Media Release 8 December 2022
The 2022 edition of the Australian and New Zealand Sports Law Journal has been released today, both in hard and electronic format and is available free of charge to ANZSLA members. It is also available to purchase from the ANZSLA website.
The Australian and New Zealand Sports Law Journal is an independent double blind peer reviewed/refereed specialist law journal of the Australian and New Zealand Sports Law Association (“ANZSLA”), the peak professional organisation for lawyers, academics and sports administrators practising in the area of sports law in Australia and New Zealand. It contains current articles of interest to not only legal professionals, academics and sporting administrators, but also sports journalists and the general sporting public.
No Right Without a Remedy: Integrating Human Rights Protection into Sports Dispute Resolution
Global sports law has largely avoided interference from nation States in order to achieve independence and autonomy. However, the almost unfettered discretion afforded to sports governing bodies (‘SGBs’) in regulating athletes and resolving disputes gives rise to concern when these regulations and decisions conflict with universally recognised human rights. With both States and SGBs being called on by the international community to increase their human rights accountability with respect to athletes, the recent Semenya and Pechstein cases have highlighted the limitations of the sports dispute resolution system as it stands. Given human rights protections are being increasingly embedded into sports governing instruments, it is essential that the exclusive means of recourse for many athletes, the Court of Arbitration for Sport, is also fortified to accommodate the increasing number of cases with human rights ramifications. With arbitration being popularised as a forum for business and human rights disputes, there are parallels to be drawn in improving the sports dispute resolution system so as to better serve those at the centre of sport – the athletes themselves.
Inadvertent Doping and the Shayna Jack Decisions: A Search for Coherence in the Court of Arbitration for Sport
Duffy, James and O’Brien, John
The Court of Arbitration for Sport (CAS) is responsible for determining a number of anti-doping cases on an annual basis.
Over the past five years, differently composed arbitral panels at the CAS have dealt with athletes who claimed to have inadvertently doped. The phrase inadvertent doping is colloquially used where an athlete neither deliberately nor negligently ingests a prohibited substance,but returns an adverse analytical finding for a prohibited substance. The Shayna Jack case involved a unique set of circumstances that provided an excellent test case for the CAS to bring coherence to a series of decisions that appeared to conflict in principle. The unfortunate consequence for Shayna Jack was that she was ineligible to compete for Australia in the 2020 Tokyo Olympic Games. The upside for future professional athletes is that the Jack arbitrations (first instance and appeal) have provided clarity as to the probity and weight of different pieces of evidence that may be used by an athlete when attempting to establish a nonintentional anti-doping rule violation pursuant to the World Anti-Doping Code (and its derivatives).
Concussion, CTE & Proof of Causation by Material Contribution
A plaintiff athlete suffering from Chronic Traumatic Encephalopathy (CTE) who intends suing his or her major sporting organisation in negligence for failure to warn of the risk of CTE or failing to establish concussion protocols must prove causation of harm. CTE is a disease caused by the accumulation of repetitive head trauma over an athlete’s entire career; as a junior, adolescent, and senior participant in contact sport. How, in such circumstances, is the affected athlete to prove that the CTE with which he or she is afflicted was the result of play in the premier league rather than, say, from head trauma experienced as a junior? This paper considers proof of causation by ‘material contribution’ under the ‘exceptional case’ provisions of civil liability legislation as informed by the common law.
Athlete and Sponsor Disputes: A Novel Sports Law Issue?
Sponsorship is a critical element of professional sports due to it being a major source of funding. These relationships are often
tenuous and short-lived, frequently resulting in the sponsored party giving primacy to the interests of its sponsors even when making operational decisions such as athlete retention or recruitment. The increased deference to sponsor interests may have implications for legal disputes arising in the sports context. Previously, disputes have been confined to parties directly within the sports ecosystem – namely athletes and organisations; however, if sponsors have real or de facto influence over their sponsee, there may be scope for heightened involvement as a party to a dispute. An example of this is the dispute between Israel Folau and Rugby Australia, in which the Folau legal team raised potential causes of action that would extend liability to the sponsors of Rugby Australia. While involving remote parties is not a novel concept in sports litigation, litigating against a sponsor is novel. This article examines some causes of action that may be raised in a dispute to capture sponsors.
Strictly Recreational: The World Anti-Doping Code (2021) and its Amendments for Recreational Athletes
The World Anti-Doping Code (‘Code’) is a harmonised set of rules to govern anti-doping for all athletes around the world. However, when applied to recreational athletes, these rules have resulted in sanctions which are disproportionate to an athlete’s circumstances. While amendments to the Code have sought to address this issue, the amendments are unlikely to satisfy the desire of the New Zealand Sports Tribunal to exercise broad discretion regarding sanctions for breaches of the rules by recreational athletes. This creates tension between the desire for greater discretion when imposing sanctions on athletes, and the harmonising purpose of the Code.
Sports Management: Principles and Applications. Russell Hoye, Katie Misener, Michael L. Naraine, Catherine Ordway (eds.) (Routledge 6th ed., 2022)
Goh, Chui Ling
Sports Law. David Thorpe, Antonio Buti, Paul Jonson, Jack Anderson (Oxford University Press 4th ed., 2022)