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HAYES: CURRENT PROBLEMS IN THE RESOLUTION OF SPORTING DISPUTES: [2004] I.S.L.R.
has been in recent times a significant increase in the CURRENT PROBLEMS
number of ‘‘sporting disputes’’.
IN THE RESOLUTION
However, while sport, both on and off the field of play, has become increasingly professional, the OF SPORTING
means by which an ever increasing number ofsporting disputes are resolved remain fractured, DISPUTES IN
inefficient, inconsistent in outcomes and open to AUSTRALIA
In essence, the way in which we as a society resolve sporting disputes has simply not kept pace with the eco-nomic and cultural advancement of sport. Sporting disputes
The expression ‘‘sporting dispute’’ in its literalmeaning can extend to a wide range of legal dis-putes which are set against a factual background of Introduction
The resolution of sporting disputes, not only in The professionalisation of sport in Australia in the Australia, but also internationally, continues to take last two decades is now very much a trite proposi- place amidst an ongoing discussion as to whether tion amongst sporting administrators, sports law- or not sport ought to be acknowledged as holding a yers and other professionals engaged in the special position in the eyes of the law.
Academia has for some time now been engaged By way of simple illustration, the Australian Fed- in earnest debate seeking an answer to the question eral Government in its current policy on sport, ‘‘What is sports law?’’ Positions in response to this ‘‘Backing Australia’s Sporting Ability—A More hypothesis range from that sports law is nothing Active Australia’’, has committed to spending a more than an amalgam of existing areas of sub- record AUS$547 million on sport in Australia stantive law which are applied in a sporting con- between 2001 and 2005.2 This figure is in addition to text, to sports law already exists as a separate field the vast amount of money invested in sport of specialised case and regulatory law in its own through the corporate sector of the Australian econ- omy in the form of sponsorship and by the media Irrespective, though, of the universally unsettled through money invested in broadcast rights for resolution of the sports law debate, the fact remains that in the real-world legal domain of the courts, Furthermore, in addition to the large-scale invest- the need to find a definitive answer to this question ment in sport in the professional arena, there is also has been surpassed by the need to provide legal a considerable financial and emotional investment solutions and/or just outcomes to an increasing in the pursuit of sport amongst its participants at number of sporting disputes which have required the sub-elite and grass-roots levels.
With more at stake financially and in terms of If anything, the sports law debate, which commitment for a greater number of participants undoubtedly is being undertaken with the best of and stakeholders in sport than ever before, there intellectual intentions by all participants, has over-looked a more fundamental and important issue atstake: regardless of the answer to the question 1. LL.B. (QUT); Barrister-at-Law, the Victorian Bar, Mel- ‘‘What is sports law?’’, the more pressing question bourne, Australia. This article is based upon a paper of the which should be posed is ‘‘What are sporting dis- same title presented at the 2003 Australian and New Zea- putes and how are they best resolved?’’ land Sports Law Association Conference, Canberra, Aus-tralia, on November 12, 2003. The author gratefully At the heart of whatever sports law is or is not acknowledges Mr Hayden Opie of the University of Mel- supposed to be is a sporting dispute. The real issue bourne Law School and Mr Henry Jolson Q.C. of the Victo- therefore is what is a sporting dispute, what makes rian Bar for their helpful comments concerning some of theissues addressed in this article.
it different from other legal disputes and how 2. The Prime Minister of Australia, The Right Honourable should the law approach the resolution of sporting John Howard MP, and the Commonwealth Minister for disputes? (Coincidentally, perhaps in the search for Sport and Tourism, The Honourable Jackie Kelly MP, ‘‘Back-ing Australia’s Sporting Ability—A More Active Australia’’ an answer to this latter question now posed, an Information Technology and the Arts, April 24, 2001),available at www.dcita.gov.au/Article/0,,0_1–2_14–3_490–4_ 3. See Timothy Davis, ‘‘What is Sports Law?’’ (2001) 11 105340,00.html (last viewed March 5, 2003).
Marquette Sports Law Review 211.
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answer to the former question ‘‘What is sports In Cameron v Hogan (1934) 51 C.L.R. 358, this reluctance was emphasised in the decision of Starke In broad terms, sporting disputes can be con- sidered in two categories: disputes concerning‘‘external’’ rights, and those concerning the ‘‘inter- ‘‘As a general rule, the Courts do not interfere nal’’ rights of the respective aggrieved parties.
in the contentions or quarrels of political par- ‘‘External’’ sporting disputes for the purposes of ties, or, indeed, in the internal affairs of any this article are those disputes connected in some voluntary association, society or a club.’’ way with the playing and operation of sport, wherea party’s common law, equitable or statutory rights Setting off in a new direction, though, from the are adversely affected and that party has a right of approach of judicial minimalism faithfully redress through the traditional court system. Such observed by courts since Cameron, Wootton J., in disputes falling within this category generally arise McKinnon v Grogan (1974) 1 N.S.W.L.R. 295,5 when determining a dispute between members of aRugby League Football Club, laid the ground so as u contract or tort (i.e. personal injury, property to justify his departure from the principle by stat- ‘‘The decision in Cameron v Hogan, relating as it does to the relationship of individuals to vol- untary associations of which they are members or desire to be members, deals with an area of human affairs which has changed and contin- u other statutory-based disputes (i.e. discrim- ues to change greatly in social significance, and in which there has been a great deal of judicialdevelopment of the law. On one aspect of such ‘‘Internal’’ sporting disputes are those disputes problems Lord Denning M.R. in Nagle v Feilden most often agitated between sporting organisations recently discarded some earlier statements of or bodies and their respective members, partici- his own in Russell v Duke of Norfolk with the pants, officials and administrators, and tend to crushing comment: ‘But that was seventeen encompass, although they are not exclusively lim- years ago’. Cameron v Hogan was forty years ited to, the following types of problems: ago, and I suspect that in that period it hasbeen more frequently distinguished or ignored than applied, simply because its application in full rigour has been increasingly out of tune with the needs felt of the time. The High Court has not had occasion to reconsider it squarely, and I venture to say that when such occasion does arise there will be at least some qualifica- tion of what was said. With the greatest of respect to the eminent and forward looking judges who gave the decision, it has tended to justify judicial abdication from areas the orderly regulation of which has become of ever It is primarily those sporting disputes that are increasing importance. The resultant categori- categorised above as ‘‘internal’’ which are the sub- zation in legal analysis of a great political party, or the effective regulatory institution of a majorsport in the community, with a group of friendsagreeing to meet for a game of tennis is simply Legal intervention in sporting disputes
inadequate . . . It seems to me that the realissue raised by Cameron v Hogan is one of judi- In Australia, sporting disputes are resolved via six cial policy—whether or not the courts are to possible means, which are referred to below.
accept or reject responsibility for performingordinary judicial functions in relation to theimportant voluntary associations of a non- business character that are so important today.
Courts in Australia have long shown a reluctance tobecome involved in the internal disputes of volun- tary associations such as sporting organisations.
