of the position.
SEVEN SINS (cont’d)‘You Get What You Pay For’ –
although sport is driven by volunteers, sometimes it pays to get a professional to do the job. Sport organizations need to become more business-like and professional in their operations.
SEVEN SINS (cont’d)‘Head in the Sand Mentality’ –
this is the natural human tendency to hope that a problem will go away. Yet the problems we experience in sport do not mellow with age, instead they fester and escalate. A successful organization must be prepared to tackle these problems head-on and in a timely way.
What an effective Board does?Steers towards
mission through strategic planning
Communicates transparently
Develops structures for the Board
Educates itself on its role and avoids conflicts of interest
Maintains fiscal responsibility
Ensures effective management
Implements systems for assessment and control
Plans for succession and diversity of the Board
‘GOOD’ GOVERNANCEVision – identifying your destinationPlanning – setting goals and providing a pathway to
get thereResources – securing the resources required to reach
destinationMonitoring – checking that progress is being made
towards destinationAccountability – using resources responsibly and
reporting progress to your stakeholders (members, funders, partners)
KEY LESSON #1
THE BOARD GOVERNS –GOVERNORS DO NOT
KEY LESSON #2
CREATING POLICY IS THE PRIMARY ROLE AND FUNCTION
OF A BOARD
KEY LESSON #3
GOVERNANCE IS NOT MANAGEMENT
Swimming/Natation CanadaThe Board we have:
Constituency interests prevail
Requires no defined competencies
Indirect accountability (many “hats”)
ReactiveCompeting skills &
interests
The Board we want:
“Big picture” prevails
Requires core competencies
Direct accountability (one “hat”)
ProactiveComplementary
skills & interests
‘SACRED COWS’ in Sport Governance
Representational BoardBoard involved in operationsBoard skill set/competenciesBoard independenceBoard diversityBoard-led committeesGender representationOther?
Governing Documents
“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 collective memory of the organization”
[Your Risk Management Program: A Handbook for Sport Organizations, 1998]
POLICY WRITING
Be clear! - Show your policy to an outsider to see if they understand it
Be concise! – Do not use three words when one will do
Be consistent! - in your use of termsBe friendly to your reader! - make ample
use of headings, subheadings, bullets
POLICY TEMPLATE
1. Statement of purpose of the policy2. Scope and application of the policy (what
and whom does the policy apply to?)3. Exclusions from the policy (what does the
policy not apply to? - just to be safe!)4. Policy “scheme” (who does what, when,
how)
POLICY WRITING
“shall”, “must”, “will”
These terms indicate that the action is mandatory -- for example, the President must do what the policy stipulates
“may”, “can”
These terms indicate that the action is discretionary -- for example, the President may exercise his discretion in deciding if he will do something
GOVERNING DOCUMENTSGive the sport organization:
•Structure
•Power
•Methods by which it governs or rules itself
SPORT ORGANIZATIONS RUN INTO TROUBLE WHEN:They do not set out rules [policies] or
procedures to deal with something
They set out rules [policies] but they are incomplete, vague or contradictory
They set out rules [policies] but then choose not to follow them
They have rules [policies] that do not “fit” with their culture or their resources
POLICIES ARE YOUR BEST FRIEND
They provide you with a guide for your actions
They help you to avoid a problem or crisis
In the event you cannot avoid a problem or a crisis, they will help you to act uniformly, consistently and fairly in how you manage your problem or crisis
STRUCTURE & PROCESSConstitution (Purposes)Constitution (Purposes)
By-laws
Key Governance Policies
Other Policies
SUBSTANCE (WHAT, HOW)
CONSTITUTION
Name of the AssociationPurpose(s) of the Association
BYLAWSBylaws are the foundation of the private
organization’s contract with its members.
This contract provides the legal authority to establish and enforce the rights, privileges and obligations of membership.
ENABLING CLAUSES
These are clauses in bylaws which explicitly give power to the Board and allow the Board to delegate power to others. These clarify WHO makes WHAT decisions -- the details of HOW decisions will be made should be left to policy.
