Part 3 Target and Isolate

I

The email from the Zone Director was  a bit of a shock and of course I completely disagreed with her position, especially since there was the possibility of her being in a conflict of interest, but it was what it was. The father had already begun to seek a release for his son and I believed that the club registrar was working on clearing up the circumstances surrounding the release. I was confident that, given the whole story, the OLA would rule the son’s release from 2014 was voided for several reasons, the least of which was entering in false information on an OLA form.

There were two parts to the suspension: unregistered players and tampering.  The former charge was similar to the charge levied on the Rep Director regarding her son; curiously, she received her notice about 15 minutes after I received mine.  I was the only one on the Intermediate team that was charged with this infraction.  The father, my assistant coach on the team, was not charged, nor was the team manager or Rep Director, who were all present that night.  The charge of having unregistered players on the floor would eventually be dropped under curious circumstances.

The second charge, tampering, was based on the following article of the OLA rules and regulations:

MR3.05
Any O.L.A. member and/or club found tampering with players or obtaining releases for players or not otherwise complying with intent of the residence rule regarding releases shall be suspended until dealt with and/or forfeit their bond and be fined one thousand ($1000.00) dollars. The player(s) will not be eligible to sign with the team with which he (she) participated without permission.

Tampering shall be defined as follows: Inviting or allowing to participate in camps, clinics, practices, or to play in any scheduled or exhibition games, a member of another club, without first having obtained written permission from that club.

The tampering rule is in place so that one club does not steal or raid another club’s players and to enforce the ‘residence rule’ which basically limits players to membership in their local club until officially released.  Again, I was the only one charged; no other person involved with the team was sanctioned.

When the email arrived, I was faced with several problems: as far as I was concerned, by reading the previous year’s release form, the designation of ‘unconditional’ did not apply regardless of Zone Registrar’s opinion – she was the one that approved the release process the previous year anyways, one could hardly be expected to overrule one’s self.  In my defence, I believe I had information contrary to her opinion on the ‘unconditional’ status of the player and I believed I was entitled to present this information in an appropriate forum before any discipline was levied.  In addition, the son’s release process was obviously not made in good faith, punishing the son for the sins of the father.  The release form was incorrectly filled out and contained false accusations against another member of the OLA, the father.  Based on these conditions, the release was void based on rule MR3.08 which states”

“All agreements with the OLA regarding releases will be honored provided that such releases are made according to the regulations.” 

Clearly this release had not been made “according to the regulations” and I was certain that my argument was convincing enough.  I would never get the chance to present it.

The most difficult problem however, was the person was making the ruling, the Zone Director, the same person who had led the drive to rid the club of the father the previous year.  By making false accusations on an OLA document, she was clearly in contravention of OR8.05:

OR8.05
Any Club, Minor Association, person, or player who shall knowingly insert or cause any false information to be entered on a playing certificate, game report sheet, or any document, book or record which relates to the affairs of the Club, Minor Association or the Corporation may be expelled from the Corporation by the Board of Directors.

As it stood, the person who tried to get rid of a father and his son from the club was now suspending me for an incident caused by her actions!  Not too subtle and a little bit too much of a conflict of interest for my liking, so I did the only right thing I could think of, I rejected her authority in this particular case, and appealed directly to the OLA, and copied them in my reply.

I reject your notice of suspension on the following grounds:

1) I was not informed of any player’s ineligibility until after-the-fact.  (see —-Club Registrar—–‘s email Wednesday, April 22nd);

2) I was not informed of —–son—–’s ineligibility until after-the-fact. (see —– Zone Registrar—–’s email Wednesday, April 22nd);

3) I did not “knowingly” allow a —–other club—– player on the floor (see #2) and all the previous correspondence about his illegal release last year;

4) Because of the dispute between two clubs over a player, I was not given a hearing per MR3.06;

5) I did not deliberately disobey anything according to the above – these facts are all known to you; and (most importantly):

6) You, —–Chair of Zone Disciplinary Committee, —–Club President—– and anyone else participating in the —–son—— release circumstance last year are in conflict of interest and are unable to conduct your duties in this particular matter, without bias.  This is not my opinion, it is a legal one.  —–Zone Registrar—– provided an opinion on a circumstance, but did not provide a ruling from the OLA on the legitimacy of the —–son—–’s release.  We can hardly expect someone with a conflict of interest bias to provide a fair and equitable opinion now can we?

