Australian and New Zealand Sports Law Association webinar – 7 April 2020

This webinar for members of the Australian and New Zealand Sports Law Association addressed the establishment of the National Sports Tribunal.

Webinar cover image
1:07:29

Download the transcript.

[Opening visual of slide with text saying ‘ANZSLA, the sports law association’, ‘National Sports Tribunal’, ‘Webinar – Tuesday 7 April 2020’, ‘This webinar provides an update on the establishment of the National Sports Tribunal, its policies and procedures’, ‘Speakers: John Boultbee, Chief Executive Officer, National Sports Tribunal; Prof Jack Anderson, Director of Sports Law Studies, University of Melbourne’, ‘Introduced by: Martin Ross, President, ANZSLA’]

[The visuals during this webinar are of the speakers on a Zoom call, speaking from home with no slide presentation]

Martin Ross:

Good evening everyone. Thanks for joining us tonight in an exciting webinar that ANZSLA is putting together in conjunction with the National Sports Tribunal. We had originally planned that this session would be a series of presentations in each state and territory of Australia about the new National Sports Tribunal – it opened its doors last month – however coronavirus has conspired against [us].

But we're fortunate that we've been able to organise a webinar tonight and we've got approximately 150 people attending to hear from our two speakers, John Boultbee and Jack Anderson.

John Boultbee is the inaugural CEO of the National Sports Tribunal, he was appointed and commenced last month. John is a former practicing barrister and has been an arbitrator of the Court of Arbitration for Sport since 1996. John moved from the Bar to sports management and then has had roles as the CEO of the International Rowing Federation, and also as the Director of the Australian Institute of Sport. John's also been the Head of High Performance Football Federation Australia and most recently at Volleyball Australia. John's consulted with and sat on the boards and the tribunals of several Australian sporting bodies.

In the hot seat tonight will be Jack Anderson. Jack's going to ask questions of John. Jack Anderson is a professor and director of sports law at Melbourne University. He's also a member of the World Athletics Disciplinary Tribunal, the Integrity Unit of the International Hockey Federation and the International Tennis Federation’s Ethics Committee. In 2019 he was appointed by the Australian Government to chair the advisory committee establishing the National Sports Tribunal, and he has also recently been appointed as a Member of the National Sports Tribunal. Arguably most significantly, Jack’s also a member of ANZSLA.

The format for tonight's presentation is that Jack will ask John a series of questions about the National Sports Tribunal and then there will be some time for additional questions after that. If anyone has questions for John during the session they can email them through to an email address enquiries@nationalsportstribunal.gov.au. I'll put a screen up giving that email address shortly. Their presentation’s likely to finish at about 7:30 pm, if anyone has to leave early then the session is being recorded and will be available on the ANZSLA website.

Before I hand it over to Jack and to John, on behalf of ANZSLA I would like to thank them both for taking the time and making the effort to be involved in the presentation tonight. The National Sports Tribunal is a really interesting new development in Australian sports law and we're really lucky to have the CEO and a Member and significant person involved in the foundation of the National Sports Tribunal speaking to us tonight. Over to you Jack.

Jack Anderson:

Okay and so good evening and welcome everyone, and my job is quite straightforward really. It’s to pose the questions that have been sent by you to John. Over the last 2 weeks or so you've posed many questions, we've collated them and we're simply going to ask them and discuss them tonight in an informational way. If during the course of the event you have any further questions, you'll see that the email address is there available to you enquiries@nationalsportstribunal.gov.au. So you can email there directly and those questions then will be fed on to me later on and we thought that would be a more efficient way, particularly with 150 people on Zoom, of doing it and it also gives us a record of your questions as well which are very helpful.

And so I suppose what we'll do is we will simply go straight into the questions, and in some ways the reason we're doing it by Zoom and the reason so many things are being done by Zoom, it’s obviously related to the coronavirus. And just maybe before we ask any specific questions of John, maybe John you could just say that operationally the virus has had an impact on the services that are being provided by the NST immediately so it might just start with those issues front up.

John Boultbee:

Yes thanks very much Jack and thanks to Martin and ANZSLA for putting this on. It's a great opportunity for me on behalf of the tribunal to be speaking to the profession and people involved in sport and the law. The COVID-19 virus has hastened some of the things that we had been planning, in particular we are in a position to do any hearings or mediations that we need to do by means of teleconference and videoconference through the media that we've set up to do that. And we will not be putting into place the arrangements we had made for hearing rooms around the country, for obvious reasons.

