Future of sport in Canada should not be American-style injustice

Canada and the United States are adopting the worst of each other's sport safe guarding regimes. Can either side impose a trade embargo on bad ideas?

The Future of Sport in Canada Commission’s final report sets Canada down a dangerous path: the United States of America’s. Among the recommendations to “build and sustain safe sport environments,” the commission calls for a public registry of individuals suspended or banned from sport, on the model of the US Center for SafeSport’s Centralized Disciplinary Database.

This would be a disaster for Canadians’ civil liberties and for Canada’s sport culture, emulating a half-century of America codifying into law some of its worst tendencies.

Two threads of American history converged to spawn the Centralized Disciplinary Database.

During the mid-2010s, hundreds of American gymnasts came forward in the media, in court, and in testimony to the US Congress about the sexual abuse they suffered at the hands of Larry Nassar, a doctor affiliated with USA Gymnastics. In response to the public’s outrage and demands to “do something,” Congress passed and President Donald Trump signed a federal law designating the US Center for SafeSport as the national sport safe guarding organization.

The Center is a quasi-autonomous non-governmental organization, invested with nearly unlimited authority to craft, impose, and enforce its policies and punishments. The scope of its powers and the capriciousness with which it wields them have produced a growing stream of federal lawsuits. Active suits include claims of improper delegation of both executive and legislative authority; violation of substantive and procedural due process; defamation; tortious interference with contracts; violation of antitrust laws; and imposing contracts of adhesion.

Among the few specific requirements Congress placed on the Center, the Center must “publish and maintain a publicly accessible internet website that contains a comprehensive list of adults who are barred by the Center.”

Anchoring this list is Larry Nassar himself, who was convicted of numerous crimes in a criminal court. But the Center does not require anything as substantial as even a criminal charge before listing a sports person alongside him and other convicted felons.

One does not need to be convicted in a criminal court, found liable in a civil court, nor even adjudicated by the Center’s behind-closed-doors, gag-order-in-place tribunals. An accusation is sufficient for a “temporary” suspension. The suspension may be temporary, but the punishment becomes permanent the moment the Center updates the Centralized Disciplinary Database.

If you don’t believe the internet is forever, ask someone on a publicly accessible digital blacklist.

America and civil rights: Is this what you want, Canada?

US Supreme Court Justice William Brennan wrote in his dissent in Paul v. Davis (1976), “The hardships resulting from this official stigmatization...will often be as severe as actual incarceration.”

Paul v. Davis cleared the ground for the United States’ increasing propensity for government defamation-by-blacklist. Ironically, the fiftieth anniversary of Paul v. Davis was the day before the Future of Sport in Canada Commission released its report.

Edward C. Davis was a newspaper photographer when he was arrested for shoplifting in 1971. A judge dismissed the charge. But over a year after his arrest, local law enforcement included his name and mug shot photo in a public listing of “Active Shoplifters.”

This caused “untold humiliation and embarrassment to me in front of my family, associates, and professional colleagues,” Davis later wrote. Under pressure from his supervisor and surrounded by coworkers who thought he—”the only black working in the department”—was an active shoplifter, Davis left his job, hoping “to regain my full sanity and keep what little self-respect I had left.” But he could not find work as a photographer nor in any other field, as the blacklist stood between him and employment.

The US Supreme Court acknowledged that Davis was neither tried nor convicted, and had suffered devastating effects as a result of being publicly branded an “Active Shoplifter.” Yet they ruled he could not sue the government for violating his civil rights.

Davis’s experience left him “broke, without employment, emotionally sick and in a state of anxiety… I have neither the financial nor the emotional drive to continue fighting with this system any longer.”

His words echo in many of the coaches and athletes listed on the US Center for SafeSport’s Centralized Disciplinary Database.

Their reputations are destroyed. They cannot find work in, and often out of, sport. They are socially and professionally exiled. Legal fees start around $10,000. They wonder how this could happen to them as Americans. Several listed individuals have committed suicide, others have died deaths of despair. Others still have thoughts of self-harm and struggle with substance abuse. Many more deal with depression, anxiety, and post-traumatic stress symptoms from the forward-facing effects of having their listing and the media articles written about it occupying the top search results for their name.

In a dark echo of Davis’ case, one coach remains on the list despite the charges against him being dropped… in 2023.

Some cross-border trade really is zero sum

This is what the Future of Sport in Canada Commission wants to import from down south.

And it will be worse in Canada. While the US darkens new roads for punishment and harm, Canada is the innovator when it comes to new offenses.

In 2023, the Honourable Hugh Fraser, O.C., a globally respected sports arbitrator, released his report into allegations against a collegiate coach in Saskatchewan.

Fraser wrote there was “no evidence before me to suggest that [the coach’s] behaviour had involved sexual misconduct.” But his actions “[had] potential to cross into sexual behaviour.”

Fraser’s basis for that conclusion included the coach showing “preferential treatment” towards a group of athletes, such as “becoming close with their families and visiting their homes for meals.” Note that the coach was going to the athletes’ houses, in the presence of the athletes’ parents, presumably at their invitation. It’s doubtful he was crashing dinner. But Fraser could not rule out that the coach was playing the long game. Fraser cited a definition of grooming as “a slow, gradual and escalating process of building trust and comfort with a young person.”

Word for word, that describes coaching. Indeed, many of the behaviours Fraser cited could be lauded as best practice.