EXAMPLES OF ENABLING CLAUSES
“the Board has the powers of the Corporation and may delegate any of its powers, duties and functions”
“The Board will have the power to discipline members in accordance with approved policies and procedures”
SOME COMMON WEAKNESSES IN BYLAWS “who” is a member is
not clearly defined
powers of the board are not explicit, and delegation of power is not authorized
members and directors may be ousted by archaic provisions (“personality contest”)
all policies must be approved by the
membership (terribly old-fashioned, cumbersome -
and expensive!) “member in good standing”
is not properly defined - thus the power of the
organization to enforce obligations of membership
is limited
MEMBER IN GOOD STANDING
Traditional wording“An athlete, coach, official, associate or diving club shall be deemed to be a member in good standing upon payment of registration fees”
Modern wording“A Member shall be deemed to be in good standing provided they have paid membership dues as prescribed by the Association and they are not subject to a disciplinary investigation or action of the Association”
EXPULSION OF MEMBERSNOT SO GOOD ...“Any member who is found guilty of gross
neglect of duty or of behavior that is likely to bring discredit to the Association may be suspended or expelled by 2/3 affirmative vote of the Board
Any member expelled by the Board shall have the right to appeal in writing to the next Annual General Meeting
EXPULSION OF MEMBERSMUCH BETTER … A member may be suspended for failure to pay
membership dues within 2 months of the beginning of the membership year
Notwithstanding expulsion from membership, a former member remains liable for any membership dues owing prior to the expulsion
In addition to suspension or expulsion for failure to pay membership dues, a member may be suspended or expelled in accordance with the Association’s policies and procedures relating to discipline of members
BYLAWS - QUORUM
“A quorum for the transaction of business at any meeting of members shall consist of not less that 50 % of the active members who are present and not less than 6 directors who are present at any duly called meeting”
Could there be a problem here …?
ADMISSION OF MEMBERS3.1 No organization or individual shall be admitted as a
member unless:
a) It satisfies the qualifications for membership as stated in these bylaws
b) It has made written application to the Board in the form prescribed by the Board
c) It has been approved as a Member by the Board
d) It has paid membership dues as determined by the Board
WHO CAN BE A DIRECTOR
Possible qualifications:resident of ABCover a certain agemember in good standing of a
member organization or clubnot an employee or contractor
of the society
POWERS OF THE BOARDExcept as otherwise provided in the Act or this bylaw, the Board has the powers of the Association and may delegate any of its powers, duties and functions. Without limiting the generality of the foregoing:a) The Board may make policies, procedures and regulations for managing the affairs of the Association in accordance with the Act and this bylawb) The Board may make policies, procedures and regulations relating to the discipline of members, and shall have the authority to discipline members accordingly (continued)
POWERS OF THE BOARD (cont’d)
d) The Board may establish committees to assist in performing the work of the Association, and may delegate authority to committeese) The Board may employ such persons as it deems necessary to carry out the work of the Association
IN SUMMARY, GOOD BYLAWS ARE LEAN:
They include only those items that
set out the structure of the organization and the empowerment of the board, committees and members.
KEY GOVERNANCE POLICIES
Selection -> award benefits in sport
Conduct, Discipline, Harassment -> revoke benefits of sport
Appeals, Mediation, Arbitration -> disputes over allocation of benefits
Personnel -> employees, volunteers, contractors
Conflict of interest -> statutory requirements
Privacy -- > protects personal information
SELECTION - WHAT SHOULD BE IN POLICY
Purpose (selection of what, for what)
Goals for selectionAuthority for selectionCriteria to be eligible to
be considered for selection
Criteria to be selectedProcess for selection
Timeline for selectionExceptions to selection
policyDealing with unexpected
circumstancesCriteria to remain selectedWho will make selectionsAppeal
DISCIPLINE
Code of Conduct -- a statement of the standard of behavior expected of members
Disciplinary Process -- the mechanics of how to deal with a breach of a code of conduct
Harassment -- essentially a discipline matter and best incorporated into code of conduct and discipline process
WHAT SHOULD BE IN A CODE OF CONDUCTA statement of
the organization’s values, beliefs and expectations of members and participants. This is usually a “positive” statement.
The standard of behavior which is expected is further defined by giving examples of conduct which breaches that standard. This is usually a series of “negative” statements.
