At the start of this year, following his appointment as Chair of the UK’s Department for Culture, Media, and Sport (“DCMS”), Damian Green MP put sports governance firmly on the agenda.
This commitment came after the publication of the Whyte Review in June 2022 (the “Review“), which was an independent report into allegations of mistreatment in the sport of gymnastics led by Anne Whyte KC.
Sport England’s CEO Tim Hollingsworth and UK Sport’s CEO Sally Munday, the two individuals who commissioned the report, provided a joint statement following the Review, which included a commitment to “not rest until [we] have a sporting system that fully champions and enables participant and athlete wellbeing”.
Sports governance is a multi-faceted issue; systematic failings cannot be solved overnight. Effective and comprehensive investigations are needed to uncover the existing issues before remediation can take place.
As such, this blog will lay out five top tips for ensuring that all goes to plan when conducting a sports investigation.
Tip 1: Have Policies In Place
Terms and conditions, policies and procedures are rarely updated and often overlooked. However, when issues arise, it is these terms and conditions, policies and procedures that are an immediate source of authority for standards of behaviour; they are your “dos” and “don’ts”.
Therefore, first and foremost, it is essential to have robust, fair and proportionate policies and procedures in place to guide the investigative process.
During a recent sport investigation it quickly became apparent that the sport had no definition of “bullying” even though that was the accusation levelled at an athlete. Some of the practical issues with this included uncertainty as to:
- whether an imbalance of power was a necessary ingredient of bullying;
- whether intent was a requirement of bullying; and
- what amounted to a “course of conduct”.
In the end, those investigating the allegations relied on a combination of the athlete code of conduct, analogous previous investigations, and the governing bodies’ social media guidance to piece together a definition.
This investigation into bullying is not an isolated incident and most of the recent complaints raised with Sport Integrity (UK Sport’s confidential reporting line and independent investigation service) relate to bullying, so to not have a universal definition of “bullying” was and is particularly troublesome.
Since this investigation, we have worked with National Governing Bodies (“NGBs”) to devise a uniform definition of “bullying”. Of course, some NGBs will require bespoke definitions to reflect the nature of their sport, but a reference point (and, over time, a precedent bank) will help both individuals and NGBs.
We would caution that, in an attempt ‘do the right thing’, sporting governing bodies can sometimes overcommit, leading to policies that are too onerous. An example includes allowing an automatic right to appeal if the complainant is not satisfied with the outcome, rather than requiring them to establish a basis for appeal. It comes from a good intention but can often be costly and time consuming.
Tip 2: Identifying the Right People to Handle the Investigation
A key issue to consider at the start of an investigation is not only (i) who is going to undertake the investigation; but also (ii) who will advise the governing body in respect of the investigation report.
In determining issue (i), thought must be given to whether the investigator has appropriate experience and whether they are, of course, truly independent.
But once the investigation has ended, the commissioning governing body does not just put the report into the top drawer, the recommendations within the report will need to be actioned. But often those recommendations may have legal consequences such as employment issues, data protection considerations, and defamations risks, to name but a few. We believe it is advisable for a governing body to instruct an external law firm from the outset so that they are able to receive independent advice while remaining separate from the investigation.
Tip 3: Nail the Terms of Reference
The terms of reference (“ToR”) set out the parameters of an investigation and provide something of a roadmap. Investigations often uncover facts or events which were not in contemplation at the outset, and so it is crucial that the ToR provides for such eventualities.
For an international rugby referee, it is standard practice to consider the “what if” situations. What if there is a thunderstorm? What if the crossbar falls down? What if the ball is stolen by a streaker? Referees want to be as prepared as possible when people turn to them for an answer – the same is true in an investigative setting.
Essential features of the ToR include:
- what will be investigated and what won’t;
- what happens if you discover something that isn’t covered;
- how do you amend the ToR; and
- who will provide what material and when.
Some less obvious matters for inclusion:
- how many times do you email someone before concluding that they have refused to comply;
- what are acceptable methods of contact;
- who is allowed to attend the meeting with the individual being interviewed;
- will you produce transcripts of meetings; and
- who will see the report.
Doing the legwork beforehand saves time, stress, and distress down the track.
Tip 4: Specialist Support to the Investigating Team
During one of our sporting investigations, it became clear that athletes in that particular sport liked technical jargon even more than lawyers. To ensure that key information is not hidden in opaque terminology, we have found it useful to involve people with relevant experience who can put factual sporting matters in layman’s terms.
Contact sports is a good example of this. Physical intimidation during training sessions seems at odds with most places of work, but when athletes are competing for a single spot at the Olympic Games, this can be part and parcel of their world.
Interviewing ex-athletes as part of the initial stages of an investigation not only allow us to understand the jargon, but also to understand the realities of the sport, the difference between male and female athletes, and when aggression transgresses into bullying.
Tip 5: Involve Data Privacy Experts
Data Privacy is a fast-moving area of law which requires careful consideration in the context of sports investigations. The approach to data is two-fold: how and what can I collect, and with who and how can I share it.
You must have a clearly identified purpose and an appropriate lawful basis for processing personal data, or be able to show that your processing fits within one of the narrowly defined statutory exceptions. Be aware that sharing personal data is a form of “processing”, so ensure that you have a clear purpose and lawful basis for sharing, and that the recipient (for example an expert) has a clearly stated purpose and lawful basis for receiving that data.
From a UK perspective, you (or someone with the relevant expertise) will need to be familiar with the relevant provisions of the UK General Data Protection Regulation 2018 and the Data Privacy Act 2018 to ensure compliance. Reference should also be made to any policies which may set out how employee data may be processed. In the first instance, you will need to ensure that you have a lawful basis for collecting and processing data. Additional care should be taken when you are processing criminal offences data – as is often the case in investigations – or any “special category” data revealing factors such as racial or ethnic origin, political opinions, religious or philosophical beliefs, health, sex life or sexual orientation.
Data Protection Impact Assessments (DPIA) and Legitimate Interests Assessments (LIA) are now a reality of sporting investigations that should not be overlooked. Helpfully, in relation to “special category” and criminal offence data, UK data protection laws make express provision for processing where it is necessary to protect the integrity of a sport or a sporting event against dishonesty, malpractice or other seriously improper conduct, or failure by a person participating in the sport or event in any capacity to comply with standards of behaviour set by a body or association with responsibility for that sport or event. However, in each case it is essential that you involve experts to check that the factual situation justifies reliance on those provisions.
Summary
Sports organisations would be well served to address the issues highlighted above, particularly as their feet are often held to the fire by governments, sponsors, participants, and the general public on whether they have done enough to identify or remedy high profile matters.
This article was co-authored by Molly Mckenna.