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I think this question should be squarely faced, ‘‘It is my view that in general Courts should be and not lost sight of in the adoption of a con- the last resort for the determination of club and ceptual approach, which gives a misleading association disputes. A democratic decision of impression of a result inevitable in legal princi- the members will be the preferred course in ple. The difficulties raised in Cameron v Hogan as explaining the policy of judicial non-inter-vention are capable of a solution if a policy of and in Gamilaroi Boomerangs Sports Aboriginal Corp v Members of New England Group 19 [1999] N.S.W.S.C.
495, with the last word going to Bryson J.12: Accordingly, despite the jurisdictional limitations on intervening in the internal disputes of voluntary ‘‘Unless litigation relates to protection of the associations, as defined in Cameron, courts have still important subjects of the protection of liveli- adjudicated upon sporting disputes and continue to hood interests and property rights, the policy step around or dilute the effect of the Cameron prin- against intervention stated in 1934 is just as pressing a consideration now as it was then . . .
A policy in which the Courts intervene where u the issue can be characterised as an infringe- economic interests are affected, but do not oth- ment of contractual, proprietary, equitable or erwise involve themselves in sporting or social clubs, appears to me to set the outer limit of the u a person’s livelihood is at stake7; or a tribunal has, where a person’s legal rightsare at stake: To date, Cameron v Hogan is yet to be revisited by — acted ultra vires to its constitution8; — denied the aggrieved person natural jus- — acted in a manner with manifest unreaso- The Court of Arbitration for Sport The Court of Arbitration for Sport (‘‘CAS’’) wasestablished in 1984 by the International Olympic However, notwithstanding the attempts of many Committee (‘‘IOC’’), under the domestic law of courts since Cameron to seize jurisdiction to inter- Switzerland, to act as a tribunal with voluntary vene in sporting disputes, disappointingly there jurisdiction to determine sporting disputes primar- still remains an ever-present hesitation on the part ily relating to doping and selection, amidst a grow- of courts generally (and, indeed, legislators) to sig- ing concern in the Olympic movement at the nificantly depart from the conservative position of increasing level of legal intervention in sporting Cameron when confronted with a sporting dispute.
Recent illustrations of such judicial restraint are Initially, the jurisdiction of CAS was invoked by found in Cox v Caloundra Golf Club Inc (unreported, parties (independent of their governing interna- Supreme Court of Queensland, no.1405/1995) per tional or national sporting federations or Olympic committees) voluntarily submitting to its authoritypursuant to a specific agreement for arbitration.
It was not until 1991, when the International 6. See, for example, News Ltd v Australian Rugby Football Equestrian Federation (‘‘FEI’’) provided for CAS to League Ltd (1996) 64 F.C.R. 410; Dunkley and Sydney Football have judicial review of the executive decisions of its Club v Australian Football League, unreported, Supreme member bodies, through the inclusion of an arbitra- Court of Victoria, no.7176/1996; Drummoyne District RugbyFootball Club Inc v New South Wales Rugby Union Ltd [1994] tion clause to this effect in its regulations, thereby Aust. Contract R. 90-039; [1994] A.C.L. Rep. 435 NSW 1; A binding its members to submit to the jurisdiction of G Thompson v Gray-Nicolls (Australia) Pty Ltd, unreported, CAS, that CAS assumed an appellate jurisdiction, in Federal Court of Australia, Victoria District Registry, Gen-eral Division, no.VG89/1992; Adamson v New South WalesRugby League (1991) 31 F.C.R. 242; Hospitality Group Pty Ltdv Australian Rugby Union Ltd (2001) 110 F.C.R. 157.
12. At para.[16]. See also Beaton v Equestrian Federation of 7. See Buckley v Tutty (1971) 125 C.L.R. 353 at 373–374, Australia Ltd [2003] V.S.C. 252, where an application for a and, more recently, Mitchell v Royal New South Wales Canine declaration/mandatory injunction for an athlete to be Council Ltd (2001) 52 N.S.W.L.R. 242 at 246.
legally represented at a hearing before a disciplinary tribu- 8. See Malone v Maher [1981] 2 N.S.W.L.R. 894 at 898. See nal at first instance, with respect to a ‘‘doping’’ allegation, also, as to the ultra vires principle and voluntary associa- tions more generally, Scandrett v Dowling (1992) 27 13. Court of Arbitration for Sport—Guide to Arbitration, issued by the Oceania Registry of CAS in Sydney, March 9. See Malone v Maher, above, n.8, at 900–903.
2003, p.4; T. Kavanagh, ‘‘The Doping Cases and the Need 10. See Dickason v Edwards (1910) 10 C.L.R. 243 at 254, and, for the International Court of Arbitration for Sport’’ [1999] more recently, Australian Football League v Carlton Football University of New South Wales Law Journal 721 at p.734; and Club Ltd [1998] 2 V.R. 546 at 557–559.
M. Fewell, Sports Law—A Practical Guide (LBC Information [2004] I.S.L.R., ISSUE 2 SWEET & MAXWELL LIMITED [AND CONTRIBUTORS] HAYES: CURRENT PROBLEMS IN THE RESOLUTION OF SPORTING DISPUTES: [2004] I.S.L.R. 25
addition to its already existing arbitration role.14 It council. Accordingly, in Paris, France, in June was the first international sporting federation to do In September 1992, CAS ruled on an appeal from ‘‘no less than 31 international sports federa- a decision of the FEI Judicial Committee. The juris- tions signed the Agreement to constitute the diction and independence of the CAS ruling on this International Council of Arbitration for Sport appeal was challenged before the Swiss Federal and, by their signature recognized the jurisdic- Supreme Court, the nation’s highest judicial tion of the Court of Arbitration for Sport’’.
authority, in the case of Gundel v Federation EquestreInternationale and Court of Arbitration for Sport.15 In The 31 sports which signed the Paris Agreement its 1993 decision, the Swiss Court upheld the juris- accounted for all of the sports which participate in diction of CAS as validly existing under an enforce- the Summer and Winter Games conducted quad- able agreement for arbitration, with the consequent effect that its awards were likewise legally enforce- The International Council for the Arbitration of able by the parties, although it did question Sport (‘‘ICAS’’) consists of 20 members, each whether or not CAS was sufficiently independent appointed for a renewable period of four years, each of whom also must sign a declaration under-taking to ‘‘exercise their function in a personal ‘‘However, certain objections with regard to the capacity, with total objectivity and independence, independence of the CAS could not be set aside in conformity with this Code’’.18 Twelve members without another form of process, in particular are proposed and appointed by the international those based on the organic and economic ties sports federations which compete in the Olympic existing between the CAS and the IOC. In fact Games, by the IOC and by the various national the latter is competent to modify the CAS Stat- Olympic committees. These 12 members then ute; it also bears the operating costs of this appoint a further four members to safeguard the Court and plays a considerable role in the interests of the athletes. These 16 members then in appointment of its members. The fact remains, turn appoint the final four members of ICAS, who however, that given, on the one hand, the pos- are independent of all of the other stakeholders sibility which exists of ensuring, by the remedy of challenge, the independence of the Panel called upon to hear a specific case and, on theother hand, the solemn declaration of inde- u oversee the operation of the Code of Sports- pendence signed by each CAS member before he takes office, such objections alone do not u safeguard the independence of CAS and the allow the CAS to be denied the quality of a true rights of the parties prevailing upon CAS21; arbitral tribunal (cf. Jolidon, in FS Kummer, pp.643 et seq.), even though it would be desir- able for greater independence of the CAS from the IOC to be assured (Carrard, ibid.). Finally, the fact that the CAS is an institutionalisedorganisation in no way prevents it from being atrue arbitral tribunal (ATF 107 Ia 152). Thus, 17. Court of Arbitration for Sport—Guide to Arbitration, from the procedural point of view, the decision issued by the Oceania Registry of CAS in Sydney, March contested is indeed an arbitral award of an 18. Court of Arbitration for Sport—Code of Sports-relatedArbitration, Art.S5.
