A fair hearing in Sport
Domestic sporting bodies are obliged under the common law to conduct fair hearings. Independent of any rules or by-laws they must accord with the principles of natural justice and procedural fairness. One such principle is that a party must be given an opportunity to make submissions on the question of penalty as well as on guilt.
Hall v New South Wales Trotting Club [1977] 1 NSWLR 378, is a case in which the failure of the club to invite the member to make submissions on penalty constituted a breach of natural justice. South Melbourne Football Club Ltd v Football Federation Victoria Inc [2010] VSC 355 is a more recent case which also requires that a party be able to make submissions on the question of penalty.
On the 11th of April 2010 the South Melbourne Football Club (SMFC) played against Heidelberg United Football Club. Due to unacceptable conduct on the part of SMFC supporters the referee abandoned the match. In relation to one of the conduct charges laid against the club Justice Pagone of the Supreme Court found that the FFV Appeals Board did not satisfactorily articulate the charge and therefore SMFC did not have the opportunity to make any meaningful submissions on penalty. Justice Pagone found that this was a breach of procedural fairness.
Procedural Fairness in Sport
Carter v New South Wales Netball Association [2004] NSWSC 737 involved controversial conduct of a volunteer junior netball coach and life member of the Mount Druitt Netball Association, Sandra Carter. Parents believed her conduct constituted child abuse and wrote to the New South Wales Netball Association (NSWNA). This letter was forwarded to Ms Carter for a response. The letter did not particularise any person alleged to have been abused and was therefore hard to refute in any detail.
An Investigator was appointed to look into the allegations and make a decision on whether or not Ms Carter had breached the NSWNA’s Anti Harassment Policy (the Policy). The Investigation was poorly conducted. Following the decision of the Investigator that Ms Carter did breach the policy, the NSWNA’s Disciplinary Committee banned Ms Carter as a member of Netball NSW for a period of five years.
The Court overturned the decision and described her conduct to be “excessively enthusiastic coaching” rather than child abuse. The Court also found that the Disciplinary Committee did not afford Ms Carter procedural fairness which would have included amongst other things:
• Informing Ms Carter with sufficient particularity of what she was accused and by whom;
• Giving Ms Carter a reasonable opportunity to consider the specific accusations in advance of her interview with the investigator; and
• Affording Ms Carter a fair hearing including an unbiased decision.
Whilst it may be important to seek tough penalties against those who are in breach of rules in place to protect children sporting bodies must follow a proper process in handling a complaint. If they do not follow the relevant rules, by-laws and laws, innocent parties can be wrongly found guilty or the decision will be able to be successfully challenged.
