Best practice for Sports Governing Bodies when dealing with individual complainants: Part 2 - Guidelines for legal teams
Published 20 October 2016 By: Richard Bush
This two-part article offers practical guidance for sports governing bodies as to how to effectively handle individual complainants. It is 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.
Part 1 of the article (available here) looks at how to ensure a governing body handles all individual complainants fairly and proportionately, through effective complaint handling mechanisms.
Part 2 (below) moves on to consider how to handle individuals as a lawyer acting within, or for, a governing body. Specifically it looks at:
- Determining whether or not an individual should be deal with by the legal team
- Engaging with challenging individuals
- Meeting individuals and mediation/alternative dispute resolution
- Issue of a claim
- Concluding remarks
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.
How to handle individuals when representing a governing body
The most common reason an individual will reach the legal team is that the individual concerned will have used a particular term or combination of words in correspondence, such as "sue", "court", "lawyer", "discrimination" or "Data Protection Act".
This immediately makes the matter a "legal issue" (in the eyes of both the complainant and probably also the person within the governing body who has received the correspondence). In other cases, the individual concerned, or solicitors on their behalf, will have written directly to the governing body's legal team.
Determining whether or not an individual should be dealt with by a governing body's legal team
Once a case involving an individual lands on a governing body lawyer's desk, the first thing for the lawyer to do is to establish
- what the grievance/claim actually is,
- whether it is justified, and, if so,
- whether the prospect of legal action based upon the grievance has any merit.
Obviously, in many cases it will be readily apparent when a governing body's legal team should handle cases involving an individual, because the individual's case is one that raises real legal, reputational or other significant risk. In other cases there can however be a somewhat blurred line between a case that is best handled as a customer relations “complaint” and one that truly warrants the attention of a governing body lawyer, as the two (to be clear, fictional) examples below may help to demonstrate.
(It is not suggested that in such cases there is a “right” and “wrong” answer, and it will of course be a matter of judgement in all the circumstances of any given case, taking into account any applicable policies and procedures of the governing body.)
An attendee of a weekend sporting event cycles to the venue and locks his bicycle to the railings outside the venue. The railings and the land upon which they are situated are the property of the governing body and there is prominent signage around the railings stating that, for public order and safety reasons, any bicycles that are locked to the railings will be removed by security staff. Accordingly, during the event the security staff proceed to remove the bicycle lock and store the bicycle. After the event has finished, the attendee locates the offices of the security staff and retrieves his bicycle and now broken lock, expressing extreme dissatisfaction. The attendee then writes directly to the governing body's legal team stating that (i) the venue purports to be "cycle friendly", (ii) there was inadequate signage, (iii) the bicycle lock was a family heirloom and of emotional value and (iv) a small claim would be issued if the cyclist was not given £100 compensation.
In this example the legal and financial risk is minimal and the circumstances are unlikely to arise frequently (so the precedent value is also minimal). Therefore, the matter could sensibly be addressed by the customer relations team rather than the legal team (and addressing correspondence to the legal team is probably largely a tactic in order to get the matter taken more seriously). Guidance from a governing body lawyer might include that a first and, if necessary, second response should be to rebuff the complaint by way of a short response on the grounds that there was adequate signage, and on any necessary third response to offer payment of an amount on a without prejudice "goodwill basis" (or possibly some form of credit for future events). In the event a legal claim is in fact issued, the most cost-proportionate thing to do would probably simply be to pay the amount claimed (it is seldom the case that individuals will proceed to a claim in cases like this, but it does happen).
The governing body operates a development programme for coaches, with qualifications from grades 1 to 5 (grade 1 being the entry level for grassroots coaching and grade 5 being for elite, international level coaching). In order to qualify for a grade 2 qualification a coach must pass a written exam, fitness test and practical assessment. The practical assessment involves the coach being given three drills (out of a possible fifteen learned on the course) to undertake with a development squad on an assessment day, and performance is assessed by three examiners from the coaching department. Mr X, a candidate for the grade 2 qualification, is 50 years old and has passed both the written assessment and fitness test with flying colours. However, all three examiners conclude that Mr X has performed poorly on the practical assessment and Mr X therefore fails the course. There is no right of appeal for Mr X against the assessment decision. Mr X writes to the coaching department to complain that he feels that the examiners had not paid sufficient attention, that the pitch was in poor condition, and that the choice of drills was unfair. He also asks for copies of all his assessment sheets. The coaching department passes Mr X's correspondence to the legal team and also informs the legal team that one of the coaching assessors noted in writing on an assessment sheet that "Mr X uses some out-dated phrases that younger players will not readily understand, although to be fair he is the oldest candidate we have seen undertake this course, which might explain a few things."
In this example there would appear to be issues that do require careful consideration and further investigation/consideration by the legal team, including the disclosure request, whether there is any possible age discrimination toward Mr X and a possible need for training for those undertaking assessments to reduce legal risk going forward. Accordingly, in this case a sensible approach would be for the legal team to investigate/review the matter and produce a response on behalf of the coaching department; in general a response that is signed as being directly from the legal team (especially if the initial correspondence was not addressed to the legal team) can serve to escalate matters quickly and, depending on the circumstances, may be seen to "legitimise" a complaint in the eyes of the person making it.
