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Member protection is a key element in all sporting environments. As people involved in sporting organisations and associations it is our responsibility to promote safe and fair practices to protect members from discrimination, abuse, harassment, child protection issues or any inappropriate behaviours.
To guarantee member protection in sporting organisations and associations, Sport Australia, requires all sports funded by the government to adopt additional specific policies in addition to any existing policies. If you receive this funding, your organisation will need to ensure these policies are up-to-date for both compliance and regulatory purposes.
In this article, we will explore with more detail the purpose and risk mitigation benefits a considered Member Protection Policy can have for sporting organisations and associations of all sizes.
What Is a Member Protection Policy?
A Member Protection Policy (MPP) is a document that seeks to guide ethical and informed decision-making in promoting behaviours that guarantee a safe and fair sporting environment for all participants in all levels of sports.
Member Protection Policies are implemented on two levels. At a sporting association level and on a club or league level.
In recent years there have been significant changes to what falls specifically into ‘member protection’. Previously child safeguarding was part of member protection whereas now it may have its own policy. In its application, however, the Member Protection Policy cross-references other policies, and in reality, it is a number of policies that are often collectively referred to as a Member Protection Policy.
Taking this into account, broadly speaking, the MPP includes the Member Protection Policy itself as well as codes and policies such as the Investigation and Complaints Process. It also cross-references the Child Safe Policy, Human Resource Policy, Social Media Policy and any Codes of Conduct such as the parents’ code of behaviour, coaches’ code of behaviour, athletes’ code of behaviour, etc.
The main Member Protection Policy, however, contains codes for inappropriate behaviours such as abuse, bullying, harassment, sexual misconduct, unlawful discrimination, victimisation and vilification.
Generally, the policy acts as a tool for promoting professionalism in the sport by eliminating unfair participant treatment and championing best practices that promote a positive sporting culture. As such, the policy implementation process must be fair (such as any person investigated for a breach must be presumed innocent) and it must all be handled confidentially.
The main MPP policy covers a number of specific prohibited behaviours. We have listed some of them below:
Abuse
- Physical abuse and assault – Hitting, destroying property, food deprivation, etc.
- Sexual abuse – Assault, rape, unwanted touching, sexual jokes, etc.
- Emotional abuse – Intimidation, humiliation, intentional and repeated embarrassment in public
- Verbal abuse – Repeated insults, body shaming, aggressive yelling, name-calling, etc.
- Financial abuse – Forbidding someone from working, restricting access to bank accounts, etc.
Bullying
- Keeping someone out of a group (online or offline)
- Harassing someone based on their sex, religion, disability, etc.
- Taking advantage of any power over another person
Harassment
- Insulting jokes about a racial group
- Derogatory comments about someone’s race
- Sending explicit messages or emails, etc.
Sexual Misconduct
- Staring or leering
- Unwelcome touching
- Requests for sex
- Taunts based on sex
- Suggestive comments or jokes, etc.
Unlawful Discrimination Based on;
- Age
- Race or ethnicity
- Disability
- Sex, marital status, pregnancy, etc.
Victimisation
- Alteration of an employee’s duties or position because they complained about something
- Repeated denial of opportunity without merit
- Dismissal of an employee or volunteer in response to them filing a complaint, etc.
Vilification
- Publishing malicious racial claims
- Repeated abuse about a person’s race or religion
- Painting someone’s race or religion in a bad light, etc.
What else is under the member protection umbrella?
As mentioned above there are a number of areas that fall into broader member protection, including child protection, social media and the investigation and complaints process.
Various ‘working with children checks’ and laws in the relevant states or territories will need to be followed so that only suitably qualified and safe adults work with children in the sport, providing a safe, inclusive and protected environment for participants.
Social media policies on both a national, state, local or community level can assist in avoiding anyone connected to your organisation, bringing your sport or organisation into disrepute. A potential breach can eventuate in many ways but often by way of comments or abuse.
Well-known examples of social media implications that brought the sport, and the organisations they are connected to, into disrepute, include former US Olympian Michael Phelps and Australian Olympian Stephanie Rice. Michael Phelps was punished for inadvertently posting pictures of himself on an intravenous drip (doping) and smoking a bong, leading to prosecutions. Stephanie Rice, an Olympic Swimming multiple gold medallist, used homophobic language on social media after excitement about her then-boyfriend’s international rugby win against South Africa. She reportedly lost $500,000.00 in sponsorships, amongst other punishments. These mistakes are easily made. If the media-trained people of sport have had these lapses in judgment, then the risk is real for everyday amateur participants and members of your organisation.
