Appeal Ruling: SAIT-RDC Feb 8-20

2019-20 Season

March 9, 2020

Background summary:

• In the aftermath of an emotionally charged Women’s Hockey Game on Feb. 8/20 involving RDC @ SAIT, the ACAC was made aware of allegations that players from both teams had used inappropriate language including racially insensitive labels. 
• Following an attempt at Informal Resolution as per the ACAC Operating Code requirements, the ACAC office received independent requests from both institutions for the ACAC Commissioner to conduct an investigation into these incidences and rule on alleged Operating Code violations.
• The ACAC Commissioner conducted a combined investigation and released a single ruling on Feb. 24/20 which concluded that he received related allegations and denials from both sides involved in this game, which made it challenging to draw definitive conclusions. Furthermore, there was no independent corroboration from the officials nor anyone else, to confirm who said what comments. The only allegation that could be determined was that a RDC student-athlete admitted that she directed a racially insensitive label towards a SAIT student-athlete during the course of this game. The RDC student-athlete accepted responsibility for her actions and issued both a verbal apology to the offended SAIT student-athlete immediately after the game, as well as a written apology in the week that followed, which was delivered via email from the RDC Athletic Director to the SAIT Athletic Director. 
• The SAIT student-athlete has clearly communicated that she has not accepted the two versions of the apology. In particular, the SAIT student-athlete has noted that in the written apology the word ‘Indigenous’ has been spelled incorrectly by the RDC student-athlete. 
• On February 26/20, SAIT submitted an Appeal of the Commissioner’s Ruling which suggested that the Commissioner erred in his ruling by combining the outcome of his investigation into one ruling despite receiving two separate requests for investigation about the same incident, and that the use of a racially insensitive label by the RDC student-athlete during an ACAC competition warrants a separate ruling and corresponding sanction for an ACAC Code of Ethics violation. 
• An ACAC Ad Hoc Appeal Review Committee unanimously agreed on March 3/20 to accept that - 
  d) Failing to consider relevant information or taking into account irrelevant information in making the decision; (OC Article III, Section 4, 6.) - constituted acceptable Grounds of Appeal for the Appeal to move forward for a ruling by an ACAC Appeal Tribunal.

Appeal Tribunal Hearing:

• The Appeal Panel Tribunal consisted of Todd Caughlin (Chair), Ken Schildroth and Jordan Richey. Mark Kosak continued in the role of Case Manager from Step I to Step II in the Appeal Process. 
• The Appeal Hearing was conducted by WebEx video conference on Friday March 6, 2020. 
• Appellant Wade Kolmel from SAIT was provided the opportunity to present the Appeal of the Commissioner’s ruling and to answer questions from the Appeal Tribunal. Diane St-Denis from RDC participated in the Hearing as the Respondent, presenting her response to the Appeal and answering questions from the Appeal Tribunal. 
• No other witnesses were invited to participate in the Hearing. 
• The Appeal filed by SAIT specifically identified the subject of Appeal as the outcome of the admission of a racially inappropriate label by a RDC student-athlete towards a SAIT student-athlete. Therefore, no other elements of the original Commissioner’s investigation and ruling of February 24/20 were reviewed or considered by the Appeal Tribunal.

The role of the Appeal Panel Tribunal, as described in OC Article III, Section 4, is as follows:

10. Appeal Decision

10.1. At the conclusion of the hearing, the Appeal Panel will, within the appropriate timeline, issue a written decision with reasons. The Appeal Panel may decide:

a) To reject the appeal and confirm the decision being appealed; or

b) To uphold the appeal and refer the matter back to the initial decision-maker for a new decision; or

c) To uphold the appeal and vary the decision should it find that an error occurred, and such error cannot be corrected by the original decision-maker for reason of lack of clear procedures, lack of time, or lack of neutrality;

d) To determine whether costs of the appeal, excluding legal fees and legal disbursements of any parties, will be assessed against any party. In assessing costs, the Appeal Panel will consider the outcome of the appeal, the conduct of the parties and their respective financial resources.

Rationale:

• The Appeal Panel agreed that the Commissioner could have conducted one investigation into this incident but issued two separate rulings in response to the independent allegations of misconduct put forward by SAIT and RDC. 
• It is worthy of emphasis to credit the RDC student-athlete for accepting responsibility for her use of an inappropriate racial label and for her efforts to apologize to the offended SAIT student-athlete. Furthermore, RDC Athletics embarked upon laudable measures after this incident to create better awareness and understanding about diversity, inclusion and respect in sport by requiring the entire RDC Women’s Hockey team to undergo remedial training from the RDC Indigenous Services Coordinator. Lastly, RDC has required the offending student-athlete to complete community service hours in the RDC Indigenous Services office. 
• The issuance of an apology after the fact cannot absolve an individual from consequences for an ACAC Operating Code transgression, particularly when it involves a contravention of ACAC and societal values promoting inclusion, diversity and equality. 
• While the Appeal Panel acknowledges and credits the RDC student-athlete and the RDC athletics department for post-incident actions and initiatives, it is difficult to overlook that a serious ACAC Codes of Ethics violation has been committed. Had the offensive label been heard and sanctioned by the game officials, it would have likely resulted in the assessment of a Gross Misconduct penalty which entails an immediate game ejection and a subsequent 3-game suspension. Furthermore, there is precedence in the ACAC that previous rulings involving inappropriate comments by student-athletes have resulted in suspension. 
• On balance, the ACAC Appeal Tribunal weighed the contrition demonstrated by the RDC student-athlete as well as the remedial action taken by RDC Athletics against the serious nature of this Operating Code violation, and determined that a suspension of less duration than resulting from a Gross Misconduct penalty, is warranted.