 Therefore your authority is void and rejected, and so is that of anyone on the Zone 6, until cleared of conflict of interest on this matter.

Thus, the only authority in this case, according the OLA Constitution per OR8.04, is the OLA Board of Directors or one of —–OLA VP Minor—–,—–OLA President—– or —–OLA Executive Director—– who can compel a hearing at the OLA level.  I would greatly welcome a hearing with the OLA to discuss the details and circumstances of the —–son—– situation in full, and look forward to correcting this unfortunate circumstance for this player and his father and seeing that it never happens again.

Tonight I have a midget team meeting and practice from 7-9 PM and an Intermediate tryout at 9 PM.  If of —–OLA VP Minor—–,—–OLA President—– or —–OLA Executive Director—– wishes to issue a suspension, I will comply, otherwise I will attend to my coaching duties as I normally would.

Thanks all and have a great day!

I am fairly familiar with the OLA constitution, bylaws and rule and regulations.  I have a long history of experience with things such as government legislation, laws and policies through my occupation.  At that time I was somewhat familiar with NPO law, the Ontario Corporations Act, disciplinary procedures, etc.  There was no way I could conscientiously accept what was happening, especially since it appeared that there was a good deal of conflict of interest on hand.  But it gets worse…

Shortly after my reply, I received a message from the OLA’s VP of Minor, copied to 15 others, and this is what was written:

I now think it’s time for my input. The release in question was unconditional as stated by —–zone registrar—– who as zone registrar would have access to that fact. It was not appealed at the time it was granted therefore they (—–son—–) accepted the unconditional release.

 Your registrar signed —-son—– for the 2015 season to Oshawa without a release from —–local club—– which he needs to have if he wishes to play in Oshawa.

Please refrain from making allegations of wrong doings. It is the prerogative of the club to release with or without conditions and to grant unconditional releases. —–zone registrar—– made it quite clear as to what the procedure is to follow and she is an OLA representative. Her word is good enough. I advise you to stop sending anymore emails to this matter and save it for your discipline hearing.

I replied,

Is this an official notice that the OLA is suspending me and that a hearing will take place with the OLA —–OLA VP of minor—–?

Note that —–son—– DID NOT make a request for an unconditional release, it was FORCED upon him by —–former club Rep VP—– & —–club president—–, without the informed consent of the OMLA Board of Directors, as per the club’s Constitution, which is filed with the OLA.  Furthermore, the situation was contrary to the OLA Constitution.

 So I completely reject any suspension from the Zone.  Any suspension issued by someone in a clear conflict of interest situation is patently absurd.

 If you want to suspend me and grant me a hearing, please do so.

 Thanks and have a great day!

After some more back and forth, the club president weighed in:

I have ccd  —–OLA VP of Minor—–. It’s my understanding you are not to have any contact with the players or to be in the arena during a tryout. You can not attend the parent meeting. Am I correct —–OLA VP of Minor—–? Todd I understand you are frustrated but we need to take care of the hearing first.

Shortly after receiving the message from the OLA VP of Minor, I received a notice of a disciplinary hearing from the Chair of the Zone Disciplinary Committee.  Remember the previous year’s Zone Director, the person copied in the release notice to the father and the same person who, as president of another local club ears before, had suspended me from volunteering without any hearing?  She was now this Chair of the Zone Disciplinary Committee.

—–OLA VP of Minor—–,

On behalf of the Zone, I thank you for your time taken to clarify through emails.

Todd and to the Oshawa Minor Lacrosse Association, Todd’s suspension ‎by the Zone shall cover his activities in all phases of lacrosse until a hearing can be held.

The hearing date has been scheduled on May 4, 2015 at 7:00pm at ‎the Courtice Arena.

Todd, please confirm your attendance to —–Zone Director—– and myself.

Please be advised that any future emails should remove the OLA personnel since this is a Zone level discipline.

Regards,

—– Chair of Zone Discipline Committee—–

There was more back and forth in the background that day, telephone calls, emails, discussions.  Most persons uninvolved were as appalled at the situation as I was.  However, the father would take over coaching the Intermediate team and the assistant of the Midgets would run the Midget practices until this was all cleared up.  I didn’t think it would take very long.  Boy, was I wrong.

