CEOs and domestic tribunals—The rights and risks of penalisingathletes for off-field misconduct

David Thorpe *

Faculty of Law, University of Technology, Sydney, NSW 2007, Australia

1. Introduction

The capacity to discipline athletes for off-field misconduct has, in recent years, become a component of sportsmanagement essential to securing the image of the sport, preserving the financial benefits that flow from such an image anddeterring misbehaviour. This paper considers the differing legal rights and risks associated with athlete penalisation asbetween a Chief Executive Officer (CEO) and a domestic tribunal. For sports managers the difference between the twomethodologies is critical to avoiding the cost and inconvenience of litigation and, further, in planning the on-goingcontractual arrangements between the organisation and the athlete.

Contracts between athletes and their sporting organisations often grant to the sport’s Chief Executive Officer (CEO) theauthority to terminate or otherwise punish an athlete who has engaged in off-field misconduct. The exercise of thisauthority, whilst undoubtedly useful, nevertheless involves legal risks, not the least of which is the organisation’s exposureto litigation should the right to penalise by misapplied by the CEO (as an employer of the CEO, the sporting organisation is infact liable). Words of wide application, such as ‘misconduct’ or ‘conduct unbecoming’, are used in many sporting contracts toensure all possible forms of misbehaviour are included within the organisation’s authority to penalise. These words, by theirvery width permit an accused athlete to claim his or her behaviour did not fit the definition of ‘misconduct’ as agreed by theparties. For example, although parking in a loading zone is a form of misconduct, the athlete would rightly argue that theword ‘misconduct’, as its use was intended in the contract, should not apply to such a minor offence. What though ofspeeding or driving under the influence of alcohol? How a word like ‘misconduct’ is to be interpreted is an open question. Atthe very least, should the CEO wrongly construe the term ‘misconduct’ he or she may be threatened with litigation and,

Sport Management Review 14 (2011) 269–286

A R T I C L E I N F O

Article history:

Received 11 March 2011

Received in revised form 15 May 2011

Accepted 22 May 2011

Keywords:

Athlete

Misconduct

Disrepute

Domestic tribunal

Penalise

CEO

Sport

A B S T R A C T

Modern sports management necessitates the use of disciplinary systems to both dissuade

and to penalise athletes who engage in off-field misconduct. Athlete misconduct threatens

the financial viability of a club or sport, team morale and the image of the sport in the eyes

of the public. Domestic Tribunals or penalisation through a Chief Executive Officer are the

most commonly utilised methods for dealing with athlete misconduct. Each method

concerns the law of contract to involve certain legal rights and risks. This article examines

both methods with a view to informing sports officials of the legal rights and risks

associated with the penalisation of athletes for offences of off-field misconduct.

� 2011 Sport Management Association of Australia and New Zealand. Published by

Elsevier Ltd. All rights reserved.

* Tel.: +61 02 9514 3164.

E-mail address: David.Thorpe@uts.edu.au.

Contents lists available at ScienceDirect

Sport Management Review

jo ur n al ho mep ag e: www .e lsev ier . c om / lo cate /s m r

1441-3523/$ – see front matter � 2011 Sport Management Association of Australia and New Zealand. Published by Elsevier Ltd. All rights reserved.

doi:10.1016/j.smr.2011.05.008

although acting in the best interests of the sport, risks player disquiet, media censure and the chastisement of parochialsupporters.

As an alternative to ‘CEO penalisation’, it is argued in this paper that the interests of a sport are often better served througha domestic tribunal exercising the contractual authority to investigate and punish acts of misconduct. A domestic tribunal, asthe interpreter of the sport’s standard of conduct, is less likely to face litigation for wrongly interpreting the contractualterms proscribing certain forms of misconduct. However, it is also argued that, unlike a CEO, a domestic tribunal must, as aquasi-judicial body, make its determinations in good faith. A CEO does not perform a judicial function and is free, it is argued,to exercise the right to penalise an athlete for breaching the term proscribing misconduct without recourse to the principlesof good faith.

Flowing from the differing capacities of each body to penalise athletes for misconduct, it is proposed that it is legallypermissible for a CEO to terminate the contract of lesser athletes and leave the contract of better players undisturbed, despitea similarity of offence.

