LAW201 Sports LAW exam notes PDF

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LAW201 SPORTS LAW Topic 1 – Sport Governance in Australian and in the World Overview The first topic provides a basic understanding of sports law by looking at its governance and its sources. Governance in each sport is privately exercised at national level via a National Governance Body (National Sporting Organisation, in Australia), which at the international level has its correspondent into an International Sport Federation; accordingly, the main source of sports law is the set of rules and procedures issued by these bodies. In the attempt to keep sports as much as possible outside of the realm of general law, private arbitral bodies like the Court of Arbitration for Sport (CAS) were also established; they often come to decide on matters like employment or contract breach, which would otherwise be heard by normal courts. The state is however not completely out of the picture: one source of sports law are the national statutes issued specifically for application in sport (like those related to doping) and the rules of international law (general principles like the of sanctity of contracts, but also international treaties to which Australia is a party). The state is also involved by creating agencies like Sports Australia (involved in funding and coordination), and the Australian Sports Anti-Doping Authority. Finally, general rules on governance, like those stipulated in statues regulating companies or associations, apply to incorporated sport entities.

Tutorial Questions 1. In a 1962 edition of Sports Illustrated, Australia was named ‘the most sports obsessed country in the world’. Why this passion for sporting events? Is it diminishing today? In 1962, Sports Illustrated named Australia the most sports-obsessed country in the world. It was for a good reason too. Australians at the time were dominating all kinds of sports and the recently held 1956 Melbourne Olympics had proven that no other country could play and organise sport quite like Australia. Sport has been the closest thing Australia has to culture – mostly because it was the first thing we were truly good at on a global stage. We are now at a crossroads:  

Australia is the fifth most obese nation in the world; We have become more globalised and digitised – we no longer interact in real life. This has resulted in a competition for time; and

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We lack of ‘heartbeat’ sports, like the USA

Sport can benefit Australian society across, health, wellbeing, education and all those good things that we want, and also it puts us on the world stage through soft diplomacy and trade. 2. Is chess a sport? Should it be? The Dictionary defines ‘sport’ as; “an athletics activity requiring skill or physical prowess and often of a competitive nature”. As the basis of chess competition is not athletic, most persons do not define chess as a sport. It is not recognised as a sport in Australia; however it is recognised as a sport by the International Olympic Committee (IOC). However, Chess is like a sport in many ways:         

Chess is physically demanding – elite chess games can last 7-9 hours (World Champion Bobby Fischer would undertake fitness training prior to championships); Chess is competitive; Chess demands skill; Chess players practice sportsmanship – etiquette; IOC recognise is as a sport; Chess is universal; Chess is a mind sport – beneficial for mental health; Inspires national fervour; and Chess has doping controls

3. Discuss the relationship between various sport governance bodies at international and national level. Governance in each sport is privately exercised at national level via a National Governance Body (National Sporting Organisation, in Australia (NSO)), which at the international level has its correspondent into an International Sport Federation (ISF); accordingly, the main source of sports law is the set of rules and procedures issued by these bodies.

IOC is the apex of this relationship, they coordinate with IOC principles.  

IOC created in 1894; Recognises the ISFs, who in turn recognise the NSOs

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National Olympic Committee (NOC) can be created with at least 5 NSOs.

NSOs should co-ordinate their actions with government. Cooperation with government is an essential element in the framework of sporting activities – IOC’s ‘Basic Universal Principles of Good Governance of the Olympic and Sports Movement’ 2015. This relationship is a hybrid of public & private. 4. Why is the state increasingly involved in regulating sports? Why does it not adopt a similarly interventionist stance in relation to religion, since sport and religion are similar in many ways (see https://www.psychologytoday.com/au/blog/the-humanbeast/200911/is-sport-religion)? The state’s investment in sport is larger than its contribution to religion. Australian sport policy reflects the value and importance our society place upon sport. It will often be leveraged by or integrated with government and community objections beyond the sport sector including preventative health and well-being, community and urban development, tourism and trade, and international relations. 

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The Australian Government makes a significant financial contribution to Australian sports with ~over AUS$350M being invested to support sport and recreation activities and facilities – therefore the Government seeks transparency from sport. Australian Governments at all levels leverage the benefits of sport for the wider community Autonomy – watchdog A lot of stakeholders The state encourages you to participate in sport – Public health benefits Criminal – match fixing and gambling relevant legislation

Notes on the article 

Similarities between sport fandom and religion – faith, devotion, worship, ritual, commitment, suffering, celebration etc.