The other thing is that we we've recognised the situation that sports are in, and that athletes are in, and the financial pressures at the moment when sport is wound down essentially. And from now until September the 30th at least, under the powers that we have, we’ve waived any application fees for matters in the National Sports Tribunal, and also will not be charging any service fees for any matters that we have. That is in recognition of the fact that you're under pressure, those out in the sport world, and we're keen that we should attract some of the problems that may arise in terms of matters that need hearing during this time without cost to the participants. So those are the main things and hopefully before too long we'll get around the country and be able to do some more seminars face to face.

Jack Anderson:

And that information is also available on your website which has been newly created as well. And so just to start off with, you've had a long history in sports administration in Australia, and why the National Sports Tribunal? Why CEO of the National Sports Tribunal?

John Boultbee:

Well as Martin said in the introduction, I practiced at the New South Wales Bar for 11 years and have maintained an interest in the law and particularly in sports law personally. I was lured into sports administration and have spent 30 years doing that since being at the Bar, but through that time I've been involved in tribunals for sports and in the Court of Arbitration for Sport. I was around when it was when it first came into being, and it was a nimble, effective and inexpensive and quick operation for athletes and sports to use. It's lost a little bit of that I think as it's grown and become much more used, but the CAS showed how a central court for sport, an international one in in its case, a national one in our case, can achieve consistent, inexpensive and valuable case law for sport, and provide a really easy and usable forum for athletes and others to use. So I've long seen private tribunals are sometimes able to do that, and sometimes not able to do that, so I have a strong conviction that the National Sports Tribunal is something that we need in Australia to achieve that consistency, independence and a good development of sports law.

Jack Anderson:

And it's a 2-year pilot, whether or not it will be extended now given what's going on now is a question I suppose I can ask you. But it's a 2-year pilot and I suppose at the end of that 2 years whether they're imposing you or not, what are you looking to have achieved in terms of kind of key performance indicators, for want of a better phrase?

John Boultbee:

Well we do have some performance indicators that we have to answer to at the end of the 2 years, in terms of cost effectiveness for the government and for ourselves, usefulness for the sporting industry, and we’ll be measured also on the satisfaction of those who've come to it and used our operations.

There is a process of evaluation that's already starting, so that at the end of the 2-year pilot it won't just be a quick decision, it'll be one that's been measured and carefully worked out. I think that we will judge ourselves on how effectively we've been in attracting cases to the jurisdiction, and how effectively we've been able to relieve sports of the burden of having to set up their own dispute resolution mechanisms. And also provided to athletes what they need to be confident that they're getting independent and fair resolution of their disputes. So there are some quite concrete KPIs, and some that I hope will be able to be recognised by all after the 2 years we've been in existence.

Jack Anderson:

And jurisdiction is a point that has come up quite a bit in the questions, and we will definitely come to that. I suppose something that has come up is that you've launched in March 19th, you have a website and you have various content on that already, and you also have Members. Maybe we might start with Members and the process of appointment, and that in terms of the membership of the NST.

John Boultbee:

Yes Jack thanks for that question, because we’ll be judged by the quality of the decisions of our Members and by the quality of the Members that we've attracted. There was a call for expressions of interest in membership that was spread wide and large. And we actually had 543 applications, which was a significant number, which shows the interest there is in this.

We set up an appointment advisory committee of half a dozen people from sport and the law and also medicine to sift through those many applications, and eventually came down to a group of I think it was 144 that we recommended should be appointed as Members of the tribunal. And through that we were able to ensure that we had diversity in terms of geography; in terms of expertise, experience covering such things as anti-doping expertise, expertise in mediation and conciliation and other alternative dispute resolution forms; those who had been athletes; those who had worked in sport, and those who'd been through sports organisations so that we were offering a wide variety of experience, but nonetheless people qualified to hear disputes as they come up.

In the end the government vetting procedures were only able to manage 40 within the time that we needed to get established on 19th of March, so we have 40 members at the moment, still with variety of experience and expertise and geography. We're hopeful that more will be appointed later on in the year, and as I explained there's a lot of interested parties and some very good quality members that are still to be appointed.

Jack Anderson:

I suppose the key question, also with the members as well, but the key question as we hinted at earlier is jurisdiction. And in some ways the simple question with the NST, is because it’s based on an opt-in jurisdiction – if I'm a senior figure in a national sports organisation, why should I opt-in?