19. ibid., Art.S4. Despite Art.S4, the actual basis and proc- To overcome criticism of the independence of ess of how it is that each individual arbitrator has been CAS, the IOC sought to place the control and gov- nominated and subsequently appointed to the CAS Panel isnot abundantly clear on reference to the Code of Sports- ernance of CAS in the hands of an independent related Arbitration.
20. Court of Arbitration for Sport—Code of Sports-relatedArbitration, Art.S6(1).
21. ibid., Arts S2 and S6(10).
14. T. Kavanagh, ‘‘The Doping Cases and the Need for the 22. ibid., Arts S2, S6(5) and (9). Funding of both ICAS and International Court of Arbitration for Sport’’ (1999) Uni- CAS is derived from the IOC, the Association of National versity of New South Wales Law Journal 721 at p.734.
Olympic Committees, the Olympic Summer Sports Federa- 15. M. Reeb, Digest of CAS Awards, 1986–1998 (Editions tion and the Olympic Winter Sports Federation. See T.
Staempli SA, Berne, 1998), p.561, and T. Kavanagh, ‘‘The Kavanagh, ‘‘The Doping Cases and the Need for the Inter- Doping Cases and the Need for the International Court of national Court of Arbitration for Sport’’ (1999) University of Arbitration for Sport’’ (1999) University of New South Wales New South Wales Law Journal 721 at p.736.
23. Court of Arbitration for Sport—Code of Sports-related 16. M. Reeb, Digest of CAS Awards, 1986–1998 (Editions Staempli SA, Berne, 1998), pp.569–570.
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Despite a number of determined challenges to which it has been called to adjudicate has steadily CAS in recent years, as recently as May last year the increased. In 1996, the year of the Atlanta Olympics, legitimacy and independence of CAS and the bind- 20 requests for arbitration were filed with CAS, ing nature of its decisions have been once more leading to 15 published awards. The year of the upheld by the Swiss Federal Tribunal in the case of 1998 Winter Olympics held in Nagano witnessed 42 Lazurtina and Danilova v International Olympic Com- requests for arbitration, resulting in 32 decisions. In mittee, International Ski Federation and Court of Arbi- 2000, the year of the Sydney Olympics, 75 requests for arbitration were filed with CAS, leading to 50 published awards. And during the 2002 Winter The function of CAS and how it responds to Olympiad in Salt Lake City, CAS received 83 ‘‘sports-related disputes’’, described as its ‘‘Mis- requests for arbitration, which led to 40 awards.
sion’’ under Art.S12 of the Code of Sports-related Given the larger size of Summer Olympics, in terms of both competitors and events, 2004 (Athens) iscertain to be an active year for CAS if the trend to (1) to conduct ordinary arbitrations through date is any indication of the Tribunal’s likely activ- its ‘‘Ordinary Arbitration Division’’ (by In Australia, as with the trend globally, CAS has played an ever increasing role in the resolution of (2) to conduct appeals arbitrations through its sporting disputes, following a sharp increase in its ‘‘Appeals Arbitration Division’’ ‘‘concern- usage locally in the lead up to and throughout the ing the decisions of disciplinary tribunals or similar bodies of federations, associa-tions or other sports bodies, insofar as thestatutes or regulations of the said sports The National Sporting Disputes Centre The National Sporting Disputes Centre Pty Ltd (‘‘NSDC’’) is an Australian incorporated entity, (3) to resolve sports-related disputes through based in Sydney, which was established in 1997 to ‘‘provide a quick and cost effective system of alter- (4) to provide non-binding advisory opinions native dispute resolution of sporting disputes in at the request of the IOC, the international NSDC is equally controlled by the Australian (‘‘ANZSLA’’), Sport Industry Australia (‘‘SIA’’),34 the Australian Sports Commission (‘‘ASC’’) and the Australian Olympic Committee (‘‘AOC’’).
NSDC currently offers the following services to The seat of arbitration for CAS is in Lausanne, all sports people and organisations to assist in the Switzerland.30 Two divisional branches of CAS were established in 1996 to provide greater accessto parties seeking to prevail upon CAS for the u arbitration conducted under the Commercial determination of a sporting dispute. These divi- Arbitration Act 1984 (NSW), at the request of sions are the Oceania Division, which is based in the parties or pursuant to a specific arbitra- Sydney, Australia, and the American Division, tion clause contained in a contract or the con- which was originally headquartered in Denver, but stitution, rules or regulations of a sporting According to recent statistics published by u mediation, again at the request of the parties CAS,32 the number of sporting disputes upon or pursuant to a specific mediation clausecontained in a contract or the constitution, 25. See www.tas-cas.org/en/juris/frmjur.htm (last viewed rules or regulations of a sporting body; and tribunal services, offering to various sport- 26. Court of Arbitration for Sport—Code of Sports-relatedArbitration, Arts S12a and S20a.
ing bodies its accredited tribunal members to 27. ibid., Arts S12b and S20b.
sit on the domestic tribunal of the sporting 28. ibid., Arts S2 and S6(11).
body concerned, or alternatively to conduct ibid., Art.S1, and Code of Sports-related Arbitration Procedural Rules, r.28.
31. A. Buti and S. Fridman, Drugs, Sport and the Law 33. National Sporting Disputes Centre Pty Ltd Information (Scribblers Publishing, 2001), p.97; see also www.tas-cas.org/ Brochure, received from NSDC at the request of the author en/guide/frmgui.htm (last viewed March 1, 2004).
32. See www.tas-cas.org/en/juris/frmjur.htm (last viewed 34. Sport Industry Australia is the new name for the for- mer Confederation of Australian Sport.
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a tribunal hearing service for that particular sporting body, either at first instance or on Some sporting disputes are adjudicated upon by The most common of such tribunals are the vari- Numerous sporting organisations (generally ous racing appeals tribunals, which are found in tending to be non-Olympic sports) can and do have recourse to NSDC. However, in recent years, with By way of example, in Victoria, the Racing the emergent CAS now having a presence in Aus- Appeals Tribunal is a statutory body, which was tralia, and with the Oceania District Registry also established in 1984 under the Racing Act 1958 (Vic).
being located in Sydney, it would seem that the use The Tribunal is constituted by one of four current or and influence of NSDC in mediations and arbitra- former county court judges, who are assisted by tions of prominent sporting disputes is minimal.
two specialist industry advisers.40 Its function is ‘‘to hear appeals against certain penalty deci-sions imposed by Racing Victoria Limited, Many national and local sporting organisations and Harness Racing Victoria and Greyhound Rac- clubs adjudicate on internal sporting disputes ing Victoria or their respective stewards’’.41 through their own domestic tribunals, which oper-ate on an ad-hoc or ‘‘as needed’’ basis.
