Best practice for Sports Governing Bodies when dealing with individual complainants: Part 1 - Internal procedure

Published 20 October 2016 By: Richard Bush

Best practice for Sports Governing Bodies when dealing with individual complainants: Part 1 - Internal procedure

The “to-do” lists of sports law practitioners working within, or acting for, sports governing bodies can often be varied, interesting and rewarding ones. At any point in time they may contain items such as negotiating and finalising high value broadcasting and sponsorship contracts; pursuing disciplinary proceedings; defending the governing body's actions from various challenges; drafting coaching and player contracts; intellectual property matters etc.

However, a to-do list might also include (either perennially or from time to time) dealing with an individual with a complaint against the governing body. Such complaints may or may not be justified, may or may not have any legal merit, and can relate (directly or indirectly) to almost any aspect of a governing body's work. For instance, the individual may feel aggrieved by the actions of a local association towards them; they may consider a steward was rude to them; they have been overlooked for promotion as a match official/umpire; they may believe the governing body has copied an idea they had and so on. A number of real life examples of the types of issues raised can be found on the website of the Independent Football Ombudsman (IFO),1 the ultimate body for complaints in English football.

Having reached a lawyer's desk the individual in question might well be someone who exerts considerable time, effort and energy (perhaps also with a certain level of hostility) into their complaint and, particularly in more challenging cases, matters arising from individual complainants can have an unfortunate tendency to take up a disproportionate amount of both time and resources, serving to distract from more important priorities.

This two part article offers practical guidance on how to effectively handle individual complainants, based largely on the author’s experiences as an in house contentious lawyer for a governing body, and thereafter in private practice acting for other governing bodies across a wide range of sports.

It shall consider:

(i) In Part 1 (below) - how to ensure a governing body handles all individual complainants fairly and proportionately, through effective complaint handling mechanisms, looking specifically at:

• Ensuring consistency

• Defining a “complaint

• Response times

• First response

• Full response

• Complainant response and possible further steps

• Summary flowchart – Example Governing Body Complaints Procedure

(ii) In Part 2 (available here) - how to handle individuals as a lawyer acting within, or for, a governing body.

Whilst this article focuses on sports governing bodies, it is hoped that the content and practical nature of this article might also assist those acting within or for other sporting organisations, perhaps most obviously clubs.

 

Effective complaints handling

A governing body's legal team can add significant value to the day-to-day operation of the governing body by seeking to ensure that all those who raise complaints with the governing body are treated in a fair and professional manner.

Whilst it is obviously not the role of a legal team to perform a customer services “complaints handling” function, the making of a complaint is the governing body's first contact from an individual expressing discontent with the conduct of the governing body. Therefore, if that person is not handled appropriately, they may understandably become more aggrieved, making it more likely that they will become challenging to deal with and that their grievance will eventually come across the legal team's desk.

In practice, ensuring that a governing body has a robust complaints handling procedure should therefore help to ensure that the scope for legal risk and threats of legal action (and consequent use of legal resource) arising out of complaints is reduced, as well as positively improving the experience of complainants who interact with the governing body. Further, in the event that the governing body's actions in regard to a complaint are subject to later scrutiny by a court, tribunal, regulator, mediator etc., or perhaps some other form of scrutiny (e.g. by the media or an MP), it is likely to be beneficial for the governing body to be in a position to demonstrate that the individual’s concerns were addressed fairly and properly in the first instance. 

Set out below are some suggestions that may form the basis of a sensible, straightforward complaints handling procedure (although it is not suggested there is a “one size fits all” approach to this exercise). There are of course numerous examples of complaints procedures that can readily be located on the internet and, in relation to sports governing bodies, I would highlight the Lawn Tennis Association's2 and the IFO's3 as being examples of good practice. In general terms, it is suggested that governing bodies should approach complaints handling in a manner that is fair, open, honest, substantive (yet proportionate) and reasonably prompt.

 

Ensuring consistency

As well as coming from a potentially wide variety of sources, complaints are also received in a number of ways: email; letter; telephone call; online feedback form; social media etc. Further, as well as complaints addressed to customer relations departments, other departments within a governing body are also likely to receive complaints directly in the ordinary course of their work e.g. the coaching department from those attending courses, the refereeing/match officials department from unhappy referees/match officials etc.

Regardless of which department receives a complaint, it makes good practical sense for the customer relations department to receive and manage all complaints that come in to the governing body (liaising with other departments as may be necessary). This means that where a complaint is received by a department other than the customer relations department, the receiving department should either direct the complainant to the customer relations department or forward it to the customer relations department internally.

