Non-disclosure agreements complicate safe sport reporting in Canada

TORONTO — The past few months have seen an outpouring of Canadian athletes decrying the maltreatment and abuse experienced in their sports.

But how many other athletes have been silenced by non-disclosure agreements? And how will those gag orders impact the work of agencies hoping to clean up sport?

Canada's sport minister Pascale St-Onge launched the Office of the Sport Integrity Commissioner (OSIC) in June, as a one-stop, independent complaint investigator. And the Standing Committee on the Status of Women recently unanimously passed a motion to undertake a study on the safety of women and girls in sport.

But the rules around NDAs for both remain murky.

"The existence of an NDA would not inherently prevent a complaint from being admissible to the OSIC," the commissioner's office said in a statement to The Canadian Press. "Before a complaint is filed, the OSIC's legal aid program can be accessed to obtain advice on the enforceability of a specific NDA."

The status of women study comes amid repeated calls from hundreds of current and retired Canadian gymnasts for an independent investigation into their sport.

Committee chair and Conservative MP Karen Vecchio said they're consulting with legal counsel on NDAs.

"It's very, very important that we have a better understanding of what an NDA is. Are we going to be able to speak to these athletes? We're seeing what options we have."

Among potential options, Vecchio said, is conducting interviews in-camera with no recognition of an athlete's name. The danger there is that some national sport organizations are so small it might be "pretty easy to connect the dots," which could jeopardize an athlete's privacy.

"There's lots of things we're considering right now. We don't have a final answer," Vecchio said.

AthletesCAN, the association representing Canadian athletes, and Sport Solution, which offers legal assistance to athletes through the University of Western Ontario, polled more than 60 national sport organizations for The Canadian Press. Approximately one-third had an NDA or NDA-like clause in either the athlete agreement itself, or the sport federation's social media policy.

Athletes must sign agreements in order to compete for their national team.

St-Onge spoke out against NDAs in June, telling The Canadian Press that non-disclosure agreements contradict the "very principle of safe sports." She was responding to concerns from bobsled and skeleton athletes about a non-disparagement clause in their athlete agreement.

"As the minister responsible for sports, I will always be an ally to the athletes. My priority is to ensure that they are safe,'' St-Onge said. "If any of them feel uncomfortable in a situation or believe they are being mistreated or abused, they must have the freedom to speak up. We must break the culture of silence in sport and I expect all national sport organizations to actively participate in that.''

AthletesCAN wrote a template for athlete agreements in 2019 in partnership with Sport Canada, and a working group that included athletes, lawyers and several national sport organizations.

It did not contain a non-disparagement clause. The group's goal was to have 100 per cent of national sport organizations (NSOs) adopt it by 2022.

Only a handful, including Water Polo Canada, Athletics Canada, Gymnastics Canada and Canada Snowboard, have done so.

NDAs were a topic of the latest round of Hockey Canada testimony in front of the Standing Committee on Canadian Heritage in Ottawa.

Asked repeatedly by MPs about non-disclosure agreements, former Hockey Canada president and CEO Bob Nicholson confirmed former women's coach Dan Church and two assistants signed NDAs after leading the program ahead of the 2014 Sochi Olympics.

"It was a number of very touchy subjects,'' Nicholson said. "I'm sure that was the reason why it came back to my desk to have (the) NDA signed."

Nicholson added that he didn't believe any players signed NDAs during his 16 years in charge.

Rob Koehler, the Montreal-based director general of advocacy group Global Athlete, said athletes should never be forced to sign NDAs.

"The fact that athletes risk sanctioning for speaking up against their own sport is clearly designed to oppress athletes and deny them their rights," Koehler said. "The power imbalance between sporting organizations and athletes needs to be corrected. Sport has taken away rights of athletes by refusing (to) engage in an employer/employee relationship, and on top of that they force them into silence.

"Silencing athletes fosters a culture of fear and abuse and that needs to end."

Vecchio said the status of women committee has already heard from a "lot of people" eager to speak about their negative experience in sport.

The committee was to hear from trauma-informed experts on Thursday before it begins conducting interviews.

"(Because) we have to recognize that these are victims that we do not need to re-victimize. We have to be very, very careful that we speak to everybody appropriately," Vecchio said.

This report by The Canadian Press was first published Nov. 15, 2022.

Lori Ewing, The Canadian Press