The National Sports Tribunal one year on: provisions & procedures

MARTIN FRAYNE SC, JEFFCOTT CHAMBERS

The 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

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.”

The kinds of disputes that may be dealt with are further confined. Certain disputes are prescribed34 as the kinds of disputes for which applications may be made for arbitration and which are specified35 as:

“(a) disputes about athletic eligibility or selection …; (b) disciplinary disputes …. (c) disputes relating to disciplinary action taken, or proposed to be taken by a sporting body against a constituent part of its sport where the constituent part is a body corporate.”

Certain other disputes must not be approved for arbitration and appeals or alternative dispute resolution.36 In relation to arbitration and appeals,37 the CEO must not approve the following kinds of disputes:

“(a) disputes relating to remuneration or other benefits payable to an individual under a contract for services, or relating to the termination of a contract for services with an individual, except where those disputes arise in connection with an alleged breach of a disciplinary rule of the sporting body; (b) employment disputes, except where those disputes arise in connection with an alleged breach of a disciplinary rule of the sporting body; (c) anti-doping disputes; (d) disputes occurring in the field of play, however described or occurring; (e) disputes of any kind in which damages as a remedy are being sought from another party to the dispute.

… (2) In paragraph (1)(b), employment disputes means matters in respect of which a remedy is available: (a) under the Fair Work Act 2009 or a general State industrial law within the meaning of s 26(3) of that Act; or (b) at general law for the breach of a contract of employment. … ”

Thus there is a range of disputes which may not come within those provisions and there is a potential for jurisdictional issues to arise.

Appeals Division

The Appeals Division38 is governed by Part 3, Division 6 of the Act. There is the capacity to appeal against decisions made in the Anti-Doping division39 and also decisions by sporting bodies,40 decisions made by sporting tribunals under an anti-doping policy,41 decisions made in the General division42 and by sporting tribunals as prescribed by the rules or approved by the CEO.43 These provisions are also constrained by the kinds of disputes that may be appealed to the Tribunal as provided in the National Sports Tribunal Rule – Rule 8 and those which cannot – Rule 9.

The kinds of disputes that may be appealed to the Tribunal are set out in NST Rule 8. Rule 8 states as follows:

“… (a) disputes about athlete eligibility or selection, however described in the constituent documents of the sporting body; (b) disciplinary disputes, including but not limited to disputes relating to disciplinary action taken, or proposed to be taken, under a member protection policy of the sporting body; (c) disputes relating to disciplinary action taken, or proposed to be taken, by a sporting body against a constituent part of its sport, where the constituent part is a body corporate.”

The processes and procedures in relation to the Appeals Division are contained in Chapter 6 of the Practice and Procedure Determination.

Application

The Act binds the Crown in each of its capacities.44 It extends to omissions, matters and things outside of Australia45 and has extraterritorial application.

Members

The members of the Tribunal, their appointment, remuneration and related matters, including the duties of members to discharge their duties honestly, in good faith and for a proper purpose, are governed by Part 1, Division 3 of the Act and also Part 3 of the NST Rule 2020.46 A number of initial Tribunal members47 were appointed in about July 2020. They are part time members, and are to have knowledge in at least one of the following fields:48 sports law; sports governance or sports administration; scientific or medical expertise in relation to sports; dispute resolution; ethics; investigative practices or techniques and any other appropriate field of expertise.

The names of the initial members of the Tribunal appear on the Tribunal website. It is suggested that there will be further Tribunal members appointed to supplement the existing panel during 2021.

Alternative Dispute Resolution

There are also provisions for alternative dispute resolution49 being either mediation, conciliation or case appraisal. The kinds of disputes which are identified for alternative dispute resolution are set out in NST Rule 7(2). The following kinds of disputes are prescribed:

“(a) disputes about athlete eligibility or selection, however described in the constituent documents of the sporting body; (b) disciplinary disputes, including but not limited to disputes relating to disciplinary action taken, or proposed to be taken, under a member protection policy of the sporting body; (c) disputes about bullying, harassment or discrimination, however described in the constituent documents of the sporting body; (d) disputes relating to disciplinary action taken, or proposed to be taken, by a sporting body against a constituent part of its sport, where the constituent part is a body corporate.”

In relation to alternative dispute resolution,50 the CEO must not approve the following kinds of disputes:

“(a) anti-doping disputes; (b) disputes occurring in the field of play, however described or occurring.”

