Melbourne Law School - Theses
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ItemProcedurally Fair? – the efficacy and use of the principles of natural justice in the (disciplinary) tribunals of sporting organisations( 2021)While elite athletes have access to skilled representation and international arbitral tribunals in seeking to overcome disputes with their sporting organisations, the relevance of similar rules and processes to recreational participants is not clear. Moreover, appeal to a supra-national forum is generally beyond the reach of the lay athlete placing a heavy emphasis on first instance disciplinary tribunals. Where tribunal determinations proved unsatisfactory, the final recourse will in practice, be the regular courts. This emergence of legal effects on sporting endeavour has been described as a process of juridification characterised by the ‘legalisation’ of a social sphere (demonstrated by the development of sporting rule books and codes); its ‘bureaucratisation’ (visible in the establishment of internal tribunal mechanisms); and the ‘judicialisation’ of sport (as those mechanisms amend their practices in order to conform with accrued decisions and other judicial norms). Notwithstanding the historical reluctance of the regular courts to intervene in the operations of private tribunals, one area where contemporary courts will provide clear oversight is in ensuring compliance with the principles of natural justice. This research has sought then to discover whether sporting bodies are cognisant of those principles and whether (or not) they comply with them in their disciplinary tribunals. Initially, the provenance and substance of natural justice principles and how they have been reflected and defined by the courts both generally and with regard to the specific sporting context have been canvassed. Subsequently, through an analysis of the relevant sporting rule books and through empirical observation of disciplinary tribunals in action, the research investigated whether or not those tribunals were adhering to the norms of procedural fairness. The conclusion drawn is that the observed sporting organisations do include procedural fairness principles in their relevant rules and are largely compliant with those principles in their operations. However, the impact of issues emerging in areas of arbitral neutrality, tribunal independence and human rights factors will doubtless provide greater challenges.