Discipline Decisions – To Disclose or Not to Disclose?

Category: 
Source: 
Sport Law and Policy Group
Author: 
Kevin Lawrie
Publish Date: 
May 8, 2013

Should organizations make discipline decisions and sanctions public knowledge? We often act as a neutral third party to handle an organization’s internal disputes, such as appeals or discipline decisions. After a tribunal (either a single decision-maker or a panel of decision-makers) hears both sides and reaches a decision, the written decision is communicated to the parties (the individual and the organization, and any affected third party), a remedy may be enacted and sanctions, where ordered, are imposed, and the dispute ends. But does it? Who else gets to know what happened? Is the result public? Does the decision stay between the two parties or does the entire membership learn the results of the hearing?

A story that made headlines recently involved the Port Perry Minor Hockey Association, which disciplined a parent who confronted a teen referee. The organization did not disclose the parent’s discipline to the other members of the hockey association, or to the public at large, and claimed that it had no requirement to do so.

For many National Sport Organizations (NSOs), disputes and appeals are standard. Appeals, especially ones that involve selection disputes or discipline matters, are regular occurrences and the decision is typically public. Tribunals may even cite previous decisions in their new decisions (similar to how a judge would cite case law) and decisions that are handled by the SDRCC are, after a time, posted on the SDRCC Jurisprudence Database.
But for Provincial Sport Organizations (PSOs) and local sport organizations that also, sensibly, have formal dispute resolution policies, the issue of disclosure is trickier. In many smaller organizations, multiple people (beyond the organization and the individual submitting the dispute) are involved or may have heard rumours about the dispute. But once the dispute is resolved, should everyone be made aware of the resolution? Would it not benefit the organization, and its members, to be transparent with their decision-making process, sanctions, and any other remedies? Many considerations enter into the answers to these questions.

Publication
The publication of a sanction can be considered a sanction in and of itself. Consider the example of a parent who is disciplined by an organization for swearing at a teenage official. The publication of that discipline reveals the identity of the individual and publicly announces that he or she swore at a teenager. Such publication could have serious ramifications for the individual – professionally, socially, and emotionally.

Whether or not the individuals involved are minors should also be a consideration for the disclosure. We handled one case where a minor athlete was to be disciplined by the organization for public intoxication – an incident that was totally out of character for her. The organization’s policy required public disclosure of the decision which resulted in additional pain for the girl and her parents.

There may also be scenarios where the facts of the case should be kept confidential but the sanctions or remedies may be distributed. In other cases, the outcome of the case can be public but the full decision – “with reasons” – may need to be private.

Decisions that are a matter of public policy – ones that involve public safety – perhaps should be disclosed, along with the allegations that led to the dispute. Most professions, including teachers and doctors, have a public element to the disclosure of disputes and discipline. Though individuals in sport, such as coaches, are not held to the same standard as teachers and doctors, there are still some organizational decisions that the public may benefit from having disclosed.

Legal Issues
There are additional legal issues to be considered in the public disclosure of decisions. We recently handled an appeal wherein a coach was disciplined, and the sanction was public and seen by all of his peers. The coach later successfully appealed and the original decision was overturned, but it was debatable whether the harm to his reputation, caused by the original public disclosure, could be restored. In this case, the coach could have possibly alleged defamation or that the public disclosure of the decision was unnecessary.

Depending on circumstances, a public disclosure could also trigger a criminal investigation or, because of the individual’s other affiliations, additional sanctions from other groups. For example, a coach disciplined by an organization for breaching its code of conduct could face additional sanctions from his or her employer if the employer also had a code of conduct that applied to the incident.

Who Decides
Some organizations include a form of confidentiality clause within their dispute resolution policies that reference how a decision should be communicated. The clause might state that the decision should be limited to the two parties, or it might say that the decision is a matter of public record. In other policies, the disclosure of the decision is left to the tribunal for that particular case – which would indicate in the decision whether it was confidential or whether it was a matter public record.

Tribunals weigh various items to determine when a decision should be public. They will consider legal issues, whether the individual is a minor, the type of infraction, whether other individuals were implicated, and the result of the decision. But tribunals may not be aware of how the dispute has affected the organization or how the decision will be received by the organization’s members. Though an independent tribunal is likely experienced with decision-making, they are usually not present during the suffusion of the dispute and may not know what is best for the particular organization.

Publication Form
Decisions from hearings typically take the form of a written document with a specific format. The background of the case is explained, followed by the positions of both parties, the tribunal’s decision, and finally any sanctions or remedies. The written submissions from both parties are not included and neither are any witness statements or other materials. Both parties receive the decision document but the witnesses and third parties do not.
Even when the decision is publicly disclosed, the decision, with reasons, may not be distributed. Instead, organizations may select from a variety of means to make a decision ‘a matter of public record’ or how best to inform members of the result. We are aware of organizations that have: posted a decision on their website, announced a decision at an AGM, distributed a decision result in a special email, or made it widely known through informal discussions with stakeholder members (such as club presidents).

Careful Considerations
Our first caution to organizations is to have well-written dispute resolution policies. Without a carefully written policy, the additional legal issue (and a very important one) of “lack of fairness” can be involved. The process used by sport organizations when they are disciplining members and other individuals must be procedurally fair. A host of considerations are involved here – like making sure the person involved in the dispute is not also hearing or deciding the dispute – and we have discussed these issues in other posts on our website. Essentially, to ensure fairness and minimize other legal problems, we recommend a professionally-written policy, a neutral third party to handle the hearing process, and an independent tribunal to make the decision.

Next, we recommend that the policy state that the disclosure decision is “a matter of public record, unless otherwise decided by the tribunal”. We feel that the independent tribunal should decide which sensitive issues may be salient enough to privatize the decision (such as the nature of the case or whether it is a matter of public safety) and whether the decision should be made public with or without reasons, and whether or not it should be released publicly or just to the organization’s members.

Some types of decisions, such as appeals of selection decisions, can be instructive and should be made public. Discipline decisions are a little more complicated but not making them public means that the organization is losing an important opportunity to regulate behaviour through a deterrence effect.

Even if the decision is public, we would recommend that the parties know how the decision is intended to be distributed, keeping in mind the other legal issues like defamation that could arise from its broad distribution. The best form for the decision could be a summary in a newsletter or simple notification on the website that the dispute has concluded and members may ask to see the full result if they are interested.

A decision is often the result of a months-long process, sometimes contentious, that eventually requires closure on both sides. Disclosing the decision is not the time to start a new dispute and create additional problems. Instead, it is an opportunity for both parties to act transparently, close the process, and inform members, with the goal of deterring similar disputes and strengthening the organization.