1 February, 2024
Introduction
Athletes will inevitably get injured playing sports. However, there exists an understanding between participants, coaches, and others that certain inherent risks and expectations exist within the sporting activity. This is referred to as implicit consent and is not explicitly expressed through written or verbal communication. However, it’s crucial to recognize that this implicit consent is not boundless; it comes with clear and ethical limits. The understanding of implied consent in sports must not be misconstrued as a license for misconduct, something that may have occurred in the past. The world of competitive youth sports, often glorified for its tales of triumph and camaraderie, hides a darker narrative beneath the surface.
Part I of this blog will focus on the problems that plague competitive youth sports today with references to two ongoing high-profile actions: Carcillo et al. v. Canadian Hockey League et al. and Cline v. Gymnastics Canada et al. Part II aims to demystify the tort law system in Ontario and provide information on how personal injury claims can assist victims where other avenues of redress have failed.
PART I
A Culture Problem in Competitive Sports
In Carcillo, Justice Perell noted that “…[c]ulture shapes the society of the group … it is through this shared consciousness of thoughts and deeds that the group’s identity and the identities of the members of the group are established.” The culture in this case, however, was riddled with routine hazing, bullying, physical and verbal harassment, physical assault, sexual harassment, and sexual assault, all of which occurred when the victims were minors. Worse, the abuse was often racist, sexist, homophobic, and highly sexualized.
Similarly in Cline, the pleadings allege that “the sport of gymnastics has come under scrutiny for its culture of cruelty… the governing bodies of gymnastics in Canada caused or contributed to the abuse of gymnasts by creating a culture and an environment where the abuse could occur and failing to take appropriate steps to protect the athletes in their care and control, many of whom were children when the abuse took place.” Athletes were forced to perform skills while injured, subjected to inappropriate physical contact, verbally and emotionally abused, required to maintain unhealthy bodyweights, among many other complaints. The athletes were also explicitly instructed not to tell their parents about what happened at practice.
Early Normalization of Harmful Behaviours
The troubling reality is that the types of abuse outlined in these cases don’t suddenly appear; they are rooted in less overt but normalized behaviours that begin early in an athlete’s career. The Plaintiff in Cline, for instance, began so-called “elite” training at six years old, and the first allegation of abuse occurred when she was only eight. This highlights the crucial need to recognize and address these issues in the early stages of an athlete’s development.
Power Dynamics & Biased Investigations
Despite the severity of the alleged abuse, players and parents often remain silent due to fear of repercussions. Players, especially young ones, may worry about negative consequences such as being benched, ostracized by teammates, or facing verbal and emotional reprisals from coaches. Parents are concerned that speaking out could tarnish a player’s reputation, hinder scholarship prospects, or damage relationships with influential figures in the sports community. This issue is exacerbated by the inherent power dynamics between coaches, athletes, and sports institutions, wherein a dependency is created that discourages reporting. In Carcillo, speaking out against abuse led to negative consequences such as reduced playing time, being traded, further victimizations, and being stigmatized as “weak” or a “problem player”.
Internal Investigations further contribute to the silence, as those who could be held liable for misconduct often lead these inquiries. Even independent investigators, such as Hockey Canada’s recently introduced ITP, face challenges as they remain relatively new and easily overwhelmed. An example from Cline highlights the biased nature of internal investigations, where the Plaintiff’s parents tried reporting the ongoing abuse. The officer from Sport BC concluded that no misconduct occurred without ever releasing a report or explanation to the Plaintiff. On the contrary, the alleged abuser was promoted several times in the following years, including acting as a coach for Team Canada at the 2004 Olympics.
The Regrettable Outcome
Competitive sports, while demanding discipline and commitment, have taken a toll on many young athletes’ well-being. Verbal abuse emanating from coaches, teammates, and even parents leave lasting scars on the psyches of aspiring athletes. Physical abuse, driven by a win-at-all-costs mentality, poses a significant threat, compromising the safety and welfare of developing individuals. The intense focus on performance can neglect athletes’ overall well-being, contributing to patterns of neglect that undermine the mental and emotional health of young competitors.
