By Takao Ohashi, Attorney-at-law in Japan
In April of 2021, the Japan Sports Arbitration Agency (JSAA), which handles disputes related to national federations of the Olympics and Paralympics in Japan, issued an arbitral award (JSAA-AP-2020-003[1]) concerning sports coaching and sexual harassment that raises significant issues.
Allegedly, a male coach touched the female player’s right hand, which was holding a racket, and right elbow, twice, and adjusted the movement of her racket. This was done, allegedly, to make the player aware of her balance when swinging her forehand. He then touched her right knee to adjust the direction of her knee, without obtaining her consent during a 30-minute pre-match coaching session at the tournament venue in the international table tennis tournament for persons with intellectual disabilities.
The female player reported the incident to the national federation of table tennis for persons with intellectual disabilities. Its Compliance Committee and Investigation Committee, which includes of outside lawyers, conducted an investigation. They found the above-mentioned claim to be sexual harassment, and imposed a sanction of “guidance” on the coach.
In parallel with the investigation by the national federation, the player also reported the incident to the third-party committee regarding violence and harassment in sports of the Japan Sports Council (JSC). The committee identified the inappropriate behavior of the coach in question, including the conduct described above, and recommended that the national federation take appropriate action.
The panel of JSAA ruled that even a one-time physical contact or a short period of time could constitute sexual harassment. The panel, however, denied sexual harassment on the grounds that “the coach’s behavior was only the minimum amount of physical contact necessary for coaching in front of a large number of people at the venue and in a very limited time (a few times for a period of seconds during a 30-minute practice), and it is difficult to recognize it as an act of a sexual nature.”
Key Finding
The key point of this decision was that the panel considered “the minimum amount of physical contact necessary for coaching”. As a premise for such a decision, the panel stated that “coaching and education in sports should include not only verbal instruction, but also a certain amount of physical contact, and physical contact must be incorporated into practical instruction and coaching.
In this regard, Ms. Kanae Doi of HUMAN RIGHTS WATCH, who published “Countless Times I’ve Been Beaten” (2020) [2], a summary of the current situation of child abuse in sports in Japan, points out that physical contact in coaching is wrong[3].
In Australia, where legislation is being developed to protect young people from sexual abuse in sport, there has been discussions about what constitutes appropriate physical contact in sports coaching. However, for example, even where physical contact is necessary for coaching, it is only considered appropriate with the understanding and consent of each athlete[4].
In 2013, the sports community in Japan (which consists of the Japan Olympic Committee, Japanese Para Sorts Association, etc.) issued the Declaration on the Elimination of Violence in Sports[5], which rejected violent acts, including sexual harassment, in sports coaching. The declaration states that coaches should “take into consideration the needs and qualities of those who play sports, strive to develop the ability of those who play sports to think and make decisions on their own, and always strive to communicate with those who play sports under a relationship of trust” (emphasized by the author).
Contrary to this tendency in the sports world in Japan, this award delivers a message that physical contact in coaching is natural without any restriction, even though it can be objectively imagined that sexual harassment in the name of sports coaching can easily occur.
I do not agree it is appropriate to simply recognize physical contact as sports coaching. From the viewpoint of preventing sexual harassment, I consider it necessary that, except in cases where it is obligatory to ensure the safety of an athlete, when it is mandatory for a coach to touch the body of an athlete, at least a proper explanation to that effect should be given and the consent of the player should be obtained[6].
In this case, as the panel found, there was a poor relationship between the coach and the player. At the very least, the panel should have suspected that the coach acted against her will.
The panel also seems to have used the fact that it could not hear directly from the player as a basis for denying sexual harassment. However, in this case, the point in the dispute was whether or not the national federation had appropriately taken disciplinary action against the coach? Did he or didn’t he commit sexual harassment against the player? Actually, the player was not a party to the case. Therefore, denying the sexual harassment itself on the basis of the fact that the player could not be heard would eventually upholdthe coach’s allegation. It seems unfair. The panel lacks compassion for the player.
The panel stated that “when an athlete has the courage to accuse a coach of harassment or violence, the concerned parties must respond promptly and appropriately, after confirming the facts, to prevent the recurrence of such harassment or to remedy the damage, in response to the athlete’s sorrowful voice.” But if that is the case, rather than denying the sexual harassment, it would have been sufficient to judge that the national federation had not been able to prove the grounds for disciplinary action against the coach. In fact, the denial of sexual harassment leads to secondary damage to the player who raised their grievous voices.
This decision may not be what the panel intended, but at the very least, as stated above, it is based on a false idea of how sports coaching should be, which may be contrary to the trend of the Declaration on the Elimination of Violence. It should not be referred to as a precedent.
This case was reviewed three times by the committee of the national federation, the third-party committee of JSC and the panel of JSAA before the award of JSAA was issued. It seems that the panel of JSAA could not hear from the player, but the player had to respond at least twice. I wonder if it would be a considerable burden both physically and mentally for the player. Thus, it is necessary to create a system that reduces the burden on athletes and prevents secondary damage for athletes. Furthermore, disputes in JSAA should be resolved based on fact-finding conducted by experts organized by the third-party committee of JSC, which is in a neutral position outside the sports federations.
[1] http://www.jsaa.jp/award/AP-2020-003.pdf (accessed 2021-7-24)
[2] https://www.hrw.org/sites/default/files/media_2020/07/japan0720jp_web.pdf (accessed 2021-7-24)
[3] Her presentation at the subcommittee meeting of the “4th Junior Sports Forum” held on June 13, 2021
[4] https://www.playbytherules.net.au/got-an-issue/physical-contact-with-children (accessed 2021-7-24)
The website is operated by the cooperation of Australian sports organizations and state governments.
[5] https://www.japan-sports.or.jp/Portals/0/data/koho_kyanpen/news/bouryokukonzetsusengen_eng.pdf (accessed 2021-9-7)
[6] In the “Ethical Guidelines for Coaching”, the Japan Volleyball Association clearly states that it must obtain the consent of the players themselves when touching their bodies in the course of coaching.
https://jvamrs.jp/themes/jva/assets/files/regulations/ethics.pdf (accessed 2021-7-24)