5. Explain the roles of Sport Australia in relation to sports. The Australian Sports Commission (ASC) is the Australian Government Agency responsible for supporting and investing in sport and physical activity at all levels. It was established in 1985 and operates under the Australian Sports Commission Act 1989 and is governed by a Board of Commissioners appointed by the Minister for Sport. ASC unites two entities:  

Sport Australia – responsible for driving the broader sport section including participation, physical action, and industry growth Australian Institute of Sport - leading our high performance sport system

Sport Australia Purpose: Contributes to improving the health and wellbeing of Australians and making communities stronger through sport and physical activity

Roles:      

Grassroots participation – getting more Australians moving more often Provide leadership in the development of sport Building the capability of sport to create a robust, connected industry Governance – transparency in NSOs Creating jobs Provide resources, services and facilities – 2019/2020 budget $386M (mainly for grassroots)

6. What is the ‘if not, why not’ principle and how does it apply in sports governance? Sports Australia – For all NSOs seeking Commonwealth funding, there are mandatory ‘Sports Governance Principles’ 2012 Principle 1: Board composition, roles and powers Principle 2: Board processes Principle 3: Governance systems Principle 4: Board reporting and performance Principle 5: Stakeholder relationship and reporting Principle 6: Ethical and responsible decision making Accountability – There is an obligation for all sporting organisations to explain to stakeholders, if any alternative approach to the best-practice principles is adopted (the ‘if not, why not’ obligation). It is a ‘middle road stance’ – like ASX with banks: Liberalism? Autonomy? Social Contract? Utilitarianism? Tension – Government wanting to regulate and sporting bodies not wanting state intervention Sports Australian wants incorporated entities – Stricter governance, act in good faith, common law, statutory duties 7. Is the state anti-doping policy legitimate? Should it not be left to the NSOs? After all, sporting organisations and competitions are private entities and frameworks. Australian Sports Anti-Doping Authority Amendment (Enhancing Australia’s Anti-Doping Capability) Bill 2019 

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Wood Review – The bill is to strengthen and streamline the anti-doping regime. It is aimed at enhancing Australia’s anti-doping capability to address contemporary and foreseeable doping threat. That the Australian Sports Anti-Doping Authority (ASADA) be retained as Australia’s National Anti- Doping Organisation and that the current requirement for all National Sporting Organisations (NSO) (including sports with competitions only up to the national level) to

have anti-doping rules and policies that comply with the World Anti-Doping Code also be retained National Anti-Doping Framework – 2015 

The Framework seeks to provide a nationally-coordinated approach to the implementation of the Code and supporting obligations under the Convention.

Context: Sport plays an important role in Australian society. Sport can improve the lives of individuals and assist in building communities. The involvement of Australians in sport is critically linked to the values sport promotes and the health and lifestyle benefits sport delivers to the wider community. Collectively, we expect the outcome of a sporting contest to be based on natural ability, determination and fair play. Doping undermines the intrinsic value of sport. Governments play a vital role in promoting a doping free culture. Through the adoption of legislation, regulation, policies and programmes, governments create an environment which doping is unacceptable in any form. The National Anti-Doping Framework aims to align domestic anti-doping efforts in Australian through a set of agreed principles, alongside clearly identified areas for cooperation between the Australian and State and Territory governments. Australia’s anti-doping programme operates in an international context. The global harmonisation of anti-doping policies and practices is led by the World Anti-Doping Agency (WADA). The World Anti-Doping Code is the core document that provides the framework for harmonised anti-doping policies, rules and regulations within sport organisations and among public authorities. The Government accepts the Code by ratifying the UNESCO International Convention Against Doping in Sport. The Australian Government ratified the Convention on 17 January 2006 and it entered into force on 1 February 2007. Australia’s anti-doping legislation gives effect to its international obligations under the Convention. The purpose of the Australian Sport Anti-Doping Authority (ASADA) is to protect the health of Australian athletes and the integrity of Australian sport. ASADA’s powers and functions are specified under the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act). Additional commentary:  

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Some states are less legitimate – e.g. Russia, China Rodchenkov Anti-Doping Act (RADA) passed in US House of Representatives October 2019 – which would criminalise international doping fraud conspiracies and give American authorities unprecedented control over international sport. Defy ASADA subject to civil penalties State intervention benefits the athletes and the games (sports)

8. Describe the private and public sides of sports law.

Private National Governing Bodies    

Independent organisations that govern their sports through the consent of their sport – regulatory and sanctioning functions Officially recognised by ISF and NOC Run following several principles – Transparency/Democracy/ Accountability Hierarchical – ISF, NSO, State/District Bodies, Sporting Clubs

Sporting Organisation replicate the machinery of justice in a nation state – ‘separation of power’   

(Legislative) Constitution – sporting codes (Executive) Committees – national sporting bodies/committees, global (Judiciary) Tribunal – domestic tribunals/Court of Arbitration in Sport

Domestic ‘law’ – body of internal law developed by NSOs: their own constitution administered by an executive committee. Breach of playing, financial or administrative rule is “judged” by a specialist committee or tribunal. Global sports ‘law’ – order created by ISFs In absence of this ‘private justice’ system, these disputes would be heard in national courts. Public Government - Sports Australia/State Sport Agencies, ASADA, National Sports Tribunal (2020) Sport Australia – Australian Sports Commission Act 1989 National sports law – the application of ‘real law’ to sport, plus specific statutory and common law rules developed by:  

Parliaments (e.g. Australian Sports Commissioner Act 1989) Courts (e.g. Kingaby v Aston Villa Football Club [1912])

International sport law  

Global legal principles apply to ISFs Treaties on sport matters e.g. The Anti-Doping Convention 1989.

