The National Sports Tribunal’s first year
19 March 2021 will mark the first year of the National Sports Tribunal (NST), established on a two year pilot program (although it has been announced that the pilot program will be extended by a further 12 months, until 18 March 2023, “following significant disruptions from the COVID-19 pandemic”).[1] This article reviews the decisions of the NST to date.
Reasons for establishment of the NST
The establishment of the NST was a recommendation of the 2018 “Wood Review”.[2] The Wood Review found that there are mounting threats to the integrity of Australian sports, including a significant risk of an increase in match-fixing and related corruption in Australia,[3] the greater accessibility and prevalence of performance and image enhancing drugs (including increased use among sub-elite level athletes)[4], and issues in relation to protecting the most vulnerable participants in sport from abuse, harassment, discrimination and bullying.[5]
The Wood Review recommended the establishment of a National Sports Tribunal to “provide an expert, central hearing body that can supplement the work of sports’ current internal dispute resolution arrangements and provide a dispute resolution forum for the smaller sports”, as well as promote more consistency and predictability in outcomes for the large range of issues that might need resolution.[6] The NST was established in response.
Work and procedures of the NST to date
To date, there have been only four published decisions of the NST. It is unclear whether this low number is because most applications have proceeded to dispute resolution;[7] limited numbers of applications have been made to the NST (whether because of the COVID-19 pandemic, because there are limited sporting bodies whose documents provide for arbitration of disputes at the NST, and/or because the parties have been unable to reach agreement to refer the dispute to the NST); the NST CEO has decided that determinations not be published;[8] or otherwise.
While small in number, the determinations nonetheless provide some insight into the work and procedures of the NST.
The decisions relate to the sports of equestrian (two), powerlifting (one) and baseball (one) – which indicates some success in meeting the aim of providing a dispute resolution forum for “smaller sports” – and the decisions have largely involved sports members at a high-performance level, including two National Baseball League teams, a para-powerlifter competing in a qualifying event for the 2018 Commonwealth Games, and a five-time Australian Olympian.
Under the NST Act, the CEO has broad powers to set practice and procedure of the Tribunal, including representation of the parties.[9] In two of the four determinations there were no legal practitioners involved in party representation. In the other two, parties were represented by barristers (including Queen’s Counsel) and other legal practitioners.
The determinations to date have been dealt with efficiently, with written determinations published (generally speaking) within three to four months of the application first being made.[10]
The majority of the applications to NST (3 of 4) were made by a sporting individual (or team of sporting individuals), rather than the sporting body. Of note in respect of the applications is that:
- the applicant for arbitration by the Anti-Doping Division could have challenged the sanction imposed either before the Court of Arbitration of Sport or the NST, and elected to challenge the sanction before the NST;[11]
- the Appeals Division determined an appeal against a decision of an independent tribunal convened by Baseball Australia, and the parties to the dispute (two baseball teams and Baseball Australia) agreed to refer to the dispute to the NST;[12] and
- with respect to two of the applications, the CEO of NST approved the dispute as one which could be heard by the NST.
The subject matter of the disputes has varied:
- one Anti-Doping Division dispute (self-evidently) related to an anti-doping matter;
- two General Division disputes, which related to “disciplinary” disputes, one relating to a violation of FEI Equine Controlled Medication Rules (by the person responsible for a horse that returned positive blood and urine samples) [13] and the other relating to (inter alia) inappropriate Facebook posts by one member, breaching requirements of the member protection policy;[14]
- an appeal was against a decision of an independent tribunal convened by Baseball Australia to declare no result with respect to a series of games that were to take place (but had been impacted by Covid-19).
As the pilot program of the NST continues, further decisions (as well as the planned evaluation of the pilot[15]) will be watched out for with interest.
[1] Media Release of Senator Richard Colbeck dated 17 December 2020, “$13.7 million to further strengthen integrity in Australian sport”. However, section 38 of the NST Act provides that an application under the Anti-Doping, General or Appeals Tribunal must be made within 2 years of the commencement of the NST Act, unless that period is extended under the NST Rules. The Explanatory Memorandum states this limitation of time was imposed to reflect the two year pilot of the Tribunal. At the time of this article, neither the Act nor the Rules had been amended to reflect the announced extension of the pilot program to three years.
[2] James Wood AO QC, David Howman CNZM and Ray Murrihy, Report of the Review of Australia’s Sports Integrity Arrangements (1 August 2018) (Wood Review).
[3] Wood Review, p 62.
[4] Wood Review, p 50.
[5] Wood Review, p 54.
[6] Wood Review, ii-iii.
[7] The National Sports Tribunal Act 2019 (Cth) (NST Act) provides for “mediation, conciliation or case approval” of certain types of disputes: NST Act, ss 28-30; National Sports Tribunal Rule (NST Rules), rule 7(2).
[8] The CEO determines when and how Tribunal determinations and reasons are to be published (including whether information is to be de-identified: NST Act, s 41(3).
[9] Including matters such as whether the parties will be legally represented, the circumstances in which hearings are to be held or not held, timetabling of doing things in the course of the arbitration: NST Act, s 41(3).
[10] It is not clear, from the reasons, when the application to the NST was made in Ashcroft v Powerlifting Australia and Sport Integrity Australia. The earliest it could have been made would be 25 June 2020 (the date of the applicant’s Infraction Notice), and the written decision is dated 3 December 2020. The other decisions’ turnaround times from application were under three weeks (18 January 2021 to 5 February 2021), three months (11 August 2020 to 5 November 2020) and four months (2 September 2020 to 5 January 2021).
[11] Ashcroft v Powerlifting Australia and Sport Integrity Australia (NST-E20-157605) (3 December 2020) at [3].
[12] Perth Heat v Canberra Cavalry and Baseball Australia (NST-E21-4222) (5 February 2021) at [8].
[13] RL v Equestrian Australia (NST-E20-264846) (5 January 2021).
[14] Neil and Equestrian Australia v Hanna (NST-E20-258261) (5 November 2020) at eg [114], [117].
[15] The Australian Government has engaged consultancy firm Urbis to evaluate the pilot program of NST: https://www.nationalsportstribunal.gov.au/about-us.
