Tackling bullying in elite sport: best practice for sports organisationsNick Tsatsas
At first blush, we might not think of elite athletes as prone to bullying. We associate such individuals with strength (both physical and mental) and confidence, rather than with the vulnerability that bullying implies.
And yet there are plenty of publicised allegations of bullying in elite sport and, no doubt, many more instances that remain hidden from public view. One of the most striking recent examples of bullying in sport took place in the US. Jonathan Martin, a six foot five inches tall offensive lineman weighing 22 stones walked out on the NFL’s Miami Dolphins in 2013, following some quite horrific locker room abuse and bullying by his team-mates.1
Countries around the world will, no doubt, have their own examples of alleged bullying in elite sport, and, sadly, there are plenty of reported cases in Britain. Back in 2005, British Swimming launched an inquiry into allegations that Performance Director, Bill Sweetenham, had bullied a number of leading athletes.2 Sweetenham was subsequently cleared of bullying3, but left his post in 2007. Just last month, Emily Taylor, a former member of the GB women’s rowing squad, accused Paul Thompson, Chief Coach of the Women’s Crew, of being “a massive bully”4 and made a series of allegations which are now being considered by British Rowing as part of an internal review that it is conducting into the “culture” of its High Performance programme.5 Of course, this year’s highest-profile allegations of bullying in elite sport were made in April, by Jess Varnish, the European and Commonwealth Games medal-winning cyclist, who accused Shane Sutton, the then Technical Director of British Cycling of creating “a culture of fear” within the organisation.6 Sutton has since resigned from his post7, rejecting all of the “specific claims” made against him, but citing a desire not to be a “distraction”, and indicating his intention to “co-operate fully” with the independent investigation commissioned by British Cycling and UK Sport into the culture within British Cycling’s World Class Programme.8
The challenge: what constitutes bullying in elite sport?
It is beyond reasonable debate that, just as in every day life, bullying has no place in sport, whether amateur or professional, elite or grassroots. (For the avoidance of doubt, this article explores bullying as it relates to professional and elite sport and, in particular, what governing bodies and sports clubs can do to address it. It does not consider issues involving children who participate in sport, and who are subject to additional safeguarding.)
However, one of the major challenges of addressing bullying lies in determining what actually constitutes bullying in the elite sporting context. Identifying bullying in an “ordinary” workplace can be hard enough, not least because there is no statutory definition of bullying nor even, in fact, a statutory right not to be bullied. Thus, most claims that involve bullying in the workplace are actually framed as discrimination claims under the Equality Act 2010 (the most specific of the allegations made about Shane Sutton relate to the sexist and ageist comments that Jess Varnish says he made to her, and the highly derogatory terms that Paralympic gold medallist Darren Kenny says he heard Sutton use in reference to disabled British cyclists9). Alternatively, where the victim of bullying is an employee, claims may be framed as constructive unfair dismissal claims10, pursuant to the Employment Rights Act 1996.
Elite Sports Working Environment
Matters are further complicated by the unique working environment in which elite athletes work. It is simply unrealistic (and, arguably, unhelpful in terms of dealing with these issues) to expect that the same rules that apply to, say, an office-based workplace will work in an elite sports environment.