WHAT SHOULD BE IN DISCIPLINE POLICYPurposeApplicationReporting an
infraction/making a complaint
Minor v. Major infractions
Investigation Discipline Panel
Preliminary meeting
HearingDecision as to
whether there is a breach
Sanctions in the event there is a breach
Serious infractions and automatic sanctions
ConfidentialityAppeal
DEALING WITH A COMPLAINT
STEP 1 - Receive complaintSTEP 2 - Investigation/fact-
findingSTEP 3 - Clarify disputeSTEP 4 - Select options for
resolution
PROCEDURAL FAIRNESS
1. Authority - authority to make a decision has been delegated to the decision-maker
2. Right to a hearing - the person affected has a reasonable opportunity to present his case
3. Rule against bias - the decision-maker listens fairly to both sides to reach a decision untainted by bias
The content of “fairness” is not the same in every situation. It is a spectrum that depends on the seriousness of the sanction and the impact on the individual.
FAIRNESS
FORMAT OF HEARING
Simple oral interview and responseReview of written documents Review of documents, written
arguments and conference callOral hearing in-personAn oral hearing with formal, court-
like procedures
COMPOSITION OF PANEL
Single decision-maker or panel?
What skills/qualifications are required?
Is there bias or prior involvement?
Any evidence of a closed mind?
Are lawyers required?
EVIDENCE
Information in the form of:
Material objectsWritten documentsVerbal testimony
REMEMBER!
Not all information is evidence!
Not all evidence is relevant!
Not all evidence is good!
IN-PERSON HEARING
Usually the only reason to have an “in-person hearing” is to be able to assess the credibility of the person giving you evidence
If evidence is not disputed, there is little reason to meet face-to-face
A GOOD DECISION …
Correctly interprets the governing policy or rule
Describes the facts of the case based upon relevant evidence
Justifies decision based on policy and facts
Is written clearly so the reasoning process is transparent
APPEAL POLICYWhat may be appealedGrounds for appealWho does what & whenScope of authority of decision-
makersArbitration
GROUNDS FOR APPEAL
Procedural issues (not merit)no authority for decisionnot following proceduresbiasgrossly unreasonableirrelevant considerations
“Sound policies lead to informed and transparent decision-making and such decision-making results in improved management of time, resources, disputes and risk exposures. Together, these are the hallmarks of good governance.”
SOME THINGS WE’VE LEARNED
It is definitely better to have policy than to not have it
“The law should remain stable but must not stand still…”
The law expects you to have policies and does not relieve you of this responsibility because you’re non-profit, because you’re small, because you don’t have the resources, because you don’t have time, because ….
THINGS I HAVE LEARNED
Policies don’t fix problems, people do.We have too many policies and
procedures, and they are usually too rigid and confining.
External help can be a very good thing.
Conventional ‘anti-harassment’ policies clearly do not work.
MEMBERSHIP
Do you know who your Members are?
Majority of Sport Organizations are ‘private tribunals’ which are:AutonomousSelf-governingPrivate OrganizationsHave the power to write rules, make decisions
and take actions that affect their members.
Governing Documents
Governing documents represent a contract between the organization and its members, which include:ConstitutionBylawsPoliciesProceduresRules form a contract between the
organization and its members.
JurisdictionJurisdiction – a body’s legal authority over a
particular matter. Bylaws
Provide the organization with the legal authority to enforce rights and obligations of membership.
Common weakness is defining clearly who is a member.Some NSO’s have as few as ten to 14 members being
provinces/territories. The NSO has no jurisdiction over a club or an individual, official or parent.
AdmissionIt should not be automatic upon
payment of membership dues – otherwise compelled to accept anyone as a member who applies and pays.
Establish a minimum membership qualification provided they are not discriminatory.
Admission ClauseAdmission 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.
Membership End DateOnce a member, always a member?
Judo Ontario - Canadian Universities Reciprocal Insurance Exchange (CURIE) v. CGU Insurance Company of Canada (2007),
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.
MANAGING YOUR DISPUTES 1.Prior planning ensure your
governing policies are sound2.Proper execution interpret and
implement your governing policies properly
3.Appeals implement an appeals policy4. Intervention consider the services of
an outside hearing administrator, facilitator, mediator, arbitrator, investigator, conflict consultant
“GOVERN” - definition
Conduct the policy, actions, affairs of [something]
Constitute a law, rule, standard, principle for [something]
Sway, rule, influence, regulate, determine [something][Concise Oxford Dictionary]
“GOVERNING BODY”
“[The] governing body of an institution, organization or territory is that body which has ultimate power to determine its policies and control its activities”
[Black’s Law Dictionary]
“The processes and structures that an organization uses to direct and manage its general operations and program activities”
“Good governance is about achieving desired results and achieving them the right way”
““GOVERNANCE”GOVERNANCE”
Governance is primarily about the decisions we make, or don’t
make
LEE v. SHOWMEN’S GUILD OF GREAT BRITAIN - 1952
The legal basis of a
domestic tribunal is founded on a contract between the organization and its members, and the terms of this contract are found in the organization’s bylaws and governing documents
In interpreting this contract, and making
decisions that affect members, the domestic tribunal must conform with the
principles of natural justice – in other words, the domestic tribunal must act fairly
THREE KEY LEGAL POINTS ...