John Boultbee:

Well the two elements of jurisdiction that are important are the consensual side of it, the contractual side, and the national side. So first of all, it's a tribunal that has a national flavour to it. You should opt-in if there are disputes of a national level, and a national flavour, that need resolution. There are a number of reasons, from a selfish point of view I suppose from sports, to opt-in and that is that we can relieve sports organisations of what can be quite a difficult and time-consuming exercise in resolving disputes, in managing the procedure that has to be done, and sports organisations aren't necessarily well equipped to do that. It also distracts them from their more important task of running their sports. So there's those selfish reasons.

Also the fees that will be involved after the 30th of September are attractive. A lot of work went into looking at what application fees and service fees could be applied, and we were quite surprised by the amount that some sports charge just to appear before an internal tribunal. Our fees are modest, both for the athlete and for their sports organisation, and we expect that financially it will be more beneficial than setting up your own tribunals or dare I say going to the Court of Arbitration for Sport.

Thirdly the process, and the procedure, that we’ll be adopting will be expeditious and there are special provisions for expedited matters. They’ll be hopefully relatively user-friendly for athletes as well as sports organisations, and other people who come before a tribunal, or who have disputes that they want to come before the tribunal. And they’ll be speedy and efficient. Now they're all aspirations, but we think that we've got the building blocks in place to achieve that.

But I think perhaps the most important thing from an overall point of view, and I'm not sure all sports will necessarily see this, but it's vital that there be independent decision-making around disputes in sport. Sports set up their own independent tribunals, and I’m not suggesting that they're not independent, but they need to be clearly seen as independent. Not just by the parties, but by those who are looking at the sport. And that we can achieve with the truly independent Members of the tribunal that will be applied to various disputes, and I think that will develop confidence in the dealing with disputes that may be lacking. With the emphasis coming out of the Wood Commission on integrity, to have an independent final arbiter in matters of integrity is vital for the sports industry as a whole.

Jack Anderson:

So there's a few points in that and I suppose the first point is, because it's an opt-in jurisdiction, ideally you’re written into the rules of the sports body. But in the immediate, particularly in the first 2 years, is the jurisdiction almost ad hoc or is it based on consensus? How will it operate immediately pending integration into rules?

John Boultbee:

Well most of the jurisdiction will come from the various rules and policies of sport, and some are starting already to amend their rules. Others are waiting for some guidance from Sport Australia about the model member protection policies and so on. So by amending the rules to allow for the National Sports Tribunal to hear matters – that's the first and most obvious opt-in from a sporting organisation.

But importantly, and even when the policies are amended, we have jurisdiction in matters that are within our rules even now, irrespective of what the policy says, if there is agreement between all the parties to refer a dispute to the National Sports Tribunal. And part of our exercise at the moment is to let sports know that – that they don't have to wait until the policies and rules are changed to bring a matter to the NST if the parties are agreeable to doing that.

And importantly in anti-doping disputes, the ASADA CEO has let sports know that they, as a party in anti-doping disputes, will be agreeing to the NST hearing those disputes if the other parties will agree.

Jack Anderson:

And the doping jurisdiction is an important question that we’ll definitely come back to. And in the immediate, sticking with the jurisdiction point, does a dispute have to exhaust all the internal procedures of a sport? So what I'm saying is, if there is a dispute at state level does it first have to go to the national level before it comes to you? Or how does the depth of your jurisdiction work?

John Boultbee:

Whether a matter is ready to come to the National Sports Tribunal depends on what the rules of the sport or the policy says. If the policy signifies that there must be exhaustion of all of the internal remedies first, well that's what must happen. Our rules do not require exhaustion of the remedies but the sports rules may do so.

The other matter of states, or disputes that are happening below the national level, if there's a dispute between an athlete or another individual and a club or state association they cannot under our rules bring that matter to the National Sports Tribunal, unless it has been elevated to the national body, either by way of an appeal or in many of the policies. If there is a serious dispute at state level, or one that just cannot seem to be resolved at state level, it can be elevated to the national sports organisation. And that national sports organisation then can refer that state dispute to the NST. But absent the national sports organisation’s involvement, a purely state matter can't come to the National Sports Tribunal.

Jack Anderson:

And with the national sports bodies, and the major sports bodies would obviously have their own pretty sophisticated tribunal systems, while those within the Olympic movement may have access to the Court of Arbitration for Sport. In terms of the NST, where does the jurisdiction sit and what can it offer?