There is some judicial support for the premise that different behavioural standards can apply to different settings. In the 1998 case of Oncale v Sundowner Offshore Services,11 the US Supreme Court noted that whether a particular course of conduct amounts to harassment “requires careful consideration of the social context in which particular behaviour occurs and is experienced by its target. A professional footballer’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field – even if the same behaviour would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office. The real social impact of workplace behaviour often depends on a constellation of surrounding circumstances, expectations and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing…and conduct which a reasonable person…would find severely hostile or abusive.”12
There are certainly some aspects of the elite sports working environment that cannot be justified - be that the “macho culture” that is sometimes said to exist, and also some of the dressing room “games” and other “initiation rituals” that athletes (particularly young ones) are often exposed to13. Nonetheless, to misquote Simon Briggs, “one man’s bullying is another man’s banter”, and most sports fans, at least, would accept that banter between team-mates is often an essential way of fostering the vital, but sometimes elusive, concept of “team spirit”. Whilst there is no doubt that Richie Incognito, the Miami Dolphins lineman who was accused of bullying his team-mate Jonathan Martin, went well beyond the boundaries of acceptable behaviour, it is worth noting the reports that suggest that he had been encouraged to “toughen up” Martin, and “bring him into the fold” by members of the Dolphins coaching staff.14
Moreover, elite sporting environments are inherently more competitive than just about any other places of work, and arguably more stressful as a result, particularly when a number of talented athletes are making huge sacrifices (physical and, in some cases, financial), often over many years, for the few opportunities that exist to represent their team or country at the highest level of sport. It is the job of coaches and managers at the elite level to push athletes – often beyond their perceived limits – to produce exceptional performances. Moreover, those athletes have different personalities, and will inevitably respond in different ways to the methods of their coaches. Indeed, one striking aspect of the Sutton allegations is how much support he has received from other British riders, most notably six-times Olympic gold medallist Sir Chris Hoy, who whilst acknowledging Sutton’s “uncompromising approach” also said of him “I have never met anyone who gave so much to their role within any team and who cared so much for the performance of the riders”.15 When even members of the same team can’t agree on whether a colleague or coach is a bully, the difficulty in distinguishing between acceptable and unacceptable behaviour becomes clear.
As one commentator suggested: “Yes [Sutton] was a bully. But so was Sir Alex Ferguson. That is arguably what it takes to run the most successful dynasties sport has ever seen. A question that still remains: when does a no-compromise, winning culture tip over into bullying?”16
That, then is the key challenge that faces sports teams and governing bodies: identifying where the line is.
Suggestions for Best Practice
With the above in mind, here are a number of practical steps that sports organisations can take to protect their athletes from bullying:
1. Define what constitutes “bullying” (and, indeed, any other form of unacceptable behaviour)
Since English law offers no statutory definition of bullying, it is incumbent on employers or organisations to define what constitutes such behaviour in their own workplace. Whilst that may be difficult in an elite sporting environment – for all the reasons identified above – it is not impossible. By way of example, the United States Olympic Committee (USOC) founded its SafeSport program to, among other things, develop a set of recommendations to promote athlete well-being. Safesport prohibits six types of misconduct – sexual misconduct, emotional misconduct, physical misconduct, bullying, harassment, and hazing – each of which is well defined.17
Every elite sporting organisation ought to have a written policy that makes it clear what standards of behaviour are expected from its constituents, and what behaviour is expressly prohibited. Each organisation should ensure that hard copies of its anti-bullying policy are distributed to athletes, coaches and administrators, and that the same are also available in electronic copies online, and in hard copies at any place of work. It should be made clear that any form of bullying will amount to a disciplinary offence, and will be subject to sanction, up to and including dismissal.
2. Provide for an appropriate reporting and investigatory procedure
Every anti-bullying policy should make it clear what procedure an athlete should follow if he or she wishes to report allegations of bullying. Self-evidently, such procedures should provide for the prompt investigation of any allegations by someone of the appropriate seniority. Having regard to the fact that it is often very senior members of staff that are accused of bullying in elite sport (performance directors, etc.), it is recommended that the individual identified as being responsible for investigating such allegations should be a senior administrator, perhaps even a board director or equivalent, within the relevant club or organisation. An effective reporting procedure should also provide for an appeal process and, given the seniority of the individuals within the organisation who are likely to hear any complaints at the first stage, there is some merit in considering an external appeal adjudicator, such as UK Sport or Sports Resolutions.
