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.

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 somewhat 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 natural justice. The sports of racing (thoroughbred, harness and greyhound) have dispute resolution procedures which are specified by legislation (see the Racing Act 2002 (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. It would be more likely for a court to hear a dispute where a breach of contract is alleged (e.g. where a participant alleges they were dealt with by the sporting association in a way contrary to the association’s rules, that is the contract).

When dealing with a sporting association that is an incorporated body, its constitution or rules of association have contractual force by virtue of legislation. 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 reputation damage, where decision affects property rights of the member, to prevent an unreasonable restraint of trade, or for other policy reasons.

A court will not look at the merits of the tribunal’s decision. Courts, however, will get involved if it can be shown that there has been a denial of natural justice where it was required. This may be implied into the contract between the parties, or in the case of sporting associations incorporated in Queensland under s 71 of the Associations Incorporation Act 1981 (Qld). A court may require that a party exhaust any other appeal avenues first.

Denial of natural justice

Natural justice can be a somewhat fluid concept, and satisfying it will depend upon the facts of each case. At a basic level, it requires:

  • a fair hearing:
    • 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 [2010] VSC 355)
  • an honest verdict:
    • the tribunal must come to its decision honestly and without actual bias
    • the tribunal decision must be bona fide 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 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 important that the decision be made honestly. This might mean than a tribunal should not base its decision on evidence which is clearly unreliable.

Note also that it is not a requirement of natural justice for a member to be allowed legal representation. However, should a member ask for such, particularly when facing a serious charge, it may be prudent for the sporting association to allow this.

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 the rules (or legislation) require it to (see Osmond v Public Service Board of NSW [1984] 3 NSWLR 447, Waterhouse v Bell (1991) 25 NSWLR 99). Invariably this means that tribunals are not required to provide reasons.

Should natural justice be lacking in the tribunal decision, a court may invalidate the decision.

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 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 and has two permanent sections, the Ordinary Arbitration Division (OAD) and the Appeals Arbitration Division (AAD).

The OAD resolves 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. The AAD hears appeals from the OAD or from sporting organisations where the rules allow for appeals to go to CAS on matters such as disciplinary decisions (including anti-doping disputes), qualifications of athletes for competitive purposes and decisions concerning the official recognition of events. Private contracts may also provide for dispute resolution in the OAD and AAD. Both the OAD and the AAD are constituted by a panel selected from a large pool of arbitrators and mediators—people with experience in both the participation and management of sport.

The Court of Arbitration for Sport has the authority to set up a forum anywhere (the ‘Ad-Hoc Division’), which it does during major sporting events such as the Soccer World Cup or the Olympics. 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 the contract, parties agree to be bound. To strictly enforce an arbitration decision, parties go to court to enforce the contract. As a consequence, CAS is private and takes place outside media scrutiny. Generally, the contracts or rules discussed above require confidentiality of any arbitration, however, parties can agree otherwise.

The Court of Arbitration for Sport is popular for international disputes because it eliminates the problem of determining in which jurisdiction a dispute is heard.

As one might expect, CAS deals heavily with anti-doping disputes, as this now constitutes one of the main international sport law issues.

Discrimination in sport

The Anti-Discrimination Act 1991 (Qld) (Anti-discrimination Act) makes it unlawful to treat people unfairly on the basis of personal characteristics such as gender, race or religion. Discrimination has a significant effect on participation rates, performance levels and club morale. Each organisation should have in place a system whereby players, officials and spectators are made aware that the organisation does not tolerate unfair or discriminatory treatment, and have procedures to deal with complaints by people associated with the club.

There are, however, certain exemptions which allow sporting organisations to restrict participation to:

  • either males or females (over the age of 12) if the restriction is reasonable having regard to the strength, stamina or physique requirements of the activity
  • people who can effectively compete
  • people of a specific age or age group
  • people with a specific or general impairment (s 111(1) Anti-discrimination Act).

Junior sporting organisations must be aware of the application of s 111 (Anti-discrimination Act) and there is a similar provision in s 42 of the Sex Discrimination Act 1984 (Cth). Boys or girls under 12 cannot be prevented from playing a particular sport, and after age 12, only if the restriction is reasonable because of strength, stamina or physique requirements of the sport. There is nothing in the legislation that allows a sporting club to prevent a girl from playing the sports, even against boys, if she can effectively compete (see Taylor v Moorabbin Saints Junior Football League and Football Victoria [2004] VCAT 158). It is important to note that it is possible for a club or association to apply for an exemption from the Anti-discrimination Act (s 113) by applying to the Queensland Civil and Administrative Tribunal.

Racial abuse (or racial vilification) on sporting fields by players and umpires, as well as by spectators, has also received media attention. In response, the Australian Football League moved to sanction players involved in racial abuse by creating Rule 30, which prohibits racial discrimination and has incorporated new conditions for spectator entry that anyone found racially abusing players from the stands will be evicted. Suburban sporting organisations, while not having the same coercive power with respect to their players and spectators, still have a responsibility to prevent racial abuse of players, or anyone else, which is reinforced by s 124A of the Anti-discrimination Act.

In order to prevent discrimination of all forms (including sexual harassment) occurring within sporting organisations, procedures as outlined by the Australian Sports Commission and by Play by the Rules should be followed.