In the Practice and Procedure Determination there is an alternative dispute resolution chapter51 which relates to the pathway to seek52 one of either mediation, conciliation or case approval for those involved in a General division dispute and there are detailed processes set out in relation to each pathway.

The participants in mediation, conciliation or case appraisal must act in good faith in relation to that process.53 The General division encourages alternative dispute resolution.54

Standard of Proof and Publication

For those matters that proceed to a hearing, the standard of proof for a dispute under the General division is stated55 as “the burdens and standards of proof and methods of establishing facts and presumptions that are to be set out in the constituent documents of the sporting body or in the separate agreement to the parties to the dispute referring the dispute to the Tribunal.” Where neither the constituent documents nor the separate agreement set out a standard of proof, the default standard of proof is to be the balance of the probabilities.

In the General division the CEO is not to publish a determination of a dispute but may do so where the parties agree or where the Tribunal members who prepared the determination agree that the determination of the dispute is of such precedential value that it is to be published,56 subject to any redactions.

In relation to the Anti-Doping division, “the burdens and the standards of proof and methods of establishing facts and presumptions is to be set out in the anti-doping policy of the sporting body to which the applicant belongs.”57 The hearing of a dispute in the Anti-Doping division is to be conducted in private unless the applicant request that the hearing be conducted in public and the Tribunal in its absolute discretion agrees.58 The Tribunal’s determination of an Anti-Doping dispute is to contain certain stated matters59 about the jurisdictional basis and the applicable rules and other specific matters about the findings made, the reasons for the decision, and where a violation is established the consequences, and subject to certain exceptions, the CEO is to publish all determinations of the Anti-Doping Division.60

Subject to some defined exceptions the CEO is to publish all determinations in Anti-Doping appeals61 but not General Division appeals.62

At the time of writing, May 2021, there have been four published determinations,63 one in the Anti-Doping Division, two in the General Division and one in the Appeals Division, out of a total of 11 matters dealt with.

General Provisions

The procedures and processes to be followed in making an application are stated in Part 3, Divisions 7 and the manner of conducting an arbitration is stated in Division 8 of the Act. The common law privilege against self incrimination is not abrogated64 and therefore applies.65 Division 9 of the Act deals with the charging of costs of an arbitration or alternative dispute resolution process. There are civil penalty provisions in Division 10 of the Act and the power to issue infringement notices under Division 11 of the Act.

Part 5 of the Act provides for various protections of the processes and procedures of the Tribunal including establishing various offences, such as obstruction of the Tribunal or a member in the performance of their duties;66 intimidation of witnesses;67 secrecy by an entrusted person68 in relation to protected information.69 There is established protection and immunity for members of the Tribunal, lawyers and witnesses appearing in the process70 and protections from civil actions for acts or omissions done in good faith.71 There is provision for the Minister to make rules in relation to the Act.72

The Rule

The National Sports Tribunal Rule73 provides, amongst other things, for the kinds of disputes to be heard,74 for the cost of the application to the Tribunal by way of fees,75 which vary depending upon the type of application made, and which are designed to be modest. There are time limits in relation to the making of certain applications.76 There is power for the CEO to make a determination in relation to charging a party or parties for the costs in each division, including alternative dispute resolution,77 and there is power for the waiver of charges in certain circumstances for financial hardship.78 The NST waived fees up to 30 September 2020 due to the financial repercussions of Covid-19 on sports and athletes. In certain circumstances there is power to suspend or terminate an arbitration or appeal79 including where criminal proceedings have been commenced, where separate proceedings have been instituted in any other Court or Tribunal or an appeal to CAS has been exercised and other grounds.

The Practice and Procedure Determination

The Practice and Procedure Determination made pursuant to the Act80 applies to all disputes81 before the Tribunal and provides for the use of approved forms,82 the lodging of documents,83 the signing of documents,84 the service of documents85 and generally matters of process. It deals with the expedited resolution of matters;86 and the management of the process of an arbitration by the Tribunal.87 The allocation of Tribunal members to a matter is by the CEO.88 A Tribunal appointment may be challenged.89 There are provisions for a pre-hearing conference90 and two or more applications can be dealt with together.91

Importantly, the Tribunal is not bound by the rules of evidence but is required to act in accordance with the principles of procedural fairness.92 Paragraph 28 of the National Sports Tribunal (Practice and Procedure) Determination 2020 states:

