Australia's National Sports Tribunal gets a start
Updated: Jan 28, 2020
A key recommendation of the 2018 Report of the Review of Australia’s Sports Integrity Arrangements (the Wood Report)[1] was to establish a national sports tribunal as an independent specialist tribunal for the hearing and resolution of sporting disputes.
But, while offering an enhanced framework for the integrity of Australia's $12 billion sports sector, how will the NST operate and what are the implications for:
Athletes and athlete support persons;
Major event organisers and small sports;
Major sports in Australia, operating with established internal rules and tribunals (The Coalition of Major Professional and Participation Sports (COMPPS) represent major sports in Australia[2]);
The Australian Sports Anti-doping Authority (ASADA, subject to the Australian Sports Anti-Doping Authority Act 2006 (the ASADA Act)); and
The Court of Arbitration for Sport (the CAS, an international quasi-judicial body established to settle sports disputes through arbitration) and the World Anti-Doping Agency (WADA)?
This article summarises the implications of the NST for these key stakeholders in Australian sports, while also exploring the background.
What did the Wood Report recommend?
Amongst several important findings, the Wood Report found inconsistencies in dispute resolution arrangements across Australian sports and identified the need for a "clear, consistent and cost effective forum for all sports"– including small and emerging sports that do not have their own internal arbitration facility.
The Review examined similar models overseas, including in the United Kingdom, New Zealand, Canada, and Japan, and recommended that establishing a national sports tribunal would enhance the credibility of sport in Australia, and deliver a cost effective dispute resolution procedure for stakeholders.
The legislative process
Following the key recommendation to establish the NST, on 14 February 2019 the 45th Parliament introduced the National Sports Tribunal Bill 2019 and the National Sports Tribunal (Consequential Amendments and Transitional Provisions) Bill 2019. However, in what proved to be a false start, both bills lapsed on 11 April 2019 at the dissolution of parliament before the May Federal election.
Introduced again to the 46th Parliament on 24 July 2019 with the same titles, both bills contained amended sections, with the National Sports Tribunal Bill 2019 (the Bill) very similar to the 45th Parliament Bill. However, several sections of the Bill have been added to, amended, or others deleted, and the Bill had extensive renumbering.
The Bill was passed by both Houses on 11 September 2019[3] and was assented to on 19 September.
The Act will to commence on a date to be proclaimed (or by 20 March 2020), and then provide for the establishment and operation of the NST, on the basis of a conditional opt-out jurisdiction for sports.
How will the NST be structured?
The NST will have:
An Anti-Doping Division for Anti-doping Rule Violations (ADRVs);
A General Division; and
An Appeals Division.
Anti-Doping Division[4]: ADRV 'disputes' may be arbitrated in the Anti-Doping Division where the sport's approved anti-doping policy permits it to be so heard as against an athlete or athlete support person bound by the policy. Where the approved policy does not permit a dispute under the World Anti-Doping Code (WADA Code) to be heard in the NST, the athlete or athlete support person, the sport, and the ASADA CEO may agree in writing to refer it to the Anti-Doping Division.
General Division: Non-anti-doping disputes may be applied to be resolved in the NST where the sport's constitution or rules permit it, or where the parties to the dispute agree in writing to refer it to the NST. Disputes in the General Division will be resolved via arbitration, or via alternative dispute resolution process – mediation, conciliation, or case appraisal.
Appeals Division: Decisions either flowing from the NST's Anti-Doping Division, General Division, or from a sport's own internal tribunal process, may be appealed to the Appeals Division. Appeals heard in the Appeals Division will be arbitrated by the NST.
How will the NST operate?
All divisions will consist of Members appointed on a part-time basis by the Minister responsible[5]. Members will be individuals with experience or knowledge in:
sports law;
sports governance or sports administration;
scientific or medical expertise in relation to sport;
dispute resolution;
ethics;
investigative practices or techniques; or
any other appropriate field of expertise.
The NST will be administered by a Chief Executive Officer (CEO). The CEO's powers include to: approve disputes to be heard; determine practice and procedure; allocate Members to disputes; apply for the enforcement of civil penalties; charge parties for, apportion, and waive costs; delegate powers to a Senior Executive Service (SES) employee; and to "do all things necessary or convenient to be done for or in connection with the performance of the CEO's functions."
What will be the NST's powers?
