A guide to Australia’s new National Sports Tribunal

Published 04 October 2019 By: Cassandra Heilbronn

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In November 2018, we published an article1 summarising the key points from the Report of the Review of Australia’s Sports Integrity Arrangements (Wood Review),2 which was produced at the request of the Australian Government as part of developing the country’s Sport 2030 - National Sport Plan. On 11 February 2019, the Australian Government released its Response,3 which agreed, or agreed in principle, with many of the recommendations contained therein (a helpful summary table of its recommendations can be found at pages 10-25 of the Response).4

One of the key recommendations made by the Wood Review was for the Government to establish a National Sports Tribunal to ensure the fair hearing and resolution of sports-related disputes for the Australian sporting community. Taking this recommendation on board, the Australian Legislature has recently enacted the National Sports Tribunal Act 20195 (NST Act) establishing a National Sports Tribunal (NST) for a two-year pilot period. The stated aim of the NST is to “provide for an effective, efficient, independent, transparent and specialist tribunal for the fair hearing of sporting disputes” (Section 3(1)).6

This article provides a summary of the key provisions of the NST Act and highlights points for discussion on how its introduction could impact those practising in sports in Australia. It is not intended to provide a summary of administrative steps or details of procedures which are to be followed in referring a dispute for arbitration or appeal.

The National Sports Tribunal

The NST is intended to apply to all sports disputes and decisions, and anti-doping rule violations, made before, on or after commencement of the NST Act.7 While not expressly defined, "sports disputes" will including integrity matters, but not commercial or on-field violations that do not relate to integrity (see more below, and also discussion in the prior article). To this end, the NST can hear both first instance cases and appeals.

The NST will determine disputes through private arbitration and, in the case of general sporting disputes, it will have the ability to conduct, by application of a party, alternative dispute resolution procedures (namely mediation, conciliation or case appraisal). The NST will not exercise judicial power; rather, its jurisdiction is contractual and found in agreements between the parties to a dispute (including policies, membership agreements or in the case of professional athletes, employment contracts).8

It is a requirement that arbitrations are conducted with as little formality and technicality as possible, with as much expedition and with the least cost to the parties as a proper consideration (of the issues) permits. The NST is not bound by any rules of evidence and essentially can determine its own procedure, with the CEO of the NST empowered to make a determination in relation to the practice and procedure of the NST.9 The Federal Minister for Youth and Sport (the portfolio where the NST currently sits) may also make rules, which will likely be a mix of procedural and substantive rules given the content of the NST Act, to supplement the legislation (Section 75).

Matters before the NST

The recommendation from the Wood Review to have an Anti-Doping and a General Division for the NST is reflected in the NST Act.

Anti-Doping Division

The current requirements for dealing with Anti-Doping Rule Violations (ADRV) are well known to those that practice in this area.10 Relevant to the establishment of the NST, National Sporting Organisations (NSO) are required to have an Australian Sports Anti-Doping Authority (ASADA) approved anti-doping policy, which must specify either the Court of Arbitration for Sport (CAS) or another sport-run hearing body that is ASADA-recognised, as a first instance tribunal. Internal tribunals are used for the Australian Football League, Rugby Australia, Cricket Australia, Football Federation Australia, National Rugby League and Tennis Australia, with the remaining sports nominating CAS as the first-instance hearing body. The sports-run internal tribunals may also have an internal appeal body which can be accessed prior to the CAS Arbitration Appeal Division.

As athletes are compelled to comply with anti-doping policies and procedures (through their membership or employment contract) prescribed, largely, by ASADA prior to being eligible to participate in sports, they have contractually agreed to participate in private arbitration. It is through this agreement, that the NST will be able to determine sporting disputes that come before it. The language of Part 3, Division 2 of the NST Act is such that it applies when a sporting body’s anti-doping policy permits the NST to hear the ADRV. Given there will be transitional issues, the Division also allows for the NST to hear the matter even if the anti-doping policy does not permit for an ADRV to be heard before the NST (Section 22).

The NST Anti-Doping Division will now hear all first instance ADRVs, and while it does not appear to be expressly addressed in the NST Act, sports which have an ASADA approved internal tribunal and anti-doping policy will retain the ability to have first-instance hearings (and appeals for those sports who have an internal appeal tribunal) remain with the sport (referred to as "opt-out" in the Wood Review).

