SII Focus 20 October 2015

ANZSLA Conference 2015: Change we can believe in

The Australian and New Zealand Sports Law Association (ANZSLA) held its 25th Annual Conference last week, with ‘The Gold Standard: the best in Sports Law’ as its theme. While the gold standard were the words on the programme, the recurring message was a variation on a theme: change is required. With a backdrop of the on-going FIFA governance scandal and further shortcomings in the regulation of athletics doping, delegates heard throughout the conference that the high standards to which sports law and regulation operate were slipping in key areas.

The feeling of ‘something must be done’ was profound as both national and global institutions came under scrutiny from all corners. The strongest ire was reserved for the likes of the global Court of Arbitration for Sport (CAS), based in Lausanne, Switzerland, and the Australian Sports Anti-Doping Authority (ASADA).

The venue of the conference proved fitting in itself; almost 25 years after the first ANZSLA conference, Melbourne once again played host to the gathering. As the capital of the state of Victoria, Melbourne is home to some of the most comprehensive match-fixing legislation after new laws were introduced by the state government in early 2013. The city, widely regarded as a global sporting hub, is also the home of the Australian Football League (AFL), originally founded as the Victorian Football League. Over the last three years the sport has been embroiled in a far-reaching anti-doping controversy over the legality of a supplements programme operated by one of the high profile Melbourne clubs, Essendon. Nowhere else has the theory of sports law been so manifestly put into practice.

WADA head suggests imprisonment for doping offences

The first day of the conference saw the keynote address delivered by David Howman, now the Director-General of the World Anti-Doping Agency, WADA. A long term member of ANZSLA, Howman also attended its first conference back in 1991 as a fledgling Wellington solicitor. Howman’s address on this occasion proved headline-making as he suggested that “imprisonment could be the most effective way to get rid of doping in sport.” Stressing that sport was “at a crossroads,” Howman told delegates that the “big money earned by the best sports people around the world attracted criminals and opportunists” and was no longer the preserve of athletes alone.

According to Howman, many athletes now support more stringent punishments, such as that those caught cheating should be banned for life. Howman therefore proffered the question, “Should doping be a criminal matter?”

“It is in Italy, and some of us think that the real deterrent that cheating athletes fear, is that of going to prison. It’s not the fear of being stood down from their sport for a year, two years, or four years, but a fear of going to prison.”

Court of Arbitration for Sport Under Fire

Howman concluded his speech by directing criticism towards the CAS. While not explicitly alluding to the three-year Essendon supplement saga, Howman said that the three principals on which the CAS was founded – easy access for the athletes, non-expensive access, and timely justice – were no longer necessarily being followed.

Howman proceeded to remind delegates that WADA rose from the ashes of a serious crisis engulfing sport back in 1998, with the Tour de France Festina drugs controversy and the Salt Lake City corruption scandal. With today’s climate in mind, Howman finished by leaving delegates with the question of whether the time was right for the emergence of another institution; “Is it time to have one universal body to battle corruption, drugs and match-fixing?”

The following day at the conference saw Maria Clarke, a member of the New Zealand Olympic Committee’s Integrity Committee, argue that the Sports Tribunal of New Zealand, an independent body that determines certain types of disputes for the sports sector, was “from a qualitative perspective, a success”. Clarke, who was awarded the Denis Callinan award for commendable service in the field of sports law, told the conference that only two out of 170 decisions of the national tribunal had been overturned by CAS. Clarke offered that, despite there “always being room for improvement”, the body continued to attract a “strong level of support.”

Speaking on the topic of ‘Alchemy, the ‘Golden Fleece’ and Sporting Justice: Whither the Court of Arbitration for Sport’, barrister Paul Hayes was less complimentary of the international body determining sporting disputes, the CAS. Hayes was clinical in his speech: “The CAS needs to reform, or perhaps sporting justice can be better administered through a different structure.”

“The CAS has becomes expensive, procedurally slower and to some degree weighed down by its own success,” Hayes said, although acknowledging that its ad-hoc provision at the Olympics “works very swiftly and efficiently.”

Alluding to the founding principles of the court, as Howman did, Hayes argued that the CAS had been weakened by an “ideological rhetoric which informs the zealous prosecution of sports cases”, likening the procedure to that conducted by “more of a prosecutor than that of a civil dispute.” Hayes said that he agreed with Howman that criminalisation was an effective deterrent for drug cheats, but emphasised that the “process needs to be fair in how we get there.”

ASADA under scrutiny

The conference was spoilt throughout by an array of high quality speakers and practitioners, including Peggy O’Neal, President of Richmond Football Club, who emphasised the importance of gender diversity on sports boards, and Hayden Opie, the Director of Studies for Sports Law at the University of Melbourne. Opie, on this occasion talking about the evolution of match-fixing legislation, is also a member of the Australian Government’s Anti-Doping Rule Violation Panel. Despite this role making him a key decision-maker on whether ASADA should continue to pursue certain cases, Opie offered that the Essendon affair “should never have happened.”

Matt Harvey, Senior Lecturer at Victoria University’s College of Law lost no time in criticising the role of ASADA and the AFL in the Essendon affair, speaking on the topic of ‘Disciplinary Procedures and Appeal Processes – The Golden Rule.’

“ASADA and the AFL conducted a joint investigation; ASADA’s statutory powers and the AFL’s power to require cooperation from participants in football made a strong combination,” Harvey said. “However, ASADA’s internal procedures including the Anti-Doping Rule Violation Panel seem very cumbersome.”

Harvey noted that the charges against Essendon were “effectively settled by negotiation and penalties were accepted, without admission of guilt – appropriate for business, but not necessarily the gold standard for justice.” Harvey further lamented the length of the ongoing affair, now into it’s third year (“justice delayed is justice denied”), and the influence of the media on the actions of sports arbitration panels.

Wrap Up

The Festina affair in 1998 heralded a new dawn in anti-doping.

The question now is whether the cumulative effect of the scandals relating to FIFA governance, the IAAF leaks and the Essendon affair will lead to as significant a change.

All acknowledge that there is considerable room for improvement. Now it’s just a case of when and how.

In Howman’s own words: “We need to look at how we can change things, and I think, looking at the current climate that I confronted when I got off the plane here in Melbourne, this is probably the place where it might start.”

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