II

There are a few key things to note from this suspension notice, both from a legal and moral standpoint.  You decide which is which, and which one is more important:

–        When I was suspended, the team was still going through tryouts; they hadn’t played a single game, let alone even a practice.  In fact, there wasn’t even a ‘team’ in the normal sense of the word.

–        I was suspended without any hearing; it was not like I was criminally charged or anything like that.  I was not given the benefit of the doubt, nor was anyone else suspended.  Clearly I was targeted by persons who had obvious conflicts of interest in the matter, especially since – if it could be proved – their actions from the previous year could get them suspended or expelled from the OLA.

–        The OLA VP of Minor stepped in and made a ruling on an opinion that had not yet been discussed at a formal hearing nor had she reviewed all the evidence surrounding the player’s status.  In my view, by doing so, she had declared her bias and ruled herself ineligible to participate in any appeal hearing on the issue.

–        In her original email, the Zone Director suspended me from “the floor or bench” however the Chair of the Zone Disciplinary Committee specified, “…activities in all phases of lacrosse…”  This contravenes the OLA rule MR10.13 that states,

“Suspension of an individual by the Corporation shall cover his or her activities in all phases of lacrosse unless specifically stated otherwise at the time of suspension.”  (Emphasis is mine)

Essentially the Chair of the Zone Disciplinary Committee overruled the Zone Director and the OLA Rules and Regulations.

In the intervening week and half until my hearing, I kept busy lending a hand where I could.  Earlier that year I was asked to return to the club board of directors to help out and I continued to honour my volunteer commitment.  I was still in contact with the bewildered Midget and Intermediate coaches, supplying practice and tryout plans, discussing team goals, conversing with concerned parents and so on. I was also working with the house league VP to improve programming, something we were both looking forward to.

While I waited for the Zone disciplinary hearing to take place, I was also keeping busy by learning as much about administrative law as I could, especially in the context of minor sports organizations.  The more I read, the more I was appalled – not by what the law outlined, but how far off course the Zone had gone.  Not following their own bylaws, not following their own rules, changing the meaning of the rules mid-course, etc. – all of these things the result of a very distorted and broken system, at least at the Zone level.

At one point, the question of my membership in the OLA came up as I had not registered online.  There was some back and forth about this too; the main concern was that if I was not registered, then the Zone could not require me to attend a disciplinary hearing.  I had already registered on a paper form in March during the initial round of rep tryouts, but despite me informing the OLA of this, I was required to re-register using the online system.

There is an important point to be made here: I could have refused to be registered and thus not subject myself to this ridiculous process.  By this time I was fully aware that by registering I would give up any legal rights I had with regard to using the courts to resolve the disputes.  However,  as naïve as it may seem I truly believed, despite the mounting evidence to the contrary, that once I got a hearing with the OLA, rational minds would prevail.  That was the goal behind my initial response to the Zone Director, to reveal this whole sordid affair to the OLA in order for them to correct it.  So I registered.  I made the choice knowing the risks.

Administrative law, which is purportedly what the OLA disciplinary process was based on, describes a few key situations in which fairness cannot be achieved in a disciplinary process.  Chief of these situations is one where the discipline is administered by persons in a conflict of interest situation.  When I arrived at my hearing on May 4th, I saw that the Zone Discipline Committee was comprised of 3 persons:  the Chair of the Zone Disciplinary Committee, who was also the former Zone Director; the Zone Registrar and the assistant Zone Director.  Also in the room was the new VP of Rep for Oshawa.  Three of the four persons in the room directly participated in the actions against the father and the son.  Of course I suspected that this type of overloading might happen and had prepared a statement ahead of time.

Throughout my working and sporting life, I had attended my fair share of hearings for one purpose or another.  In fact, I attended a Zone disciplinary hearing with my then 19 year old son a few years before, which was led by the then Zone Director, now the Chair of the Zone Disciplinary Committee.  Without exception every single hearing I have attended allowed the disputing parties to bring representatives along with them.   Administrative law allowed for this and all of the other sport disciplinary processes encouraged the practice.  It was almost a commons sense practice.

