Last updated 25 October 2021
Many types of disputes can arise in a sporting context. For instance, where a participant breaks a rule of the sport, they may find themselves disqualified from the event or suspended from future events. In professional sport, off-field disciplinary issues may also lead a player into conflict with their sporting association. Further, participants (especially in Olympic sports) may dispute their non-selection in a representative team. Because of the unique nature of sporting disputes, courts have often been reluctant to intervene. Sporting associations usually set out dispute resolution procedures in their governing documents that members agree to when registering. These procedures often provide for the use of ‘domestic’ (or internal) tribunals. While this section refers to such tribunals, it should be noted that this term is intended to cover any internal dispute resolution process, whether the decisionmaker is a panel, an individual or the membership as a whole.
Jurisdiction of domestic tribunals
Jurisdiction of domestic tribunals
The governing documents of a sporting association should clearly spell out what rules apply to members (whether relating to on-field performance or off-field behaviour) and how penalties may be imposed for their breach. When a person joins the association, agreement with these rules should be a condition of membership, and hence may be contractually enforceable. It is therefore up to the sporting association’s discretion what rules it will impose and how any disputes will be resolved, subject to an important consideration of providing natural justice.
It should be noted that the racing industry (thoroughbred, harness and greyhound racing) have formalised dispute resolution procedures, which are specified by legislation (see the Racing Act 2002 (Qld) and the Racing Integrity Act 2016 (Qld)).
Professional football codes, such as the Australian Football League and National Rugby League, have implemented quasi-judicial tribunal systems whereby on-field infringements are reviewed post match by a citing officer or panel, who would then classify the infringement according to a scale of severity and charge the player. The player might plead guilty and receive a reduced penalty, or choose to appear before the tribunal in order to dispute the charge. It is not uncommon for players to engage legal representation for such hearings. If found guilty, the player’s prior offences may be taken into account when imposing a sentence.
Appealing to a court from a domestic tribunal
Courts are not generally used as an appeal forum for decisions of domestic tribunals, unless it can be argued that a breach of contract has occurred in the way the tribunal operated. A court may also require that a party exhaust any other internal appeal avenues first.
When dealing with a sporting association that is an incorporated body, its constitution or rules of association have contractual force by virtue of the legislation mentioned earlier. However, it would still be necessary for the tribunal/dispute resolution policy or other document in contention to be somehow related to the organisation’s constitution.
Unincorporated associations are more problematic as they are not a separate legal entity, and association rules have been seen by courts to be of consensual effect rather than contractual, which means if a person is aggrieved by a decision of the association, they are free to leave (see Cameron v Hogan (1934) 51 CLR 358). Some exceptions where a court may intervene in internal disputes include:
- where there is clear intention to be contractually bound
- to correct ongoing damage to a member’s reputation
- where decision affects property rights of the member
- to prevent an unreasonable restraint of trade
- for other policy reasons.
Even if the organisation’s dispute resolution process can be seen as contractual, a court will not look at the merits of the tribunal’s decision (i.e. whether the tribunal made the notionally correct decision after they had heard all the evidence). Courts, however, may get involved if it can be shown that there has been a denial of natural justice where it was required in the decision process. This requirement for natural justice may be implied into the membership agreement between the parties or, in the case of sporting associations that are incorporated in Queensland, explicitly provided for under s 71 of the Associations Incorporation Act 1981 (Qld) where the member’s constitutional rights are at stake. Many sporting organisations choose to explicitly state that natural justice would be provided as part of their dispute resolution process, however, there may be considerable variation in how an organisation interprets that.
Denial of natural justice
The concept of natural justice can be somewhat fluid and satisfying it will depend upon the unique facts of each case. At a basic level, it requires a fair hearing including:
- notice of the tribunal hearing date, time and place
- notice of the alleged breaches in as much specific detail as possible
- the right to appear, produce evidence and have it considered by the tribunal
- the right to not face duplicitous (i.e. multiple overlapping) charges
- the right to be heard separately on the question of penalties (see South Melbourne Football Club Ltd v Football Federation Victoria Inc  VSC 355).
It also requires an honest verdict where the tribunal must:
- come to its decision honestly and without actual bias
- make a bona fide decision in the association’s interests and not for some other purpose.
It is important to note that the concept of bias in a sporting tribunal sense will be more limited than its application to a court. A judge in court must avoid any reasonable apprehension of bias, however, a domestic tribunal will often not be able to meet such a standard. This is because the tribunal members may already have some knowledge of the incident leading to the hearing, or may have been involved in its investigation, especially in smaller associations. Provided there is no actual bias in the decision, this should usually satisfy natural justice requirements. Situations where bias has been proved include where the tribunal member has a financial interest in the decision to be made, and where a tribunal has prejudged a matter and published that prejudgment (Stollery v Greyhound Racing Control Board (1972) 128 CLR 509).
While the same rules of evidence used in courts do not apply to a tribunal, it is still important that the decision be made honestly. This means that a tribunal should not base its decision on evidence that is clearly unreliable.
Note, too, that it is not a mandatory requirement of natural justice for a member to be allowed legal (or other) representation in a tribunal hearing. However, should a member ask for such, particularly when facing a serious charge or when under a particular disadvantage, it may be prudent for the sporting association to allow representation in order to show that the accused was afforded every possible fairness.