Engaging with challenging individuals
If a governing body lawyer has to engage with an individual complainant it should certainly not be assumed that they will be difficult (and nor should anyone be underestimated simply because they are unrepresented). However, in practice unrepresented individuals can present or give rise to particularly challenging issues. For example, they may be very emotional and dogged about things, not have an objective understanding of the legal and/or factual merits of their own complaint, not be familiar with how to conduct themselves in regard to legal correspondence or proceedings, and not necessarily see the benefit in trying to reach an amicable solution.
The following points may be helpful to bear in mind when dealing with difficult individuals:1
- Make efforts to understand the grievance from the individual's viewpoint and what they are actually seeking to achieve, including whether there are any factors unique to the individual that may explain why the individual is being difficult. Tailor your correspondence and approach accordingly.
- Adopt a professional, co-operative and courteous approach at all times. In particular, early correspondence with an individual is likely to set the tone for how the matter progresses. Communicate in a manner of which a court, tribunal, the governing body's chief executive etc. would approve.
- Respond to all issues raised by the individual, but take care in responding to (and obviously avoid engaging in) protracted, one-sided and unnecessary arguments and assertions (indeed, seek to avoid responding to such arguments or assertions if possible).
- At the outset, and at appropriate stages as the matter progresses, recommend that the individual seeks independent legal advice, or point them to other sources of advice (e.g. Citizens Advice or participant associations such as refereeing/coaching bodies).
- Communicate clearly and avoid any technical language or jargon (or clearly explain such language or jargon where it is necessary to use it).
- Take particular care to avoid using inflammatory words or phrases that suggest or cause a dispute where there is none, or inflame a dispute, and avoid expressing personal opinions about the individual's behaviour.
- Take a reasonable amount of time to respond to correspondence from a difficult individual (even if responses to your correspondence are immediate).
- If a claim is threatened, and costs would be recoverable if it were issued, delicately highlight that the governing body will seek its costs from the individual.
- Recognise when corresponding further with an individual no longer holds any hope of being constructive, and disengage in an appropriate manner (repeating as necessary).
Meeting individuals and mediation/alternative dispute resolution
In some circumstances, particularly those involving sensitive issues (for example those that concern child safeguarding or discrimination complaints), it may be appropriate to spend time meeting with the individual concerned in order to discuss matters and explain the governing body's position and/or seek to achieve some form of amicable resolution. In doing so, it is generally advisable for the agenda of any meeting to be clearly set out as well as what may realistically be achieved by the meeting. If this approach offers some hope of being productive, and the individual is amenable to meeting, then the time could be well spent (and significant time and expense could be saved in the long run).
A meeting with an individual may be aided by the presence of an independent third party in the form of a mediator (who may or may not have a legal background), or even simply an observer. Mediation is of course a very flexible process and there are a number of ways in which it can be approached. Sport-specific services are available, for example through Sport Resolutions. Similarly, in any given case it might be that other forms of alternative dispute resolution can be considered, in particular adjudication/non-binding arbitration (such as that offered by the IFO) or early neutral evaluation i.e. the appointment of an independent person to provide a non-binding opinion on the merits that evaluates the facts, evidence and law relating to the case in question.
Issue of a claim
In some cases, no matter how much effort is exerted in seeking to resolve an issue in a sensible way, an individual will issue a claim against the governing body. In whichever way this is done by the individual, it will almost inevitably mean that the matter will take up a reasonably considerable amount of time, resource and cost to resolve.
How a governing body responds to such a claim will again be a highly fact specific exercise subject to the judgement of its lawyers but, if the claim is considered to be wholly without merit, it will be open to the governing body to seek to have the claim struck out and/or apply for summary judgment (which are likely to be the least costly ways of addressing things at that point).
It is worth noting that a solicitor's duties towards a litigant in person are relatively limited; essentially, a solicitor must not take unfair advantage of a litigant in person and may be required to assist with procedural matters such as bundling.2 So, if things do reach this point, it will be open to the governing body's representative to be more forthright and direct in his or her correspondence with the claimant than was previously the case (when dealing with the complainant as part of the internal process).
It is inevitable that from time to time individuals will have grievances with governing bodies, for any number of reasons. Indeed, it is perhaps a natural result of the passion many individuals have for their sport (on which, ultimately, all sport relies).
However, by ensuring that those who raise grievances with the governing body are treated appropriately, there are a number of benefits for a governing body. Those should include, amongst other things, minimising the number of grievances that result in formal legal disputes. Where such disputes do arise, then careful handling of the matter should hopefully result in a sensible conclusion.
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- Tags: Alternative Dispute Resolution | Dispute Resolution | Independent Football Ombudsman (IFO) | Independent Football Ombudsman (IFO)_ Lawn Tennis Association (LTA) | Lawn Tennis Association (LTA) | Mediation | Ombudsman | Sports Governing Bodies (SGBs)
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