John Boultbee:

Well it sits in different places in respective different types of disputes. Some of the professional sports have very well established tribunals, and a lot of them relate to on-field matters. Our jurisdiction will not be available for on-field matters. The other matter is that- I'm sorry, I just got a message that my picture had gone.

Jack Anderson:

Oh yeah, I can see you.

John Boultbee:

Probably a blessing if it has. So some of the professional sports have well-established tribunal mechanisms. It’s for them to decide whether the independence that the National Sports Tribunal offers, and the quality of the Members that we offer, is attractive to them. We will be talking to those sports about it.

In relation to anti-doping matters, again a number of sports have their internal tribunals to hear anti-doping matters or they may take them to the Court of Arbitration for Sport, or their policies may allow an appeal to the Court of Arbitration for Sport. We are ready and able to step in, and either be the first instance tribunal or at the appeals level.

So we, in anti-doping matters, and all matters in fact, are available to be the forum for first instance matters and appeals. Our argument is the one that I've already put I guess, about the efficiency, the cost-effectiveness, the quality of the arbitrators that we have appointed. And it is important again to emphasise that in some difficult disputes, be they anti-doping disputes or code of conduct disputes, it is important not just for there to be independent people sitting on the tribunal but a real appearance of independence which sometimes isn't there if the independent tribunal has been appointed by their sport itself.

But if the NST, which is a step away, a further step away from the national sports organisation, is the forum that's chosen, I think that adds confidence in the general public and in the sport itself that the matter is being dealt with in a truly independent way.

Jack Anderson:

 So just to kind of build on that then, last question about jurisdiction is, if the NST is written into the rules of a national sports organisation, is the jurisdiction granted to the National Sports Tribunal that adheres the dispute based on the rules of the sports body? And general Australian law principles?

John Boultbee:

Yes and general law principles. We have procedural rules ourselves that will apply, but our procedural rules make it clear that where a sport’s rules or policy set out such things as the burden of proof provisions, as to what evidence can be called in a matter, then they will prevail. In the absence of that, our rules prevail.

So the sport still has control over some of the important elements of the dispute that's being referred to us. But in the policies I've looked at, and the practice and procedure determination that we have developed and that's on our website, I'm yet to see a significant disparity between what sports are applying and what will be applied in the National Sports Tribunal at the moment.

Jack Anderson:

And then in terms of the types of disputes that the tribunal will hear, in terms of the divisions within the NST itself. Obviously we've got the doping and then general and appeals, and do you just want to reiterate that point as regards to doping just to clarify where we're at now at the minute with the Anti-Doping Division?

John Boultbee:

Well the Anti-Doping Division, again, hears matters where the jurisdiction is granted through a sport’s anti-doping policy. We cannot force ourselves on a sport, but ASADA can in accordance with the World Anti-Doping Code, and ASADA must approve an anti-doping policy for a sport to be recognised by Sport Australia [the Australian Sports Commission], and to be compliant with the World Anti-Doping Code. So there are some provisions in relation to tribunals who hear anti-doping matters that need to be approved by ASADA.

ASADA will not force the National Sports Tribunal onto any sport that wishes to take its anti-doping matters elsewhere, but it will ensure that it is going to a tribunal that is independent. And the new, the 2021 version of the WADA Code that is coming in requires that the tribunal be operationally separate from the national sports body in our case. So there is from WADA, and all of the doping policies are in accordance with the WADA code, they will need to be first instance tribunals that are “operationally distinct” from the national sports organisation and “institutionally independent” at the appeals level.

Jack Anderson:

And in terms of the General Division and its jurisdiction, what are the types of disputes or more like, more specifically, what are types of disputes that it will not hear?

John Boultbee:

Yep a good way to put it. We are not permitted by the Rule, which has been legislated, to hear disputes which relate to field of play matters, so we're not going to be the AFL or the NRL’s Monday or Tuesday tribunal to hear matters that happen on the field.

We are also not permitted by our legislation to hear disputes that are effectively employment disputes, except we are enabled to hear a matter that is a disciplinary matter which may lead to an employment consequence.

We're not permitted to hear disputes in which damages are claimed, that’s outside our jurisdiction and any dispute relating to remuneration or other benefits payable to an individual under a contract for services. So employment disputes and contract disputes are outside of our jurisdiction.

