It is an important topic in the sports world, and certainly in the world of gymnastics: suspending athletes, trainers or other stakeholders because an ISR investigation is underway against the person concerned. Recently, the Wevers case was ruled in two instances, in which the Court ultimately ruled that the KNGU was allowed to make the decision not to let Wevers go to the Olympics.
And with regard to a number of trainers (hereinafter: the “trainers”), the KNGU also decided not to let them go to an international tournament due to an ongoing ISR investigation. On behalf of the trainers, my colleague Linda de Wit and I successfully challenged this decision in the Provisions Judge. Below is a summary of the most important points.
The decision to exclude the trainers from participating in the tournament was made by a Business Unit manager. This makes the first argument that this manager should not have made this decision. This is because this is an order measure and, based on the ISR regulations, an order measure must be taken by the federal board.
The KNGU still argued that in this case it would not be an order measure, but the Provisions Judge does not agree. The decision made is “unmistakable” as an order measure. None of the KNGU regulations subsequently show that this Business Unit manager is authorized to take into account any ongoing ISR investigation in its decision. In addition, and more importantly, in my opinion, the KNGU has placed disciplinary proceedings with the ISR. And the ISR regulations state that an order measure must be taken (exclusively) by the federal administration. In doing so, the Provisions Judge does not consider this Business Unit manager competent.
However, that is not the end of the story. During the oral hearing, we seriously questioned:
Indeed, the KNGU states that there would be a policy since June 2020, meaning that if an ISR investigation is ongoing, the person concerned will (by definition) not be sent to international tournaments. That policy has not been announced and has never been announced among members.
In our opinion, things are very wrong with how the decision was made by the KNGU. The policy apparently means that if an ISR investigation is ongoing, that person will by definition not be sent to international tournaments. Apparently to ensure peace of mind. This thus abstracts from each specific issue and (for example) the seriousness of the complaint. It does not look at the personal circumstances, does not look at the impact of and (business and sporting) consequences for those involved, does not look at the proportionality of the measure, etc., etc. This is at odds with the ISR rules: an order measure must be necessary, appropriate and proportionate to achieve the goal (to ensure or restore order and/or safety). A balance of interests is therefore necessary. By the way, this also follows from art. 2:15 of the Dutch Civil Code.
In addition, one of the trainers had previously received a letter from the KNGU, stating that the ongoing investigation had no consequences for a broadcast to an international tournament. The KNGU then reports the opposite, without further adversaries or justification. At least a justification would have been appropriate in this, especially about the usefulness and necessity of this measure (the trainers were allowed to remain active in NL), weighed against the interests of the trainers. All these components were missing, so the KNGU had to withdraw the decision by order of the Provisions Judge and the trainers were still able to participate in the tournament. As the Court of Provisions states:
“On its own, the KNGU, as an association, can of course take measures in the event of disciplinary complaints, but this should be done with due care and prudence, making it clear in advance who is authorized to make which decisions, exactly what the underlying policy is, how the interests have been weighed against each other and whether those involved have been informed about this good time and are included in decision-making before decisions are made. On all these points, the decision-making process in this case is seriously inadequate.”
This issue is also interesting for another reason, namely: is it okay with the KNGU's apparently maintained policy? May the KNGU determine that someone will be excluded for the mere fact that they are being investigated. Or even more broadly: can the KNGU exclude that person from practicing their sport (and sometimes also earning a living). It is well known that a judge often only tests policy marginally. But if you start from the presumption of innocence and the view of this in other jurisdictions, in our opinion, you could well come to the conclusion that that is not possible. For example, in employment law, a presumption of committing a criminal offence is insufficient for dismissal. Of course, dismissal and (temporary) suspension are not comparable measures, but the underlying motivation why dismissal is not allowed can be applied one-on-one when imposing a suspension. Especially (again) in view of the far-reaching consequences of a suspension. It is not inconceivable that these consequences can be more far-reaching than dismissal.
Let it be clear that the KNGU is in an unenviable position. The problems and the social interests involved are enormous. The danger that this does pose is that the interests of one party (such as, in this case, the trainers) will be lost sight of and there will almost be a kind of witch hunt. This is while the trainers are also members of the KNGU and they can also expect 'her' union to pay attention to their (legal) position. This has happened completely inadequately in this case, and it is therefore right that the Provisions Judge is giving the KNGU a firm slap on the wrist.
If you have any questions about the above, please contact the undersigned.
Gijs Volders
lawyer
.svg)
