USATT’s Board of Directors is seeking membership comments on the below proposed Bylaw Amendments. We respectfully request that comments be emailed to Admin@USATT.org no later than Monday, June 22, 2020 at 5 pm US Mountain Time.
Proposed Amendments to Bylaws in Response to USOPC Letter of November 25, 2019
Tara Profitt, USATT Board and Athletes’ Advisory Council Chair
James Segrest. Jr. Ethics and Grievance Committee Athlete Representative
Frank Roth, General Counsel, Lehigh University, and Chair USATT Ethics and Grievance Committee
Sergio Garcia, General Counsel ZELTIQ Aesthetics, Inc. and USATT Board
Richard Char, General Counsel, M10 Networks and USATT Board
Bill Belitsky, Paul Hastings LLP, legal counsel to USATT
Brian P. Moran, Paul Hastings LLP, legal counsel to USATT
Stephen Hess, Sherman Howard LLC, legal counsel to USATT
The USA Table Tennis Association (“USATT”) received a letter dated November 25, 2019 (the “Letter”) from the United States Olympic and Paralympic Committee (“USOPC”). While it is critical of some aspects of past USATT governance, in a positive sense the Letter provides an objective perspective of an external body and constituency to which the USATT is accountable.
Two of the 7 “NGB Failures” cited by the USOPC (page 3 of the Letter) are noteworthy: #4 and #6. We have reviewed the USATT Bylaws to learn how these issues are addressed and note some omissions, ambiguities, or deviations from best practices. The following are our observations and proposed changes to the USATT Bylaws to address these weaknesses.
USOPC Letter Item #4: “The inconsistent and/or questionable handling of grievances and other disputes brought by or involving Board members.”
USATT Bylaws Section 9.13., entitled “Ethics and Grievance Committee,” and Article X, entitled “Complaint Procedures,” provide the substantive and procedural elements of the Ethics and Grievance Committee’s responsibilities. The Committee’s charge is to “investigate, hear and render written decisions on matters of ethical impropriety, administrative or member grievances and disciplinary matters, right to compete matters filed with the USATT, and the standards of conduct, fair play and good sportsmanship.”
In reviewing the USATT Bylaws, and the Supplemental Hearing Procedural Rules of the Ethics and Grievance Committee, we did not find any provisions regarding the handling of grievances and disputes brought by, or involving, USATT Board members.
This could be viewed as objective and fair; i.e., Board members are subject to the same grievance rules and procedures as all USATT members. However, it is also the case that there are particular governance challenges involved with grievances and disputes brought by, or involving, Board members.
The governance challenges arising with grievances and disputes brought by or involving Board members include: (1) the Ethics and Grievance Committee is appointed by, and reports to, the Board; (2) the Board is also the body that hears appeals from any decision of an Ethics and Grievance Committee hearing panel (Bylaws Section 10.11) so it seems this potential conflict should be managed; and (3) grievances and disputes brought by or involving Board members are likely to raise high level issues of Board governance, fiduciary responsibility, conflicts of interest, and collegiality among Board members that are quite different from complaints about USATT members or member grievances.
USOPC Letter Item #6: “USATT’s failure to regularly employ a sufficiently robust process for the identification, disclosure, review, clearance and/or avoidance of potential conflicts of interest.”
It seems that the USATT has implemented sound improvements to its conflict of interest policies and procedures as reflected in the Board and Board Committee member “on-boarding” documents we have been asked to sign: (a) the Acknowledgment of Receipt and Understanding of the Statement of Principles on Ethical Behavior and Conflict of Interest; and (b) the Conflict of Interest Disclosure Statement. It appears that perhaps the USATT Bylaws have not been amended to reflect these procedures. Bylaws amendments would document to the USOPC that there is “a sufficiently robust process for the identification, disclosure, review, clearance and/or avoidance of potential conflicts of interest.”
Current USATT Bylaws Section 18.1., entitled “Code of Ethics,” states (emphasis added by underlining): “USATT shall adopt a Code of Ethics and an Ethics and Conflicts of Interest Policy (the “Code”) applicable to all USATT employees, and Directors of the Board, committee members, and volunteers. Each NGB employee and volunteer shall annually certify compliance with the Code.”
We believe these Bylaws provisions should include: (a) a specific requirement that each member of the USATT Board of Directors shall annually certify compliance with the Code of Ethics and Conflicts of Interest Policy; and (b) a requirement that Board members have a continuing responsibility to supplement such certification by disclosing to a designated officer (e.g., the Board Chair) any conflicts that arise during the course of each year. These requirements are stated in the Acknowledgment of Receipt and Understanding of the Statement of Principles on Ethical Behavior and the Conflict of Interest Disclosure Statement that each Board and Board Committee member must sign, but we believe they should also be stated in the Bylaws.
USATT Bylaws Section 19.3., entitled “Conflicts of Interest” states Board members’ responsibility to disclose conflicts of interest and recuse themselves from voting on matters in which he / she / they have a conflict. This Section, however, seems to have ambiguities about the recusal obligation. Section 19.3 also seems to present the evaluation and management of conflicts as though it is an adversarial proceeding before the Board. We believe this is not best practice in the management of conflicts of interest.
USATT Bylaws Article XIX: Current language:
“Section 19.3. Conflicts of Interest.
If any director of the Board, officer, committee or task force member has a financial interest in any contract or transaction involving USATT, or has an interest adverse to USATT’s business affairs, and that individual is in a position to influence a determination with regard to the contract, transaction or business affair, such individual shall: (i) disclose the conflict of interest, (ii) not participate in the evaluation of the contract, transaction or business affair and (iii) not vote on the contract, transaction or business affair.
Determination of a Conflict: The Board of Directors by a majority vote may determine whether a Board Member has a Conflict of Interest in the case where two or more Board Members disagree as to whether a Board Member has a Conflict of Interest. Any Board Member shall have the right to participate in the discussion as to whether he/she has a Conflict of Interest. All discussions of Conflict of Interest shall be open to the Public unless a majority of Board members vote to conduct the conversation in Executive Session. Both the person asserting Conflict and the person accused of a Conflict, if confirmed by a majority of vote, shall have the right to take part in all discussions but neither shall have the right to vote on the matter.”
Finally, in reviewing the Bylaws in connection with this exercise, we considered Section 5.4 which refers to the “Full Board.” We propose to amend the parenthetical language to clarify the meaning of “Full Board.”
We respectfully request that comments be emailed to Admin@USATT.org no later than Monday, June 22, 2020 at 5 pm US Mountain Time.