By Canadian Press

The non-disparagement clause; some Canadian athletes feel contractually silenced

Mar 29, 2023 | 3:30 PM

Athletes’ fears of repercussions if they talk about problems they see in their sport have been cited as one reason for Canada’s current safe-sport crisis.

In order to receive just over $21,000 annually in Sport Canada funding, Olympic athletes must sign contracts with their national sports federations. Those contracts, known as “athlete agreements”, have contained clauses stating broadly that athletes must watch what they say.

While often referred to as a non-disclosure agreement (NDA), the clauses are more non-disparagement in nature.

Some athletes feel muzzled by a non-disparagement clause in their contracts with their national sports organization.

“It’s a form of manipulation is how I see it,” says one veteran Olympian, whose contract contains a non-disparagement clause.

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“Your voice could potentially never be heard. It’s the controlling factor of the federation. That’s what they have over you.

“It goes against the safe-sport principles of having a voice and being heard if things aren’t OK.”

Among Speed Skating Canada’s list of athlete obligations in its 2022-23 contract is they must agree to “not bring disrepute or negative publicity to themselves or SSC directly or indirectly through posts, comments, shares, likes, or associations on social media channels (Facebook, Instagram, Twitter, etc.) or on other online platforms (websites, blogs, podcasts, etc.), or through comments to members of the media.”

Speed Skating Canada says that clause exists to protect athletes as much as it does the federation.

“There is a provision in our athlete agreement, signed by all national program athletes each year, that is designed to reflect a requirement in our code of conduct for all participants to address comments or criticism in a constructive fashion,” Speed Skating Canada said in a statement.

“This applies not just to comments about SSC, but also to any disrespectful or negative comments (i.e. teammates, competitors, partners etc.) that could impact the athletes’ reputation and position as a role model within our sport community.

“The athletes agreement does not prohibit athletes from disclosing their experiences in the sport or require confidentiality by the athlete (other than regards to sharing of proprietary information.)”

Curling Canada lists under its athlete obligations to “avoid any action or conduct that would in any way (in the opinion of the Team Program Management) reflect detrimentally upon the image of the National Team Program, Curling Canada or Canada.”

Veteran curler Colin Hodgson, who retired following the national men’s championship earlier this month, says that clause gives Curling Canada arbitrary power to decide if an athlete has run afoul of it, and potentially strip the athlete of funding.

“It pretty much says you can’t say bad things about the organization, and the organization is the one who determines if the things you are saying are bad,” Hodgson said.

“Those words mean a lot to the athletes. It puts fear in them. Curling, and a lot of other sports, don’t make a lot of money. So the little money you have to try to compete, that might mean you can’t compete if you lose that funding.”

Curling Canada chief executive officer Katherine Henderson echoed speed skating’s rationale for a non-disparagement clause.

“We have this clause in place because we have partners in government, taxpayers and in the corporate world who all have ownership in the investment into our athletes, and, along with our athletes, they need to be considered, respected and protected as well,” Henderson said in a statement.

Despite Canadian sports minister Pascale St-Onge’s statement last year that those clauses contradict the “very principle of safe sports,” she’s yet to use her funding power to eliminate them.

“Non-disclosure agreements must not silence athletes who wish to report abuse or mistreatment in sport,” St-Onge said Wednesday in a statement to The Canadian Press.

“We are currently looking at how we can better regulate non-disclosure agreements.”

St-Onge requires all national sports organization to be signatories to the Office of the Sport Integrity Commissioner (OSIC) she created by Saturday, or risk the loss of Sport Canada funding.

Where does a non-disparagement clause fit into that directive?

Becoming a signatory won’t comb it out of an athlete’s contract.

OSIC states an NDA or non-disparagement clause can’t stop an athlete, coach or official from filing a complaint or report.

Its rationale is the Universal Code of Conduct to Prevent and Address Maltreatment in Sport (UCCMS), which is part of the signatory criteria, doesn’t allow for any interference in that process.

“They cannot impact the admissibility in any way of a complaint or a report to OSIC,” said Sarah-Ève Pelletier, who is the sport integrity commissioner.

OSIC’s authority, however, covers only the complaint process and doesn’t tackle the existence of a non-disclosure or non-disparagement agreement.

“Others may have opinions on how they may be used,” Pelletier said. 

“We’re not commenting on their use or their existence per se. 

“That said, it’s very important for people to understand that our perspective is these clauses or other actions cannot serve to restrict one’s ability to exercise their rights under the UCCMS, or to prevent someone from raising concerns, or reporting or fulfilling their reporting obligations under the UCCMS.”

Getting an athlete to the Olympic stage costs thousands of dollars in training and competition costs. 

The majority of national sport organizations in Canada aren’t flush with corporate sponsorship.

They fear the loss of, and the inability to recruit, corporate money if their reputation is damaged.

Hockey Canada, the country’s richest NSO by far, lost $24 million in cancelled or restructured corporate partnerships when its handling of sexual assault allegations became public last year.

“Once you get up to the top and you see inside, you realize that there’s a lot of other factors in play and usually finance and money is a big one,” Hodgson said.

AthletesCAN recently offered an athlete agreement template devoid of an non-disparagement clause — the template was approved by Sport Canada — to over 60 national sport organizations. 

There are NSOs still maintaining a non-disparagement clause or something like it in an athlete agreement or social-media policy, AthletesCAN states.

“There are athletes not willing to speak out because they know that they are the ones going to be facing the repercussions,” said president Erin Willson, who was an Olympian in artistic swimming.

A non-disclosure clause that covers training and competition strategies or equipment is reasonable in an athlete contract to maintain a competitive advantage, Willson said.

“I understand it is a competitive landscape to protect what you are doing, like it could be a secret sauce.”

— Gregory Strong contributed to this report.

This report by The Canadian Press was first published March 29, 2023.

Donna Spencer, The Canadian Press