This approach ensures that all complaints can be handled in a more or less uniform manner and, assuming the reasons for complaints are properly logged, allows a governing body to identify any trends or commonly recurring issues (that may require more general remedial action). Further, particularly challenging individuals can and do address their complaints to a number of places within a governing body e.g. a match official could write separately to the refereeing department, the customer relations department, the Chief Executive, the Chairman, the legal team etc. Therefore, centralising complaints handling limits the scope for duplication and/or inconsistent responses (which may be seized upon by a complainant) as well as being more efficient generally.

 

Defining a “complaint

Whether or not a piece of correspondence from an individual is a “complaint” in the ordinary sense of the word will almost always be readily apparent. However, it is helpful to set clear parameters as to what issues the governing body will and will not substantively address; this can significantly and sensibly narrow the scope of complaints and consequently reduce the resource burden of a governing body.  

An example of a set of parameters for determining complaints that are appropriately responded to by a governing body is as follows:

  1. Subject to the criteria below, a substantive response should be provided to correspondence that expresses dissatisfaction and requires an explanation from, or action by, the governing body (essentially a “complaint” in the ordinary sense of the word).

  2. The complaint must be made by a person who has been affected by the conduct of the governing body, or on their behalf by someone with clear authority to represent them.

    Usually this will include parents/carers of children, but it could also include pressure groups, MPs or others i.e. it does not cover complaints made by people on behalf of others where the complainant is essentially being a busybody. This requirement also rules out addressing hypothetical situations.

  3. The complaint must be most appropriately responded to by the governing body and not another body.

    The governing body should generally be the last resort for complaints relating to bodies under its jurisdiction such as clubs, local associations, facilities etc.; any avenue of complaint at the local level should generally be exhausted prior to the governing body considering the complaint (although a governing body might however be the appropriate recipient of a complaint in the first instance if, for example, the complaint is from an attendee at an event and the governing body was the event owner). Similarly, if the subject matter of the complaint is outside of the governing body's remit (for example because it relates to a non-affiliated competition), then the governing body should not provide a substantive response to it and instead direct the complainant elsewhere.

  4. The complaint must be distinguishable from any actual or potential process under the governing body's rules and regulations (e.g. disciplinary processes or investigations) or provisions relating to assessments (e.g. appealing an assessment result for a coaching qualification).

    It is important that complaints are not able to interfere with or circumvent other processes of the governing body; in the event that there is a complaint as to how a process has been handled, then that complaint should ordinarily be dealt with outside of that process and/or addressed after the process is completed. For example, a complaint about disciplinary proceedings should not impact upon the conduct of those proceedings (save to the extent it can be addressed in the proper course of those proceedings).

Exceptions to the above can of course be made in the (probably rare) residual instances where not addressing a complaint would carry significant legal, reputational or other risk.

 

Response times

Most complaints procedures will set down a specific time frame by which complainants will receive a response to their complaint (or at least by which the responding organisation will endeavour to respond). Clearly, this sets an expectation in the mind of the complainant so, if any time frames are specified with reference to a period of time (as opposed to, for example, "as soon as practicable" or similar wording), it is best that they are generous to the governing body and, if in any case it will not be possible to meet the deadline, the complainant should be informed as soon as possible. A failure to meet a deadline of this nature has the potential to inflame matters.

 

First response

The governing body's first response to a complaint can be crucial to achieving a sensible and proportionate response to, and resolution of, the issue(s) under consideration.

In a large number of cases a short, prompt response may reasonably be expected to resolve the complaint, without the need for significant further investigation or consideration (in which case the complaint may be dealt with relatively straightforwardly by way of an informal response).

However, in some cases, it will be apparent that it is necessary to respond more fully at the outset, and the first response is an important opportunity to manage the expectations of the complainant, set out how their complaint will be considered and responded to, and hopefully facilitate a constructive dialogue (and if a short, prompt response has failed then it might then be appropriate to analyse and respond to the complaint more fully).

To that end, a template acknowledgement letter can be produced and then adapted to each individual case, detailing things such as the following:

  1. The governing body's general approach to complaints handling and any principles underpinning it (e.g. fairness, openness etc.).

  2. The governing body's understanding of the complaint and its scope. This is important in order to precisely set out the relevant issues the governing body is being asked to address and limit the ability of the complainant to widen that scope later on. 

