On the field or in the courts?
By Justin Safayeni
Justin is a lawyer at Stockwoods LLP, a litigation boutique in Toronto. He practices mainly in the areas of administrative law (including judicial reviews) and civil/commercial litigation, with a particular interest in law as it relates to sport.
Prior to October 2014, few people – coaches, lawyers or otherwise – would have thought that a court would interfere with the results of the semi-final soccer game of the Under 16 Boys Tier 1 Division of the Ontario Cup.
Yet that is exactly what happened in West Toronto United Football Club v. Ontario Soccer Association1.
That case involved a decision by the Ontario Soccer Association (OSA) to award the semi-final match of the Ontario Cup to the Strikers, even though the Cobras (West Toronto United) won the match on the field. The OSA had received a complaint that the Cobras were using a “call-up” player who was not properly registered on the team. Eventually, it emerged that the player had been accidentally removed from the roster due to an administrative error by the Toronto Soccer Association (TSA). The TSA advised the OSA that it was going to immediately fix the error and register the player, which should have been done in the first place.
Nevertheless, the OSA’s Protest Committee determined that the player was used ineligibly by the Cobras during the semi-final game. On that basis, the OSA awarded the match to the Strikers. The Protest Committee did not explain why the TSA’s evidence on the player’s accidental removal from the roster was insufficient, nor did it give the Cobras a chance to address the matter.
The Court found this to be problematic for two key reasons. Substantively, the Protest Committee’s decision was “fundamentally flawed” because it “reached a conclusion that finds no foundation in the evidence that was before it”. Procedurally, the Protest Committee acted “without giving the Cobras a fair opportunity to be heard.”
In the end, the Court overturned the OSA’s decision, restored the Cobras’ semi-final victory, and ordered that the final match of the Ontario Cup be re-played, if possible.
West United is not the first case where a judge has interfered with the decision of a sports organization. But it reflects a growing trend among courts to get more actively involved in examining all kinds of decisions made by all kinds of volunteer associations, including those related to sport.
Case in point: just two years after West United, an Ontario court overturned a decision made by an organization of basketball officials that effectively prevented certain high school basketball coaches from engaging in coaching for several months. The coaches were found to have had an inappropriate confrontation with referees following a high school basketball game.
Unlike West United, that case – Gymnopoulos v. Ontario Association of Basketball Officials2 – did not turn on substantive flaws in the decision by the Ontario Association of Basketball Officials (OABO). Instead, it focused solely on the procedural defects in the OABO’s process leading to the final decision. Those flaws included not giving the affected coaches proper notice of the severe consequences they potentially faced; conducting a hearing on the coaches’ conduct without key witnesses being present; not providing the coaches with the full official’s report from the game in question; and relying on one of the coach’s Twitter comments without giving him any notice that those might be used against him.
To be sure, not every decision by every sport organization will be subject to judicial review. For example, an Ontario court recently refused to examine OSA policies concerning the ability of players to choose their own soccer teams3. Courts consider a number of factors when deciding whether to get involved in these kinds of disputes, including the nature of the decision, the extent to which it is governed by law, and the extent to which it has a public impact.
Still, given the increased risk that courts will judicially review their decisions, administrators of sports organizations would be well advised to keep the following in mind:
Follow a fair process
Courts are most likely to intervene if they are convinced that the process leading to a final decision was unfair. The hallmarks of a fair process are ensuring the affected individuals are given a chance to present their case to impartial decision-makers – and that they first understand the case against them (including what penalties they face and what evidence might be used against them). Both West United and Gymnopoulos fell short in this critical respect.
Choose (or train) your decision-makers wisely
The judgment of committees responsible for decisions relating to game protests or member discipline may come under close scrutiny if a matter goes to court. Committee members should be selected with this in mind. If a particularly sensitive matter is coming before a committee, members could benefit from even rudimentary pre-hearing training on assessing evidence, articulating reasons and conducting a fair hearing.
Be ready for judicial review, but don’t automatically assume a court will interfere
If a sports organization’s decision is challenged in court by an aggrieved party, remember that there remains room for argument as to whether a court should ultimately intervene. West United and Gymnopoulos indicate a trend, not a rule. The law of judicial review is fluid and complicated, but there are certainly limits to when courts will get involved. It should not automatically be assumed that the courts are an appropriate venue for examining internal decisions made by sport organizations.
1 2014 ONSC 5881 - 2 2016 ONSC 1525 - 3 2016 ONSC 7718