It is sometimes considered that providing reasons for a decision is part of providing natural justice. However, the courts have consistently held that a domestic tribunal is not required to provide reasons for its decisions unless its internal rules (or legislation) require it to (see Osmond v Public Service Board of NSW  3 NSWLR 447, Waterhouse v Bell (1991) 25 NSWLR 99). Invariably this means that tribunals are not required to provide reasons, but again, in the interests of fairness to the member in question and for the benefit of the membership at large (e.g. in deterring similar behaviour), it may be prudent to do so.
Should natural justice be lacking in the tribunal processes, a court may invalidate the tribunal’s decision and require the decision to be remade with natural justice provided.
It is recommended that legal advice be sought before pursuing court action.
Court of Arbitration for Sport
The Court of Arbitration for Sport (CAS) was created by the International Olympic Committee (IOC) to settle sports-related disputes, be they domestic or international disputes, through the use of mediation or arbitration provided by panels composed of one or three arbitrators. Chartered under Swiss law, CAS is governed by its own statutes and rules of procedure, and is independent of any sports organisation. It operates under the administrative and financial authority of the International Council of Arbitration for Sport. The CAS is popular for international disputes because it eliminates the problem of determining in which jurisdiction a dispute is heard.
It is important to note that CAS gets its jurisdiction from the agreement of the parties. However, because of the relative bargaining positions of athletes versus international and national sports federations, it may be somewhat misleading to suggest a true agreement exists. Athletes usually consent through a contractual condition when they become a member of the respective team, affiliate or federation.
The CAS has three permanent arbitration sections:
- the Ordinary Arbitration Division (OAD)
- the Appeals Arbitration Division (AAD)
- the Anti-Doping Division.
Finally, CAS has the authority to set up as a temporary forum (the Ad-Hoc Division), which it does during major sporting events such as the FIFA Soccer World Cup or the Olympics, in order to provide timely resolution of disputes (usually within 48 hours).
The OAD is a first-instance forum that can resolve disputes arising from all types of legal relations between parties such as broadcasting, sponsorship, player contracts or rule interpretation. This division might be used instead of establishing a domestic tribunal within a sport or may be called upon to resolve one-off disputes where the parties consent to it. The Anti-Doping Division is also a tribunal of first instance, which is an available option for resolving doping matters (rather than the sporting organisation providing for their own internal doping tribunal as was often the case beforehand).
The AAD hears appeals from the OAD or from sporting organisations’ internal tribunals where their rules allow for it. Such appeals might cover:
- disciplinary decisions (including anti-doping disputes)
- selection of athletes for representative teams
- decisions concerning the official recognition of events.
Arbitration is a dispute resolution process that involves an arbitrator making a decision, much like a judge does in court. However, what makes the decision binding is that, via the rules of the sporting organisation or a contract, parties agree to be bound by it. To strictly enforce an arbitration decision, parties may go to local courts. Many countries around the world are signatories to the New York Convention, whereby they have legislated to recognise international arbitral decisions. Like other forms of arbitration, CAS hearings are private and take place outside media and public scrutiny. The agreements or rules discussed above may require confidentiality of an arbitral decision (e.g. if the dispute involved commercial matters), however, parties can agree otherwise or the CAS can decide to publish. Many decisions of CAS are available online.
The subject matters of CAS proceedings can be quite broad and anything related to sport. However, CAS has consistently opted to not involve itself in field-of-play disputes. These are decisions made by on-field officials (e.g. referees, umpires, judges) about the application of the rules of the sport. Unless it can be shown that such a decision was tainted by bad faith (e.g. the umpire was bribed), CAS takes the view that the on-field official is best positioned and possesses the most expertise to apply the rules of their particular sport. The position of CAS has not changed even where video evidence may show the official’s judgment was objectively incorrect. Often, a sport may have its own internal process for a participant to protest an outcome. Opening up such decisions to further CAS appeal risks unduly delaying the finality of sporting results.
National Sports Tribunal
In terms of dispute resolution, the National Sports Tribunal (NST) is a developing option. It was established under the National Sports Tribunal Act 2019 (Cth) and commenced operating under a pilot period from March 2020 to March 2022. The NST seeks to fulfil a role somewhat analogous to CAS but at an Australian level. It offers arbitration, mediation, conciliation and case appraisal services, and it operates a General Division, Appeals Division and Anti-Doping Division.
However, due to constitutional limits on the Commonwealth, the NST has a narrower jurisdiction compared to CAS. There are eligible parties and eligible disputes.
In terms of parties, the dispute must either involve a particular sporting body as a party or, where a dispute is between individual members, it must be the sporting body who applies to the NST. These sporting bodies are typically the recognised national sports federations, but can also be bodies designated by the NST CEO through delegated legislation (e.g. as at June 2021, any sports organisation with an anti-doping policy that has been approved by Sport Integrity Australia is a sporting body for an anti-doping dispute; as are state/territory institutes of sport and national multi-sport organisations for other disputes).
The parties to the dispute must also agree to the NST hearing the matter (whether by specific agreement or through a clause in the sporting body’s constitution or rules).
The types of eligible disputes which the NST can resolve are:
- anti-doping rule violations
- disciplinary matters
- selection/eligibility disputes
- other disputes approved by the CEO of the NST in exceptional circumstances.
Different dispute resolution methods are used for different categories. Some require a binding arbitral decision (e.g. doping), while others require conciliation, mediation or case appraisal (e.g. discrimination; note that options outside of the NST exist for discrimination. See below in relation to sport, or the general Discrimination and Human Rights chapter). The NST explicitly states that it will not handle contractual or employment disputes (other than ones involving disciplinary issues), where a party is seeking monetary compensation, or field-of-play disputes.