Sporting Justice

September 27, 2013

You’ve done the hard yards. Your team is in peak physical condition, and in a few short moments the siren will sound for a battle that will immortalise your greatness.

Sporting participation is seen as a positive element in team building and self-improvement; it prepares us for life’s struggles. Sporting achievers are seen as role models, and whilst there are always rules of sporting engagement, when an infraction occurs we live and learn. The acceptance of the umpire’s call shows the true depth of a sportsperson.

At the other end of the spectrum, sport becomes a full blown vocation. ‘Elite athletes’ vigorously compete for scholarship selection with state and federal sports institutes, for contractual opportunities to play with ‘league clubs’, or even position themselves as a marketable commodity in the lucrative endorsement and advertising sector. Make no mistake about it, sport is big business.

The administration of sport is something which is not commonly discussed openly in any detail. National Sporting Organisations (‘NSOs’) take custody for a given sport. They in turn obtain international recognition to enable international competitions to take place, eg, the IOC and World Championships. Athletes who participate at even the most junior level implicitly subscribe to a series of contractual undertakings, which via imbedded conciliation procedures found in the contract leave final resolution for IOC recognised sports to the Court of Arbitration for Sport.

Enter ‘freedom of contract’. Put simply, each actor is free to negotiate and be bound by whatever terms of engagement they choose. Where a dispute arises, a party usually takes their grievance to a court. However, when it comes to sport, time honoured civil procedure is somewhat jettisoned. Breach of contract is mysteriously morphed into a ‘charge’, private mediation and arbitration replace the roles of ‘courts’ and ‘tribunals’, and the outcome of these sessions see findings of ‘guilt’ or ‘innocence’. To the untrained eye this process has criminal connotations rather than a civil dispute between two parties.

Do NSOs support contractual freedoms and due process? At least one major Australian sporting code in particular has struggled to contain ‘performance enhancing substances’. These substances alone need not necessary be banned from possession or use by members of the general public, but the contract of athlete participation for this code prohibits their use.

What does the NSO do faced with a breach of contract by a player or club? Normally in a court setting the parties are forced to mediate their differences before remaining issues are determined by an independent judge. What we have seen played out recently (and very publicly) is the NSO deciding the dispute, acting as aggrieved party, judge, jury and executioner. This compromises natural justice. Natural justice requires impartiality of the decision maker.

The second concern is why the nature of these alleged breaches changed at the eleventh hour and transitioned from ‘Performance enhancing substances’ to ‘bringing the code into disrepute’. Could the NSO support the original claim or did it just throw mud to protect its’ ‘reputation’? Was the variation from ‘banned substances’ to ‘disrepute’ a cheap shot? Independent judges would have been more discerning.

There is nothing wrong with providing ‘sporting entertainment’ for the masses, we’re Aussies, and it’s in our blood. However let’s make sure the NSOs are fair dinkum. Bring back the biff, ahh, sorry, umpire, drop the ‘charges’ and lets all enjoy the spectacle!


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