Nova Scotia Rider Jessica McNutt Loses Equine Canada Amateur Status
By Margaret Evans
“No good deed goes unpunished.” – Oscar Wilde
In 2015, Jessica McNutt, who lives with her family in Truro, Nova Scotia and competes in hunter classes at the amateur level, was approached by Dalhousie University Agriculture Campus to provide volunteer coaching for their equestrian team as their (then) current instructor was no longer available. The school did not want to lose the program and, as a Dalhousie alumnus, McNutt was eager to offer her assistance. She had attended the university for six years, then returned as a distance student to obtain her Masters in Social Work in 2017. She now works full-time as a mental health therapist, is raising a family, and enjoys horses in her free time.
Dalhousie University offers a variety of sports activities, and its equestrian program provides opportunities for students to ride and compete during the school year. According to the university’s website, lessons are offered at a local farm and they focus on safe and effective English riding with competitions held during semesters with other universities in the Atlantic Intercollegiate Equestrian League.
McNutt has been an amateur member of Equestrian Canada (EC) for over ten years. When she agreed to provide instruction to the equestrian team, Dalhousie advised that they do not pay for anyone to coach their team. It is a volunteer role. However, they provide a yearly honorarium of $1,700 as a thank you. It is the university’s policy which is extended to sports volunteer leaders in all the sports disciplines they offer.
Agreeing to provide volunteer coaching was especially significant to McNutt since, years before, her father, Albert McNutt, had been a professor at the agricultural campus and was department head of the Equine Studies program.
But she had no idea at the time that her simple act of generosity would lead to serious conflict with Equestrian Canada.
Nova Scotia rider, Jessica McNutt, is speaking out against the ruling by Equestrian Canada to revoke her amateur status. “I truly did not feel I was in violation as the rules are very grey,” she says. Photo courtesy of GlobalNews
“Given I did not believe an honorarium counted as compensation for services, I did not think this was in violation of EC rules and agreed to offer my time,” she said. “The students came to my mother’s farm to ride, groom, muck stalls, and enjoy the horses. I offered guidance to them; however, it was a very student-run group. The students take part in local student-run shows. The level of riding is novice, at best, and is not recognized under any [equestrian] body.”
In addition, McNutt was also providing her own ponies for other children to learn to ride.
“I own two ponies that show, and I attend competitions with them,” says McNutt. “The kids from my community who ride the ponies use them for free and pay their expenses.”
The arrangement worked perfectly until, in 2018, a fellow competitor – someone McNutt considered at the time to be a supportive friend – made a complaint to Equestrian Canada that McNutt was providing coaching in violation of her amateur status.
“Her complaint consisted of a letter written about me being present at the show with the ponies along with pictures of me standing with the ponies and kids taken without my permission, or the children’s permission, or their parents’ permission,” she says. “EC questioned me on this, and I informed them of course I attend the competitions with the ponies as I love supporting them and watching them perform. This issue did not go any further.”
But the complainant had also informed Equestrian Canada about McNutt instructing the Dalhousie Equestrian Team and that she received an honorarium. To Equestrian Canada, this was an issue.
“As per the EC rules, remuneration is defined as any payment either in cash or in kind, with the exception of gifts of a token value,” wrote Jennifer Eastwood, (then) director, technical programs. “An honorarium would be one form of remuneration.”
McNutt’s position and EC’s position on the definition of “honorarium” and “gifts of token value” were on a collision course. It would seem at first blush that amateurs can receive gifts of token value, but Eastwood encourages sport license holders to check their individual position with EC for clarification.
“The EC rules state that before a complaint will be accepted or heard, the person needs to attempt to resolve the issue,” says McNutt. “This means the person complaining [should] come and speak to me, contact me, and try to resolve the issue. This did not happen. This person did not contact me, phone, or [send a] message seeking clarification.”
Dalhousie University’s definition of honorarium “is a nominal payment made in recognition of a contribution towards a specific activity of the University. It is not intended to pay for the service itself, but to provide a token gift to the individual. The amount of the honorarium should not be representative of the fair value of the contribution made to the University by the individual and should only be a small portion of what the service would cost.”
The definition of honorarium is clearly profiled as a token gift, a thank you for the time donated throughout the school year.
“Typically – thought not always – they are financial arrangements made between head coaches of each sport and those receiving honorariums and they consider a number of variables including team budget,” says Sarah Dawson, senior communications advisor with Dalhousie University. “They can be an important avenue for students or other community members to obtain valuable coaching experience, and to build their resume while staying connected to a sport and engaged with the University.”
But when Eastwood contacted McNutt, she was shocked by Eastwood’s particularly harsh directive.
“She told me ‘What is best for everyone is if you agree to withdraw your amateur status,’” she says. “She told me that if I agreed to do so that no consequences would take place and ‘it would be like none of this ever happened.’ I truly did not feel I was in violation as the rules are very grey. I offered to withdraw from helping the team and even return the honorarium if it was an issue. I wrote a letter to the president of EC outlining this. They did not respond. The only other option was to proceed to a hearing. I hired a lawyer [Paul Wadden] with Patterson Law and was advised of a hearing date of September 24, 2018. I was told a panel of three individuals would review all the documentation and come to a decision, which would be submitted in writing within 14 days.”
