Procedural Fairness is Paramount: Investigation and Sanction Decision Overturned Due to Unfairness
Procedural Fairness is Paramount: Investigation and Sanction Decision Overturned Due to Unfairness
Our team won yet another sports appeal in a decision that reinforces a critical principle: even detailed investigations will not stand if procedural fairness is compromised during the investigation.
The appeal succeeded because the investigator failed to interview a clearly relevant witness—and did not explain themself. This single gap rendered the evidentiary record incomplete and the decision incapable of being found reasonable. The sanctions were set aside and the matter was sent back for a fresh investigation.
Bottom line for organizations and ITPs and Investigators:
- You are not required to interview every witness
- But you must account for your decisions—and show your work
Procedural Background
Our client (the “Appellant Athlete”) appealed sanctions imposed following a misconduct investigation into multiple alleged incidents. The organization adopted the investigator’s findings and imposed a multi-season suspension and additional conditions.
On appeal, the panel applied a correctness standard to procedural fairness issues and set aside the investigation and resulting decision, ordering a new investigation with a different investigator.
Why the Decision Was Overturned
This successful appeal built on the conclusions reached by Arbitrator Bennett in Anonymous v. Hockey Canada, which are that you cannot review findings that are reached by omitting, without explanation, relevant testimony. All of the findings, including conclusions about credibility, fall apart.
In this case the investigation and decision was quashed because:
1. Failure to Address a Material Witness
The Appellant Athlete identified a witness with direct knowledge of a key incident. The investigator did not interview that witness and provided no explanation in the report.
2. The Real Problem: Lack of Reasons
The investigator was not required to interview every witness—but was required to explain the decision not to. Without this, the record was incomplete and the decision unreviewable.
3. Credibility Findings Were Compromised
The investigation relied on a pattern of conduct across incidents, meaning one missing piece of evidence could affect the entire analysis and unravels the entire report.
4. After-the-Fact Fixes Don’t Work
Supplementary explanations cannot cure deficiencies. A decision must stand on its own reasons and it is not open to the investigator to try and justify their process after the report is complete.
5. The Remedy: Start Over
The decision was set aside and the matter remitted for a fresh investigation with a different investigator.
Key Takeaways for Sport Organizations & ITP Providers
- Assess all material witnesses and document decisions
- Provide clear reasons for excluding any witness
- Ensure the evidentiary record supports credibility findings
- Do not rely on post-hoc explanations
Final Word
Procedural fairness is the foundation of a defensible outcome. A well-reasoned decision cannot survive if the process is incomplete or unexplained.
The Loopstra Nixon sports law team members are experts at these types of matters. We litigate complaints constantly, and whether we are prosecuting or defending them we hold sports organizations to account and ensure that processes that determine important rights of participation are (and are seen to be) fair, transparent, and trustworthy.