“(1) The Tribunal is not bound by rules of evidence, but is required to act in accordance with principles of procedural fairness. (2) The Tribunal is to conduct the arbitration of a dispute before it with as little formality and technicality, and as much expedition, as the fair and proper consideration of the matters before the

Tribunal permit. (3) In an arbitration of a dispute, the

Tribunal may inform itself on any matter in such manner as it thinks appropriate, including but not limited to the following: (a) requiring a person to attend before the Tribunal; (b) inviting oral or written submissions; (c) requiring a person to provide copies of documents or records, or to provide any other information, to the Tribunal; (d) taking evidence under oath or affirmation; (e) recommending to the CEO that an expert witness be appointed under paragraph 68(1)(b) of the Act to prepare a report; (f) conducting a pre-hearing conference; (g) holding a hearing.”

There is the possibility of the appointment of an expert witness93 by the CEO to provide assistance to the Tribunal and for the parties to call an expert witness.94 An appointment of an expert witness by the CEO was adopted in the matter of RL v Equestrian Australia95 in relation to the effect of a substance upon the performance of a horse.

There are provisions as to witnesses96 who may provide witness statements by statutory declaration or affidavit. There is power to require a person to appear97 and to produce documents or things.98 The proceedings are confidential and are to be held in private99 and a recording of hearings may be permitted.100

Judicial Review

As disclosed in the Explanatory Memorandum101 issued in relation to the Bill, although the Tribunal was established by statute, it resolves disputes through exercising powers of private arbitration in accordance with contractual arrangements agreed between the parties, and it was hoped the scope for judicial review of an arbitration will be limited.

The Tribunal is eager and available to be involved with any disputes that qualify for its consideration. B

Endnotes 1 Which report was published on 1 August 2018. 2 Recommendations 26 to 37. 3 Report of The Review of Australia’s Sports

Integrity Arrangements, page 11. 4 By limiting the time limit for applications under

Section 38(5) of the Act. 5 Section 3(1) of the Act. 6 For a discussion about the Commonwealth’s power in relation to sport see Goldsworthy: Glory

Without Power: the Nationhood Power and

Commonwealth Spending on Sport, (2021) 95 ALJ 274. 7 Section 3(2) of the Act. 8 Defined in Section 5 of the Act and also as specified in the National Sports Tribunal Act 2019 –

Specifications of Sporting Body Instrument 2020 (No. 1). 9 There is a tool to assess whether an individual or sporting body can access the Tribunal on the

Tribunal website. 10 Part 4 of the Act and also Part 2 of the National

Sports Tribunal Rule 2020 including in relation to the procedural management function of any dispute. 11 Section 64 of the Act but not in relation to a particular dispute before the Tribunal or a particular athlete, support person or sporting body. 12 Made under Section 75(1) of the Act; NST Rule. 13 Made under Sections 29(2) and 41(2) of the Act;

Practice and Procedure Determination. 14 See for example Section 29 of the Act in relation to mediation, conciliation or case appraisal and

Section 41 of the Act in relation to the conduct of an arbitration which provides that the Tribunal must comply with the Determination. 15 Made under Section 52(4) of the Act. 16 Made under Section 5(3) of the Act, which relates to what is a “sporting body” for the purposes of the

Act. 17 https://www.nationalsportstribunal.gov.au 18 Section 11 of the Act. 19 Established under Section 11(a) of the Act, is more particularly provided for by Section 22 in

Part 3, Division 2 of the Act. 20 Section 22 of the Act. 21 Explanatory Memorandum to the National Sports

Tribunal Bill 2019, page 11. 22 Practice and Procedure Determination 2020, paragraph 45 and also the NST Rule 2020, Rule 10(1)(c) and (3). 23 Section 29(2) of the Act. 24 Being the external affairs power. 25 Section 6(1) of the Act, which Convention is defined in the definitions in Section 5 of the Act. 26 Established under Section 11(b) of the Act, is more particularly provided for in Part 3, Division 3 of the Act. 27 Division 3 – Subdivision A and Division 4 of the