Tribunal an organization that has the power to make decisions that affect people
Contract the relationship between a tribunal and its members. This contract is like any other agreement between parties, and may be enforced legally.
Procedural fairness the contract must be implemented in a manner that is legally fair
WHAT MAKES A TRIBUNAL?Is a private and legal entity
Governs itself by its own rules
Has a legal responsibility to follow its own rules
Can impose obligations and responsibilities on its members
Must be “fair” in how it interprets and implements its rules
PROCEDURAL FAIRNESS
1. Authority decision has been made by group/individual that has authority
2. Right to a hearing the person affected has an opportunity to present his case
3. Rule against bias the decision-maker listens fairly to both sides and reach a decision untainted by bias
PROCEDURAL SAFEGUARDS
Decisions to take away rights already conferred require greater safeguards than decisions to withhold rights not yet granted
Safeguards should be in direct proportion to the potential consequences of the decision
Safeguards will depend on the extent to which the decision is final and binding
CONSTITUTION & BYLAWS
Bylaws are the foundation of the private organization’s [or tribunal’s] contract with its members.
This contract provides the organization with the legal authority to establish and enforce the rights, privileges and obligations of membership.
Bylaws are the sport organization’s single, most important, written document.
WEAKNESSES IN BYLAWS
“who” is a member is not clearly defined - thus scope of authority over membership is fuzzy
members and directors may be ousted by archaic provisions (“personality contest”)
all policies must be approved by the membership (terribly old-fashioned,
cumbersome - and expensive!)
“member in good standing” is not properly
defined - thus the power of the organization to enforce
obligations of membership is limited
WEAKNESSES IN BYLAWS
Definitions of quorum do not work
Powers of the board are not explicit, and delegation of power is not clear
Poor drafting creates problems! (ambiguity, contradiction, gaps)
There is far too much policy in bylaws
GOOD BYLAWS ARE …LEAN
include only those items that set out the structure of the organization and the empowerment of the board, committees and members. Anything which can be written as policy should be omitted from bylaws
GENERAL wherever possible,
minimize the details such as titles and duties of directors, names and description of committees, and any reference to staff
KEY GOVERNING POLICIES
Constitution, bylaws to determine purpose, jurisdiction, authority and structure of the organization
Eligibility, selection to make decisions to award benefits in sport
Conduct, discipline, harassment to make decisions to revoke benefits of sport
Appeals, mediation, arbitration, other techniques to deal with disputes over allocation of benefits
GOVERNING DOCUMENTS AND POLICIES
What’s badThey take time to
writeThey go out of dateThey don’t get usedThey don’t work the
way they shouldThey hold us to a
higher standard (misconception about the law)
What’s goodThey provide a road mapThey encourage
consistency, uniformity in actions
They discourage arbitrariness
They help you to be fairThey reduce conflictThey make your life less
stressful
POLICIES ARE YOUR BEST FRIEND
By providing you with a guide for your actions, they help you to avoid a problem or crisis
In the event you cannot avoid a problem or a crisis, they will help you to act uniformly, consistently and fairly in how you manage your problem or crisis
SOME THINGS WE’VE LEARNED
It is definitely better to have policy than to not have it
“The law should remain stable but must not stand still…”
The law expects you to have policies and does not relieve you of this responsibility because you’re non-profit, because you’re small, because you don’t have the resources, because you don’t have time, because ….
SOME THINGS WE’VE LEARNED
Be as prescriptive as possible, but at the same time….
Don’t box yourself in!!
Good policy serves as a guide but allows some flexibility to adjust to changing circumstances
REVIEW OF 30 SELECTION CASES
Scope of authority must be clear
Selection disputes are not win-win
Different disputes about objective v. subjective criteria
Bias often alleged, seldom proven
Discretion must be managed carefully
Do not meddle where it has been done right
Room for compassionate arguments?