Dr. Paul Gamble is a coach and sport development expert in British Columbia.

“The notion that showing favour or forging a relationship with an athlete’s family is construed as ‘preferential treatment’ and implied to constitute grooming behaviour is emblematic of this [problem]. In talent development and youth development, the coach-athlete-parent axis is critical. In other words, the coach should invest in building a relationship with the parent and family of the young athlete,” Gamble says.

Yet Fraser used these actions to justify an “indefinite” suspension.

Proving there is no trade deficit in bad ideas, Fraser’s expansive conception of grooming is taking hold at the US Center for SafeSport. The Center’s recently-released National Coaches Survey classifies many of these same actions as “Boundary Violating Coaching Behaviors.”

The most common such behavior was “initiating a hug with an athlete.” Meanwhile, a former collegiate and Olympic coach in Canada said one of the most common bits of feedback the coaching staff would hear from the graduating women athletes was, “more hugs.” The athletes thought the head coach sometimes was too stand-offish and not recognizing that they needed that extra sign of reassurance and support.

Gamble says that coaches have a “duty of care to recognize these individual needs and do our best to serve them in the most appropriate way. Yet according to the SafeSport report, ‘giving special attention to an athlete’ is a boundary violating behaviour. Any gesture or interaction that indicates ‘preferential treatment’ is a potential red flag.

“What constitutes preferential treatment is open to interpretation, but essentially any example of individual attention is a potential violation as it is unequal. Again, this entirely contradicts the premise that we should attend to each athlete as an individual and conduct ourselves accordingly.”

The former coach sums up the lose-lose situation: “If you hug an athlete, someone will think you’re a groomer. If you don’t, someone else will think you’re a cold incel type.”

Canadian athletes appreciate the danger, too. In an open letter to the leadership of Rowing Canada Aviron (RCA), the International Consortium on Female Sport shared “the feelings of defeat and helplessness” of a female Canadian rower trying to navigate the dueling subjectivisms of RCA’s gender inclusion policies and its “Safe Sport Policy”:

“I’ve read through the Safe Sport policy many times, and fear that it’d be weaponized against me if I complained about men in my sport/change room. A man’s gender identity always trumps a woman’s in this topsy turvy world. I can argue [many personal things], but that will be dismissed because a man with a gender identity would be upset.”

Future without sport in Canada

Both Canada’s and the United States’ experiences with implementing their respective safe sport regimes are at odds with optimal athlete development. That disparity will widen as both countries adopt the worst of the other.

An American criminal defense attorney now working in sport law said these systems are “driving out any coach who is conscientious. The coaches we are going to lose are the ones who say ‘If I can’t take care of my athlete, I don’t want to coach. And I’m not going to coach if doing so puts me at risk.’”

The Future of Sport in Canada Commission’s two mandates were improving safe sport in Canada, and improving the sport system in Canada.

The Commission’s mandates are not mutually exclusive. However, the second goal includes improving the competitiveness of Canadian athletes and teams, which will require developing and retaining high caliber coaches. But coaches don’t like losing and they don’t like rigged games. They are taking Fraser seriously when he wrote that his “findings should serve as another cautionary tale about the risk that coaches run when they become too close to their athletes.”

In addition to the coaches who have been banned without due process, for normal and often positive interactions with their athletes, or on the basis of malicious or spurious accusations, many others are quitting while they still have something to protect.

“The consequences are profound. The risk / reward calculus no longer makes sense. We can expect more and more coaches to walk away rather than risk their reputation, career, and life for the sake of coaching sport,” Dr. Gamble said.

Former Athletics Canada head coach Peter Eriksson dissuades young aspirants from the profession.

“I wouldn’t recommend anybody be a coach in today’s environment. As a coach you are at risk all the time. You’re subject to everything and anything. If somebody young, with a family and a mortgage, said to me, ‘I want to be a coach,’ I would say, ‘No. Go find something else to do.’”

Eventually, the only coaches left to ban will be those not worth having.

Extra-judicial is unjust

The United States and Canada have well-functioning judicial systems. Neither are perfect, but both are far better than their domestic detractors would have you believe.

Emotionally charged and controversial cases will always leave a segment of the population angry and aggrieved.

Justice William Brennan, in his dissent in Davis:

“It is not difficult to conceive of a police department, dissatisfied with what it perceives to be the dilatory nature or lack of efficacy of the judicial system in dealing with criminal defendants, publishing periodic lists of ‘active rapists,’ ‘active larcenists,’ or other ‘known criminals.’”

Substitute “activists and outraged citizens” into the quote above, and you have the mindset that advocated for the creation and continual expansion of the US Center for SafeSport. The feeling is similarly feverish in Canada in light of the Hockey Canada verdicts last year.

For many safe guarding advocates, this is the promise and not the peril of the registries. Vigilantism re-branded as a safety net.

There are many areas in which the United States and Canada should work together and play to their respective strengths. Safe guarding one-upmanship is not one of them. One side must stop it for the sake of sport and citizens on both sides of the border.

Related:

• The Tyranny of Safe Guarding in Sport (Informed Practitioner in Sport)

• Three safe guarding violations a day (Abuse of Process)

• Unsafe in Any Sport: The Constitutional and Structural Failure of the U.S. Center for SafeSport (Colorado Law Student Scholars)

• No innocent construction (Abuse of Process)
  

Photo credit: Michael Swan / Flickr, under CC BY-ND 2.0.