Act. 28 Division 3 – Subdivision B and Division 5 of the

Act. 29 Section 29(2) of the Act. 30 Section 40(2) of the Act. 31 Section 28(2) of the Act. 32 Sections 23, 24, 25, 26, 34 and 35 of the Act. 33 Section 6(2) of the Act. 34 Under Section 23(1)(c)(i) and 24(1)(c)(i) of the Act 35 In Part 4 of the NST Rule 2020, Rule 7(1). 36 NST Rule 2020, Rule 9 and Sections 23(4), 24(4) and 35(6) of the Act. 37 NST Rule 2020, Rule 9. 38 Established under Section 11(3) of the Act, and see also Chapter 6 of the Practice and Procedure

Determination 2020. 39 Section 31 of the Act. 40 Section 32 of the Act. 41 Section 33 of the Act. 42 Section 34 of the Act. 43 Section 35(1)(c) or 35(2)(c) of the Act. 44 Section 7 of the Act. 45 Section 8 of the Act. 46 Which includes the disclosure of any conflicts of interest. 47 39 are named on the website. 48 Section 13(3) of the Act. 49 Sections 25 and 26 of the Act and also Part 3,

Division 5 of the Act, which are more specifically dealt with in Chapter 5 of the Practice and

Procedure Determination 2020 50 NST Rule 9. 51 Chapter 5 in the Practice and Procedure

Determination. 52 Practice and Procedure Determination 2020, paragraph 58. 53 Section 28(2) of the Act. 54 Practice and Procedure Determination 2020, paragraph 51. 55 Practice and Procedure Determination 2020, paragraph 55. 56 Practice and Procedure Determination 2020, paragraph 56. 57 Practice and Procedure Determination 2020, paragraph 46(1). 58 Practice and Procedure Determination 2020, paragraph 17. 59 Practice and Procedure Determination 2020, paragraph 48. 60 Practice and Procedure Determination 2020, paragraph 49. 61 Practice and Procedure Determination 2020, paragraph 96. 62 Practice and Procedure Determination 2020, paragraph 97. 63 Which are available on the Tribunal website. 64 Section Sections 43 and 44 of the Act. 65 See Explanatory Memorandum pages 40 and 41. 66 Section 70 of the Act. 67 Section 71 of the Act. 68 Section 72 of the Act and “entrusted person” is defined in the definitions under Section 5 of the

Act but is subject to matters in the NST Rule 2020,

Part 8, Rule 15. 69 Which is defined in the definitions under Section 5 of the Act. 70 Section 73 of the Act, which is the same protection available as in the High Court. 71 Section 74 of the Act. 72 Section 75 of the Act. 73 Made under Section 75(1) of the Act. 74 NST Rule 2020, Part 4. 75 NST Rule 2020, Part 6, Rule 11. 76 NST Rule 2020, Part 6, Rule 12. 77 NST Rule 2020, Part 7, Rule 13. 78 NST Rule 2020, Part 7, Rule 14. 79 NST Rule 2020, Part 5, Rule 10. 80 Sections 29(2) and 41(2) of the Act (and which commenced on 19 March 2020, paragraph 2). 81 Practice and Procedure Determination 2020, paragraph 4. 82 Practice and Procedure Determination 2020, paragraph 10. 83 Practice and Procedure Determination 2020, paragraphs 11 and 12. 84 Practice and Procedure Determination 2020, paragraph 13. 85 Practice and Procedure Determination 2020, paragraphs 14 and 15. 86 In Part 2. 87 In Part 3. 88 Practice and Procedure Determination 2020, paragraph 24. See also Principles of Allocating a

Member to a Dispute. 89 Practice and Procedure Determination 2020, paragraph 25. 90 Practice and Procedure Determination 2020, paragraph 26. 91 Practice and Procedure Determination 2020, paragraph 27. 92 Practice and Procedure Determination 2020, paragraph 28. 93 Paragraph 34 of the Practice and Procedure

Determination 2020 and Section 68(1)(b) of the

Act. 94 Practice and Procedure Determination 2020, paragraph 35. 95 Case number NST-E20-264864, paragraphs 22 and 23. 96 Practice and Procedure Determination 2020, paragraph 33. 97 Practice and Procedure Determination 2020, paragraph 36. 98 Practice and Procedure Determination 2020, paragraph 37. 99 Practice and Procedure Determination 2020, paragraphs 40 and 41. 100 Practice and Procedure Determination 2020, paragraph 42. 101 Page 10 and 11 of the Explanatory Memorandum and the Wood Review at page 205.