Two years not-out: Assessing the Australian National Sports Tribunal

The establishment of the National Sports Tribunal (NST) was a recommendation contained within the Report of the Review of Australia’s Sports Integrity Arrangements (Wood Review). The Wood Review found that there were emerging threats to the integrity of Australian sports, including a significant risk of an increase in match-fixing and related corruption in Australia, the greater accessibility and prevalence of performance-enhancing drugs, and issues in relation to protecting the most vulnerable participants in sport (including young people) from abuse, harassment, discrimination and bullying.

Established under the National Sports Tribunal Act 2019 (Act), it was originally stated that there would be a two-year pilot program, however, in late 2020 this was extended by a further 12 months, until 18 March 2023. With 16 matters having now been reported, it is evident that use of the NST and its processes has been modest. However, this is likely to substantially increase due to a number of factors which will be considered below, namely:

• Increasing referrals arising out of highly publicised independent reviews in some sports;
• Implementation of the National Integrity Framework (NIF); and
• Further participation in Olympic sports in advance of the Brisbane 2032 Olympics and the Victoria 2026 Commonwealth Games.

Areas requiring consideration

Having assessed the aims of the Wood Review, the Act and the matters generally decided by the NST, we believe that the following require consideration from both a legal and operational perspective:

1. ‘Sporting Disputes’ – At present, Section 3(1) notes the object of the Act is to establish “an effective, efficient, independent, transparent and specialist tribunal for the fair hearing and resolution of sporting disputes”. With no clear definition of ‘sporting disputes’, this leaves potential parties and the NST itself unsure as to what can be heard.
2. Jurisdiction and Relevant Forum – The point that flows naturally from the previous one is whether the NST has jurisdiction to hear matters and, in particular, where another relevant forum may be better placed. For example, employment matters may be better heard through the Courts. Governance issues, especially those at a Club or State level, may first be raised at an annual general meeting or extraordinary meeting as most constitutions have mechanisms for dispute resolution by the members themselves.
3. Representation and Funding – Although the NST has focussed on assisting access to justice and resolving matters more efficiently, there are still many legal and procedural issues requiring the attention of qualified barristers or solicitors. Consequently, representation in the NST is becoming more necessary, as a party may itself be disadvantaged. While the NST Legal Assistance Panel goes some way to dealing with this, funding lawyers as well as the NST itself may result in better outcomes.

Independent reviews of sport

The NST has risen in profile, in particular following public reviews into specific sports. For example, the NST is working with Sport Integrity Australia (SIA) to support Gymnastics Australia to manage and resolve complaints raised through its new Supplementary Complaints Management Policy (Policy). Gymnastics Australia established this Policy to complement the Australian Human Rights Commission Review of Gymnastics in Australia. The NST has committed to provide independent mediation, conciliation and arbitration services for disputes that arise under the new Policy.

Football Australia, SIA and the NST confirmed in October 2021 that they would develop an independent complaint handling process to manage reports made in relation to Football Australia’s national teams and the A-Leagues. Under the agreement, current and former footballers and staff will be able to submit complaints regarding abuse, harassment, discrimination, sexual misconduct or bullying directly to SIA. SIA would receive, assess and manage all complaints, ensuring concerns are heard and assessed independently of Football Australia. SIA and the NST would have jurisdiction to hear any disputes that fall within the scope of the complaints process. SIA CEO David Sharpe said it is important for complaints to be handled outside an individual sport: “I welcome the proactive approach from FA to address these issues independently. Having an independent body to hear complaints is critical to giving athletes and staff confidence that their concerns will be heard openly and that they will be treated fairly. Nothing can be swept under the carpet.”

These instances show the potential for the NST to be a body that, in co-ordination with SIA, can hear more common or systemic matters arising out of an individual sport. It highlights the need for the NST, as well as demonstrating the important role that an independent tribunal plays in minimising and mitigating the conflicts that would arise within the sport itself, should it try to resolve them itself.

The National Integrity Framework

SIA’s introduction of its National Integrity Framework (NIF) in 2021 has been designed to take a proactive approach to mitigate integrity threats to sports and provide a safe, fair and healthy environment for participants. Many sports have recently implemented the NIF or are in the process of doing so. The NIF promotes confidence in sport and combats the threats to it, including:

• Manipulation of sporting competitions;
• Improper use of drugs and medicine in sport;
• Abuse of children and other persons in a sporting environment; and
• Failure to protect members and other persons in a sporting environment, from bullying, intimidation, discrimination, or harassment.

Critical to the NST is the role of the Complaints Manager under the NIF to act as the point of contact between NSO and SIA in relation to the complaints, disputes and discipline policy. The role of the Complaints Manager includes:

• Being the point of contact between the national sporting organisation and SIA;
• Providing information to SIA to enable it to assess complaints, such as details of the complaint and relevant background information; and
• Managing the resolution process as determined by SIA.

Further guidance is required to understand how the Complaints Manager will operate with the SIA and NIF. Equally, any review of the operation of the NST needs to consider the NIF and respond to this new regime, given the likely increase in matters as well as the scarce resources within sport to manage these issues.

Brisbane 2032 Olympic Games and Victoria 2026 Commonwealth Games

The Brisbane Olympic Games in 2032 and the Victoria 2026 Commonwealth Games, with the performances in the recent Tokyo Olympics, have highlighted the importance of Olympic disciplines. This will focus young and emerging athletes on these sports. As a consequence, participation in and prominence of sports that sit outside the traditional summer and winter team sports are likely to increase over the next decade.

Due to the expected increase in participation, there will be correspondingly more matters heard before the NST. This will require more integrity managers, compliance professionals and lawyers to prevent potential issues arising, and also to deal with those that need to be heard. Much like the promising young athletes eyeing an Olympic performance at Brisbane 2032, the integrity, risk management, compliance and legal sectors need further training and investment in their people in order to achieve the objectives of the NST.