III

Prior to the hearing, I had arranged for a friend – experienced with OLA hearings of her own – to come with me and take notes.  In my particular situation, I was afraid that I might not be able to take good notes for any appeal I might have to make.  To my surprise, once we entered into the room, the Chair of the Zone Disciplinary Committee immediately stated that my representative was not allowed and that if she did not leave, the hearing would not take place.  Despite our protests, my representative left the room and the hearing commenced.  As expected, I was isolated.

When the hearing started I asked a few preliminary questions: was there a disciplinary process document that they could give to me so I could what the process would entail?  I was given a brief explanation of the process, but no, there was no documented process.  I then asked if there was some sort of document outlining my rights and obligations.  The answer was no, there was no such document.  I then read a prepared statement explaining that, due to obvious conflict of interest, I could not continue the hearing since an unfair process cannot arrive at a fair decision.  I then thanked the Committee for their time, and left.

My rationale for presenting the statement was based on a reasonable understanding of administrative law and the fact that regardless of outcome, an appeal to the OLA was available.  In other words, I saw a hearing with three of the four persons potentially sitting in conflict of interest, to be a waste of everyone’s time.  It was unreasonable for me to expect the Zone would rule against itself, especially since the persons making the decision had caused the situation in the first place.  In essence, I refused to speak at the hearing, would not answer any questions, get ruled against anyways and then take my appeal to the OLA to be dealt with.  I had made this plain from the very beginning and in good faith.

When I left the hearing I expected to be informed the Zone Discipline Committee made their decision to uphold the suspension and allow me to move on to appeal.  Instead, shortly after the hearing an email went out from the Chair of the Zone Disciplinary Committee, copied to the usual group including the OLA VP of Minor, stating that my refusal to take part resulted in the hearing to be deemed void, as not have happened.

‎Good Day Todd,

Due to the fact that your suspension hearing at the Zone level did not occur last night, please be advised of the following: As a non Ontario Lacrosse Association member, you are NOT permitted to be associated ‎with or participate in any OLA sanctioned events or club activities. IF you register as a volunteer with any Ontario Lacrosse club as a volunteer, you WILL be required to attend the Zone hearing for the present suspension. To —– Club President—– and the Oshawa Club, please immediately remove Todd Powless from all Oshawa Minor club activities and correspondence. If you need any further clarification, please feel free to contact myself.

—— Chair oTina Manning—–

Chair of Discipline Committee

Needless to say, I was astounded with this particular ruling.   The hearing happened, I refused to participate because of conflict of interest issues.  However, the Zone did uphold my suspension and then stated that unless I had a Zone hearing, there could be no appeal.  An administrative sleight of hand, almost like it was planned.  I protested this ruling, explained how administrative law worked, explained how common sense worked, but to no avail.  To make matters worse, the OLA VP Minor agreed.  Something was very wrong indeed.

At this point, I want to illustrate two very important concepts that will repeat again as the story moves forward: that I was targeted and that I was isolated.  In the very first notice of any wrong-doing, I was served notice that I had broken the OLA rules on tampering and having unregistered players on the floor.  Even if those were the worst things to happen to an Intermediate coach, there were always alternative ways in which Zone could have dealt with this situation in good faith, in an effort to resolve the dispute.  While I chose to register and subject myself to the OLA stream of discipline, I never chose to be treated unfairly.  No one does that.

In the OLA rules and regulations, right underneath rule MR3.05, which is the tampering rule, is another rule:

MR3.06 In the case of a dispute over a player by two or more clubs, the dispute will be settled by the Board of Directors after a hearing involving all parties. The player shall not play until the dispute is settled.

The Zone could have cited this rule instead, had a productive hearing about the situation, and attempt to resolve the issue with the father and the son.  That they did not could indicate that there were ulterior motives at play that did not have dispute resolution as the goal.  Citing MR3.06 would be fair play and good faith.  With regard to the accusation of unregistered players being on the floor, the Zone could have instead cautioned the club about insurance implications and left it at that.  In other words, the Zone Director and Chair of the Zone Discipline Committee chose the harshest penalty possible.   When the policies on harassment, fairness and proper conduct are so clearly made, why would the Zone take this route?  I believe that to the Zone participants it had become personal.