Any determination of the Anti-Doping Division will take effect on the day specified in the determination and does not require any other steps for it to be enforceable (Section 27(2)).

General Division

The ability for the NST to arbitrate general sporting disputes depends on constituent documents permitting a dispute to be heard in the NST. If there is no permission, the sporting body and person can agree to refer the dispute to the General Division provided that the dispute is the kind prescribed by the rules11 or the dispute is approved by the CEO. Either the sporting body or the person can apply to the NST for arbitration of the dispute (Section 22).

The question remains of “what constituents a sporting dispute”. The relevant sections of the NST Act do not expressly prohibit the hearing of commercial or contractual disputes between a sporting body and a person, on-field violations or player selection issues. It may be that the prohibition of such disputes, which was the theme of the Wood Review recommendations, will come through the rules that are yet to be prescribed12 or the CEO refusing to give permission for the dispute to be heard in the General Division.

There is a provision for disputes between two or more persons to be arbitrated in the NST, with the same prerequisites as a sporting body and person dispute, however the sporting body is to apply to the NST for the arbitration of the dispute (event though they may not necessarily be a party to the dispute) (Section 24).

The General Division also has alternative dispute resolution process powers, where it can decide a dispute, on application, through mediation, conciliation or case appraisal (Section 25). In such a case, evidence of anything said, or any act done is not admissible in any court or in any arbitration of the dispute before the NST (Section 30).

Termination

The parties can agree to terminate the arbitration and the NST also has the power to initiate termination in certain circumstances. The NST also has the power to suspend arbitration in any circumstance prescribed by the rules. (Sections 27(4)(5)).

Appeals

The Appeals Division of the NST will hear appeals from both the Anti-Doping (Section 31-33) and General Divisions (Section 34-35). Given the nature of Article 13.2.1 of the World Anti-Doping Code, it will still apply for international level athletes with CAS Appeals Arbitration Division being the exclusive forum for appealing a first instance decision.

Members of the NST

The Members appointed to hear matters before the NST will be appointed on a part-time basis for a period not in excess of five years and will be required to comply with the general duties prescribed (including a duty in relation to use of position and use of information) (Sections 12-20).

The NST members will also be afforded the same protection and immunity as a Justice of the High Court of Australia, and barristers, solicitors and witnesses having the same protections as they would before the High Court (Section 73). The Scrutiny of Bills Committee13 commented that if a particular immunity could affect individual rights it needed to be soundly justified, the implication being that the justification was not evident through the initial material produced. The Explanatory Memorandum was substantially expanded and no further comment was made by the Scrutiny of Bills Committee on this topic.14

Breach of secrecy provisions

Parties before the NST will have access to confidential and sensitive information. The NST Act seeks to address this.

Section 72(1) prescribes offences if an entrusted person discloses or otherwise uses protected information. However, Section 72(2) states that Section 72(1) does not apply in four specific situations, including disclosure for the purposes:

  1. of the Act or rules;

  2. the performance of the functions of the CEO or the exercise of the CEO’s powers;

  3. of, or in connection with, the performance or exercise of the person’s functions, duties or powers in the person’s capacity as an entrusted person; or

  4. of compliance with the rules prescribed for the paragraph.

Other penalty provisions include the refusal to take an oath or make an affirmation; a refusal to answer questions (discussed further below), knowingly giving false or misleading evidence, obstruction of the NST or intimidation and coercion of a witness or other persons (Sections 44, 70, 71).

Privilege against self-incrimination

As referred to above, there is a penalty provision for refusing to give an answer. The NST Act does not provide a specific defence for refusing to answer a question and there appears to be no restrictions for a person to rely on the common law privilege against self-incrimination, with the Explanatory Memorandum stating that the privilege is not abrogated through the NST Act.15

The interplay with the ASADA Act is discussed below.

Comment and discussion

The introduction of the NST Act has resulted in discussions in the sports community about how the NST will operate in practice and the impact it will have on the sporting industry, particularly with regards to the appointment of Members and the position regarding the privilege against self-incrimination. Variables that have been raised throughout this article may be addressed through the rules that can be prescribed by the Minister, and we provide the following points for further comment and discussion.

Judicial Power

The Bills Digest discussed statutory tribunals and the requirement that they must not exercise "judicial power of the Commonwealth".

