The delicate equilibrium between the international and the domestic, the private and the public in sports regulation – does the Australian Sports Tribunal provide an answer? (Sport Resolutions, December 2019)
Paul Hayes QC and Stephanie David on 'The delicate equilibrium between the international and the domestic, the private and the public in sports regulation – does the Australian Sports Tribunal provide an answer?'
The resolution of disputes in sport, as readers will no doubt be aware, is uniquely public and private in nature. In many respects, the blend is shifting towards greater transparency and openness: for example, on 15 November 2019, Olympic champion, Sun Yang was the subject of a public hearing before the Court of Arbitration for Sport ('CAS'). Yet, on the other hand, the resolution of any sporting dispute is still intimately tied into the sporting contract – the powers of the arbitral panel, for example, are entirely dependent upon the contract. Usually the contract indirectly requires a private hearing for sporting disputes heard in the CAS, despite the Award being public, (unless the parties agree to the contrary).
In May 2017, the Australian federal Minister for Sport, Greg Hunt, announced that the government was considering the establishment of a national equivalent to CAS. At the time, Paul Hayes QC commented in The Australian:
"In an era now where most sports have been professionalised, the minister and others are correct to assert that it is no longer appropriate for sports bodies to sit in judgement of themselves.
However, the real worth to the Australian sporting community of the proposed national integrity tribunal will depend on two elements: its availability and affordabilityÍ¾ and, its legal structure and powers."
Fast forward, two and a half years, I consider in more detail below these two elements in the context of the National Sports Tribunal, which has been established for a two-year trial period likely to commence in 2020 and, in my view, epitomises the unique mix of public and private dispute resolution in sport.
What exactly is the National Sports Tribunal?
On 19 September 2019, the Australian Legislature enacted the National Sports Tribunal Act 2019 (the 'Act'). Any references to sections in the rest of this article are to those in the Act, unless expressly stated otherwise.
The Act will commence on a date to be proclaimed (or by 20 March 2020), and provides for the establishment and operation of the National Sports Tribunal (the "NST") for a two-year period. The Government, when introducing the Bill, intended that the NST will 'provide for an effective, efficient, independent, transparent and specialist tribunal for the fair hearing and resolution of sporting disputes' (section 3(1)).
It is intended to apply to all sports disputes and decisions (and Anti-Doping Rule Violations), made before, on or after the commencement of the Act. It will determine disputes through private arbitration - thus its jurisdiction arises from contract.
There will be three divisions:
1) Anti-Doping Division (sections 11, 22, 27) – At the moment, National Sporting Organisations are required to have an Australian Sports Anti-Doping Authority ("ASADA") approved anti-doping policy, which must specify either the CAS or a sport-run hearing body that is ASADA-recognised, as a first instance tribunal. Following the establishment of the NST, the Anti-Doping Division will hear all first instance ADRVs, save for those in sports which "opt-out." Sports can opt out where they have an ASADA-approved internal tribunal for first-instance hearings (some sports also have an internal appeal tribunal).
2) General Division (sections 11, 23-24, 25, 27) – The exact scope of this division is not entirely clear at this stage, because a "sporting dispute" has not been defined in the Act. During the Wood Review, it had been defined to expressly exclude commercial or contractual disputes – it may be that this comes through in the NST rules or that the CEO refuses to give permission for such disputes to be heard in the General Division. At this stage, it seems that a general sporting dispute can be determined by the NST if: (a) the constituent documents permit such a dispute to be heard by the NST; (b) the sporting body and person agree to refer the dispute to the General Division (and the nature of the dispute falls within that defined by the rules); or (c) the dispute is approved by the CEO.
3) Appeal Division (sections 11, 31-35) – The NST will hear appeals from the Anti-Doping (sections 31-33) and General Divisions (sections 34-35), except where they concern international level athletes. For these individuals, the CAS Appeals Arbitration Division is the exclusive forum for appealing a first instance decision (see Article 13.2.1 of the World Anti-Doping Code).
Why has it been set up?
In August 2017, the Australian Government commissioned the Review of Australia's Sports Integrity Arrangements (the "Wood Review") in response to the 'growing global threat to the integrity of sport,' which includes cheating, doping and match-fixing. It was conducted by an independent expert panel led by the Hon James Wood AO QC. The Wood Review supported the Government's broader work on safeguarding the integrity of sport, which was a strategic priority in the National Sport Plan - Sport 2030.