  3. The process the governing body will adopt for reviewing the complaint.

  4. The possible outcomes of the complaint (see suggestions below).

  5. Any request for further information of the complainant in order to properly consider the complaint.

  6. Where necessary, an explanation (or warning) that others will (or may) need to be contacted in regard to the investigation of the complaint. This should serve to demonstrate that the matter is being taken seriously and also help to prevent any later complaints that the governing body has breached confidentiality or data protection law (which is particularly pertinent when dealing with sensitive matters).

  7. A reasonable timeframe for dealing with the complaint.

The provision of such information should not be too arduous a task (particularly if an adequate template letter has been produced) and should provide sufficient comfort to the complainant that their complaint is being dealt with fully and fairly. If a complainant is left with an impression to the contrary (i.e. that the governing body is being dismissive of their complaint), then that will generally not result in a conclusion to the matter and risks inflaming the situation.

A response from the complainant following receipt of a first response from a governing body along the lines above should serve to confirm the scope of the complaint, ensure the governing body has sufficient information adequately to respond to the complaint, and obtain the complainant's consent and "buy in" for the governing body to proceed as it has set out.

 

Full response

Having reviewed the complaint and all the available information/evidence provided with the complaint and/or gathered during the course of investigating it, the person responsible for responding to the complaint on behalf of the governing body will form a view as to the merits of the complaint and the most appropriate outcome.

Both the scope of the investigation and the fullness of the response will be fact specific exercises. However, in general terms, a more rigorous approach should be adopted in instances where, for example, the complaint is of a serious or severe nature, the conduct complained of has significantly impacted the individual (or any other individuals, including any representative of the governing body who is the subject of complaint) or there appears to be scope for the offending conduct to be repeated. 

The substantive response to the complaint should be appropriately detailed and set out: (i) the steps undertaken in responding to the complaint; (ii) the view the governing body has formed and why; and (iii) the outcome of the complaint.

Four possible general outcomes to a complaint may be as follows:

  1. An explanation. This will be appropriate in cases where the complainant was treated reasonably/fairly and there is no reason to think that they should have been handled any differently in the first instance (or they were at least treated in a reasonable manner).

  2. An apology. An apology will generally be appropriate in circumstances where the governing body (most likely through one of its staff) has treated someone unreasonably/unfairly or the complainant has suffered a mistake at the hands of the governing body. An apology should be coupled with action if possible.

  3. Best practice recommendation. This will be appropriate in circumstances where there are grounds for concluding that the complainant could have been handled better in the first instance, although no remedial action is warranted beyond seeking to ensure the same thing does not happen again in future.

  4. Action. In the event that it is concluded that a complainant has a legitimate grievance (whether or not an apology is also appropriate), then if possible action should be taken to remedy the complaint.

Obviously, if it is considered that the governing body has been found lacking, then that will need to be handled sensitively internally. However, there is generally little to be gained by seeking to gloss over complaints or adopting an overly defensive approach if errors have been made.

 

Complainant response and possible further steps

Following their receipt of the governing body's response, a complainant is likely to do one of three things:

  1. indicate they are happy with the response (or at least accept it);

  2. not correspond further; or (iii)

  3. indicate they are unhappy with the response.

In the event of (i) and (ii) (in the latter case after a reasonable period of time), that should be the end of the matter. In the event of (iii), if there are legitimate outstanding issues then they should be addressed (hopefully then leading to (i) or (ii)).

If, however, it is the case that the complainant simply does not like the outcome, then either the matter can be left there (because whilst the customer might not always be right, at least by this point the governing body can probably be in a position to say why they are wrong) or a "review" could be offered by way of final position. That "review" would simply be a review of the way in which the complaint has been handled by a member of staff senior to the person who initially handled the complaint (and the "reviewer" can then either support the original conclusion or offer an alternative view/outcome – that would then stand as the final response from the governing body).

If a complainant persists in pursuing their complaint with the governing body after being informed of a final outcome with which they are unhappy, then at that point there is little the governing body can do other than to hold a firm line. Alternatively, where available, the complainant can be directed to another body that can sensibly address the complaint (such as the IFO, in the case of the football governing bodies).

It is at this point that any particularly persistent individuals will most likely seek to instruct solicitors and/or issue a claim against the governing body. In some cases, unfortunately, this simply cannot be avoided.

 

Summary flowchart – Example Governing Body Complaints Procedure

Complaints flow chart

 

That concludes Part 1 of the article. Part 2 (available here) moves on to how to handle individuals as a lawyer acting within, or for, a governing body. 

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Author

Richard Bush

Richard Bush

Richard is an Associate in Bird & Bird's Sports Group. 

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