In the case of the NST, a determination takes effect when it is made and no other steps are required. This, in part, has raised questions of whether or not the NST is genuinely exercising “arbitral” and not “judicial” power. The Bills Digest concluded that if the “NST is genuinely exercising arbitral power, it will not be exercising judicial power even if it makes a final, conclusive and binding determination of all matters of fact and law between the parties” given the consensual foundation of the arbitration.16

Mandatory” arbitration

There is potential for arguments to be raised regarding "mandatory" arbitration and "soft" coercion17 that may be present due to NSOs being required, in non-statutory ways, to adopt some national policies for sports integrity. Further, it is mandatory for athletes to participate in the National Anti-Doping Scheme (referred to in Australia as the NAD Scheme).

The consensual foundation of the arbitration is, in part, critical to the NST’s powers and legitimacy to arbitrate without any Constitutional issues regarding exercise of judicial powers. As the Wood Review used the Fair Work Commission model as the basis for its recommendation, it is useful to mention a case (One Tree Hill Community Service v United Voice18 ) currently before the Courts that centres around the allegation that a party had not voluntarily agreed to arbitration in the Fair Work Commission and is instead “compelled” by legislation to submit to arbitration. The case is yet to be decided and is still in the interlocutory application phase so will be an interesting one to watch.

In the author’s view, it is unlikely that arguments regarding imbalance of power between the parties (in terms of compulsion to participate in arbitration) would succeed given the nature of the contracts, that is consent coming via an athlete’s membership – and, in the case of professionals, employment agreements – where an agent, presumably with relevant skill and experience, was used during the negotiation phase. Furthermore, many of Australia’s top sports (NRL, AFL and Cricket) are bound by Collective Bargaining Agreements that mandate the terms of contracts, employment conditions and benefits, which will likely counteract any arguments regarding “imbalance” of power.

Evidence of things said or acts done during alternative dispute resolution processes cannot be used in court or arbitration

The General Division, when exercising Alternative Dispute Resolution (ADR) functions, has Section 30 NST Act which specifically addresses use and derivative use of evidence of things said or acts done during ADR, stating:

Evidence of anything said, or any act done, in a mediation, conciliation or case appraisal of a dispute before the National Sports Tribunal is not admissible:

(a) in any court; or

(b) in any arbitration of the dispute by the National Sports Tribunal.

There is not a like provision for arbitration and, as it currently stands, any information, document or thing compelled to be produced during an investigation stage of an arbitration could be tendered and used in Court at a later date. An example that was given in the Bills Digest is that of a person who tests positive to an illicit drug, whether or not it is performance enhancing, being later subject to civil or criminal prosecution based on the evidence provided in the NST.19

Appointment of Members

The requirement to have the Minister appoint a member is a departure from the recommendations in the Wood Review, which focused on independence. Both the Wood Review and ASADA recommended that the current members of the ADRVP were appointed the first members of the NST, and that future members were appointed by SIA in consultation with the Minister (this is the same process adopted by Sports Resolutions in the UK).

While the language passed at Section 13 does not prevent the Minister from following what was recommended by the Wood Review, the appointment of Members is entirely discretionary and to be completed without consultation. No reason was provided for this divergence from the Wood Review recommendations.

From a non-sports law practice perspective, discretional Ministerial appointments to Tribunals in Australia have been the subject of negative comments based on allegations of political bias and appointment of "friends".20 The recommendation in the Wood Review sought to avoid this through its proposal that appointments are in line with benchmarked jurisdictions and are made through consultation. As noted above, there is no restriction on the Minister ultimately following this recommendation, but it remains that appointments are solely discretionary.

A possibility that, in the author’s view, could be explored is the one similar to the Judicial Appointment Advisory Panel which operates in Queensland.21 This Panel is appointed by the Attorney-General and conducts an independent review of all expressions of interest received for judicial appointments and subsequently provides a shortlist of names it considers meets the criteria for appointment to the Attorney-General for consideration. While the Attorney-General is not bound to follow the list of names provided, the process assists in reducing arguments of political bias in appointments.22

Athletes and governing bodies may take comfort in the requirement for members to have the experience or knowledge in particular fields, and it will be interesting to review the public’s reaction to the first round of appointments.23

Reversal of the onus of proof in Section 72 (Secrecy)

As touched on above, Section 72(1) (Secrecy), states that:

A person commits an offence if:

(a)the person is, or has been, an entrusted person; and

(b) the person discloses or otherwise uses information; and

(c) the information is protected information.

