SPORTS TRIBUNAL
The National Sports Tribunal one year on: provisions & procedures MARTIN FRAYNE SC, JEFFCOTT CHAMBERS
T
he National Sports Tribunal (“the Tribunal” or “NST”) was established by the National Sports Tribunal Act 2019 (Commonwealth) (“the Act”) and commenced operation on 19 March 2020. Its establishment followed a review into Australia’s Sports Integrity Arrangements commissioned by the Department of Health, by a panel chaired by James Wood QC (“the Wood Review”).1 Amongst other things, the review panel recommended2 the Tribunal’s establishment to address shortcomings of the then system and to provide an expert, central hearing body that could supplement the work of sports’ then current internal dispute resolution arrangements and to provide a dispute resolution forum for smaller sports.3 It was established as a pilot project initially for two years.4 The operation of the Tribunal, and the expectations for it, have been affected by the timing and impact of Covid-19, by reason of the disruption of the priorities of sports and the demand for dispute resolution services. The pilot project has now been extended until 18 March 2023. The Tribunal’s purpose5 is to provide an effective, efficient, independent, transparent and specialist Tribunal for the fair hearing and resolution of sporting disputes. As it is established by Commonwealth legislation, it was necessary for it to be based upon Commonwealth power6 and its operation is directed to matters which come within that power. It is complementary to certain other Commonwealth legislation including the Australian Sports Anti-Doping Authority Act 2006. In part, it was established to give effect to certain obligations that Australia has as a party to the International Convention Against Doping in Sport.7 As to those matters not concerned with Anti-Doping, the Act only covers sporting disputes that the Commonwealth has a constitutional power to regulate, which essentially relates to those organisations that meet the definition of a national sporting organisation8 being (but not only) a sporting organisation recognised by the Australian Sports Commission.9
16 THE BULLETIN June 2021
The Tribunal does not replace internal mechanisms for dispute resolution which operate in some professional sports. Administration The administration and management of the Tribunal is vested in the Chief Executive Officer10 but is subject to certain directions of the relevant Minister.11 Apart from the Act, the framework for the Tribunal is the National Sports Tribunal Rule 202012 and a notifiable instrument named the National Sports Tribunal (Practice and Procedure) Determination 202013 which separately address matters not covered by the Act and expand upon other matters required by the Act. There are comprehensive provisions designed to guide and control the processes of the Tribunal.14 In addition there is an instrument relating to the Principles for Allocating a Member to a Dispute,15 a Specification of Sporting Body Instrument16 and there is a Tribunal Bench Book prepared to assist parties in relation to applications and hearings before the Tribunal. The Tribunal has a website17 which provides information about it and the services offered. A brief and non exhaustive overview of its operation is set out below.
OVERVIEW Divisions The Tribunal contains three divisions:18 the Anti-Doping division; a General division; and an Appeals division. Anti-Doping Division The Anti-Doping division19 relates to applications for the arbitration of disputes with respect to anti-doping policies and the Act20 contains the pathways as to how that may occur, states who are to be the parties to the arbitration, and provides that the arbitration is to be conducted by that division. The Tribunal becomes a default resolution body responsible for arbitrating anti-doping matters in Australia by reason that sporting bodies’ anti-doping policies must be approved by the CEO of ASADA21 under its framework. The Tribunal provides a method of avoiding
the Court of Arbitration for Sport (“CAS”) for those to whom that route may otherwise be available. Where a party has exercised a right to appeal to CAS, the Tribunal is to determine whether the arbitration should be suspended pending the outcome of the appeal to CAS or terminated.22 The Anti-Doping division must comply23 with the Practice and Procedure Determination 2020, Chapter 3 and the matters set out in it. The sections of the Act and any other provisions relating to Anti-Doping, rely on the Commonwealth’s legislative power under paragraph 51(xxix) of the Constitution24 to give effect to the International Convention Against Doping in Sport.25 General Division The General division26 deals with the arbitration of disputes27 and applications for alternative dispute resolution,28 directed to disputes between either a person and a sporting body or between two or more persons in strictly confined circumstances as to the kinds of disputes it can consider. It must comply29 with the Practice and Procedure Determination 2020, Chapter 4. The parties to an arbitration or alternative dispute resolution in the General Division must act in good faith in relation to the conduct of the arbitration30 or alternative dispute resolution.31 Kinds of Disputes In relation to the General division and the other sections of the Act,32 which relate to general sporting matters, they are limited by reference to “a dispute of any of the following kinds:33 a. a dispute where the sporting body concerned is: ii. a constitutional corporation; or iii. a body corporate that is incorporated in a Territory; or iv. a body corporate that is taken to be registered in a Territory under Section 119A of the Corporations Act 2001; b. a dispute involving matters relating to a sporting event at which Australia is or was represented as a nation; c. a dispute involving matters that occurred beyond the limits of the States and Territories.”