As it turned out, McNutt learned that the hearing was actually an “ongoing” process and the panel members could take as long as they wanted. They came to a decision seven days before she was due to leave for the Royal Winter Fair in early November to represent the Maritimes. McNutt was devastated by their conclusion. The panel had decided that by accepting the honorarium she was in violation of the Amateur Rules. The panel imposed the following sanctions:
1) McNutt was suspended from EC activities for six months starting December 1, 2018.
2) She had to pay EC a fine of $500 for costs relating to the hearing panel.
3) She had to return all prizes, awards, monies, trophies, year-end awards, etc., received from September 9, 2015 to the present (at the time of the panel’s decision) for classes or divisions open only to riders holding valid amateur status.
The panel added that, once the suspension had concluded, McNutt will be eligible to compete in EC classes/divisions open to senior riders (excluding amateur-only classes/divisions). Then, if she meets EC’s eligibility criteria, she can apply for reinstatement of amateur status on January 1, 2021.
Wadden believed that McNutt had been unjustly penalized.
“My lawyer argued that the rules were interpretative with grey areas and that the definition of honorarium was not included [in their decision].”
In addition, when EC published the dispute resolution on their website, the panel included information on ‘horse use fees’ that was not included in the final document provided McNutt and her lawyer. Wadden submitted an intent to appeal.
“I am concerned about the additional reasons that EC has added to Jessica’s decision,” says Wadden. “There was no mention of ‘horse use fees’ in the final decision released by the Hearing Panel on October 25, 2018, nor was there a discussion of any additional amounts received by Jessica outside of the honorariums. EC does not define ‘honorarium’ in its rules, nor do they use this term anywhere in its rules, which is why Jessica takes the position that the honorarium was a gift of token value. While Ms. Eastwood states that ‘an honorarium would be one form of remuneration,’ this is not set out anywhere in the rules. EC allows amateurs to accept gifts of token value without losing their amateur status. EC does not define ‘gifts of token value’ anywhere in its rules. Dalhousie Agricultural Campus defines their honorariums as ‘token gifts’ and are not meant to compensate someone like Jessica for their time. Jessica accepted the honorarium on a good faith basis believing it was allowed by the rules. While Ms. Eastwood states that EC ‘strongly encourage[s]’ riders with questions about remuneration to contact EC prior to accepting any money,’ the facts of Jessica’s case did not suggest that any questions needed to be asked. All of the facts before Jessica suggested that she would not get in trouble for accepting Dalhousie’s token gift, so there was no need for her to seek clarification.”
Wadden says that Black’s Law Dictionary defines “honorarium” as a payment of money or anything of value made to a person for services rendered for which fees cannot legally be or are not traditionally paid; a voluntary reward for that which no remuneration could be collected by law; a voluntary donation in consideration of services that admit no compensation in money.
He says that, in terms of whether an independent person is free to choose how to share their expertise, it is important to note that EC is a club where membership is voluntary, and EC is free to set up its own rules governing how members can conduct themselves within the context of EC activities. This includes setting up parameters on the activities amateur riders can engage in. “However, the problem arises when the rules do not match up with reality or provide little guidance, like in this case,” he says. “Jessica was very clear with Dalhousie that she could not accept remuneration for any time she spent with the equestrian team and Dalhousie assured her that they only provide an honorarium (which, again, they define as a ‘token gift’), which is allowed under EC’s rules.”
Equestrian Canada states that, “While the EC Amateur Rule does not prevent athletes from making personal choices, it places restrictions on eligibility for amateur classes/divisions at EC sanctioned competitions. Those who make a personal choice to receive remuneration in return for coaching services are not eligible to enter amateur classes at EC sanctioned competitions in order to protect fair play for all participants.”
Fair play. Amateur members who accept a remuneration, including an honorarium for coaching, cannot enter amateur classes at EC sanctioned shows. But the penalty enforced on McNutt goes far beyond simply not entering a competition. Where does the fairness, or balance, lie in a six-month suspension, a $500 fine, the demand that all prize money and awards received since 2015 be returned, and denial of re-applying for amateur status until January 1, 2021?
In addition, according to McNutt, the published Dispute Resolution on the EC website does not match the panel’s decision summary provided to her and Wadden.
The panel stated in the online Dispute Resolution that McNutt received a horse use fee for each horse used during monthly instruction at Solo Creek Farm, including a fee for horses owned by third parties. But according to McNutt, EC’s statement is not only inaccurate but includes statements that are not the focus of the dispute for which she was so heavily punished.
“The only reasoning the panel gave was that I was ‘paid to coach the team,’ which was the honorarium,” says McNutt. “Ms. Eastwood then brought up information [in the online Dispute Resolution] about being paid horse use fees for events and that I was paid for the use of other people’s horses, which is not accurate information. There is nothing in their rules about renting out your horse or leasing out your horse. It was inconsistent from the summary of decision the official panel provided me and my lawyer.”
Wadden submitted the appeal. However, Equestrian Canada denied the appeal.