The appeals process is provided for under Pt IIIB The nature and operation of such tribunals varies considerably, usually according to the size andfinancial strength of the body in question. Gener-ally speaking, the larger the body, the more likely it is that its domestic tribunal will have some level of Finally, there is an increasing and pleasing trend for input from suitably qualified legal practitioners, sporting disputes to be privately mediated between and operate in such a manner so as to act in accor- dance with its powers, accord natural justice and With the growth of ‘‘sports law’’ in modern legal practice, many protagonists are taking advantage of By way of example, the AFL (like Rugby Union referring their disputes for mediation to practitio- and Rugby League) convenes a tribunal35 which ners known to practice in the field of sports law and adjudicates on player conduct36 and doping dis- to alternative dispute resolution, in order to putes.37 The tribunal meets weekly during each attempt to resolve their disputes at first instance AFL season and is presently chaired by a Queens without having to embark upon the time and Counsel. The tribunal also consists of persons pos- money-consuming exercise of arbitration or formal sessing a sufficient knowledge of the game of Aus- tralian Football. Appeals against any decision of the An interesting development in this area of sports- tribunal are made to an appeals board, which is also related dispute resolution can be seen in the recent presently chaired by a Queens Counsel and consists initiative of the AOC. As one way of attempting to of legal practitioners and other members knowl- stem the increase in the number of pre-Olympic edgeable in the game of Australian Football.38 ‘‘selection disputes’’, the AOC in its current selec- Those sports which convene ad-hoc tribunals to tion by-laws now provides to an aggrieved athlete a determine appeals from minor domestic tribunals pre-emptive means of dispute resolution by media- within the sport tend to be the ‘‘non-Olympic’’ tion, with the relevant national sporting federation sports, given that since 1995, most sports which are and/or the AOC, which is conducted by an ‘‘Olym- represented at Summer and Winter Olympic Games now provide within their rules for appeals from The role of the Olympic Appeals Consultant (a any internal or domestic tribunal decision made with respect to a sporting dispute to be made toCAS.39 ‘‘not [to] provide legal advice to Athletesbut . . . to ensure the Athlete fully understandsthe reasons for the decision in question and to 35. Australian Football League, AFL Player Rules (Austra-lian Football League, updated February 2003), r.23.
36. ibid., rr.22, 26, 27, 28, 29 and 30.
www.sport.vic.gov.au/Web/SRV/srvsite.nsf/pages/ 37. ibid., s.23, and Australian Football League, Anti- services_racing_appeals?OpenDocument (last viewed April 14, doping Code (Australian Football League, updated Feb- 38. Australian Football League, AFL Player Rules (Austra- 42. Olympic Committee, Olympic Team Selection By-Law, lian Football League, updated February 2003), rr.24 and adopted by the AOC Executive on February 1, 2002 and amended by the AOC Executive on March 22, 2002, [2004] I.S.L.R., ISSUE 2 SWEET & MAXWELL LIMITED [AND CONTRIBUTORS] HAYES: CURRENT PROBLEMS IN THE RESOLUTION OF SPORTING DISPUTES: [2004] I.S.L.R.
facilitate a consultative process between the Athlete and the NF [national sporting federa- tion] or the AOC as the case may be’’.43 One of the major advantages of mediation as a In the operation of a dispute resolution system, form of dispute resolution for sporting disputes is ‘‘fairness’’ is often evaluated by protagonists on the that disputes can be resolved quickly and confiden- criteria of consistency in outcomes. Accordingly, tially, thereby allowing all parties to rapidly return such criteria of consistency ought to be a highly to the sporting field of play with their dignity desirable objective in the overall determination of It is hoped that the AOC’s recent initiative of pre- The 2003 dispute concerning Australian cricketer emptive mediation will go some way towards Mr Shane Warne highlights the problem of incon- sistency of outcomes in the resolution of sporting None of the above six institutions have any direct disputes and demonstrates the need for a coherent relationship with each other, despite regularly hear- and consistent approach to the issue of doping in ing and determining sporting disputes many of which focus on issues or ingredients that are com- The Australian Cricket Board (‘‘ACB’’) Anti- mon to a range of different sports (i.e. doping, eligi- doping Committee hearing into the case of Mr bility, selection, discrimination, conduct, results and Warne related to the charge that in breach of the ACB’s anti-doping policy,45 Mr Warne committed a At first glance, such a state of affairs is clearly ‘‘doping offence’’ when on January 22, 2003 he pro- illustrative of a fractured and financially and logis- vided a urine sample to the Australian Sports Drug tically inefficient system which is open to incon- Agency (‘‘ASDA’’) which it subsequently tested as positive to prohibited substances, the diureticsHydrochlorothiazide and Amiloride.46 Problems arising in the resolution of
The ACB Anti-doping Committee is an inde- sporting disputes
pendent, ad hoc committee, convened by the ACB,which in the Warne case consisted of The Honour-able Justice G.N. Williams of the Court of Appeal of As a consequence of a lack of uniformity and clarityin approach as to how we as a society in Australia the Supreme Court of Queensland, medical special- resolve sporting disputes, the problems referred to ist and member of the Australian Sports Drug Med- below frequently occur in the determination and ical Advisory Committee, Dr Susan White, and former Australian test cricketer and spin bowler MrPeter Taylor.
The charge of doping carries a penalty of a two- year minimum ban from effectively playing cricket determination of sporting disputes at any significant level of competition for a firstoffence, and a life ban for a second offence,47 Perhaps the most glaring of all of the imperfections although the ACB Anti-doping Committee is able to in the present system of sports-related dispute reso- vary the penalty on the basis of any report, state- lution in Australia is the problem of inconsistency ment or evidence provided during the hearing of of outcomes in the determination of sporting dis- the ACB Anti-doping Medical Advisor.48 The rationale as to why diuretics, to which Mr Warne The principal causes of inconsistency of out- tested positive, are in fact prohibited substances is succinctly stated by the Committee in its decision: (1) where the application of a principle, rule ‘‘The reason and the only reason why it is a banned substance for a cricketer is that it is a masking agent. That is, it alters or is reasonably of a particular sporting dispute by a multi- expected to alter the integrity and validity of tude of unconnected sporting tribunals,each providing a different outcome44; 45. ACB Anti-doping Policy, contained in ACB Playing Conditions 2002–2003 (Australian Cricket Board, 2002), (2) where various sporting regulations or rules address the same issue of principle, 46. Substance contained in a prescription pharmaceuticalpreparation, administered orally by tablet and branded as ‘‘Moduretic’’.