Clarify ambiguities
SOME THINGS WE’VE LEARNED
It’s easy to select the really good players and to pass over the not-so-good players – it’s making decisions on “the bubble” that is the most difficult
Selection is usually based on “past performance” – but some coaches are now trying to find ways to make selections based on “future potential” (this is okay if you acknowledge that you are ‘building’ a team for a future event)
SOME THINGS WE’VE LEARNEDSubjective
criteria are okay, provided there is some guidance given as to how to assess that criteria (i.e. ‘mental toughness’ – think through what this means and how you might evaluate it)
Selection disputes usually revolve around poor communication. Consistent communication about expectations will deflect many disputes.
SOME THINGS WE’VE LEARNED
You need to have authority to discipline in the first place, either in bylaws or through policy – check first! Is the conduct complained of actually punishable?
People don’t understand there are two parts to every discipline decision: first, is there misconduct (yes/no), and second, what should the penalty be (this may vary)
SOME THINGS WE’VE LEARNED
Keep in mind the principles of “sentencing” –specific deterrencegeneral deterrencerehabilitationpunishment
Be principled and be creative in your sanctions
In every discipline situation there will be ‘aggravating’ and ‘mitigating’ circumstances. Think about these and reflect them in your decisions on sanctions (make sure your policy allows you to!)
SOME THINGS WE’VE LEARNED
Policy-based tools for dealing with misconduct are necessary, but alone are not sufficient. People within organizations must be prepared to intervene to deal with misconduct
We know that harassers and bullies rarely stop on their own. We also know that reporting this behaviour is usually a technique of last resort among victims.
SOME THINGS WE’VE LEARNED
We must have policies to deal swiftly and responsibly with conduct issues
We must be able and willing to use these policies the way they are meant to be used
BUT THIS ALONE IS CLEARLY NOT SUFFICIENT
SOME THINGS WE’VE LEARNED
Our present policy-based approach to the issue of harassment and bullying places the onus on the individual victim to do something
The onus must shift to organizations, and people within organizations, to create an environment that does not tolerate this conduct EVERYONE OF US MUST BE
PREPARED TO INTERVENE IN A TIMELY AND DECISIVE WAY WHEN
SUCH CONDUCT OCCURS
What Rachel Corbett Says:
“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 collective memory of the organization”
[Your Risk Management Program: A Handbook for Sport Organizations, 1998]
GOOD POLICIES
GOOD GOVERNANC
E
GOOD RISK MANAGEMENT
GOOD DISPUTE MANAGEMENT
SO, YOU’VE GOT A COMPLAINT ….
2001 NWT Coaches and Volunteers Symposium
February 10-11, 2001 Yellowknife
DEALING WITH A COMPLAINT
STEP 1 - Receive complaintSTEP 2 - Investigation/fact-findingSTEP 3 - Clarify disputeSTEP 4 - Select options for resolution
Internal Hearing Other D.R. Technique
OUR FOCUS TODAY
… Improving the effectiveness of internal hearings to resolve disputes about conduct, discipline, harassment, selection, eligibility, transfer, appeals and other issues
INTERNAL HEARING
1) Procedural fairness2) Format of hearing3) Composition of Panel4) Authority of panel5) Evidence6) Decision
PROCEDURAL FAIRNESS
1. Authority - authority to make a decision has been delegated to the decision-maker
2. Right to a hearing - the person affected has a reasonable opportunity to present his case
3. Rule against bias - the decision-maker listens fairly to both sides to reach a decision untainted by bias
The content of “fairness” is not the same in every situation. It is a spectrum that depends on the seriousness of the sanction and the impact on the individual.
PROCEDURAL SAFEGUARDS
Decisions to take away rights already conferred require greater safeguards than decisions to withhold rights not yet granted
Safeguards should be in direct proportion to the potential consequences of the decision
Safeguards will depend on the extent to which the decision is final and binding
FORMAT OF HEARING
simple oral interview and responsereview of written documents review of documents, written
arguments and conference calloral hearing in-personan oral hearing with formal, court-
like procedures
COMPOSITION OF PANEL
Single decision-maker or panel?
What skills/qualifications are required?
Is there bias or prior involvement?
