A Proactive Approach to Dealing with Misconduct in Sports: Defense is the Best Offense

Even in the case of severe and potentially damaging allegations, there are important steps that each organization can proactively take to minimize the impact when and if these types of issues arise.

In the world of compliance, “preventive medicine” is the incontrovertible winning approach. If something goes wrong, the ability to show the preventative measures that were taken can decrease the legal penalties, reputational damage, and other adverse impact to the organization. As part of our Business Compliance and Integrity Monitorships work, Arent Fox advises clients to take three key steps:

1. Conduct Regular Risk Assessments. Sports organizations, including leagues, teams and other sports related businesses often sincerely believe their respective houses are in order even when they aren’t. Even worse, in today’s instant news environment, some still operate under the age old (but patently false) philosophy of “what I don’t know won’t hurt me.” Each of these misperceptions can wreak havoc to all involved. At a minimum, every such organization should review its internal policies, including code of conduct and personnel manuals, to make sure they are up to date and reflect current law. The policies should also include: (i) guidelines and policies on appropriate behavior; (ii) ways for employees and third parties to report misconduct; and (iii) anti-retaliation language to provide whistleblowers with appropriate protections.
2. Train Personnel on Policies and Procedures. One key aspect that any government agency or plaintiff’s lawyer will review is whether or not an organization has a regular and robust training program. Policies mean little if employees are not educated on their existence. All organizations should regularly provide employees training regarding the rules that govern conduct. The training should be mandatory and interactive. Providing this training allows the organization to set the tone at the top. The head of the organization and each department should attend and also reinforce the importance of attendance by all.
3. Immediately Investigate Reports of Misconduct. When a report is filed and contains potential misconduct, it often starts internally. An employee or third party will inform someone who has a leadership role of what they heard or experienced. Under the law, once that individual becomes aware of the potential misconduct, the company could be liable. At that moment various obligations regarding reporting, investigating, and remediating may come into play.

Careful adherence to these three steps can help mitigate the risk and prevent additional damage when sports organizations come under scrutiny for highly sensitive matters. The ability to show a prosecutor, regulatory agency, or plaintiff’s attorney that the organization maintains a robust compliance system and that it acted promptly and reasonably to deal with it often goes a long way toward building a solid defensive strategy and has the added benefit of providing the other employees with a feeling of confidence that the organization takes misconduct and other related matters seriously. There is increased value in having an independent party involved as early as possible in the implementation of this strategy. Involving a third party who has credibility with government agencies allows an organization to design programs that meet any necessary legal requirements.