Penalty:  Imprisonment for 2 years.

Sections 72(2)-(4) then prescribe a series of “defences” that a defendant is able to advance in order to defend the allegation(s) against them (see above). Generally, elements of an offence are specified and it is a matter for the prosecution to prove each element. By prescribing defence based elements in Section 72, the evidential burden of proof is reversed (as is noted at each section of this offence in the NST Act), arguably interfering with a common law right of defendants.24

Concerns were raised about this reversal, and the Scrutiny of Bills Committee requested the Minister’s justification as to the appropriateness of including the specified matters as “offence-specific defences” and considered it appropriate for the clauses to be amended to provide that they form elements of the offence.25 It is reported that the Minister responded prior to the passing of the NST Bill, however that response has not been made public.26 In any event, the NST Bill passed and the offence-specific defences clearly remain after the Explanatory Memorandum was expanded on presentation of the NST Bill.27

Privilege against self-incrimination

The ASADA Act provides that a natural person does not have to answer a question or give information that might incriminate them or expose them to a penalty.28 However, as was seen with the Essendon Football Club case29, the right to claim privilege against self-incrimination can be absolved through employment contracts and anti-doping policies approved by ASADA which can also be incorporated into membership terms.

The interplay between Section 44(3) of the NST Act and the exercise of coercive powers by the NST during the investigative stage has not been addressed, nor is there an express provision preventing the use of material, which may incriminate a person, obtained through compulsion in the investigative phase.

Will the NST benefit the sports industry?

The Explanatory Memorandum for the NST Bill stated that no further funds were needed from the Government in order to establish the NST. In the author’s view, well-funded and resource-rich sports are likely to benefit to a lesser degree from the NST given their existing procedures, policies and processes. The benefit of the NST will likely be more pronounced for those sports who do not have these established procedures and now have the benefit of the Anti-Doping Division without having to appear before CAS at first instance.

With regards to the General Division, even with the exclusion of commercial related disputes and on-field violations that do not meet the threshold of s23, there may be an increase in matters heard under the NST given that the fees and costs associated with instituting Court proceedings will not apply.30

The NST has been introduced for a two-year pilot. Its success will depend on access to funding for adequate staff and resources to arbitrate matters with a short turnaround and with minimal cost and disruption to the parties. The subject matter of disputes before the NST will require sensitivity and expert subject knowledge to ensure they are determined in accordance with the spirit of the relevant game.

Given the pilot-basis for the NST it may be beneficial for the Government to conduct a mid-term review to ensure it is functioning at the right capacity (that is, is it being utilised as intended and that no backlog of matters occurs, which has been seen on the introduction of similar entities, including the Fair Work Commission) and dealing with matters in accordance with the intentions of the Wood Review. Such performance measures or benchmarking has not been proposed in any material.

What is known is that the sports law community in Australia have generally welcomed the focus on integrity of sports, with its long term success dependent on issues (including those raised above) being addressed.

The National Sports Integrity Commission

Finally, a brief update on the National Sports Integrity Commission (NSIC). The establishment of the NSIC was another key recommendation under the Wood Review, with the intended aim of taking over the sports integrity and management responsibilities of the Australian Sports Commission (also known as SportsAUS) and the National Integrity of Sport Unit (NISU).

In April 2019, it was proposed through the Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019 that the Australian Government would establish the NSIC and it would be called Sports Integrity Australia (SIA). It was intended that SIA would be the single body to coordinate a national approach to matters relating to sports integrity in Australia, including preventing and addressing threats to sports integrity.31

This Bill has lapsed (that is, it has not progressed through parliament) and has not been reintroduced. At the date of publication, it is not known what the Government’s intention is in relation to the formation of SIA.

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Author

Cassandra Heilbronn

Cassandra Heilbronn

Cassandra Heilbron

Cassandra is the Sports, Entertainment and Events Regulation Legal Manager at the Royal Commission for AlUla, and prior to June 2019 was a Senior Associate in the Sports and Corporate Risk practice group at MinterEllison in Australia. Her practice areas saw her acting in commercial matters with worldwide sporting organisations, corporations and sponsors; event management; player disputes on behalf of Clubs and governing bodies; player selection appeals for international athletics competitions and managing image rights and social media disputes (defamation and discrimination). Over the past twelve years, Cassandra also acted in insurance disputes primarily in the management liability, professional indemnity, medical negligence and public liability space.

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