Now, more than ever, sports clubs have to be able to effectively investigate historical and contemporary allegations of all kinds of improper conduct. Failure to do so can result in serious financial and reputational damage. This blog is the latest in a series of articles discussing the rising need for investigations in sport and sets out the key considerations of a successful internal investigation through the lens of recent examples.
Discovery of an issue: Take it seriously
Upon discovery of an issue that requires investigation, it is more important than ever to act, and to do so immediately. Failure to act on allegations, or even rumours, can be hugely damaging to any victims and to the sports club itself in the long term. This was one of the findings of the Independent Review into Child Sexual Abuse in Football 1970-2005 which found that clubs “did not pick up on the signs of potential abuse and, if they were aware of the signs, they did not examine them with curiosity or suspicion.”
An immediate response is essential. Regulations vary across the sports sector, but there are several examples of obligations for sports clubs and associations to immediately self-report any issues identified, even before any internal investigation has begun. For example, the Football Association requires immediate notification upon discovery of any potential or actual breach of its Safeguarding Children Regulations. In our experience, immediate or prompt self-reporting is also a crucial point of mitigation when facing enforcement actions and will be taken into account by sports regulators in their decision-making processes.
Kicking off the investigation
It is important to establish the investigatory team at the outset. Senior individuals from within the club should be selected for as small a group as possible, which will ensure the investigation runs smoothly and will also be important for legal professional privilege later on as the client group for any lawyers must be clearly defined. The involvement of lawyers is essential for legal professional privilege. Using external lawyers will also provide a presentational advantage as the investigation will be seen to be objective and independent.
During the investigation
The key practical elements of the investigation are likely to be document review and interviews with relevant individuals. These must both be handled carefully, in relation to both the retention of privilege over any relevant documents and the sensitivities around interviewing those involved in the allegations. Maintaining confidentiality is important and the closed team of investigators should be the only ones to access any relevant material.
Additional considerations throughout the course of an investigation for a sports club will include relationship management with any victims and alleged perpetrators of the wrongdoing, reputational management should the allegations become public, any obligations or potential breaches under regulations specific to the sport as well as general criminal or civil liability issues, and dealing with the relevant regulators (which we will consider in greater detail in the next blog in this series).
An investigation must come to a clear conclusion. This will involve a remediation plan which will often include a list of recommendations that a sports club can proceed to implement. A good example from earlier this year was the NFL’s investigation of the Washington Football Team’s (WFT) workplace culture. The investigation started in July 2020, following a number of allegations of harassment and discrimination within the organisation, and concluded with a summary of ten recommendations for WFT to improve its workplace culture. WFT have agreed to fully implement these recommendations and produce a report on their progress. For example, all senior executives will be required to take part in workplace conduct training, covering topics such as unconscious bias and LGBTQ+ issues.
Engagement with the findings
Last year, the Yorkshire County Cricket Club (YCCC) scandal highlighted how a failure to engage with an internal investigation’s findings can have far-reaching consequences.
YCCC had launched an investigation in response to the allegations made by Azeem Rafiq, a professional cricketer who played for them between 2008 and 2018, that there was “deep-rooted” racism at YCCC, which concluded in August 2021. In October 2021, YCCC announced that the investigation had concluded that “there [was] no conduct or action taken by any of its employees, players or executives that warrants disciplinary action”. This was despite the fact a summary of the investigation’s report concluded that Rafiq had suffered “racial harassment and bullying”.
This led to widespread criticism and eventually a hearing before a parliamentary select committee in which YCCC’s former chair stated that senior members of the board had failed to understand the gravity of the allegations and had “failed to move on the recommendations” presented in the investigation’s report. Had YCCC appreciated the gravity of the allegations and recognised the need for change, it may well have limited the reputational and financial damage that the club has suffered.
There are many important considerations when it comes to an investigation for a sports club. Those involved must be committed to understanding prior mistakes, remain open to systemic change and be willing to confront difficult truths about their organisations.
To read the previous post in this series, please click here.
The authors would like to thank Matt Roderick, Norton Rose Fulbright trainee, for his assistance with this blog post and series.