May 2019

Managing conflict

In February we looked at a hypothetical scenario that involved a complaint around the behaviour of a coach (Chris) toward a junior female player (Chloe). The thinking of a group of people administering their respective clubs and associations about how to deal with a hypothetical complaint was discussed. In their incarnation as members of a board of a fictional club they didn’t get much right at their first go. You can catch up on the scenario here. 

At the second attempt their minds are focussed on finding solutions to the intractable and time wasting problems that occur for administrators when adults in their clubs and associations argue about little or nothing and then rely on the club or association to sort it out. It’s hair pulling out stuff!

What they came up with are practical steps to deal with complaints that involve adults behaving badly. These steps do not apply to sexual assault or abuse of children matters which have their own protocols.

For the sake of simplicity the club and association will be referred to as “the sport”.

Complainant is the person making the complaint and Respondent is the person/s against whom the complaint is made.

Process  Comment 
Complaints must be limited to those matters which are directly connected to the business activities of the sport including all competitions, training, social activities and the like. It is not up to a sport to resolve disputes between adults which occur outside of the sport’s activities just because they happen to be members of the sport and continue their argument in the sport environment. However, if an argument which started at the sport about something that happened at or during the conduct of the sport, and it flows into a car park or shop and may turn into a bit of biffo, then it is probably a continuation of the complaint and has to be dealt with by the sport.
Any complaint must be in writing for it to be dealt with. No complaint made by phone will be dealt with unless it is put in writing. Complaint handing is a formal and serious process so the complainant must be prepared to put the details in writing, and be clear and concise as to what is being complained about. As you will be aware in order for police to prosecute a case they will require the victim to make a statement in writing. This serves as the basis of a charge against an offender and is the primary evidence. 
Complaints must be lodged within 10 days of the incident being complained of occurring in order for it to be dealt with. One of the major problems sports face is that complaints are lodged well after the event. In many cases this means memories are no longer fresh and other matters may have intervened to make the original gripe worse. If behaviour is serious enough to be complained about then it is the responsibility of the complainant to have it dealt with as quickly as possible. No one is served by justice delayed. 
The complaint must be addressed to the Secretary and/or President of the sport in the first instance. As part of a formal process the complaint must be sent to one of these two office bearers of the sport. The complaint should be sent by a physical letter or an email addressed specifically to the President and/or Secretary.
The complaint must not be sent to everyone on the complainant’s social media lists, especially Facebook, but only to the Secretary or President. Confidentiality is key and a complainant should rely on the process to resolve the dispute if possible.  Ramping things up on social media, attracting unhelpful and uninformed comment, serves no one. 
Once the complaint is received the Board or Committee may be notified and kept confidential by them at all times. Some boards may decide that unless the complaint is “serious” it can be handled by the Secretary. The Board of the sport will need to consider the matter as part of its business but it will not take part in resolving the matter. Generally the Secretary would then organise the process which would include advising the respondent of the complaint. 
The Secretary will ask the complainant what outcome he or she wants. In some instances the complainant wants the respondent expelled from the sport because of the behaviour complained of. In most instances this will not happen as expulsion from a sport occurs when behaviour is so serious it results in a tribunal decision to expel. Often all that a complainant wants is an apology. Part of the sport’s role is to explain/educate its members about what penalties can be imposed in complaint matters.
The Secretary will then refer the complaint to a Complaint Handler. The Complaint Handler is a new position created to deal with complaints. The CH has more authority than an MPIO and is selected and appointed because of his or her skills in resolving disputes and may be a lawyer, a counsellor, a psychologist who may be a member of the sport, but holds no formal role within the sport and who declares him or herself to be free of conflict ie doesn’t know, or know well, either or any of the parties to the complaint.
The Complaint Handler appointment by the Board The Board may decide to appoint a number of suitably qualified people to fulfil the role of CH and who can be called upon from time to time. It is quite common in the bigger sports to have panels of people who can be called upon to be tribunal members for hearing discipline matters and establishing a CH panel means that there are go-to people who can be called on at short notice. A panel also means that a sport isn’t then relying on the goodwill and availability of one or two people.
The Complaint Handler is authorised to speak to the parties and to any witnesses including any witnesses the parties may wish to identify. Those witnesses must have direct knowledge of the incident complained of and can’t know it by hearsay, which means they have heard of it only through other people and means. Only people with direct knowledge to a complaint are relevant to its resolution. 
The Complaint Handler can require the parties – complainant and respondent – to attend a Managed Conversation in an attempt to bring the matter to conclusion. This is mandatory. The parties can bring a support person if they wish. Mediation is a voluntary process and people can refuse to attend. The result is often a dead end leaving everyone in limbo with nothing resolved. The next step for the sport is to conduct an investigation which takes time, money and often produces an outcome that satisfies no one. 
The Complaint Handler reports to the Board as to the outcome of the Managed Conversation. The Board confirms the outcome. If resolved good if not then suspension applies – see below.
If one or both of the parties refuses to attend the Managed Conversation the CH will report to the Board. The sport will have amended its constitution/policies to deal with this situation to provide for the Board to suspend both parties until they resolve their argument. Provision may be made to allow them to attend games/events in certain circumstances if their children are involved in the sport.
The parties remain suspended by the sport until they advise it in writing that they have resolved their disagreement. This removes the necessity for the sport to expend time and money on an investigation. 

This process does not deal with the genuine complainant who is seriously aggrieved where the respondent makes no effort to participate in the process or refuses to do so. It may be that the solution there is the current one where an investigation is required which may lead to a discipline hearing before a tribunal. That might result in a suspension or expulsion.

What is clear is that education to sport members is required. An enormous burden is put on administrators if a complainant demands and expects an expulsion because of perceived or actual bad behaviour. This will not happen in most instances.

Education about penalties and process is essential and to summarise:

  1. Be adults and admit errors, say sorry, apologise and acknowledge wrongdoing, inappropriate behaviour, comments and social media posts. Don’t waste your own time on something petty.
  2. If complaining be aware that the outcome may be anything from a slap on the wrist to a reprimand or a warning. Most complaints about bad behaviour will not result in a suspension or expulsion – as much as the complainant might wish.
  3. Don’t waste the time of your volunteer club administrators by petty complaints.
  4. If you do complain make sure you’re prepared to go through with it honestly.
  5. If a respondent acknowledge an issue and don’t pretend there’s nothing to see, nothing to be complained of.
  6. Realise you could both be suspended until you sort yourselves out.
  7. Serious complaints will be given the support and resources required.

Talk the Talk SportMargot Foster AM BA LLB
Margot Foster is an experienced lawyer with over 34 years in private practice. She is a highly regarded sports administrator having held numerous board roles in club, state, national and international sports organisations, including government appointments both in Australia and New Zealand. Margot knows what it is like to be a volunteer in a sporting club as well as a board member for an NSO with plenty of staff and myriad issues confronting all organisations of whatever size. She is a 1984 Olympic bronze medallist and 1986 Commonwealth Games gold medallist in rowing. Margot advises sports organisations of any size in the areas of practical governance solutions, dispute resolution, including investigations, and mediation through her consultancy Talk the Talk Sport.