The Wood Review recognised that traditionally, '... sport runs sport, setting the rules for administration, competition and governance, including rules regarding integrity issues at international and national levels.' Sport is now, however, a major industry accounting for between 3% and 6% of world trade. Further, the number of sporting disputes has vastly increase due to the 'commercialisation of the sporting environment together with the increasing product value and the social and cultural importance of high-profile sport.'
The Wood Review led to 52 recommendations, which included not only the establishment of the National Sports Tribunal, but also the formation of the National Sports Integrity Commission. As part of their report, the Wood Review specifically considered the model adopted by Sport Resolutions, noting that Sport Resolutions is "one of the most successful and well-regarded sports arbitration agencies globally."
The NST's availability and affordability
The NST's admirable objectives of 'availability and affordability' will be best assessed by gauging how accessible - financially, geographically and procedurally - the NST will be for individual athletes and sporting organisations. Such an assessment effectively, in my view, requires two considerations:
1) First, is geographic accessibility: for the NST to operate in a manner more convenient than the existing NSO domestic tribunals, which currently hear sporting disputes in first instance in most cases, in a large country such as Australia it will need to have a de-centralised operation – at least in state capital cities and larger regional centres, rather than be centralised in Canberra. This is not only relevant to physical access but also, for the public perception, both psychological and symbolic, of its accessibility.
2) The second is that hearings before the NST are required to be "conducted with as little formality and technicality, with as much expedition and at the least costs [] to the parties as a proper consideration of the merits before the Tribunal permit" (section 40(1)(b)). Thus, the intention is that the procedure will be simple – as discussed more below, the NST will not be bound by rules of evidence and can determine its own procedure (section 30(1)). Yet, whilst laudable to a certain extent, the lack of formality and rules can, in some instances, lead to a lack of predictability and there is a risk that too much procedural discretion is thereby given to the arbitral panel (and/or the CEO of the NST who has the power to make determinations regarding the practice and procedure of the NST), thereby resulting in possible miscarriages of justice and challenges advising clients.
The NST's legal structure and powers
As detailed above, the Act establishes three sections within the NST: (a) Anti-Doping Division; (b) General Division and (c) Appeals Division (section 11). Other key characteristics of the NST are as follows:
Members of the NST
1) The Minister will appoint the members of the NST (i.e. those who can sit on the arbitral panels). The appointment will be part-time, and each member will hold office for a period not exceeding five years (sections 12 and 13). Importantly, the Minister must be satisfied that the member has expertise in at least one of the fields listed at section 13(3), which includes the obvious candidates (sports law, sports governance and scientific/medical expertise in relation to sport), but the Minister is also given a wide discretion ("any other appropriate field of expertise"). NST members are also afforded the same protection and immunity as a Justice of the High Court of Australia (section 73).
2) The members are subject to various statutory duties, referred to as "general duties" (section 20). These are:
- A duty to act honestly, in good faith and for a proper purpose;
- A duty in relation to use of position (the prohibition on abuse of position);
- A duty in relation to the use of information gained as a member.
Alternative Dispute Resolution
3) The General Division of the NST has the power to adopt alternative dispute resolution, following an application by the parties, in the form of mediation, conciliation or case appraisal (sections 25 and 26). Interestingly, participants to this ADR are under a statutory duty to act in good faith (section 28(2)). (There is an identical obligation in relation to arbitration at section 40(2)). Furthermore, there is protection akin to 'without prejudice' – at section 30, the Act stipulates that 'evidence of anything said, or any done' in the prescribed ADR before the NST is 'not admissible; (a) in an court; or (b) in any arbitration of the dispute by the National Sports Tribunal.' There is, however, an exception to (b) – the parties can agree to the evidence being admissible.
4) The Act provides for various statutory offences (for some, the sentence is imprisonment for 12 months or more), including:
- Pursuant to section 42, members are empowered to give notice to: (i) a person who is capable of giving evidence relevant to the dispute requiring them to appear before the arbitral tribunal at a specified time and place; and (ii) a person who has information or documents to provide that information or produce the document. Failure to comply with a notice is a statutory offence (see section 43).
- Section 44 creates an offence committed when a person refuses to be sworn or to answer questions (addressed more below).
- Knowingly giving false or misleading evidence is an offence pursuant to section 45.
- Section 70 creates an offence for an act or omission that "hinders, intimidates or resists the National Sports Tribunal or a member in performance of the member's duties."
- Section 71 creates a statutory offence to intimidate witnesses or other persons (including those who are going to produce documents or provide information to the NST).
- By virtue of section 72(1), it is an offence for an entrusted person to disclose or otherwise use protected information.
