Member v Sporting Body - [2023] NST E23-375291

Case number: NST-E23-375291
Case Title: Member v Sporting Body
Determination
National Sports Tribunal
General Division
sitting in the following composition:
Panel Member   Mr Robert Heath KC
in the arbitration between
Member  Applicant
Represented by a legal representative
– and –
Sporting Body  Respondent
Represented by an authorised representative
1.This determination is in nine parts, namely:

Section Heading Page no.

I Introduction and parties 2

II The issues and a summary of the Tribunal’s determinations 3

III Background 4

A.     Events leading to the NST Application 4

B.     Relevant Policies and other documents 12

IV Appointment of the Arbitral Tribunal 17

V Procedural history 17

VI The applicable rules and relevant fact-finding principles 20

VII The nature and scope of the Tribunal’s review 20

VIII Determination of the substantive issues 23

A.     Issue 1 23

B.     Issue 2 24

IX Disposition

I Introduction and parties
1.This arbitration is subject to the National Sports Tribunal Act 2019 (Cth) (‘the NST Act’). It concerns a disciplinary dispute arising from a complaint against a member of a Sporting Body; and it has been conducted in the General Division of the National Sports Tribunal (‘NST’ or ‘Tribunal’).
2.The Applicant is a member of the Respondent. He is represented in this arbitration by counsel.
3.The Respondent is the governing body for the sport in Australia; and it is the sole Australian member of the sport’s International Federation (‘IF’). The IF is recognised as the sole sporting body with global authority to make and enforce regulations for the encouragement and control of the sport; and the IF recognises the Respondent as the sole body for the control of the sport in Australia. The Respondent is represented in this arbitration by the National Integrity Officer of that body.
4.This proceeding arises from an application of the Respondent to the NST dated 22 November 2023 (‘NST Application’). By this application, the Respondent referred the matter to the NST General Division for arbitration. This case arose from that referral.
5.In short, this case relates to the following: (i) a sanction that the Respondent imposed on the Applicant on 24 October 2023 (‘2^nd Sanction’); and (ii) the Applicant’s desire to dispute the 2^nd Sanction. The 2^nd Sanction arose from the Applicant’s failure to comply with a Breach Notice dated 25 August 2023 (‘Relevant conduct’).
6.In this case, there are three matters about which there is no dispute.
7.First, there is no dispute that the Relevant conduct was “Prohibited Conduct” as defined in clause 6 of the Complaints, Disputes and Discipline Policy dated 18 April 2023 (‘CDDP – April 2023’).
8.Second, there is no dispute that the CDDP – April 2023 governs the determination of the issues raised in this arbitration. The parties accepted as much in an exchange of emails on 8 December 2023, being an exchange into which the NST Case Manager was copied.[1] At the hearing on 18 December 2023, the parties…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NST E23-375291
Decision Date: 22 December 2023

CaseChat Overview and Summary

The case involved an application by the Respondent, the governing body for a sport in Australia, to the National Sports Tribunal (NST) for arbitration of a disciplinary dispute against the Applicant, a member of the Respondent. The dispute arose from the Applicant's failure to comply with a Breach Notice issued by the Respondent, which in turn was related to a previous sanction imposed on the Applicant for making unwanted sexual advances towards a female complainant. The Respondent had imposed a second sanction on the Applicant for breaching the initial sanction by communicating with the complainant in violation of the terms of the Breach Notice. The Applicant appealed the second sanction, leading to the NST arbitration.

The legal issues before the NST were whether a sanction should be imposed on the Applicant for the relevant conduct, and if so, what form that sanction should take. The NST found that a sanction was appropriate and determined that a two-week suspension from participating in any sporting activities was a fair and reasonable sanction. The Tribunal also noted that the Applicant had already served a suspension of almost two months, which satisfied the Tribunal's sanction, and thus the Applicant was free to participate in sporting activities immediately.

The NST's reasoning was based on a detailed analysis of the relevant conduct, the context in which it occurred, and the factors identified in the SIA Guidance document for determining appropriate sanctions. The NST found that the Applicant's conduct, while a breach of the initial sanction, did not demonstrate a deliberate intention to disobey the Respondent or cause harm to anyone. The NST also found that the Applicant's expressions of remorse were genuine and that there was no evidence of harm resulting from the relevant conduct. The Tribunal concluded that a twelve-month suspension would be disproportionate and that a two-week suspension was proportionate to the nature and purpose of the contravening conduct.

The final orders of the NST were that the Applicant was to be suspended from participating in any sporting activities for a period of two weeks, effective immediately as the Applicant had already served a suspension of almost two months. The Respondent was directed to remove or delete all notices and publications relating to the second sanction and to publish a notice recording the Tribunal's sanction.

Orders