47. ACB Anti-doping Policy, n.45 above, cl.7.1(a)–(e) at 44. See ‘‘Legal intervention in sporting disputes’’, above.
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samples used in doping controls. Because of its u That the penalty was too lenient and that Mr effect on excretions from the body it can mask, for example, the fact that the subject has used an anabolic steroid [which is a performance- u Uncertainty over the appropriateness of the enhancing substance]. If the diuretic is present penalty when viewed in comparison to other it is often impossible for drug-testing proce- notable doping offences which have under- dures to determine whether or not anabolic gone public scrutiny in Australia in the past u The ACB taking the unprecedented step of Mr Warne raised the defence that ‘‘exceptional issuing a media release declaring Mr Warne circumstances’’ existed which exculpated him of not to be a ‘‘drug cheat’’, despite the Com- the charge on the grounds that he held ‘‘an honest and reasonable belief . . . that he did not commit a u That the hearing should have been open to doping offence’’.50 The factual basis of his defence was that he was unaware that Moduretic contained elements which were classified as ‘‘prohibited sub- u Uncertainty regarding how any appeal from stances’’ under the ACB’s Anti-doping Policy. Mr Warne’s defence of exceptional circumstances was u Uncertainty regarding the practical conse- At the conclusion of the hearing on February 22, quences of the 12-month penalty, and in par- 2003,51 the Committee in its decision found Mr Warne guilty of the charge and banned him from playing cricket for a period of 12 months.52 However, following the handing down of the Much of the above confusion and debate could Committee’s decision, the related media coverage have been considerably quelled if there existed a and many of the subsequent reactions of prominent uniform core of principles administered consis- members of the sporting community have been as tently by a central body or tribunal dealing with all sports anti-doping cases (together with other sport- Reactions to the Warne hearing and subsequent ing disputes), rather than having matters which are decision have included the following views of vari- of considerable importance for all interested parties ous commentators in the Australian media, being determined by a series of unrelated ad hoc committees, convened by a miscellany of sportingorganisations, or CAS.
u Uncertainty over what is required on the Important issues, for example the availability of part of an athlete to demonstrate ‘‘excep- the defence of ‘‘exceptional circumstances’’ and tional circumstances’’, and if this threshold is matters to be considered in mitigation of penalties reached, then what are the consequences that with respect to the imposition of sanctions on sports-doping offences, would allow the orderly u That because the prohibited substance was development of a consolidated body of comprehen- not ‘‘performance enhancing’’, Mr Warne in sible sporting jurisprudence, applicable to Austra- being subjected to a one-year ban had been lian sport generally, and to which all stakeholders would have access at a central reference point.
u That the penalty imposed on Mr Warne was The adoption in 2003 of the new World Anti- Doping Agency (‘‘WADA’’) World Anti-DopingCode (‘‘WADC’’) by the AOC, and supported by the 49. Decision of the ACB Anti-doping Committee (ShaneKeith Warne), February 22, 2003, www-aus.cricket.org/link_to_database/NATIONAL/AUS/MEDIA_RELEASES/WARNE 56. ‘‘A bitter pill to swallow’’, Sunday Age, February 23, .html (last viewed March 5, 2003), p.4.
2003, and ‘‘Dick Pound, the chairman of the World Anti- 50. ACB Anti-doping Policy, n.45 above, cl.4.1(ii) at p.196, Doping Agency—WADA—has criticised Australian sports and cll.4.5 and 4.6 at pp.197–198.
authorities for banning cricketer Shane Warne for only 12 months . . . ’’, ABC Radio 774 (3LO), News Bulletin, March 52. Published on February 26, 2003 (see n.49, above).
53. ‘‘Editorial: Judgment on Warne: it’s the vanity, stu- 57. ‘‘The guilty and the accused’’, Sunday Age, February pid’’, Australian, February 24, 2003, and ‘‘No acceptance of exceptional’’, Sunday Herald Sun, February 23, 2003.
58. ‘‘Warne no drug cheat: Sutherland’’, Age, February 25, 54. ‘‘Ban unfair: Berry’’, Sunday Age, February 23, 2003, and ‘‘Waugh doubt on comeback’’, Sunday Herald Sun, Feb- 59. ‘‘ACB blocked bids for public hearing’’, Sunday Age, February 23, 2003, and ‘‘Hearing’s evidence to remain 55. ‘‘O’Neill for ban’’, Sunday Herald Sun, February 23, secret, for now’’, Sunday Age, February 23, 2003.
2003; ‘‘A bitter pill to swallow’’, Sunday Age, February 60. ‘‘End of a career’’, Sunday Age, February 23, 2003.
23, 2003; and ‘‘The fight must go on’’, Sunday Age, February 61. ‘‘Shane has them in a spin’’, Australian, February 25, [2004] I.S.L.R., ISSUE 2 SWEET & MAXWELL LIMITED [AND CONTRIBUTORS] HAYES: CURRENT PROBLEMS IN THE RESOLUTION OF SPORTING DISPUTES: [2004] I.S.L.R.
Australian Government, following the World Con- Whether actually existing or not, a perception of ference on Doping in Sport, held in Copenhagen, bias on the part of the tribunal, reasonably held by Denmark, between March 3 and 5, 2003, will go the athlete, official or member concerned, may in some way towards developing a uniform approach some instances be sufficient to disturb a determina- to doping offences in sport, not just in Australia, but tion of a domestic tribunal on a matter of substan- tively affecting the legal rights of the aggrieved It therefore begs the following question. Rather party65 if the tribunal does not on application dis- than limit a co-ordinated approach to only doping qualify itself from the hearing.66 In the main, it issues, would stakeholders in sport and the sport would seem that most members of domestic tribu- economy benefit from a co-ordinated approach to nals endeavour to discharge their duties fairly and sporting regulation and dispute resolution if such impartially, and while such a complaint of bias may an approach was applied to a wider range of sport- arise in some cases, the usually held perception is ing issues such as selection, conduct, competition rarely of sufficient strength to displace the tribunal.
results and outcomes, internal management of However, despite the patent evidentiary hurdle fac- sporting organisations and clubs, procedure, and ing a party making such an allegation, convenors of any well-designed or organised system of disputeresolution should still strive to implement a processwhich ensures an effective and acceptable outcome Unfortunately, the desirability of sporting organi- One of the major problems with sporting tribunals sations ensuring a process of dispute resolution for is a perception on the part of some athletes, officials the adjudication of internal disputes which leaves or members of a lack of independence on the part of all parties satisfied with the process by which the the tribunal. This is especially so in the case of ad outcome of a sporting dispute is arrived at, while obvious, cannot in practical terms always be The primary reason for this perception is that in achieved through ad hoc domestic tribunals.