Additionally, athletes and officials often don’t realise that comments made on social media about a sports decision whether “in play” or not, may be seen by management even where a person’s social media settings are private. For this reason, social media conduct must also be addressed and integrated into the broader MPP, and the subject of education to your members.
In the event there is a breach (or potential breach) of any of these member protection policies in place, protection is to be offered to all members.
The investigation and tribunal process set out in the MPP needs to be carefully followed, providing participants in the process with procedural fairness. A balance needs to be struck between the interests of the complainant, say a victim of alleged child abuse, and the respondent, who rightly is entitled to be presumed not guilty.
Standing down or suspending an official or coach can lead to inferences that they are guilty of, for example, of child abuse which can ruin a career. Caution needs to be taken to avoid a defamation claim against your people and organisation in these circumstances.
The complaints and investigation process can sometimes include mediation (only where appropriate), and referral to a disciplinary tribunal where necessary.
When our team are called in to provide specialist assistance or advice with the investigation of potential breaches of any of these policies, we see where out-of-date policies have exposed the organisation and its members to unnecessary risk.
For smaller sports, particularly those with outdated policies or constitutions, a Member Protection Policy is a very useful tool to assist in the prosecution of a person who brings the sport into disrepute if none of the other policies cover the adverse behaviour that is being sought to be disciplined.
Minimising Risk in Your Sporting Club, Organisation or Association
Risk is apparent in every sporting organisation and association. There’s always an aspect of uncertainty in every activity. More so, the risk of litigation is ever so high. Therefore, it’s paramount to have risk management strategies in place to control risk exposure in activities and protect participants, members, and volunteers.
Some of the risks include:
- Physical risks – Injuries (to public and participants)
- Financial risks – Costs related to injuries, increased insurance premiums, etc.
- Legal risks – Legal action costs for breaching duty of care, etc.
Additional Risk for National Organisations
Since 2016, National sporting federations must demonstrate that they have adopted a Member Protection Policy that is compliant if they wish to nominate athletes for the Australian Olympic Games team. If the association is found to be non-compliant, athletes are ineligible for nomination.
Source: Olympic Team Nomination & Selection By-Law (2020)
Other than reducing the risk of litigation, minimising these types of risks in your sporting organisation or association provides the following benefits:
- Helps with defining insurance needs
- Ensures compliance
- Balances opportunity and risk
- Assists with audit preparation
- Allows for better decision-making
As a sports club, organisation or association, it is paramount that your Member Protection Policy is kept up to date as a way of instituting mechanisms to protect members. Having the right policies in place ensures compliance and mitigates compliance-related risks.
In the event there is a potential or actual breach of any policy, complaints must be managed very carefully. Meaning, the investigator must have no conflict of interest. Where this may be unclear, or where the matter is complex or serious, this is where we can assist to ensure there are no steps missed in the process, and there can be no suggestions of a conflict of interest.
Could Your Member Protection Policy Be Out of Date?
A Member Protection Policy is a generally current document that typically needs to be updated every two years. If it is out of date, it can pose a risk to your sporting club, league, organisation or association.
Every government-funded sporting organisation is required to ensure its member protection policy is up to date. Changes in sporting regulations are frequent, and every organisation should keep up for compliance purposes.
Generally, the Australian government sporting agency, Sport Australia, updates the member protection policy every two years. Therefore, supported organisations and associations must reflect these changes in these policies to continue benefiting from government funding. The recent update of the Child Safe Policy plus other regulations sets the urgency for an immediate revision of out-of-date policies to reflect new changes.
Article by Paul Horvath
Related Articles: High Performance Training and Child Protection in Sport Coaching
Getting Child Safe: An Overview of Australia’s Child Safe Principles for Sports Organisations
Sports Investigations: Allegations Against Coaches, Administrators & Officials
Ethics in Sports: Mitigating Risk for Sports Organisations
Sports Investigations: Allegations Against Coaches, Administrators & Officials
At SportsLawyer we are specialists in member protection policies for sporting organisations of all sizes, across all capital cities and regions of Australia. We partner with your club, league, organisation or association to review existing policies or create up-to-date policies that meet your needs. We can also assist with the delivery and education of these policies to ensure the policies are not just in place, but can be clearly followed. Get in touch with our team, discuss how we can work together for the success of your sporting club or organisation here.
Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought. Please contact Paul Horvath on info@sportslawyer.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.