In carrying out its functions to resolve sports disputes, the NST has considerable power to coerce evidence by way of sanctions for failure to give good and proper evidence. This power is perhaps best set out in the following table of offences and penalties[6]:
Further, the amendments set out in the National Sports Tribunal (Consequential Amendments and Transitional Provisions) Bill 2019 (as also assented to on 19 September 2019) will operate to:
ensure certain powers and evidential arrangements currently available under the ASADA Act in relation to hearings before CAS will also be available for hearings before the NST;
amend the Freedom of Information Act 1982 to prohibit disclosure under that Act of material protected by a secrecy provision; and
ensure that a person may make an application to the NST after commencement in relation to a disputes arising before, on, or after commencement of the Bill, as per timelines expressed in the sport's applicable anti-doping policy, constitution, by-laws, or rules.
What are the implications?
The NST will affect the various stakeholders in the Australian sports integrity system differently. We set out some initial suggestions below:
Athletes: the key stakeholder group of athletes will benefit from the clarity provided in such a forum acting in accordance with laws and regulations, where some sports may not have dispute resolution rules and processes clearly mapped out. Athletes will also benefit from a panel of lawyers acting in the NST on a pro bono basis, as established by the CEO. The appeals process will also be streamlined, including for ADRV 'disputes'. Further, the NST will hopefully provide an effective, efficient, independent, transparent, and specialist tribunal for the fair hearing and resolution of sporting disputes, in Australia.
Athlete support persons: unless an athlete support person is bound by a sport's constitution, by-laws, or rules in regards to general disputes, they appear to only have standing in the NST before the Anti-Doping and Appeals Divisions, as appropriate. As such, and as these individuals are subject to the ASADA Act already, the NST may only provide an additional forum for the hearing of disputes involving them.
Major event organisers and smaller sports: for smaller sports electing to opt-in to the NST and major event organisers, including: the Australian Olympic Committee (AOC); Commonwealth Games Australia; and Paralympics Australia, the NST introduces a low-cost option to outsource the expertise of a disciplinary tribunal. We will therefore likely see take-up, or the opting-in, by the smaller sports.
Major sports: current indications are that major sports associated with COMPPS will not opt-in, wishing to maintain their own integrity resources and responsibility for managing ADRV processes, as well as their own internal tribunals. The opt-out jurisdiction will allow this, so long as their in-house jurisdiction over ADRVs complies with the requirements that:
they have an anti-doping policy approved by ASADA; andthey maintain an ASADA-approved anti-doping policy that elects their own tribunal for first instance hearings.
ASADA: the NST's Anti-Doping Division will assist ASADA in that it will remove any jurisdictional or constitutional issues in applying the WADA Code to athletes who may be bound by a sport's constitution, by-laws, rules, or policies in that the parties to the ADRV dispute may opt-in by giving consent to the NST's jurisdiction.
CAS/WADA: As recommended in the Wood Report, the WADA appeals provision will likely apply throughout the NST process, whereby a matter may be appealed by WADA to the CAS. Matters proceeding to the CAS via the NST would have the advantage of refining the issues between the parties in dispute.
Until we see the relevant procedural and practice rules put in place, many questions remain, including as to how the privilege against self-incrimination will operate for individuals appearing before the NST, and if the NST may be challenged on the basis that it is exercising a judicial power of the Commonwealth.
For lawyers who dedicate their legal practice to the area of sports, the NST is further recognition that the field of sports law is unique and requires a specific set of skills, knowledge, and experience to best assist and advise the various stakeholders in Australian sports, in support of the national sports integrity framework.
What should Sporting Organisations do?
Sporting organisations should review their current anti-doping and general dispute resolution processes and assess these against the benefits of referring matters to the NST. Should a sport wish to refer disputes to the NST, relevant amendments should be made to the sport's constitution, by-laws, rules, and policies.
For advice and assistance in conducting a review of your sport's applicability to the NST, and the best ways to do opt-into the NST, please feel free to Contact Us in the lead up to the commencement of the Act and the new tribunal.
See our full range of Sports Law services.
Footnotes:
[1]https://www1.health.gov.au/internet/main/publishing.nsf/Content/63F0A5D7BDA5A0B5CA2582CF0005E6F9/$File/HEALTH-RASIA-Report-Acc.pdf
[2] COMPPS consists of the Australian Football League (AFL), Rugby Australia (RA), Cricket Australia (CA), Football Federation Australia (FFA), National Rugby League (NRL), Netball Australia (NA) and Tennis Australia (TA)
[3]https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6377_aspassed/toc_pdf/19145b01.pdf;fileType=application%2Fpdf
[4] Provisions establishing the Anti-Doping Division rely on paragraph 51(xxix) of the Constitution, activated by Australia's obligations under the International Convention Against Doping in Sport.
[5] Currently the Minister for Aged Care and Senior Australians, Minister for Youth and Sport, Senator the Hon Richard Colbeck.
[6] The value of a penalty unit is governed by section 4AA of the Crimes Act 1914 (Cth), and is currently valued at $210 per unit. 60 penalty units = $12,600.