most sporting disputes, the key protagonists are, on Even CAS has not been immune to legal chal- the one hand, the athlete, official or member, and, lenges,68 which argue that despite the establish- on the other, the sporting body or organisation, and ment of ICAS, the independence of CAS is by no it is usually the sporting body or organisation means guaranteed for all or some of the reasons which convenes the tribunal and appoints its mem- bers. Such a perception accords with the legalmaxim memo judex in cause sue, that is no one should u The independence of its arbitrators is com- While there is a duty on the part of the sporting or state judicial officer, most appointments body to accord procedural fairness to all concerned are only for a period of four years,69 and any parties in the course of determining internal dis- reappointment of an arbitrator remains at putes,64 politics often plays a part in the composi- tion of a domestic tribunal. Consequently, there often exists a perception on the part of the including the president and one of the vice- aggrieved party that the tribunal is composed of presidents, are active or honorary members members who, while they might act fairly in a for- mal or nominal sense, are more generally or natu-rally disposed or sympathetic to the overallinterests of the sporting body which has appointed the tribunal member to the tribunal than to the 66. See Reynolds v International Amateur Athletic Federation, subjective interests of the athlete, official or member C-2-92-452 United States District Court (SD Ohio, Decem-ber 3, 1992) at 8, referred to in T. Kavanagh, ‘‘The Doping Cases and the Need for the International Court of Arbitra-tion for Sport’’ (1999) University of New South Wales Law 62. See www.wada-ama.org/en/t1.asp (last viewed October Journal 721 at p.729. As to principles relating to ‘‘reasonable 27, 2003). Under a uniform approach to doping, as is pro- apprehension of bias’’, see Galea v Galea (1990) 19 posed by WADA, a consistent approach by tribunals to the N.S.W.L.R. 263 at 277–278, and, more recently, Waterhouse v defence of ‘‘exceptional circumstances’’ and sanctions New South Wales Thoroughbred Racing Board [2003] would overcome the problems of inconsistency highlighted 67. T. Sourdin, Alternative Dispute Resolution (Lawbook 63. T. Kavanagh, ‘‘The Doping Cases and the Need for the International Court of Arbitration for Sport’’ (1999) Uni- versity of New South Wales Law Journal 721 at p.729. See also www.tas-cas.org/en/membres/frmmemb.htm Modahl v British Athletic Federation Ltd (In Administration) www.olympics.org/uk/organisation/ioc/members/ 64. See above, nn.9 and 10. See also, generally, Enderby index_uk.asp (last viewed October 5, 2003), and www. Town Football Club Ltd v Football Association Ltd [1971] Ch.
tas-cas.org/fr/membres/membresA.htm (last viewed October 5, [2004] I.S.L.R., ISSUE 2 SWEET & MAXWELL LIMITED [AND CONTRIBUTORS] HAYES: CURRENT PROBLEMS IN THE RESOLUTION OF SPORTING DISPUTES: [2004] I.S.L.R. 31
u Seven current arbitrators of CAS are active many participants in Olympic sport that they may or honorary members of the IOC,71 some of lack the independence that each of them claims to whom have presided over numerous arbitra- Such a perception or problem could be easily involving Olympic or sporting federations overcome of course if the various IOC members with which they are actively involved).
were to step aside from their respective positions u Often, parties appearing before CAS will be held with ICAS and CAS, with the IOC, the Asso- (‘‘NOCs’’), the international sporting federa- (‘‘ANOC’’) and the IFs’ appointed representatives tions (‘‘IFs’’) and the national sporting fed- forming the ‘‘foundation twelve members’’ of ICAS erations (‘‘NFs’’), all of which are who are truly independent of each of these appoint- sympathetic or beholden to the IOC and its ideals as set out in the Olympic Charter.
To date, all such legal challenges to the independ- u Accordingly, despite the declarations of ence of CAS have been unsuccessful,73 although it is independence made by arbitrators on their predicted that future challenges are inevitable with the ongoing increase in the number of disputes ment of arbitrators to CAS is controlled by ICAS, ICAS is able to influence the composi-tion of CAS, and the nature of the decisionswhich emerge from the tribunal, with the Limited means of review of the decisions appointment of arbitrators to the Panel who Review of decisions of the Court of Arbitration for interests of the IOC and its subordinate orga- nisations, as opposed to the athletes or otheraggrieved parties who appear before CAS.
The lack of the opportunity for a party to seek judi- u The ability of ICAS to influence the composi- cial review of an award of CAS in Australia is a tion of CAS is perhaps in some ways, to a lesser degree, analogous to that of the Com- The decision of the New South Wales Court of Appeal in the case of Raguz v Sullivan74 has, in ments to the High Court of Australia.
practical terms, entrenched the role of CAS as the However, unlike a minister of the Common- final body for the determination by Australian ath- wealth who is ultimately accountable to the letes desirous of or actually competing at an Olym- broader body politic of the electorate at the pic Games of appeals with respect to any sporting ballot box, ICAS is only really accountable to dispute which may arise in the course of such a relatively narrower representation of the Games.75 Acknowledging that the seat of arbitra- stakeholders in sport and is dominated by tion of CAS was in Lausanne, Switzerland, the those bodies which are largely sympathetic Court, in declining to review a decision of CAS, held that the agreement which conferred jurisdic- movement,72 whose interests often conflict tion on CAS in the subject dispute was not a with those of individual athletes or sporting ‘‘domestic arbitration agreement’’ within the mean- ing of s.40 of the Commercial Arbitration Act 1984(NSW), despite it being subject to the law of New It is debatable whether ICAS actually pursues South Wales and, accordingly, the exclusion provi- such a Machiavellian objective in the appointment sion (i.e. that there would be no right of appeal to of arbitrators to CAS; however, while the conflicts any court from the decision of CAS) which the par- of interest highlighted above remain, ICAS and CAS are both vulnerable to the perception amongst The effect of Raguz v Sullivan is that because the seat of arbitration for CAS is in Switzerland, Aus- www.olympics.org/uk/organisation/ioc/members/ tralian parties who are engaged in arbitration index_uk.asp (last viewed October 5, 2003), and www. before CAS are therefore subject to Swiss law with tas-cas.org/en/membres/liens.htm (last viewed October 5,2003).
respect to the conduct of the arbitration, which 72. See above, n.19. The ‘‘foundation twelve members’’ ofICAS (who then together appoint the remaining eightmembers of ICAS) comprise four members nominated by 73. See above, n.25. The contention that CAS is not suffi- the IOC, four members nominated by the Association of ciently impartial and independent of the IOC (actual as National Olympic Committees (‘‘ANOC’’) (the various opposed to perceived impartiality and independence), national members of ANOC each having an obligation to raised by the applicants in Lazurtina and Danilova, was uphold the Olympic Charter) and four representatives of squarely rejected by the Swiss Federal Tribunal.
the various IFs (each of which has a vested interest in the Olympic movement in ensuring their respective sports are included and represented in each successive Olympiad).