So turning around to what we can hear, generally it’s disputes around selection or eligibility for teams; disciplinary disputes, including disputes that arise out of a member protection policy; disputes relating to bullying, harassment, discrimination under a member protection policy or otherwise; and also disputes between a national sporting body and one or other or more of its constituent bodies.

Jack Anderson:

Okay, and in terms of the disputes that you're not permitted. With respect to professional athletes, in some ways every disciplinary decision has potential consequences so what you're saying is it's the initial part of that, the purely disciplinary side, is your jurisdiction only?

John Boultbee:

Our jurisdiction, we have jurisdiction to determine- first of all it depends on what their policy or the agreement that the sport has that refers the matter to us, what we're allowed to hear. Within our own rules we're allowed to hear matters which will determine whether there has been a breach of the disciplinary code, or the code of conduct, which may have other consequences. If the code of conduct or the disciplinary code provides for a number of penalties, which include employment matters, then we would be able to apply them. But otherwise if they're matters relating solely to the very employment contract being terminated or the like, then that's outside of the jurisdiction that we can apply.

Jack Anderson:

And ultimately when it comes to jurisdiction, in say an example like that, is it your call as the CEO as to whether or not the matter can be heard by the NST?

John Boultbee:

So one of the powers of the CEO is to assess an application to see whether it meets the requirements of the legislation. That probably gives the CEO the power to reject an application for a matter where it's clearly outside of the jurisdiction, say for example a field of play matter.

However disputes as to jurisdiction can and would normally be referred to a Member to decide whether there's jurisdiction or not, if there's no agreement as to jurisdiction and some doubt as to jurisdiction. So clear matters that don't fall within jurisdiction can be determined at the time of application by an administrative decision by the CEO. Matters that require more in-depth consideration will be referred to a Member of the tribunal to hear.

Jack Anderson:

And just it's a very narrow question, but if a party is aggrieved at a decision made by the NST CEO, are decisions by the NST CEO judicially reviewable?

John Boultbee:

Yes they are. Mine are decisions by a Commonwealth entity, and so they can be challenged under the Administrative Decisions Judicial Review Act.

Jack Anderson:

So straightforward. And once there is a jurisdiction to hear a case, say the General Division, how does the process work in terms of the appointment of Members?

John Boultbee:

In all matters there'll be a preliminary conference between the Registry and the parties that will be to look at all of the procedural matters, but also the Members [Member or Members] allocated to the hearing of a matter are allocated by the CEO. But the CEO is empowered to consult with the parties as to that appointment, so it it's different from some jurisdictions elsewhere where the parties are provided a shortlist and they effectively pick their choice from a shortlist. That's possible under the provisions of our principles for appointing Members to sit on a matter, but consultation, generally at the preliminary conference, is what would happen. And it's important to do that level of consultation so that any perceived conflicts are dealt with then. And if a Member is appointed and a party wishes to object to that Member it has 7 days after appointment to formally object to the appointment of a Member.

Jack Anderson:

And just before I ask further questions, and just remind people that if you have any questions yourself, or if you didn't understand my accent and you want the question repeated, you can email to the email address that we gave earlier, enquiries@nationalsportstribunal.gov.au. So just to maybe, just with the general jurisdiction just to stick with this for a second, just a very small point. Can Members, is there a bar or can they represent and appear at the tribunal itself? So for example in the Court of Arbitration for Sport it's not permitted, in others it is.

John Boultbee:

There is no provision or direction preventing a Member of the tribunal from appearing before the tribunal in an unrelated matter. I remember when that rule was introduced in the Court of Arbitration for Sport and it was controversial and caused quite some disquiet among a number of the Members of the Court of Arbitration for Sport. And it is a vexed question. On the one hand it may be that tribunal Members feel obliged to favour another Member of the tribunal who might be a peer before them. I think that's not doing credit to either the tribunal Member appearing or the tribunal Members sitting on the matter.

But the other point from our point of view is that the sports law fraternity in Australia isn't huge. We wouldn't want to, I don't think, and this is the balance that we have to undertake, we wouldn't want to deprive sports of some of the best sports lawyers in the country from being available to hear from them because they've been appointed to the tribunal, especially if we eventually have 150 Members and a lot of them are sports law practitioners. And nor do we want to deprive the tribunal from having well qualified and experienced sports law practitioners on the tribunal, so it's a bit of a dilemma. Personally I'm of two minds, and we've not decided that question yet. We're very happy to hear any comment that those in the profession might have about the matter, but at the moment there's no restriction applied to Members from appearing before the tribunal.