It is more or less common and expected that when one goes into a hearing, especially a disciplinary hearing, that the accused has some form of representation unless they choose not to.  In my case, I chose to have a representative, but despite the history of allowing such things, the Zone denied me a representative in the hearing.  They could have allowed it.  They have allowed it before, and have likely allowed it since, but in my case it was denied.  Why would they do this sort of thing?  The only rational answer that seems to fit is that if you are going to treat someone unfairly, it is best not to have witnesses that may confirm a different re-telling of what was said and done.

As fruitless as such efforts were, all the way along I disputed what was being said and done to the best of my ability.  While it may have become personal for the participants in the Zone, for me it had become an important matter of principle since I realized at that time that if this could happen to me, it had likely happened to others and would likely continue to happen.  Besides, at the very least, I might get information in writing that could help me and help me deal with the bigger picture later on.

IV

Each minor association member of the OLA is strongly encouraged to register as an Ontario Not-for-Profit corporation.  When an NPO is created there are certain legal requirements that must be met and including the creation and maintenance of bylaws.   When the Oshawa lacrosse club was created, a constitution and set of bylaws was created and submitted to the OLA as part of the membership acceptance process.  I helped write the club’s constitution and bylaws based on a version used by another local club.  In other words, I was very familiar with the club’s bylaws, policies and rules.

What are bylaws for?  They are internal governance rules that the organization must follow and include the terms and conditions of membership in the organization.  In the OMLA bylaws, part of these membership terms and conditions are procedures to suspend membership and that suspension clause clearly calls for a hearing process.  The person to be disciplined has a right to be heard, a right to present their rebuttal for any accusations against them.

2.03 Terms and Eligibility

…Members whose conduct is considered by the Board to be contrary to the stated Code of Conduct, the Rules of Play and the purposes of the Association shall be asked by the Board or the Disciplinary Committee to explain or justify their actions. If these Members are unwilling or unable to do so, they shall be asked by the Board to resign from the Association. If they do not resign, they shall be given proper notice of motion, to be considered at the next Board meeting, requesting the termination of these Members. A copy of this motion shall be communicated to the Members concerned within a reasonable period of time for that person to make a written response. If a response is made, it shall be circulated with the notice of motion. Approval of such a motion shall require a two-thirds (2/3) majority in a secret ballot conducted at the meeting. The Members concerned shall be invited to attend the meeting and to explain their positions before the vote is taken.

Furthermore, there is no bylaw, policy or rule with either the OLA or OMLA that specifies that to be a member of OMLA that one needs to register with the OLA:

Sorry ‎Todd,

But until you sort this out with the Zone, Oshawa Minor will be following the outline of suspension issued to you by the Zone. Whether you agree or not, Zone is our governing body.‎ So you are removed from your volunteer positions within the Oshawa Club as stated by —–Chair of Zone Discipline Committee—–‘s email dated May 5, 2015.
 
Part of Zone’s decision was that OMLA was required to tighten up registration for players and volunteers so as President, this must be my priority. 
 
You are not a registered volunteer and the Zone’s outline is pretty clear what happens when you register. Please do not disrupt the Oshawa Board members with any further emails until this situation has been settled. I have no choice. We can not afford Oshawa to have further discipline as a board. Please resolve the issue.

—–Club President—–
President
OMLA

I was not accorded a hearing with the club board of directors, was never given the opportunity to present my side of the story, or rebut the accusations.  I was simply suspended by the club President from contacting any member of the club until my second Zone hearing.  Keep in mind that the club President had knowingly signed the release form for the son the previous year.

The tally so far: I had been suspended from my team by the Zone Director.  Then, without a hearing, I was suspended from all lacrosse activities by the Chair of Zone Discipline Committee.  I had a hearing in which I refused to participate, resulting in a permanent suspension because the hearing was designated as not having happened.  Then I was suspended from the club with no recourse, no hearing and no means to explain my side of things.  All three persons doing the suspending were implicated in a similar action against the father and son the previous year.  It was like I was stuck in some incredulous loop.

At this point, it almost appears as if the father and son have dropped off the radar.  In fact they hadn’t, and were actively pursuing their release.  As expected the local club had denied their request for a release.  (It must be noted that the Chair of the Zone Discipline Committee got her start with this club and was still involved with them in peripheral ways) They then appealed this to the Zone and, again as expected, were denied the release.  They then appealed to the OLA, and were scheduled for a hearing on Sunday, May 24th the day before my second hearing with the Zone.

Next: Part 4 Kangaroo Courts