2. The legal basis of athlete punishment

The authority to penalise for misconduct is found within the terms of the athlete’s contract (the terms of a contract are aform of private law governing the relationship between the parties). The athlete, as a party to the contract, expressly agreesto permit him or herself to be penalised for acts of misconduct—penalties which include, commonly, termination of contract.In the absence of an agreement the organisation has, in general, no entitlement to penalise an athlete when he or she is ‘off-field’ and not ‘on duty’.

2.1. The means of censure: CEO or a domestic tribunal

The power to penalise an athlete for misconduct is usually assigned to either, or both, a CEO (or similar officer of theorganisation) or a domestic tribunal. A domestic tribunal is private forum for resolving contentions within an organisationand, where applicable, imposing penalties on members who breach the organisation’s rules.

A typical term permitting the imposition of a penalty by a CEO was that governing Australian athletes competing atBeijing in 2008 (Australian Olympic Team Membership Agreement – Athletics, 2008):

‘I acknowledge that:The Chef de Mission has the power in his absolute discretion for incidents arising during the Games period to:

(a) Terminate my membership of the team(b) Require me to leave the Games(c) Exclude me from competition; or(d) Cancel; or impound my Games identity card or accreditation’

Alternatively, an athlete may be penalised through a domestic tribunal. A typical term establishing a domestic tribunal isthat of the Australian Rugby Union (Australian Rugby Union, 2004) which, following an accusation of misconduct, requiresthat:

‘The ARU will establish from time to time a Tribunal to investigate and conduct hearings in relation to alleged breachesof the Code, to impose appropriate sanctions where the Tribunal finds a breach has occurred . . .’

Some sports grant to a board or committee of the organisation an entitlement to penalise for off-field misconduct. Wherethe committee takes on a judicial role it will be deemed to function as a domestic tribunal and must, therefore, afford theathlete all rights and entitlements associated with such tribunals, for example, the right to an unbiased decision. Where,alternatively, the committee stands in the place of the CEO to exercise, as the injured party, a contractual right to terminatefor breach of contract, it need not grant to the athlete any rights associated with a domestic tribunal (London Borough ofHounslow v Twickenham Garden Development, 1970).

To illustrate, in Rose v City Bowling Club (1991), the by-laws of the club required that a member who ‘shall be guilty of anyconduct unworthy of a gentleman. . . shall be liable to expulsion by a resolution of the Committee provided that at least oneweek before the meeting . . . he shall have notice thereof . . . and have had an opportunity of giving orally or in writing anyexplanation or defence he may think fit.’ Rose had questioned the financial practices of the club which ‘caused more than alittle resentment among some, at least, of the members of the Committee of Management’ (Rose v City Bowling Club, 1991, p.6). Prior to the matter being considered, Rose was told ‘. . .at its next meeting the Committee proposes to suspend yourmembership of the Club’ (Rose v City Bowling Club, 1991, p. 7). When the Committee conducted its meeting Rose was notpermitted to present a defence or an explanation. Justice Powell commented, ‘Mr Rose had been tried, convicted, andsentenced before he had even been charged’ (Rose v City Bowling Club, 1991, p. 12). According to his Honour, the Committeehad taken on a role equivalent to that of a domestic tribunal, entitling Rose to a decision untainted by actual bias: ‘. . .whensuch a body as the Committee of Management is, when exercising one of its powers, required to act judicially, it is incumbentupon it to afford the person who might be adversely affected by the exercise of that power, ‘‘the rules of natural justice’’’

D. Thorpe / Sport Management Review 14 (2011) 269–286270

(Rose v City Bowling Club, 1991, p. 12). In such circumstances it is not the nomenclature ‘domestic tribunal’ which grantsrights of natural justice but, rather, whether the decision-making body is acting in judicial capacity.

2.2. The relevance of the words used to describe misconduct

Wherever a sporting organisation seeks to empower itself to penalise off-field misconduct it will use written language,words, to describe the forms of conduct it wishes to declare unacceptable and which will, thereby, enliven the authority topenalise. Again, it is only through the written words of the contract that the authority to impose sanctions is granted.