Jack Anderson:

And of course any questions and even comments are welcome at the aforementioned email address.

John Boultbee:

Sorry Jack just to interrupt you. Of course there is a requirement that any conflicts or potential conflicts be advised by Members to the CEO and the CEO is required to consider in making a decision about who might sit on the matter any potential or apparent conflicts. So it could be that there may be matters where it may not be in the best interest of the parties, or the tribunal, or of the Member, for a particular Member to sit on that panel.

Jack Anderson:

And just at a General Division, obviously you will often have a case of an athlete, an individual athlete, against a national sports body and the sports body will be used to that type of scenario. The athlete may not. In terms of legal representation, pro bono or legal aid, what’s the issue there with an athlete's representation?

John Boultbee:

First of all, under our rules there's no requirement for any party to be represented, but no restriction on representation either. It may be that the sport’s rules apply to that, so legal representation is fully open but not required in the National Sports Tribunal. As far as providing support to athletes, yes it is one of the functions of the National Sports Tribunal to set up a panel of lawyers who are prepared to provide pro bono support to parties who are appearing in the National Sports Tribunal. And that's one thing we haven't done yet, we do want to do in this year. There are a number within the 543 applicants to be Members of the tribunal, that we’ll be approaching to see if they're happy to be on the panel of lawyers who might help athletes or sports organisations pro bono. And there may be some listening to this webinar tonight who might like to volunteer their services.

Jack Anderson:

That’s good. And then we have an Appeals Division as well, it's a narrow grounds of appeal?

John Boultbee:

The grounds of appeal would be set out in the policy that we're working from.

Jack Anderson:

And with both the awards that are delivered, and I'm not going to ask you about timeframes, that's all kind of within the framework. But in terms of publication of awards, how does that work with the consent of the parties?

John Boultbee:

First of all, in an anti-doping matter which is a matter about an anti-doping rule violation. If an anti-doping rule violation is found to have been committed, we are bound, and the policy binds all the parties, to publish the names and the reasons for the finding that there has been an anti-doping rule violation. If there is a finding of no violation we are not entitled to publish that finding unless the athlete chooses to have it published, as well he or she might.

In matters in the General Division it's basically a private jurisdiction. Our rules do not allow us to publish the decisions in the General Division unless the parties all agree to it, or if there is a precedential value of some importance in publishing the decision. We're entitled to do it if, after we have consulted with the parties about any redaction of the decision that might be necessary to protect the parties that they would require.

So again, those matters will only be published, the decisions will only be published in the General Division if there's agreement by the parties or a need to do it as an important precedent. However the National Sports Tribunal will do a summary of all matters that come before it and publish it in a way that won't identify the parties that have been the subject of the decision.

Jack Anderson:

Thanks very much, thanks for that. And just a kind of switch away, a more general point, in terms of the relationship with Sport Integrity Australia, how do you envisage that relationship?

John Boultbee:

Well effectively Sport Integrity Australia could well be a party, particularly in anti-doping matters. In due course we would see Sport Integrity Australia as being, they’re part of the mix of measures that have come out of the Wood Review, but a separate part from ourselves. And we need it to be separate. Sport Integrity Australia will be an investigative body and a prosecuting body, so we will be independent from them. They won't be overseeing us, they won't be directing us. They will be like any other party that comes before our tribunal.

Jack Anderson:

Okay and just in a more a general sense, we kind of tend to look at the National Sports Tribunal in terms of arbitration, but of course there's a whole suite of services available from conciliation to mediation, even I see advisory opinions. Maybe just a kind of a word on each of those, and particularly the advisory opinions which I think might be interesting.

John Boultbee:

Yes it's referred to as case appraisal in the Act. Of course not in doping matters, but in the General Division we have the provision to refer matters to mediation or conciliation or case appraisal if the parties wish to use those alternative dispute resolution mechanisms rather than arbitration. And we're publishing on our website what we hope is well readable and easily understandable explanations of what each of those mechanisms is, and particularly to help lay people understand the difference between arbitration, mediation and conciliation.

