If you are currently in a situation where you, or an athlete or team member from your sporting organisation, has been charged with a disciplinary offence (on-field or off-field), you will want to know how to be best prepared. This includes becoming familiar with what happens at a disciplinary hearing and what you are entitled to do during these procedures.
In this article, we will explore:
- What to know and do in the lead up to your hearing
- What to expect from your tribunal hearing
- What to know about appealing tribunal decisions
Sports Tribunal hearings can be complex depending on an association’s rules and regulations, and all offences will be different from sport to sport, with a range of penalties. This article is written to help athletes and the organisations that support them to learn what to prepare in the lead up and what to expect from a disciplinary or tribunal hearing.
Before Your Disciplinary Hearing
Preparation is a key component of any successful outcome. This means being aware of your rights, having prepared paperwork, and also seeking early legal advice about your situation. Below are seven essentials to be aware of.
1. Know the Level of Tribunal Where Your Hearing Will Take Place
It is important to know where your tribunal hearing will be held and what rules or procedures will apply, including whether it be an internal or local tribunal, at the Court of Arbitration for Sport (CAS), or at the National Sports Tribunal (NST). Each tribunal has its own set of guiding principles, rules and processes that will affect how your case should be prepared. Becoming familiar with the guiding principles behind the relevant Tribunal can give you an idea of what factors their decision will be based on.
Early legal advice is essential for effective preparation and, if allowed, representation. Knowing whether legal representation is allowed at your hearing will impact how you prepare. Specialist legal advice from a sports lawyer (and potentially representation if allowed), could mean the difference between the outcome you were hoping for and a more significant penalty.
If a case is scheduled to be heard at the NST or CAS, an athlete will usually have an experienced support team from within their sport or even legal representatives with them given that they are generally forums used in professional, semi-professional and elite sport. Therefore, it may be less important for those athletes or organisations to be personally aware of the below considerations than if they were at the local or amateur level, or if the case were being heard at an internal tribunal.
2. Understand the Description and Nature of the Offence
The very first step is to understand the details of the alleged offence. Is this a doping offence? A breach of a morality clause? An on-field or off-field offence? Do the facts of the case support the offence you have been charged with? Is it the wrong charge?
Knowing the details of the offence helps you identify other recent and similar cases and how they have been dealt with by the tribunal. This also assists you to determine what evidence could be helpful, how you can present and argue your case, and which penalties and charges could be applied if you are found guilty. The more severe the nature of the offence is, the higher the standard of proof is required to be.
3. Understand the Grading of the Alleged Offence
In some sports, there may be degrees of an offence, known as grading. For example, in the AFL, for on-field offences there is grading taking into account the type or seriousness of offence, the point of contact and level of the impact, as well as whether the contact was intentional or careless.
Knowing what grade of offence is alleged will assist you in being aware of, and understanding, what the penalty or outcome of the alleged offence may be. A more severe grading may require a higher standard of proof and may carry a more severe penalty.
Sanctions can range from fines, to suspensions, to expulsion or deregistration. If you are found guilty, know that your prior record or prior history should not have been taken into account by the Tribunal in determining your guilt. However, your record may be a relevant consideration when delivering a penalty, but only after a finding of guilt.
4. Preparation of Submissions
Sometimes written submissions are allowed or required to be given to the Tribunal ahead of your hearing. If you can, preparing a written submission is a good idea as it can allow the Tribunal to gain a greater understanding of your arguments, in the lead up to the hearing. It provides the panel with clarity, which can help your case, as it may set out relevant rules, and other previous cases that should be applied to your circumstances. It can also assist as it demonstrates you are organised, prepared and involved.
Your sports lawyer will be able to help you draft your written submissions if required.
5. Learn Who the Tribunal Members are
Being aware of who the Tribunal members are, including the Chair, and if there is a Tribunal Jury, can also assist you in preparing your arguments for the hearing.
When you know who is involved, you might be able to gain an understanding about each Tribunal members’ methods, style and values. This could be very important to be mindful of in terms of how you communicate at the tribunal hearing, and how you address them, e.g. Madam Chair etc.
6. Consider Who Could be Called Upon as a Witness
Witnesses will be called upon in a hearing, whether they are the victim, umpire, spectator, another club’s officials or others. Knowing which witnesses will be called upon, whether yours or any others, can assist you to prepare relevant questions for the Tribunal hearing. For example, if the witness being called upon is an umpire, you will want to ask specific questions about what happened on the field. Knowing who the witness is will help you to know what to expect and ask.
You will want to know whether cross-examination is allowed, so you can be prepared for the experience. Your sports lawyer will identify likely questions to be asked of you so that you can be as prepared as possible for that process, as well as what questions you should ask other witnesses.
7. Consider What Evidence Could be Put Forward
Types of evidence that may be able to be presented by you or others may include:
- Witness statements (it is important to be across what your witnesses’ versions of events are)
- Video footage
- Photographs
- Statutory declarations (signed declarations by those whose evidence has been included)
- Phone records
- The umpire or referee’s on-field notes
- The post-match report paperwork
- File notes (written recollections of events instead of recorded conversations, which may be in the form of diary entries)
- Communications
- Any other relevant documents
Being aware of what evidence will be submitted can allow you to get ahead and prepare. For organisations and for individuals, it is always recommended that you seek legal advice early on in the piece, so that you can prepare efficiently for whatever may arise during the process.
You will benefit from having character references to put forward. This can be especially helpful if your referees are well known and respected.
What to Expect from the Hearing
Anyone appearing before a tribunal must be given a fair hearing. This is known as procedural fairness.
Procedural Fairness
Procedural fairness is to be applied at a tribunal hearing unless expressly excluded by the relevant rules. This means that:
- Full details of allegations/charges are to be provided to you. You are entitled to all documents and any material the tribunal has been provided
- There is a reasonable opportunity for you to consider and present your case, be heard and have your evidence considered
- You are provided a verdict without actual bias from the Tribunal
There are instances historically in sport where tribunals have been found to have not applied procedural fairness. For example, the case of a coach who was ultimately found to have not been given procedural fairness – Carter v New South Wales Netball Association.
Where appropriate, your sports lawyer will be able to advise whether you have grounds for appeal due to a lack of procedural fairness.
Appealing a Tribunal Decision
It is important to be aware that usually there must have been an error of law in order for you to have grounds to appeal a decision. You usually cannot appeal against the merits of a decision, which means that an appeal is not a “re-trial” of the case, but an appeal against an error made by the decision-maker.
This is why it is so important to get it right at the original hearing. You will generally not be given a second opportunity to argue about the merits of the proposed sanction or put forward a particular set of facts or evidence, meaning that you need to make sure you get all the relevant evidence and arguments put before the tribunal in the first instance.
However, some appeal hearings involve a full rehearing of your case, including hearing all arguments and any witness evidence.
If you do have to appeal, in order for your appeal to be successful, you may need to be able to provide proof of a lack of procedural fairness, a misapplication of the relevant rules, or that the decision made was so unreasonable that no reasonable person would have reached the same decision.
Your Next Steps
Whether you are due to face a disciplinary hearing or you belong to an organisation looking to support your athlete, you should now have an understanding of what to know to best prepare for what happens at a disciplinary hearing.
Whatever the alleged offence, seeking early legal advice is a crucial step in preparation and can mean the difference between getting a desired outcome, or being found guilty or hit with a harsher penalty than expected.
Article by Jackie Chan
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Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought. Please contact Paul Horvath on info@sportslawyer.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.
