The fast-emerging stories of historical abuse in youth football have highlighted the vulnerability of sports clubs and other not-for-profit organisations to their own pasts. Brent Haywood, Partner in our Dispute Resolution and Litigation team examines some of the issues organisations may face.
Events long ago (or the mishandling of events long ago) under different managers or trustees can easily re-emerge years later, casting doubt over an organisation’s practices or reputation. Organisations of all sizes – from church groups to football clubs to large charities – must know how to react if this happens.
Most organisations now have well-defined policies and procedures for protecting children and other people who are vulnerable by reason of their age, health, or physical or mental abilities. These will include procedures for responding to concerns raised. But a learning point from the current media stories is the difficulty of doing this in practice. This applies equally to historical allegations and those in the present day.
The principal challenge with these cases is that the legal requirements, reputational ramifications, and people’s instinctive desire to be transparent, deal with an issue quickly, or make up for possible wrongs may not always align completely. And with historical cases, previous circumstances such as confidentiality agreements can intensify the challenges.
Further exacerbating the difficulty is the current tendency, in particular in social media, to adopt binary attitudes, when in fact many incidents are nuanced. In addition, it is asking a huge amount of individual trustees or volunteers to deal effectively with events or allegations that, in many cases, would be challenging for experienced professionals.
The first priority in handling an allegation of historical or recent abuse or any other complaint is to follow due process. Ideally, this will be encapsulated in the organisation’s own guidelines and processes, though this should not be assumed.
Critically, due process must be followed as soon as a complaint or allegation is made. There’s a tendency among the inexperienced to think that due process and the right to a fair trial under Article 6 of the European Convention on Human Rights relate to ‘bigger-league’ contexts only, and not to their own circumstances. Far from it; any case, no matter how ‘small’ it seems initially, can escalate easily if there are not proper processes around it.
Following due process is critical, but due process itself may not provide all the answers. A common problem we’ve seen when working on cases involving child protection issues is the response or action ‘that seemed right at the time’. A complaint is raised, and the trustees or managers take steps to sort it out quickly so that people and organisations can move on. Due process is followed, consensus is reached, and the situation seems to be resolved.
Except that it isn’t. Perhaps someone did not realise the long-term consequences for their career and later regrets the course taken; perhaps an organisation failed to anticipate the possible reputational consequences; perhaps the incident is re-opened ten years later and a a settlement or compromise agreement begins to look like a cover-up; or perhaps parents or carers underestimated the effects on the child involved.
Actions taken quickly or ill-advisedly can be extremely difficult or even impossible to unpick. This certainly applies in legal terms, but also perhaps in reputational or psychological terms.
Given this complexity – and the fact that every allegation may involve life-changing events or consequences - every case must be handled with legal skill, certainly, but also with emotional intelligence from lawyers and other professionals. All groups or clubs, and their advisers, need the ability to see the bigger picture, including the possible longer-term legal consequences, the scope for misconceptions or rumours, or the effects on individuals and organisations. This requires high levels of experience and judgement, beyond what may be available in the organisation itself. These are certainly not DIY issues.
When we read the stories of football abuse in the media, we’re rightly shocked and astounded at what seems to have occurred in the past. We should be pleased that so many organisations now have better governance practices in place to protect the vulnerable, but we should also recognise that they don’t provide all the answers to how to deal with historical or present-day allegations.
Inevitably, there will be many more allegations to come, not just in sport but in other spheres of life too. More than ever, grassroots organisations and their advisers need to avoid over-hasty reactions and legal naivety when we deal with them. As well as people’s well-being and lives being at stake, it’s also the functioning of our civic society and local communities.
This article was featured in the Scotsman on Monday 16 January 2017.