The determination of disputes in the Anti-Doping and General Divisions take effect on the day specified in the determination (section 27(2)). The NST is under a statutory duty to give written notice and reasons for its determination (section 27(3)).
The termination of an arbitration is governed by section 27(4) – the parties may agree to terminate or in certain circumstances, the NST may terminate, if it is satisfied, for example, that the application for arbitration is vexatious or the subject matter of the arbitration is 'trivial, misconceived or lacking in substance.' The NST also has the power to suspend an arbitration.
The statutory offence at section 44(3) (failing to answer a question) raises the issue of self-incrimination. The Explanatory Memorandum to the Act state the following:
'Under the common law privilege against self-incrimination, a natural person cannot be required to give information that would tend to incriminate that person. This common law privilege will not be affected by the Act. Consequently, a natural person who has been required to answer a question may refuse to answer that question on the basis that by doing so the person may incriminate themselves.'
'However, the privilege against self-incrimination does not apply where it is alleged that a person has given false or misleading information, where a person voluntarily provides information or documents, or to bodies corporate.'
Yet, given the nature of the contractual basis for jurisdiction, this is not so straightforward. As was seen in the Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority  FCA 1019 case, employment contracts and ASADA approved anti-doping policies incorporated into membership terms can undermine the right to claim privilege against self-incrimination.
As Paul Hayes QC observed in 2017, although the NST will go some way towards improving sports justice in Australia, it should not be overlooked that it is impossible for any form of regulatory intervention in sports governance to be a complete panacea to many of the problems currently inherent in Australian sport's administration.
There is also a direct tension between the purported consensual and contractual basis for the NST's jurisdiction, on the one hand, yet on the other, the mandatory nature of arbitration and the fact that arbitration clauses are incorporated into most sports membership terms. For most individual athletes, therefore, there is the patent question as to whether indeed they have given their free and informed consent to the arrangements. This, however, is not necessarily peculiar to the NST but to the resolution of sports disputes more broadly.
Overall, I consider that the NST will go some way towards harmonising and making sports justice in Australia more accessible. However, how the trial period unfolds will be crucial in determining the ongoing viability of the NST, particularly in circumstances where the more established (and arguably wealthier and more powerful) sports will be able to opt out, thus allowing them to continue sitting in judgment of themselves. The result may therefore be that those sports where there is the greatest need for deterrents (including criminal sanctions) to protect the integrity of the sports will escape the reach of the NST with the result that it does not have as big an impact on sports governance in Australia as was hoped for.
 A 'sporting dispute' was defined by the Wood Review as 'occurring under the rules or policies of a sport that may result in a sanction or other adverse outcome imposed by the sporting organisation on an athlete or support person.' Thus, it was defined to include anti-doping rule violations, off field player behaviour, salary cap breaches, player eligibility and selection and competition manipulation. It did not include commercial contract disputes or other legal action founded on tort or public law; and determined by the courts.
 Code of Sports-related Arbitration 2019 ('CAS Rules'), Rule 43. Cf CAS Rules, Rule 59.
 The Bill was passed by both Houses on 11 September 2019 and was assented to on 19 September 2019.
 Defined term with the Act, see s 5(1)
 The following sports have internal domestic tribunals: Australian Football League, Rugby Australia, Cricket Australia, Football Federation Australia, National Rugby League and Tennis Australia.
 The Review covered (inter alia) match-fixing (and associated corruption), wagering and anti-doping, see online at: https://www1.health.gov.au/internet/main/publishing.nsf/Content/the-review-of-australias-sports-integrity-arrangements
 J Wood, D Howman and R Murrihy, Report of the review of Australia's sports integrity arrangements, ("Wood Review"), Department of Health, Canberra, 1 August 2018 p. 56.
 Wood Review, p. 145; citing I Blackshaw, TV rights and sport: legal aspects, TMC Asser Press, The Hague, 2009; JosÃ© Luis Arnaut, Independent European Sports Review 2006; Presentation of the United Nations Environment Programme (UNEP), November 2004.
 Wood Review, p. 145
 ibid, p. 155
 The Act does not expressly address costs save to empower the CEO to make rules on awarding costs, but this ought to be considered alongside the obligation at section 40(1)(b).
 There are some specific provisions regarding applications – see sections 37 and 38.
 Although Essendon is an interesting case because the judge considered that during various interviews, the athletes did not invoke the privilege against self-incrimination (noting the possible contractual sanctions of so doing). He therefore concluded that "there was thus no 'compulsion' by ASADA at all, nor any resultant abrogation of privilege against self-incrimination" (para 442).
Published by Sport Resolutions, December 2019.