Case appraisal is a bit of a new beast which we're keen to work through, where the parties can agree that the matter comes before a Member of the tribunal, who will be probably an experienced mediator or conciliator, who will hear the evidence and the views of the parties and provide an opinion at the end of the session after he or she has heard their views. That opinion is not admissible in any arbitration that might subsequently apply. The provision is that the case appraiser, as he or she is called, will give an oral opinion to the parties. And it's meant to be a quick, efficient way of dealing with the matter and hopefully will deal with some disputes. If the parties want a written opinion, they can ask for it. But again it's not admissible in any subsequent arbitration if the case appraisal does not succeed in resolving the dispute. The same with mediation and conciliation, those matters can go to arbitration if not resolved beforehand.

Jack Anderson:

And in terms of the Members of the tribunal, in terms of capacity to deliver conciliation and mediation, is there a provision for that within the membership group?

John Boultbee:

Yes there are a number of experienced mediators and specialist mediators within the group, and of course a number of the arbitrators are well accustomed to doing mediation as well.

Jack Anderson:

So I'm going to, because it's nearly five to seven, now I'm going to start calling on the questions that have been sent through in a few minutes. But just to build on, the National Sports Tribunal is very much like Sport Resolutions UK, the UK system. And in their development they looked towards almost acting like an ombudsman conducting independent reviews where asked of a sport, of the culture of a sport, of the governance of the sport. Is that something that you would see the National Sports Tribunal going down in the future or are you content to operate within the current terms?

John Boultbee:

Look I think it's an interesting question. We've not been set up to provide free legal services outside of dispute resolution to sports bodies. I think that we would be happy to refer some of our Members or others to sports bodies if they wish to use, for example a Member of the National Sports Tribunal to review their doping policies or whatever, we wouldn't prevent that happening in a private way between the national sports organisation and that Member. As to expanding to provide that sort of service in the future, that would be something that we wouldn't look at until after our 2-year pilot is finished I expect.

Jack Anderson:

And equally, one of the tasks, informally at least, that Sport Resolutions UK and certainly the equivalent in Canada, was to liaise with the existing disciplinary tribunals within sport in terms of assisting them to enhance their own provisions. Is that kind of education function something that you see through the NST, either in time or now?

John Boultbee:

It's not something I've anticipated particularly, but we think that we've got a role to play in the development of the resolution of disputes in this country beyond the ones that come to the National Sports Tribunal itself. So we'll be an active participant in forums, in education where we can be, to assist in that. And if that involves working with individuals or tribunals who are sitting on matters in various sports it could be a very useful exchange of opinions I imagine.

Jack Anderson:

So John we're nearly an hour into it, so I'm going to go on to a few good questions that have come through if that's okay?

John Boultbee:

Yes certainly.

Jack Anderson:

So we've had a few questions and these kind of pick up on some of the points that we've made already, and just kind of dig a little bit deeper into it. Just one question on publication of awards, and in part of the General Division. If one party does not want the decision published but the other party does, how does that operate then in terms of publication?

John Boultbee:

It's not published in the General Division. If the athlete wants it published in the Anti-Doping Division then it's published. In the General Division they need the consent of the parties.

Jack Anderson:

Okay all right straightforward enough answers to that. And this is a question I probably should have asked at the beginning. The NST isn't bricks and mortar, it’s in some ways it is virtual in the sense that it's not going to be based in Canberra and just maybe explain how it operates throughout Australia.

John Boultbee:

Yes, so it's one of the advantages of being set up by the Federal Government. We have already negotiated with the Fair Work Commission and the National Insurance Disability Scheme to have the ability to use their hearing rooms around the country which are all set up for video conferences and so on. So we effectively can sit wherever we choose to sit, and even have hearings without requiring witnesses to travel to the hearing. So we've got a good network of premises that we're able to use, and very high-quality premises and readily available should we need them.

Jack Anderson:

And there has been a few questions again about mandating the use of the tribunal in terms of predicating funding on it. Have you any thoughts on that, or are you just, it's an opt-in jurisdiction and that's it?

John Boultbee:

As far as our Act is concerned there's no provision for that. I imagine that Sport Australia as the funding body of a lot of sports would have the power to mandate certain things, and for example they mandate that you should have an anti-doping policy and a Member Protection Policy. We haven't, and won't be asking Sport Australia, to mandate that sports should refer all their matters to the National Sports Tribunal. But we do know that Sport Australia will be recommending the National Sports Tribunal to the National Sporting Organisations because Sport Australia has been part of the whole taskforce working towards the suite of improvement to the integrity of sport, and they see having an independent tribunal as an important part of that. But they've not suggested, and we've not suggested, any mandating to that effect.

