Sports Q&A: Conducting misconduct investigations
12 April 2022
In an increasingly complex legal and regulatory landscape, dealing with the intricacies of investigations can be fraught with difficulties, especially in a sports context. Often conducted under intense scrutiny, from the media and stakeholders, allegations need to be carefully and appropriately investigated to maintain your reputation and mitigate legal risk. In this Q&A we consider some of the key questions when conducting a investigation into your staff, coaches, officials or members.
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Q. Why would a sports organisation conduct an investigation?
A. There can be very significant legal, commercial and reputational consequences if a club or sporting body fails to deal appropriately with an allegation of wrongdoing. This might include bullying, harassment, fraud, discrimination, cheating, breaches of duties or safeguarding issues.
Conducting a fair and comprehensive investigation into allegations will help the organisation understand what has happened and demonstrate to the complainant and other third parties (such as the courts, fans and sponsors) that these matters are being taken seriously. The investigation may also identify wider underlying problems or cultural issues that need to be addressed.
Q. What does an investigation involve?
A. An important first step is to ensure any relevant evidence is preserved. This may entail securing IT accounts or safeguarding documents and other physical evidence. An investigator would normally be appointed at the outset to look into the allegations. The scope and nature of the investigation will depend on the nature of the issue but invariably this will involve reviewing evidence, interviewing witnesses and then reporting on the findings.
The scope of the investigation needs to be clear, as does the investigator’s terms of reference. Will the investigator be asked just to make findings of fact or will they go on to make recommendations or decisions? In a workplace/employment context any disciplinary sanctions would usually be determined separately as a second stage by another person.
Q. Is it best to use an internal or external investigator?
A. This will obviously depend on the circumstances.
An external investigator may be more appropriate or sensible where:
- the matter is particularly sensitive;
- there is no one suitable internally who has the relevant expertise and is independent from the matters raised;
- the investigation is likely to be very time consuming or needs to be conducted at pace;
- a degree of impartiality or detachment is important to give the investigation greater credibility and to reduce the risk of it being challenged as a sham.
Specialist lawyers will often be used as external investigators, utilising their skills to analyse evidence and interrogate witnesses. Their professional obligations of integrity and confidentiality also give credibility to the process and provide reassurance to those involved.
Q. Will the investigation be confidential?
A. As far as possible the investigation should be conducted on a confidential basis. Witnesses will be asked to maintain confidentiality and the investigation report is likely to be shared only with a limited group of people. Complainants (particularly whistle-blowers) will sometimes ask to remain anonymous. However, inevitably there are often limits on the extent to which confidentiality can realistically be maintained. If a dispute ensues the investigation report and underlying materials will be disclosable and may become public. The findings may need to be shared with the complainant or with a regulator and where serious consequences may flow from the investigation findings the investigator may feel adopting the public sector process of “Maxwellisation” is appropriate in the interests of natural justice (the process of disclosing proposed criticisms of an individual to them for comment prior to finalising the report). All of this can be difficult to reconcile with what is usually intended and assumed to be a private process and must therefore be carefully navigated and borne in mind by the investigator when giving assurances to those involved. It is also one of the reasons why good legal advice is important. Governing bodies and sponsors are also increasingly taking an interest in such matters and want to be reassured that the issues have been properly investigated and remedial measures taken. And of course where the allegations are newsworthy or involve high profile individuals there is always a risk of unwanted publicity anyway so it is sensible to have a reactive communication and reputation management strategy in place.
Lewis Silkin has a team of specialist lawyers with extensive experience conducting investigations in sport on behalf of clubs and other sporting bodies. Find out more about how we can help here.