Any evidence of a closed mind?
Members v. non-members?
Are lawyers required?
AUTHORITY OF PANEL
To determine its own procedures- Settle procedural issues in advance - Abridge or extend timelines
Render decision that is bindingOn an appeal, authority should not
exceed that of original decision-maker
EVIDENCE
Information in the form of:
Material objectsWritten documentsVerbal testimony
EVIDENCEInformation that proves or
disproves a fact, supports or contradicts an argument
Information that has been screened and filtered
Information that has been judged to have lesser or greater weight
RULES OF EVIDENCE
Provide a structure to:Exclude evidenceConfine evidence to issuesAssign weight to evidence
… And thus determine the “goodness” or “usefulness” of the information
REMEMBER!
Not all information is evidence!
Not all evidence is relevant!
Not all evidence is good!
TYPES OF EVIDENCE
FORMAT OF EVIDENCEreal, testimonial
LINK TO THE INCIDENTdirect, indirect, circumstantial, hearsay
USED TOcontradict, corroborate a fact
A CREDIBLE WITNESS ...
Has reputation for directness and truth
Is intelligent
Has knowledge of the circumstances
Shows powers of observation and recall
Is able to describe events succinctly
Lacks vested interest
WEIGHTWeight refers
to the value which a decision-maker will give to a piece of evidence
Weight depends on the type of evidence, and the credibility of the source of the evidence
IN-PERSON HEARING
Usually the only reason to have an “in-person hearing” is to be able to assess the credibility of the person giving you evidence
If evidence is not disputed, there is little reason to meet face-to-face
“ART” OF DECISION-MAKING
Panel makes its decision based on policy and evidence
Sift through all sources of evidenceUse logic, good judgment, common
senseMake decision based on what seems
most probable, reasonable, right
FORMAT OF THE DECISION
1. Issue(s) to be decided
2. Background of the case
3. Statement of the facts
4. Written decision
5. Reasons for the decision
A GOOD DECISION …
Correctly interprets the governing policy or rule
Sets out the correct legal test to be satisfied
Describes the facts of the case based upon relevant evidence
Justifies decision based on policy and facts
Is written clearly so the reasoning process is transparent
MECHANICS OF HEARING
About conflict and disputes What governs the
organization Receiving and responding
to a complaint The duty of act fairly and
the hearing process The hearing Evidence Making the decision Writing the decision Conducting an
investigation
RESOLVING CONFLICT
•Internal policies of organization
•Policies of TSO/NSO/Sport North
•ADR techniques
•Government
•Media
•Courts
DISPUTE RESOLUTION
“A.D.R.”Diverse techniques used to
prevent, manage and resolve disputes
“Alternative” old“Appropriate” dispute resolution
new“Make the forum fit the fuss”
TECHNIQUES
Internal hearingConsultationFacilitationNegotiationMediationArbitrationLitigation
MANAGING YOUR DISPUTES
1. Prior planning -- ensure your governing policies are sound2. Proper execution -- interpret and implement your governing policies properly3. Appeals -- implement an appeals policy4. Intervention -- consider the services of an outside hearing administrator, facilitator, mediator, arbitrator, investigator
ONE PIECE OF ADVICE ...
When you receive a complaint …
DO SOMETHING!
WHY GET A DOG AND BARK YOURSELF?
DIRECTING AND ORGANIZING
THE BOARD’S WORK
The Board does its work through committees.
The effectiveness and efficiency of a Board is a direct reflection of the effectiveness and efficiency of the Board’s committees.
Committee are the work units of the Board.
COMMITTEE AUTHORITY
LIMITED ADVISORCommittee investigates and reports. Board makes decision.
ACTIVE ADVISORCommittee investigates and suggests action. Board likely accepts committee recommendation.
LIMITED AGENTCommittee can take some action with Board’s prior consent.
ACTIVE AGENTCommittee takes action. Board may later ratify action taken.
COMMITTEE REPORTING
FOR INFORMATION committee wants to update the Board but is not seeking feedback or input
FOR DISCUSSION committee wants feedback or input but not a decision yet
FOR ACTION committee wants the board to make a decision for action
TERMS OF REFERENCENameMandate
(general purpose)
Key duties (including authority)
CompositionAppointment
MeetingsResources ($,
staff)Annual
ObjectivesTargets and
reportsReview/
evaluationApproval and
review dates