Authors: Jamie Truong and Ross Watkins
On 19 March 2020, the National Sports Tribunal (NST) was established by the National Sports Tribunal Act 2019 (the Act) to facilitate an independent, timely and cost-effective system of sports dispute resolution.
The creation of the NST implements the Government’s Response to the Review of Australia’s Sports Integrity Arrangements, which determined that establishing the NST would significantly enhance the credibility of sport in Australia.
A case study
On 9 April 2019, Luke van Maanenberg was the subject of an in-competition doping control test during the 2019 Masters Track National Championships. He returned an Adverse Analytical Finding, and his sample was analysed at the Australian Sports Drug Testing Laboratory, which detected the presence of two prohibited substances.
It was determined that on and/or before 9 April 2019 van Maanenberg used the prohibited substance, Higenamine. Cycling Australia imposed a two-year ban on van Maanenberg commencing on 13 December 2019.
The NST includes an Anti-Doping Division, which provides that an athlete or support person may apply to the NST for arbitration of a dispute if:
- A sporting body has an anti‑doping policy that has been approved by the CEO of ASADA;
- The athlete or support person is bound by the anti‑doping policy;
- The anti‑doping policy permits disputes of a particular kind to be heard in the Anti‑Doping Division of the NST; and
- A dispute of that kind arises in relation to the athlete or support person.
In addition, the NST has been given coercive powers to require parties to appear and give evidence; and provide information or produce documents or things, which may not be possible under the different disciplinary regimes within individual sporting organisations.
Subject to Cycling Australia opting into the NST, future cases such as van Maanenberg’s could be determined by the NST.
Expediency of the NST
A strength of the NST is its ability to mediate and arbitrate disputes expediently. The NST advises that case appraisals can be finalised within two weeks of the application being lodged, while mediations and conciliations can be completed within 4 to 6 weeks.
The NST estimates that arbitrations, the only manner through which the NST can hear anti-doping cases, can be completed within 3 months of the application being lodged.
By contrast, van Maanenberg tested positive to a prohibited substance in April 2019 and the decision was not handed down until December 2019 some 8 months later.
While the NST had not commenced operation at the time of van Maanenberg’s hearing, the potential efficiency for similar future cases could benefit cycling by allowing athletes like van Maanenberg to serve out their bans and return to competitive cycling sooner, enhancing the relevance and integrity of the disciplinary process.
A further advantage of the NST is its neutrality. Many sporting organisations use their own tribunals to determine anti-doping matters. Under principles of natural justice and the bias rule, it is integral that decisions are not only made without bias, but that they appear to be made without bias. In any situation, including van Maanenberg’s suspension by Cycling Australia, even if the decision of the sporting tribunal is entirely fair, there is the potential for perceived bias because the association prosecuting the violation is also making the findings.
As the NST is independent of any sporting association, it allows athletes like van Maanenberg to have more confidence in the integrity of the disciplinary process and the fairness of their hearing, while giving sporting associations the option to engage an external decision-maker on issues which could otherwise attract more public scrutiny for the sporting association.
As Health Minister Greg Hunt said in legislating the NST, “$35 billion to $47 billion of economic activity is generated by sport each year, equating to approximately two to three per cent of GDP”. It is vital that the integrity of sport is maintained – and the NST has a key role to play in this.
Sporting organisations now have the opportunity to opt into the NST during its 2-year pilot and reap the benefits of a transparent, cost-effective and reliable system of sports dispute resolution.