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includes any appeal or review of a decision of Secondly, once eligible for selection, the athlete must sign the 2004 Australian Olympic Team Mem- Under Swiss law, however, an appeal against, or bership Agreement (‘‘the 2004 AOT Agreement’’) a judicial review of, an arbitrator’s award where the before being included in the 2004 Australian Olym- parties have agreed upon an exclusion provision pic Team. Clause 19 of the 2004 AOT Agreement (similar to the one agreed upon in Raguz) is gov- erned by Art.192 of the Federal Code on PrivateInternational Law (Switzerland, December 18, 1987) (‘‘FCPIL’’),78 under c.12 of the FCPIL, which addresses international arbitrations, and provides: relating to:(1) my selection or non-selection as a 1. If neither party has a domicile, a place of habitual residence, or place of business in Swit- zerland, they may, by an express declaration in the arbitration agreement or in a subsequent written agreement, exclude all appeals against the award of the arbitral tribunal.’’ by the Court of Arbitration of Sportaccording to the Code of Sports-related The New South Wales Court of Appeal in Raguz did not have cause to consider the effect of Swiss law on the athlete’s right of review of any decision of The jurisdiction of CAS in Australia is usually invoked through the appeals channel, by athletes participating in sports, where the governing inter- national federation for such sport, in its rules and regulations, has submitted to the jurisdiction of CAS and has prescribed that CAS be the forum for any ‘‘internal’’ sporting dispute.79 As a result of a series of ‘‘umbrella’’ agreements entered into by the IFs (or the IOC), with the various NFs or NOCs, with their constituent members (or intending par- ticipants), the athlete or organisation, upon taking up membership, agrees to be bound by the rules and regulations of the governing or superior sport- ing body (or agrees to the jurisdiction of CAS directly), and in doing so thereby consents to the By way of illustration, inclusion in the 2004 Aus- tralian Olympic Team requires prospective team members to submit to the jurisdiction of CAS, in First, with respect to an athlete’s nomination to the AOC by the athlete’s national sporting federa- tralian states or to apply for the deter- tion, for selection in the 2004 Australian Olympic Team, the ultimate decision on any ‘‘selection Accordingly, an Australian athlete seeking selec- 77. ibid., at 254–256, and American Diagnostics Inc v Gradi- tion in the 2004 Australian Olympic Team has no pore Ltd (1998) 44 N.S.W.L.R. 312 at 324–325.
option other than to submit to the exclusive, non- 78. See above, n.17, App.III, p.33.
79. All sports represented at the Summer and Winter Olympic Games, conducted by the IOC, have submitted to Because the seat of arbitration of CAS is Lau- sanne, Switzerland, the arbitration clause in the 80. See, for example, n.74, above, at 250–253.
81. Australian Olympic Committee, Olympic Team Selec- 2004 AOT Agreement (like the arbitration agree- tion By-Law, adopted by the AOC Executive on February 1, ment in Raguz) is not a ‘‘domestic arbitration agree- 2002 and amended by the AOC Executive on March 22, ment’’ within the meaning of the Commercial 2002, By-Laws 10 and 11, especially By-Laws 11.9 and11.10.
Arbitration Act 1984 (NSW), which if it were would [2004] I.S.L.R., ISSUE 2 SWEET & MAXWELL LIMITED [AND CONTRIBUTORS] HAYES: CURRENT PROBLEMS IN THE RESOLUTION OF SPORTING DISPUTES: [2004] I.S.L.R. 33
otherwise afford to the parties the protection of membership to an organisation, equipment, travel- s.40(7), which allows for judicial review of such an ling costs when training, competing or officiating, arbitral award, and strikes down any agreement of sports medicine costs, loss of income), emotional the parties to exclude the possibility of such review.
(the passionate and unwavering commitment to Under Swiss law, to which the parties to the 2004 achieve a desired result or outcome in sport), or, AOT Agreement (like the arbitration agreement in above all, one which is ever time-consuming.
Raguz) are subject, with respect to the conduct of The consequence of courts, for policy reasons the arbitration and any subsequent appeal from an —which, it is submitted, are now outdated— award, the effect of Art.192 of the FCPIL is that the consciously ignoring disputes of a sporting nature, protection afforded to parties with respect to exclu- or disputes which concern the rules of a voluntary sion agreements, thereby preserving their rights to association, or a decision of a domestic tribunal, seek judicial review of an arbitral award (similar to where there is so much at stake for the affected the protection afforded to parties to a ‘‘domestic persons, is the creation of a legal vacuum for the arbitration agreement’’ under s.40(7) of the Com- resolution of many sporting disputes.
mercial Arbitration Act 1984 (NSW)), only extends This outcome was predicted by Wootton J., in McKinnon v Grogan,83 who, like the ‘‘forward think- The unfortunate consequence of cl.19 of the 2004 ing’’ justices he referred to in Cameron, accurately AOT Agreement (and also of cl.11.9 and 11.10 of the predicted the greater inter-relationship between AOC’s Olympic Team Selection By-Law), in light of sport and the law which exists today when he Raguz v Sullivan and Art.192 of the Swiss FCPIL, is that the interested parties (i.e. the athlete and thenational sporting federation and/or the AOC) are ‘‘I consider that citizens are entitled to look to bound to accept the ultimate decision of CAS as the courts for the same assistance in resolving final, because, under Australian and Swiss law, disputes about the conduct of sporting, polit- there does not presently appear to be available any ical and social organisations as they can expect means of appeal or judicial review of any CAS deci- in relation to commercial institutions. If it is not sion for these parties, in either Australia or Swit- forthcoming, a vast and growing sector of lives of people in the affluent society will be a legal The undesirability of such a state of affairs, if not no man’s land, in which disputes are settled for reasons of public policy alone, is a matter for not in accordance with justice and the fulfil- concern, which could attract judicial or legislative ment of deliberately undertaken obligations, but by deceit, craftiness, arrogant disregard ofrights and other means which poison the insti-tutions in which they exist, and destroy trust Review of decisions of ad hoc tribunals or It is difficult to comprehend that while other non- The ongoing tension between the forces of inter- sporting activities which command a degree of vention and non-intervention of courts in sporting importance in the daily lives of many citizens are disputes, brought about as a legacy of Cameron v accommodated by the courts and legislators,85 Hogan, continues to add to the uncertainty facing sport, which is nowadays a much more significant prospective litigants when considering action fol- and integral part of contemporary life in Australia, lowing adverse treatment from an ad hoc tribunal continues to be overlooked by reason of what seems to be the devoted application of an antiquated Not only do such parties lack the opportunity for notion, that because the issue in dispute just hap- any merit-based review of what often is the deter- pens to concern sport, the law should endeavour to mination of very significant rights, they are also faced with uncertainty as to whether and, if so, how The absence of a direct or specific jurisdiction, or courts will entertain any action for review of the means, for the resolution of sporting disputes has resulted in some sporting cases being entertained Sport for many of its participants and officials, be by judges who have been sympathetic to the plight they amateur or professional, is an all-consuming of litigants, in order to seize jurisdiction to deal preoccupation, activity or way of life.
with the dispute, being commendably compelled to Many sports-people invest heavily in their act creatively in the characterisation of the dispute, respective sports. Such investment can be charac-terised in many forms, be it financial (i.e. cost of 83. (1974) 1 N.S.W.L.R. 295.
84. ibid., at 298.