In summary, the pursuit of victory should not come at the expense of the well-being of young athletes. The stories of victims in cases like Carcillo and Cline shed light on the urgent need for a cultural reform in competitive sports to ensure a safe and supportive environment for all participants.
PART II
How Tort Law and Personal Injury Claims May Provide Recourse
Tort law, a facet of civil law, addresses harms committed by one party against another. Unlike criminal law, it focuses on compensating victims rather than punishment. This compensation aims to alleviate financial burdens and restore a sense of justice. The standard of proof in tort law is based on the balance of probabilities, making it more accessible for victims seeking justice.
Understanding whether a claim is valid can be challenging, given the fine line between motivational coaching and harmful practices. Consultation with a lawyer is recommended, but here are common causes of action to consider:
- Assault – the act of putting a person in immediate fear or apprehension of physical injury or offensive contact. Examples include aggressively yelling and getting into someone’s face, potentially with explicit threats.
- Battery – the act of intentionally making physical contact with the victim without their consent. Examples include physically shoving or hitting someone to demonstrate contempt or contact that is unexpected or excessive for the situation.
- Sexual Assault – the intentional application of force which violates a person’s sexual integrity, without that person’s consent. Whether the force was intended to be sexual is irrelevant, and so behaviors that are intended as “jokes”, such as striking a person’s genitals, are captured.
- Negligence – a legal principle holding individuals or entities accountable for their careless actions or omissions that result in harm to others. An example would be a coach or organization that neglects to enforce policies, neglects to investigate complaints, or creates a situation where abuse is likely to occur.
- Intentional Infliction of Emotional Distress – the act of engaging in flagrant or outrageous behaviour that was intended to cause harm and actually does result in harm. Examples include aggressive yelling, cursing, or demeaning an athlete with the intent to harm them emotionally or discourage them from participating.
- Breach of Contract – an act of breaking the terms set out in a contract. This usually stems from the consequences of abuse or maltreatment, namely, that the athlete does not receive the benefits that were contracted for when joining a team/organization.
The Need for Provable Damages
Establishing a cause of action is not sufficient; provable damages are crucial. Tangible harm or losses that can be quantified are necessary for compensation. In tort law, damages aim to restore the plaintiff as if the tort never occurred. Two types of damages recognized in Ontario courts are pecuniary and non-pecuniary.
Pecuniary Losses (Special Damages): quantifiable financial losses resulting directly from the wrongful act, including medical expenses, lost income, property damage, and out-of-pocket expenses. These may also be forward-looking and account for an anticipated loss of competitive advantage in the workplace.
Non-Pecuniary Losses (General Damages): losses not easily quantifiable, aiming to compensate for pain, suffering, and the overall decrease in the plaintiff’s quality of life. Examples include physical pain, permanent injuries, mental health issues, emotional suffering, and impaired ability to trust or sustain relationships. Proof of these losses will often come by reference to expert medical evidence and reference to similar cases.
Conclusion
Regrettably, the discussion surrounding abuse and maltreatment remains a taboo subject, including in youth sports. The pursuit of wealth and fame has cast a shadow over the well-being and human rights of these aspiring athletes. It is crucial to recognize that for many children, their engagement in sports will not extend beyond their youth. What they will carry, however, is the experiences and the impacts that their participation had on their development.
By acknowledging and addressing the ongoing problems of abuse, we pave the way for a safer, more nurturing environment where young athletes can pursue their dreams without sacrificing their well-being. We are starting to see a shift marked by insurance companies holding organizations accountable for their willful negligence. This shift is not just about financial retribution either; it signals a collective effort to dismantle the culture of silence and prioritize the welfare of young athletes. And while the Supreme Court of Canada correctly recognized that “[m]oney is a barren substitute for health and personal happiness…”,[1] the resolution of a case can also provide a sense of justice, the feeling of being heard, and much-needed closure for the victims and their families.
[1] Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229.
Andrew Graham is a Co-Managing Partner at Harrison Pensa with a practice complex litigation matters representing individuals who have sustained injuries through accidents or the negligence of others.
Brandon Bedard is an Associate and personal injury lawyer at Harrison Pensa. He specializes in disability claims, car accidents, slips and falls, sexual assault matters, defamation, and occupiers’ liability.