Whilst specific terms, such as ‘commit a criminal offence’, are readily incorporated into a sports contract, these termspossess the disadvantage of being so specific that many forms of misbehaviour, perhaps beyond the imagination of theparties at the time of contracting, will lie outside the contractual authority to penalise. As such, words of broad applicationare usually favoured to capture all possible forms of misbehaviour. For example, the term ‘misconduct’ has a wide locus ofoperation to apply to a broad range of wrongs.

Broad descriptors of misbehaviour include: ‘misconduct’, ‘bring into disrepute’; ‘adversely affect’; ‘bring discredit to thesport’; ‘contrary or prejudicial to the best interests of the game’. Specific descriptors of misconduct include: ‘accept a bribe’,‘gamble’, ‘engage in racial vilification’, ‘obscene language’, ‘doping offences’.

For convenience, the term ‘misconduct’ will be used to represent all forms of improper athlete behaviour. The penalty of‘contract termination’, as the most extreme form of sanction, will be used as a convenient representation for all forms ofpunishment.

Despite the advantages of utilising broad descriptors of misbehaviour, it is suggested in this paper that the very width bywhich such words can be interpreted (and indeed, some specific descriptors open to interpretation, such as ‘obscenelanguage’ or ‘racial vilification’) creates a potential and unwelcome source for judicial challenge to CEO initiated penalisationas distinct from that initiated through a domestic tribunal. For example, an athlete may claim public intoxication was notintended by the parties to fall within the ambit of the term ‘misconduct’.1 Any doubts as to the correct interpretation of‘misconduct’ is argued in this paper to all but vanish when construed by a domestic tribunal expressly charged withdiscerning whether or not ‘misconduct’ has been committed. In attempting to avoid litigation it is suggested that, as a legalstrategy, determining whether a breach of the term ‘misconduct’ has occurred is often better left to a domestic tribunal, inpreference to a CEO or a non-judicial committee exercising the power of contractual penalisation, in all but the clearest casesof ‘misconduct’.

3. CEO penalisation: rights and risks

3.1. The right of the CEO to penalise summarily

When an athlete engages in proscribed conduct (misconduct) he or she is in fact breaching a term of his or her contract. Inordinary circumstances the consequences of a breach depend on the importance of the term to the non-breaching (injured oroffended) party. Where the breach concerns an ‘essential term’, a term so important to the offended party that he or she‘would not have entered into the contract unless he had been assured of a strict and substantial performance’, (TramwaysAdvertising v Luna Park, 1938, pp. 641–642) the offended party may terminate the contract and claim damages forassociated losses. Where the term breached is of lesser importance (a non-essential term or warranty) the contract continuesand the offended party is awarded damages to compensate for any losses due to the breach—this on the basis that the breachof a non-essential term does not deprive the offended party of essentially what was bargained for and in consequence anydisadvantage is considered insufficient to justify termination of the contract (Tramways Advertising v Luna Park, 1938).

Unless the parties have expressed within the contract that a particular term is ‘essential’ (entitling the offended party toterminate the contract should the term be breached), a court, upon the occurrence of a breach, will be called upon to classifythe term with a view to deciding whether termination of the contract is warranted. It should be noted that the mere use ofthe word ‘condition’ to describe a term may not be sufficient, in the eyes of a court, for that term to be classified as essentialgiven the possible informal use of such words (L Schuler v Wickman Machine Tool Sales Ltd., 1974).

The court comes to a conclusion about essentiality ‘objectively’ rather than from the subjective perspective of any singleparty. In doing so the court will look to the text of the contract and the circumstances under which the contract came intoexistence to decide whether the term was so important to the injured party that he or she ‘would not have entered into thecontract unless assured of a strict and substantial performance.’ Given that the determination will, in most cases, be decidedonly after the event of a breach, the outcome of litigation is often uncertain.

This uncertainty can be overcome where the parties stipulate that the breach of a particular term will entitle the offendedparty to terminate the contract. In the present context, the organisation and the athlete stipulate that a breach of the‘misconduct’ proscription entitles the organisation, through the CEO, to terminate the contract. It should be pointed out that‘agreement’ is deemed to exist whenever a party signs a contract irrespective of whether or not they would prefer that the

1 The meaning or legal effect of a contractual term is construed by a court according to the parties imputed intention as evidenced by an objective

assessment of the text and the surrounding circumstances: Hawkins v Clayton (1988).

