What were the reasons for undertaking a review of the Sports Tribunal?
The functioning of the Sports Tribunal (“Tribunal”) was last reviewed in 2009 by consulting firm, Martin Jenkins. Since this time, there have been significant changes in the sport sector, in particular, the growth of professionalism, increasing complexity and cost of high performance sport, and increasing commercialisation of sport. In mid-2015, Sport New Zealand, the Minister for Sport and Recreation (“Minister”) and the Tribunal Chairperson agreed it was timely to review the Tribunal’s operations. The purpose of the review was to assess whether the Tribunal continues to be fit-for-purpose in meeting the dispute resolution needs of the sport sector and continues to meet its original policy objectives in relation to independence and credibility, accessibility, affordability, efficiency, and appropriateness of jurisdiction.
Who conducted the review and who was involved in the process?
The review was conducted by lawyer, Don Mackinnon, who has represented parties before the Tribunal, is a former Board Member of Sport New Zealand and High Performance Sport New Zealand, and a current Board Member of New Zealand Cricket. The review was conducted independently of the Minister, Sport New Zealand and the Tribunal. During the course of the review, Mr Mackinnon interviewed a wide cross section of stakeholders including Tribunal members, representatives from Sport New Zealand, High Performance Sport New Zealand, National Sports Organisations (NSO’s) and the New Zealand Olympic Committee (NZOC), and athletes, lawyers and other representatives of parties who have appeared before the Tribunal.
What were the key findings of the review?
The review notes that the Tribunal continues to provide an excellent service to the sports sector and is meeting its policy objectives in terms of timeliness, efficiency, fairness, credibility and independence. Affordability is raised as the biggest concern for those involved in appearing before the Tribunal, more specifically, the cost of legal representation for a defended hearing.
The review made a number of recommendations including the need to:
- establish a sports mediation service for disputes before the Tribunal and also for a broader range of disputes at the national level;
- explore the possibility of resolution facilitation (as used in Canada) for anti-doping cases before the Tribunal;
- explore ways to reduce hearing time and costs for proceedings before the Tribunal such as making a decision on the papers, use of video conferencing instead of hearings in person, and providing neutral evaluation; and
- provide better educational opportunities for Tribunal members, lawyers practicing in the area of sports law, as well as the sports sector generally; and
- have Sport New Zealand commence dialogue with NSO’s (in particular, NZ Football, NZ Cricket and NZ Rugby) to explore their willingness to use the Tribunal’s services where their rules do not currently provide for this.
What are the next steps?
The Sport New Zealand Board is currently considering the recommendations. Any changes to the sports dispute resolution system will not be implemented until after the 2016 Rio Olympic and Paralympic Games to provide certainty for the sports sector.
In 2009, Sport and Recreation New Zealand (formerly SPARC, now Sport New Zealand) contracted a research firm to undertake an independent assessment of current dispute resolution needs in the New Zealand sport and recreation sector, including the role of the Sports Tribunal.
The research team consulted with and interviewed a variety of relevant stakeholders including athletes, representatives of NSOs and lawyers who had been involved in proceedings before the Tribunal. While highlighting some minor possible areas for improvement (relating to affordability and a stronger educative role) the outcome from the report was overwhelmingly positive.
The report concluded:
“It is therefore important to consider whether the original policy intent that led to the establishment of the Tribunal is being met. The overall conclusion of this research is positive in that regard. Stakeholders consider the Tribunal to be accessible, fair, timely and, for the most part, affordable. The Tribunal is seen as delivering outcomes that are significantly better than those associated with the pre-Tribunal landscape. The Tribunal has a strong level of support amongst the parties we spoke to…”