Investigations should be handled confidentially, with details of the investigation, and the names of those involved disclosed on a “need to know basis” only. It should be made clear that breach of confidentiality may, itself, amount to a disciplinary offence. An effective anti-bullying policy will also expressly state that staff who make complaints, or who participate in good faith in any investigation must not suffer any form of retaliation or victimisation as a result (however difficult it may be to police and enforce such a requirement).
Whatever a club or governing body’s policies and procedures may state, bullying will only be effectively addressed if a culture of openness also exists within that organisation. It was particularly unfortunate that, just two days after taking over the management of the team from Shane Sutton, Andy Harrison, British Cycling’s Programmes Director, sent an email to riders stating that they were “free to say yes or no to interviews, but how you respond will be a big factor in our ability to support you as the current season unfolds”. Harrison was forced to apologise for his “misleading” email after it was questioned by one of the riders.18 Emma Taylor also claims to have been dissuaded from speaking out over her treatment, stating “I told [Paul Thompson] I wanted to complain, but he said ‘If you complain now, you will ruin the boat’s chances at the Olympics and create so much tension in the squad’”.19 Aside from amounting to a possible infringement of the rights afforded to “whistleblowers” pursuant to The Public Interest Disclosure Act 1998, the reputational damage to any organisation – sporting or otherwise - that is caught trying to prevent its employees from voicing legitimate concerns, is clear.
3. To the extent possible, identify objective selection criteria
It is notable that the allegations regarding bullying in elite British swimming, rowing and cycling addressed at the beginning of this article were all raised in the context of selection disputes. Athletes who raise genuine allegations of bullying should not have their claims undermined by the suggestion that they are not acting in good faith, but rather out of bitterness, or a desire for “revenge”. It will be rare that decisions regarding selection will be able to be made on the basis of objective performance standards alone but, to the extent that these apply, they should be clearly set out and notified to athletes, who should also be notified of the type of subjective criteria that may be factors in selection.
One wonders whether a greater female representation amongst sporting administrators might help to limit instances of bullying. No doubt, women are every bit as capable of bullying as men, but it is interesting to note that the investigations into allegations of bullying at British Cycling and British Rowing are both being chaired by women. As one commentator noted: “…women often have something different to say about what is and isn’t acceptable behaviour in the bubbling cauldron of machismo that so often defines the sporting arena. They have brought a fresh perspective – not to say an emotional intelligence – to any industry that has long been [blind] to excess testosterone, [and] that has tacitly endorsed bullying…”.20
What is beyond doubt is that women have been underrepresented at the highest levels of elite sports administration, and that a concerted approach has been adopted to redress this imbalance, particularly in the form of Sport England’s target of 25% female representation on the Boards of National Governing Bodies by 2017. A recent report21 suggests that progress has been made in this area, so it remains to be seen whether this will contribute to a reduction in some of the high profile instances of bullying that have been reported to date.
In the meantime, it is down to sports clubs and organisations to be alert to the risk of bullying amongst their athletes and employees, and to ensure that they have the appropriate policies in place to deal with this issue. It is certainly peculiar that there is no statutory definition of bullying under English law, particularly given that similar terms such as harassment are defined. However, it is submitted that the absence of a statutory definition of bullying affords sports clubs and organisations the freedom to devise and adopt a tailored definition that best reflects their own culture and working environment. Even more generic definitions – such as that adopted by England Golf in its Equality and Diversity policy22 (“We consider bullying to include behaviour which is offensive, intimidating, malicious, insulting or an abuse of power through means intended to undermine, humiliate, denigrate or injure and can include references or inferences relating to Protected Characteristics”) – are flexible enough to cope with most scenarios that are likely to arise.
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About the Author
Nick is a consultant solicitor and employment law specialist at Keystone Law. He acts for domestic and international employers, senior executives and high-profile personalities, and has particular expertise advising in relation to employment issues in the sports and media sectors. He has consistently been recognised as a leading lawyer in the employment field by Chambers Guide to the UK Legal Profession and The Legal 500.