Recommendation:

• The RDC student-athlete is encouraged to re-issue the written apology to the offended SAIT student-athlete, with spelling errors corrected, to reaffirm sincere contrition and as a gesture of reconciliation.
• The Appeal Panel urges the ACAC to continue the necessary progress to formally adopt the current draft policy which will address and apply sanctions in those incidents where inappropriate comments/labels/language are used during ACAC competitions.

This ruling will be circulated to the ACAC Conference Council 3 days after presentation to the Appellant and Respondent. 

Please direct any comments, questions or concerns to the Case Manager.

c. ACAC Conference Council
Bill Hendsbee, ACAC Commissioner
ACAC Office Staff

Code of Ethics, Women's Hockey

February 24, 2020

Facts:

SAIT has requested a ruling in relation to the actions of RDC Women’s Hockey player Madison Sansom towards SAIT’s Davina McLeod during a February 8, 2020 game between the two teams.

Following SAIT’s request, RDC has also asked me to rule in relation to the actions of the following SAIT players: Davina McLeod, Karmen Mooney and Tashel Scantlebury.

SAIT and RDC had originally attempted to resolve this issue informally but that process proved to be unsuccessful.

This incident started during a scrum along the boards involving Ms. McLeod and Ms. Sansom. It is admitted by Ms. Sansom that she made a racial slur toward Ms. McLeod. Ms. Sansom has stated that she did so only after Ms. McLeod had made a racial slur toward her. Ms. McLeod denies having done so. Nonetheless, following the game, Ms. Sansom apologized directly to Ms. McLeod. In SAIT’s request for a ruling, it indicates that Ms. McLeod did not feel that Ms. Sansom’s apology immediately following the game was sincere. RDC has also subsequently provided Ms. Sansom’s written apology to Ms. McLeod through SAIT’s Athletic Director.

Following the conclusion of the game, tensions were still running high, resulting in verbal exchanges between members of both teams, including during the handshake line. According to the submissions of RDC, Ms. Mooney made homophobic comments toward members of the RDC team and Ms. Scantlebury directed foul language towards the RDC team. There was also an allegation that unidentified SAIT players made threatening remarks toward the RDC team. The SAIT players deny that these remarks were made although SAIT agrees that such comments have no place within ACAC athletics. Notably, while game officials were involved in separating the teams to ensure that no physical altercations took place, they have not corroborated the verbal exchanges between opposing players.

I have been advised by RDC that it took immediately steps to address this incident. In addition to the verbal and written apology by Ms. Sansom, RDC’s Indigenous Services Coordinator met with the entire team to lead them in a discussion on diversity, inclusion and respect. Furthermore, Ms. Sansom has been directed to perform community outreach work with RDC’s Indigenous Services Office.

Ruling:

The relevant portion of Article I Section 3 of the ACAC Operating Code is as follows:

4. Guidelines for Student-Athletes

4.1. Student-athletes are expected to conform to a higher standard of behaviour by exhibiting the following qualities while involved in competitive situations.

4.1.1. Integrity - respect the rights of other athletes, coaches and the public.

4.1.3. Respect for the Rules - play fair and display respect for your sport.

Under the circumstances, with the exception of Ms. Sansom’s admission that she directed a racial slur toward Ms. McLeod, it is impossible to reconcile some of the differences between the respective versions of these events. In particular, I am unable to determine whether Ms. Sansom’s remarks followed a racial slur made by Ms. McLeod. Although such a finding would not absolve Ms. Sansom of her obligation not to engage in such behaviour, it would help to partially explain her response.

I am also unable to determine whether inappropriate comments were made by Ms. Mooney and Ms. Scantlebury although it does appear that SAIT and RDC players were engaged in a verbal altercation of some sort following the conclusion of the game.

Under the circumstances, I find that the allegations made against Ms. Mooney and Ms. Scantlebury have not been conclusively established. However, I strongly encourage SAIT to speak with its entire team to reinforce that such actions, had they been proven, represent a clear violation of the ACAC Code of Ethics, and that such behaviour cannot be condoned within the Conference.

It is my view that the verbal and written apologies made by Ms. Sansom to Ms. McLeod are sufficient and reasonable remedial actions which demonstrate Ms. Sansom’s contrition. Given the unique circumstances of this case, which lacks corroboration by independent witnesses, I find it impossible to determine whether Ms. Sansom’s remarks were made in response to similar remarks being directed toward her by Ms. McLeod. To be clear, I am not concluding that Ms. McLeod made the comments in question. However, I am conscious of the possibility that by taking more severe action against Ms. Sansom I run the risk of being more punitive than is required under the circumstances.

Sincerely, 
Bill Hendsbee 
ACAC Commissioner