Jack Anderson:

Okay all right and we just have maybe one or two more questions on this. Just in terms of, it's more to do with I suppose a jurisdiction point, in terms of where a dispute is referred to the NST under a rule and the rule says that the rules of the sports body must apply, what happens where a party attempts to bring in general law points? So this is an issue that's come up in other arbitration disputes whereby a party decides well there's a human rights angle to this dispute. How does the tribunal deal with that in terms of jurisdiction?

John Boultbee:

That's a good question, and it will be I imagine like most arbitrations. It's a matter that I will take on notice, if I may on that one.

Jack Anderson:

Yeah that's fine and that's what would be my answer as well to that issue. And so that's it in terms of the questions that I have and from the audience. We've rattled through about 25 different questions in a pretty intense hour or so. Maybe you just, and I'm conscious of we're just moving past seven, and maybe just to give you a chance John maybe just to wrap up and if there's anything in particular that you want to highlight from what you've said. And as ever just reiterate to everyone that this is recorded, the email address is there to follow up any questions as well. So maybe just over to you John.

John Boultbee:

Thanks Jack. Well perhaps I could emphasise that we are a new tribunal that’s got a lot to learn, we're just starting out. We've got some cases that sports have talked to us about and so we expect before too long to no longer be a tribunal without any cases.

Jack Anderson:

Yeah I was going to be cheeky and ask you that question actually, have you cases already but ah well you've answered it now so that's good.

John Boultbee:

There are some in the pipeline, no applications have been filed as yet. But we're willing to learn and keen to hear from the professions, from the sports, from anybody who's interested in the integrity of sport in the country, and in the hearing of matters with suggestions, questions or whatever. We're going to be proactive in getting out to all the sports, and hopefully when we can get around, to all the cities and meet with the lawyers to have an exchange of views. We're also keen to learn as much as we can from the New Zealand tribunal, the Canadian tribunal and Sport Resolution UK. Those who before me have been involved in setting up the tribunal have done a lot of work in that area.

But where we are is as an organisation that people need to agree to use before they come to us, we can't force ourselves upon anyone. You'll find us very open to have discussions with you about the benefits, what is perhaps in the best interests of your sport and what's not possible to bring to us, and we'd encourage those conversations from anybody who has an interest.

Jack Anderson:

And just maybe as a kind of an addendum to that, what about a sport such as eSports? What about sports that may not be recognised under you know the usual recognised process? What about the jurisdiction to hear disputes like that? Given that I have my gamer headphones on, where there's a lot of virtual sports going on at present, what about a sport like that which is a big industry?

John Boultbee:

Jack I didn’t know that you had a dispute with the eSports federation already? So for us to have jurisdiction there needs to be a sporting organisation as defined in our Act, and a sporting organisation is defined as one which is recognised by Sport Australia or recognised by an International Federation. Beyond that there is a power to designate bodies, or classes of bodies, as sporting organisations as the case may be. And for example, very soon we’ll be proposing that we designate peak sporting bodies, such as the AOC, the APC and Commonwealth Games Australia as a sporting body to give them access to the National Sports Tribunal, and other multisport organisations and organisations that hold major events at a national or international level in Australia. So it could be extended to your new sport Jack, esport, but we haven't done it yet.

Jack Anderson:

Okay thanks very much for that that, and that was a final question that's come through generally. So it kind of just leaves it up to me – thank you very much, I spent just over an hour firing different questions at you and you've been very gracious and informative in your answers. So on behalf of ANZSLA, on behalf of the members and non-members who are listening to you, we all wish you the very very best of luck with the NST both personally and professionally. And to all others listening there will be other ANZSLA events upcoming soon enough and we hope you join us with that as well. But a virtual round of applause and thanks very much to you, John.

John Boultbee:

Thanks Jack, thanks ANZSLA.

Jack Anderson:

Alright no problem thanks, and so that ends the proceedings, and now we have that very awkward Zoom meeting moment where we all try and log off without our face freezing. Alright good night all, stay safe.

Video type
Presentation
Description

Profesor Jack Anderson (Director of Sports Law Studies, University of Melbourne) interviewed John Boultbee (Chief Executive Officer, National Sports Tribunal) on 7 April 2020.

They discussed the establishment of the National Sports Tribunal and its:

  • functions
  • policies
  • procedures