Safe Sport
Understanding “Safe Sport” Sanctions and Disciplinary Issues Under the Universal Code of Conduct
Date: April 16, 2024
Introduction
Disciplinary issues and related sanctions can arise in any organization, but they can be especially challenging to navigate in relation to safe sport.
The federal government has committed to addressing harassment, discrimination and abuse in sport by requiring all federally funded sport organizations to adopt the Universal Code of Conduct to Prevent and Address Maltreatment in Sport (UCCMS) in order to receive funding (see our last edition of Safe Sport, “Key Legal Issues on “Safe Sport” in Canada: Latest Developments on Policy and the Law”). A number of organizations, including provincial sport organizations and universities, have voluntarily adopted the UCCMS. In this article, we explore the “sanctions” related to the emerging safe sport space. Specifically:
- what sanctions are available under the UCCMS
- the factors decision-makers consider in determining the appropriate sanction
- an organization’s legal obligation to enforce the sanction
Overview of UCCMS Sanctions
Federally funded sport organizations are required to adopt the UCCMS and become signatories to the Office of the Sport Integrity Commissioner (OSIC), an independent third-party body responsible for administering the UCCMS.
Sport organizations which are not federally funded may voluntarily adopt the UCCMS and become signatories to OSIC or administer the UCCMS through their internal discipline and complaints policies or procedures.
When a complaint alleging a violation of the UCCMS is investigated and is substantiated, the Director of Sanctions and Outcomes at the OSIC (or an organization’s internal decision-maker pursuant to its own discipline and complaints policy) has authority to impose a sanction on the responding party.
Pursuant to the UCCMS, one or more of the following sanctions may be imposed once a complaint is substantiated:
- verbal or written apology
- verbal or written warning
- education
- probation
- suspension
- eligibility restrictions
- permanent ineligibility
- other disciplinary sanctions as deemed necessary or appropriate
Sanctioning Considerations
Under the UCCMS, any sanction imposed on a responding party must be proportional and reasonable taking into account the form of maltreatment that occurred. Accordingly, in determining an appropriate sanction under section 7.4 of the UCCMS, a decision-maker will consider the following factors, without limitation:
- the nature and duration of the responding party’s relationship with the affected individual, including whether there is a power imbalance or position of trust
- the responding party’s prior history and any pattern of prohibited behaviours or other inappropriate misconduct
- any previous disciplinary findings regarding, or sanctions against, the responding party
- aggravating factors such as maltreatment of a minor or vulnerable person
- the ages of the persons involved
- whether the responding party is considered to be an ongoing and/or potential threat to the safety of others
- the responding party’s voluntary admission of the violation(s), acceptance of responsibility for the prohibited behaviour, and/or cooperation in the applicable UCCMS enforcement process
- real or perceived impact of the incident on the affected individuals, sport organizations or the sporting community
- deterrent effect on future such conduct
- potential impact on the public’s confidence in the integrity of the Canadian sport system
- aggravating or mitigating circumstances specific to the responding party (e.g., lack of appropriate knowledge or training regarding the requirements in the UCCMS, addiction, disability, illness, lack of remorse, intent to harm)
- whether, given the facts and circumstances that have been established, the responding party’s continued participation in the sport community is appropriate
- whether the responding party was found to have committed one or more previous UCCMS violation(s)
- the desired outcomes of the person(s) directly impacted by the prohibited behaviour
- other mitigating and aggravating circumstances
Under the UCCMS, any single factor, if severe enough, may be sufficient to justify the sanction(s) imposed. A combination of several factors may justify elevated or combined sanctions.
As always, it is interesting to note how these principles come alive in an actual case scenario. In a recent Sport Dispute Resolution Centre of Canada decision, Anonymized v Hockey Canada, Arbitrator Wilson considered the claimant’s admission of his involvement in maltreatment during the 2022–2023 season when he lowered his bare buttocks onto another minor hockey player’s face as well as the claimant’s acknowledgement that the behaviour would not occur again.
In the remedy decision, Arbitrator Wilson determined the appropriate sanction was threefold:
- a probationary period during which the claimant would be on a behavioural contract and prepare a paper and presentation about the incident and lessons he learned
- safe sport training to be completed under the supervision of a parent and before he returned to play
- a suspension from all games for the first three weeks of the 2023–2024 season
Legal Obligation to Enforce the Sanction
All organizations that are governed by the UCCMS have an obligation to implement the sanction(s) by refusing to engage the responding party within their role at the organization (e.g., athlete, coach, director, etc.) during the length of the sanction and/or until such disciplinary requirement has been fulfilled. Depending on the circumstances, an organization may need to terminate an employment or service contract with the responding party in order to fulfill this obligation.
Organizations may discipline the responding party up to the point of termination of employment and/or their membership with the organization, or pursue a complaint through their internal discipline and complaints policy. This will depend on the type of sanction imposed or where a responding party fails to comply with the sanction and their contract or organizational policy requires compliance with the UCCMS.
It is important to understand the difference between sanctions made by a decision-maker and discipline imposed directly by the organization in an employment and/or membership context. Courts and tribunals will consider different factors when determining whether the termination of employment and/or membership in the organization is warranted, even where a sanction has been found. It is very important for each organization to speak with its legal counsel before deciding to impose discipline in order to mitigate against the risk of costly and time-consuming litigation.
Conclusion
The UCCMS provides decision-makers with broad parameters, authority and discretion to determine and impose sanctions that are proportional and reasonable relative to the maltreatment that occurred.
The imposition of sanctions consequently imposes obligations on the organization and the responding party to comply with those sanctions.
Accordingly, organizations should ensure they have an understanding of the UCCMS and their own internal policies as well as the important legal consequences that can arise. Organizations are also well-advised to speak with their legal counsel to better understand how to meet their legal obligations.
For organizations looking for assistance with UCCMS alignment or policy drafting, or if you have any questions, please contact Brittany Bates at 416.864.7508, Frank Cesario at 416.864.7355 or Kayley C. Leon at 416.864.7028.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