Readings Mark James ‘What is Sports Law’   

Sports Law steadily evolved from 1970s onwards as a result of the commercialisation and professionalism in sport. Two sources of law – domestic sports law and global sports law Positives of Domestic Sport Tribunals – sport sympathetic approach, minimise need for court, more informed panel

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Domestic sport law – constitution, administered by committee and disputes heard by tribunal

Topic 2: Sport Domestic Tribunals Overview A domestic tribunal is an ‘in-house’ disciplinary body of a sporting organisation (association, club, etc.), designed to adjudicate on complaints and penalise those who breach its rules. Being established by the parent sporting organisation, domestic tribunals lack sufficient independence to be classed as arbitral bodies, which is why we study them as a separate topic. As non-independent adjudicatory mechanisms they raise interesting legal and ethical issues related to the access to a court of law available (or not) to those who want to challenge the domestic tribunals’ procedures and decisions.

Tutorial Questions 1. What is a domestic tribunal and how does it work? Many types of disputes can arise in a sporting context, because of the unique nature of sporting disputes; courts have often been reluctant to intervene. Sporting associations (NSOs) 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’ tribunals. Domestic Tribunals are:   

Private of in-house disciplinary body Designed to hear and adjudicate specific complaints and hand down penalties for breaches of rules of a sport, organisation or association Preside over code of conduct issues, reportable offences, club or organisational related issues

2. What are the advantages of domestic tribunals over courts?    

Cost effective and efficient decision making; compared to court system; with dragging out in litigation, costly hearing and fees Specialised body that has knowledge of the sport, issues within it and the types of offences. Sport sympathetic. Can protect participants from civil and criminal proceedings – everything is contractual the judiciary does not want to interfere Set penalties, expedient for the athlete and the club

Contracts – every athlete signs a ‘contract’ when they register for sport…“bound by the rules of X sport”. They are established to protect the ‘specificity of sport’ from the application of law. Their motivation is to reduce sporting disputes to be heard in court to prevent unfavourable

interpretations of the law. Given the benefits of this design, there is no objection to disputes being first referred to an adjudicatory body within the sport. 3. What are the disadvantages of domestic tribunals over courts?   

Not purely independent like a traditional court system Tribunals are established from the sporting body themselves, so independence is already lacking from inception - bias Proceedings may exclude a participant or official, and can lead to detrimental impact e.g. Tonya Harding, Maurice Odumbe, Israel Folau, Steve Smith, David Warner, Cameron Bancroft etc.

A major disadvantage of this approach is the balance of power; players will generally not have bargaining power. Many sporting bodies derive their power from the formation of a contract between themselves and their members. Given, the monopolistic nature of these organisations, there can be no real freedom of contract, especially ones which exclude natural justice. This was highlighted by Campbell J in McClelland v Burning Palms Surf Life Saving Club, a contract, by express words or necessary implication, could exclude natural justice in whole or part. 4. When do courts intervene in the business of domestic tribunals? Courts are not generally used as an appeal forum for decision of domestic tribunals. It would be more likely for a court to hear a dispute where a breach of contract is alleged. When dealing with a sporting association that is 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 mean if a person is aggrieved by a decision of the association, they are free to leave. See Cameron v Hogan (1934) 51 CLR 358 ‘as a general rule, the courts do not interfere in the contentions and quarrels of a club’ Courts, will get involved if it can be shown that there has been a denial of natural justice, where it was required. 

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Key points: o Intention to be contractually bound o Protection of various rights o Protection of reputation and livelihood o Public policy consideration Avoid oppression and impasse - discrimination Exclusion clauses

5. What is the athlete entitled to as a minimum, when called before a domestic tribunal? 

Natural justice and procedural fairness o Natural justice applies to all courts and tribunals, and its basic principles are (Deborah Healey, Sport and the Law (UNSW Press, 4th ed, 2009):  The accused should know the nature of the accusation made;  The accused has the right to a fair hearing; and

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 The tribunal must act in good faith. The Hearing Rule: o The opportunity for the accused to present their case in defence Honest conclusion reached in the verdict without bias, or ulterior motives o Carter v NSW Netball Association Know what is the alleged breach, know particular of the charges, know the offence , right to know what they stand accused for – opportunity to form a defence Where is the hearing time, date, place Fair opportunity to present their case

This was particularly relevant to the case Carter v New South Wales Netball Association in which a volunteer junior netball coach was subject to a complaint on the basis that her conduct constituted child abuse. An internal investigation and tribunal found she breached New South Wales Netball Association’s (NSWNA) Anti-Harassment Policy. A harsh penalty was subsequently handed down. Ms Carter escalated the matter to the courts on the basis she was denied natural justice. The court found the matter had serious gravity to Ms Carter’s livelihood and that the tribunal did not afford her procedural fairness. From the principles outlined above:   

Ms Carter was not properly informed of the proceedings against her and by whom she was accused; Ms Carter was not given sufficient opportunity to present her case; and Ms Carter was not given a fair hearing.

6. Why the rule against bias is less severe in domestic tribunal proceedings? 

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Only exists where the decision maker has an: o Interest in the outcome o Touched by the events A dual role in some c...