85. For instance, matrimonial and employment disputes 82. See Micklethwait v Essendon District Football League Inc and other Commonwealth and state administrative dis- [2004] I.S.L.R., ISSUE 2 SWEET & MAXWELL LIMITED [AND CONTRIBUTORS] HAYES: CURRENT PROBLEMS IN THE RESOLUTION OF SPORTING DISPUTES: [2004] I.S.L.R.
in defining the infringed legal right of the Athletes, especially those participating in ‘‘sec- aggrieved.86 Other aggrieved parties have not been ond tier’’ sports, are often of limited financial so lucky, and courts in faithful adherence to the means, despite investing heavily, financially, phys- Cameron principle have declined to adjudicate upon ically and emotionally in their respective sports.
sporting disputes. The injustice of some sporting Where often there is much at stake in the out- litigants being able to step around Cameron and come of a sporting dispute, for example a place on have their disputes heard while others are being an Olympic team, athletes who have left nothing to denied such an opportunity is obvious.
chance with their training will often leave nothing The consequential denial of adequate or optimal to chance in disputing their non-selection. Such an justice for a wide section of the community approach usually involves retaining legal represen- engaged in sporting endeavour illuminates the tation, which is a financial strain for many of the statements of Wootten J. in McKinnon v Grogan as being nothing less than Orwellian, in that a much While there are opportunities for disputes to be wider cross-section of the community is adversely promptly and efficiently resolved between the par- affected (given the nature of sport transcending ties, the factual and sometimes legal considerations most social and cultural barriers in modern society) in the determination of such disputes are often than the aggrieved ‘‘affluent society’’ existing in a ‘‘legal no man’s land’’ referred to in his judg- The AOC has commendably taken steps in order to avoid selection (or non-nomination) disputes by The existing tension between the forces of inter- requiring NFs to publish selection criteria well in vention and non-intervention in sporting disputes advance of an Olympic Games (together with the could be relieved if legislators addressed this appointment of Olympic Appeals Consultants)89; impasse. As stated by Tadgell J.A. in Australian Foot-ball League v Carlton Football Club Ltd88: however, there will still be instances where disputesstill arise and need to be determined through ‘‘If the courts are given statutory jurisdiction to entertain a complaint about a decision of a pri- Bearing in mind, though, the expense parties face vate tribunal they will of course entertain it if in the determination of sporting disputes, the deci- asked or if the statute requires, but, equally sion of the AOC to this year impose another tier in obviously, they will confine themselves to exer- the system of dispute resolution available to ath- cising only the jurisdiction which the statute letes vying for selection in the 2004 Australian Olympic Team, through the implementation of theNational Federation Appeals Tribunal, is difficult to It could be, though, that the policy reasons relied upon by the courts are still sound. Perhaps it is not At first instance, an athlete disputing selection the role of the traditional court system to become (or, more precisely, non-nomination) will need to involved in the disputes of sporting and other vol- seek to have their dispute determined by a National untary organisations, and maybe a specialist tribu- Federation Appeals Tribunal (‘‘NFAT’’), established nal or some other system of dispute resolution is by By-law 10 to the AOC Olympic Team Selection It is, however, the unfortunate consequence of In the event that the athlete wishes to appeal the Cameron, decided in 1934, that 70 years on in 2004, decision of the NFAT, then the athlete may subse- many disputes which can and do arise in a much valued and participated in sector of contemporary Leaving aside for a moment the existing legal life in Australia are without a consistent or consoli- impediment imposed by Raguz v Sullivan, the next dated means of proper resolution or review, where theoretical step in the legal process open to an ath- there are an increasing number of sporting disputes lete would be to proceed before a state court to seek a review of the award under the Commercial Arbi-tration Act 1984; or, if Raguz were to remain in force and cl.19 of the 2004 AOT Agreement in its presentform did not impose the impediment non-Swiss The current process by which sporting disputes are residents face under Art.192 of the Swiss FCPIL, resolved in Australia is not only procedurally dis- should he or she seek a review of a decision of CAS, jointed, but it also places an economic obstaclebefore the parties concerned.
86. See, for example, Drummoyne District Rugby Football Club Inc v New South Wales Rugby Union Ltd, above, n.6.
90. See www.olympics.com.au/cp7/c9/webi/externaldocument/ 00000930aac.pdf (last viewed November 5, 2003).
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the appropriate course of action would be to pro- The net result is straightforward and compelling.
ceed before a Swiss court to seek a review the The smaller the amount of human and financial capital invested in the resolution of sporting dis- The substantially onerous economic burden fac- putes, the greater the investment which can be ing any athlete who seeks to fully pursue their legal made in the playing and enjoyment of sport.
rights under the above regime is not only obviousbut extremely oppressive for the athlete con-cerned.
A possible solution
A possible solution to the problems discussed Inefficient utilisation of human and above might rest with the implementation of a uni- The allocation of public and private resources in codifies a central body of sports-related legal providing an optimal system of sports-related dis- pute resolution should ensure the efficient deploy- establishes a central tribunal or body which ment of this investment in attaining that objective, presides over and determines sporting dis- so that all stakeholders ultimately benefit with this capital flowing through to the intended end bene-ficiaries, the sports-people, so that their actual par- At present, in the context of the resolution of u a greater consistency in the application of sporting disputes, significant human and financial ‘‘sporting principles’’ to potential and actual resources are inefficiently directed towards main- u a greater consistency and certainty in out- comes in the resolution of sporting disputes; u the traditional court system (in so far as it occasionally deals with sporting disputes); u a more efficient use of human and financial u the National Sporting Disputes Centre; andu numerous ad hoc or domestic sporting tri- u better and more efficient sports administra- In her text Alternative Dispute Resolution, Sourdin tion, where sporting administrators are bet- argues for the desirability of a process, in the imple- ter equipped with the appropriate legal tools mentation of any dispute resolution system, which is ‘‘accessible’’ and ‘‘use[s] resources efficiently and promote[s] lasting outcomes’’ through93: a greater focus in human and financial terms u its access being affordable to all parties; on playing sport on the field of play, rather u appropriate public funding avoiding waste than being engaged in costly and unneces- sary sporting disputes on the sidelines.
u the reduction of the overall costs of conduct- Already, New Zealand and Canada have begun to move in this direction with the recent establish- u longer-term gains which can be reaped from ment of specialist tribunals to preside over sporting its operation which produces an acceptable disputes in each of those countries.95 This begs the It is submitted that the implementation in Aus- quantifiable notion of detriment, principally tralia of a uniform process common to all sports, being the costs inflicted on stakeholders addressing the prevention and resolution of sport- ing disputes, would go a considerable way towardssolving the problems which currently exist in the A standardised system of resolving sporting dis-putes would be one way of favourably addressing 94. See P. Hayes, ‘‘A Uniform Sporting Code’’, Paper delivered at the 2003 Commonwealth Law Conference,Melbourne, April 16, 2003.
92. See ‘‘Review of decisions of ad hoc tribunals or com- www.sparc.org.nz/news/sportstribunal.php viewed March 7, 2003), and www.adrsportred.ca/index_e.cfm [2004] I.S.L.R., ISSUE 2 SWEET & MAXWELL LIMITED [AND CONTRIBUTORS] HAYES: CURRENT PROBLEMS IN THE RESOLUTION OF SPORTING DISPUTES: [2004] I.S.L.R.
resolution of sporting disputes, as discussed addressed in the future is an imminent challenge facing sports lawyers and sporting administrators.
Addressing this challenge will not be easy and may be painful for many of the interested stake-holders. However, like a daunting sporting contest, Conclusion
the successful resolution of the current problemshampering the means by which sporting disputes The problems outlined above in this article place a in Australia are presently resolved will hopefully considerable and unnecessary drain on much of the prove to be a satisfying and historic victory in the human and financial resources invested in sport arena of better sports administration, with sport’s and its administration. How these problems are participants being the ultimate winners.
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