“I am concerned about the additional reasons that EC has added to Jessica’s decision,” says Wadden. “There was no mention of ‘horse use fees’ in the final decision released by the Hearing Panel on October 25, 2018, nor was there a discussion of any additional amounts received by Jessica outside of the honorariums. Typically, in cases like Jessica’s, a final decision cannot be revised after it has been released unless the governing rules allow such actions. EC is bound by its rules, and its rules do not give it the authority to make any changes or additions to its decision to bolster or enhance its original reasoning, which is what they have done in this case. EC is not allowed, by their own rules and by the fundamental principles of administrative law, to get another kick at the can just because they may feel their final decision was not enough to justify the penalty imposed against Jessica.”
That very issue speaks to a bigger issue at stake and one engrained in EC’s procedural processes.
“If it is the case that the reasons for the penalty that were published on the website were different to the reasons given to the athlete, then that is a catastrophic flaw in the process,” says Akaash Maharaj, CEO of the Mosaic Institute and CEO of Equine Canada 2008-2012. “On the question of whether the payment is honorary or a token payment, I would say that if the organization has never defined what is a token payment then they should bear responsibility for that, not the athlete.”
In Wadden’s opinion, McNutt had done nothing wrong.
“Jessica is a pillar of the riding community in Nova Scotia and has for many years generously donated her time and horses to those who may otherwise be unable to afford riding lessons,” he says. “These penalties will negatively impact Dalhousie Agricultural Campus’ equestrian team, as well as Nova Scotia’s riding community, as Jessica was consistently the only rider to qualify to represent the region in national competitions.”
Her withdrawal as coach from the University’s equestrian team was truly felt.
“It is certainly difficult to lose anyone who is invested and engaged in a sport and is giving back to the University community,” says Dawson.
McNutt cannot avoid the feeling of being coerced.
“When I was initially contacted by Jennifer Eastwood, she advised me that if I just ‘gave in,’ basically pleaded guilty, revoked my amateur status there would be no punishment against me. The punishment was only developed and enforced once I challenged the system and requested my case be reviewed. My lawyer was disappointed that EC made the decision to not even allow an appeal to their initial decision. My lawyer also disagreed with the document they posted on their website, which included completely new information that was not involved in the panel’s decision process. I am disappointed in EC and the treatment I received. I felt unheard and bullied in my interactions to the point where it affected my overall well-being. The legal bill including the preparation of the appeal totalled $10,900, and the horse community stepped up to assist in some of the costs.”
Equestrian Canada’s statement with respect to denying an appeal states, “It was determined that EC was not justified to accept the appeal on the grounds that the carefully considered decisions on the issues of jurisdiction and interpretation should be subject to appeal simply because the appellant did not agree with the conclusions reached.”
The response is highly questionable given that the whole point of an appeal is driven by the fact that neither McNutt not her lawyer agreed with the conclusions reached. That is the focus of most appeals – a disagreement of conclusions. Simply because the Hearing Panel addressed the original complaint should not mean their conclusions cannot be challenged, especially when the sanctions are so significant.
Equestrian Canada stands by its rules that they claim set standards in matters of safety, horse welfare, ethics, conduct, and fair play. They further state that the Dispute Resolution Policy is in place to protect and enforce those rules without favoritism or exception for the benefit of all participants.
But while they stress that knowledge of the rules is required, it is the interpretation of those rules that comes into question and that dilemma is clearly exemplified in McNutt’s situation. In any functioning democracy, rules are, at best, a work in progress. They are always open to greater clarity of interpretation and always subject to improvement.
“EC’s decision in Jessica’s case will almost certainly have a chilling effect on riders who might otherwise consider volunteering their time with riding organizations, especially organizations that offer an honorarium or token gifts as a sign of appreciation,” says Wadden. “In Nova Scotia, much of the riding community relies upon individuals like Jessica to share their knowledge free of charge. Equestrians will have to be very careful about the types of opportunities they accept moving forward, or else risk losing their amateur status with EC. I expect that many will not want to take that risk and face penalties akin to what Jessica is currently facing. This will be a blow to amateur riding organizations in the province.”
However, one more avenue is open to McNutt to seek justice and that is the Sport Dispute Resolution Centre of Canada (SDRCC). It is akin to the supreme court in the sports world. The SDRCC offers an independent alternative dispute resolution solution for all participants in the Canadian sport system at the national level and strengthens the transparency and accountability of the national sport system and national sports organizations by clarifying their responsibilities to all stakeholders.
In McNutt’s case, basic criteria would clearly be met. As a national body, EC receives funds from Sport Canada. McNutt has retained a lawyer and has gone through the dispute process. EC has rendered a final decision. However, McNutt has been denied her right to an appeal, leaving her crushed with the harsh, enduring penalties.
Jessica McNutt will decide whether or not to pick up the gauntlet one more time and seek justice not only for her situation, but for other riders across the country who may be engaged in a dispute process with Equestrian Canada.
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Main photo: Jessica McNutt had been an amateur member of Equestrian Canada for over ten years when she volunteered to provide instruction to the Dalhousie University equestrian team. Photo courtesy of Jessica McNutt