D. Thorpe / Sport Management Review 14 (2011) 269–286 271

term in question was not incorporated into the contract. For example, many athletes would perhaps prefer that a termpermitting termination for misconduct was not incorporated into their contract, nonetheless the athlete’s signatureevidences their agreement in law (L’Estrange v Graucob Ltd, 1934).

To be clear, where the parties have contractually agreed that ‘misconduct’ may result in termination, a CEO, as the injuredparty, may take a strict approach to proscribed misconduct and decide, where there is a relevant breach, to impose anysanction authorised under the contract. In such a situation a court is not required to decide whether a breach of the‘misconduct’ term constitutes a breach of an essential term entitling the CEO to terminate the contract—the parties havealready agreed that the entitlement to terminate exists for such a breach. The law in respect to such an entitlement, wasexplained in the case of Shevill v The Builders Licensing Board (1982, p. 627) by Chief Justice Gibbs: ‘the parties to a contractmay stipulate that a term will be treated as having a fundamental [essential] character although in itself it may seem of littleimportance, and effect must be given to such agreement.’

Where a clause permits termination of the athlete’s contract for misconduct the CEO may exercise the entitlement evenwhere to do so would be considered by outsiders as harsh or unfair. To illustrate, in Union Eagle Ltd v Golden AchievementLtd. (1997) the purchaser of a flat agreed to an expressed essential term to pay a ten percent deposit by 5:00 pm on a givendate. The purchaser in fact tendered the payment at 5:10 pm. The court was asked to absolve the purchaser from thecontractual consequences of having been late, that is, termination of the contract. The court refused to grant relief to the latepayer, stating: ‘. . . in many forms of transaction it is of great importance that if something happens for which the contract hasmade express provision, the parties should know with certainty that the terms of the contract will be enforced’ (Union EagleLtd v Golden Achievement Ltd., 1997, p. 519).

As one commentary has correctly stated, ‘The danger of enforcing contractual stipulations of essentiality or conditionalityis that the law will condone termination for objectively insignificant breaches’ (Seddon & Ellinghouse, 2008, p. 1021).Consequently, an express (written) right to terminate the contract places the CEO in a position of great authority vis-a-vis theathlete. There is though, as discussed below, an additional legal requirement placed on the CEO limiting what otherwiseappears to be a wide entitlement to terminate: the term ‘misconduct’ must be correctly interpreted.2

3.2. Must a CEO afford the athlete ‘natural justice’?

Natural justice concerns three fundamental principles: the right to know the wrong committed, the right to present adefence to that wrong and the right to have the decision-maker decide without actual bias (Australian Workers Union vBowen, 1948).

A CEO, as the ‘injured’ party to the contract, need not grant to the offending athlete an entitlement to what is called‘natural justice’. Largely because the CEO does not perform a judicial function, he or she may consider the interests of thesport without concern for interests of the misbehaving athlete. In contrast, it is argued below that the right to natural justiceis inherent when ‘misconduct’ is to be determined before a domestic tribunal. The entitlement to impose summarypenalisation is illustrated in two cases.

In the case of London Borough of Hounslow v Twickenham Garden Development (1970) a building company fell behindthe agreed work schedule which caused the other party to terminate the contract. The building company claimed itstermination was in breach of the principles of natural justice because an architect assigned the task of monitoring the projectdid not consult the builder with his concerns. Justice Megarry commented that although the principles of natural justice areof wide application ‘they must be confined within proper limits and not allowed to run wild. . . . I do not think that, unless thecontract so provides, (the architect need) observe the rules of natural justice, giving due notice of all complaints andaffording both parties a hearing’ (London Borough of Hounslow v Twickenham Garden Development, 1970 p.348).

There is, though, an exception to this rule where a term in the contract implies the existence of a right to be heard prior totermination of the contract. For example, where an athlete is granted an opportunity to ‘show cause’ why the contract shouldnot be terminated it may well be implied that he or she is entitled to put forward an explanation or a defence to the CEO. Toillustrate, in Commonwealth v Amann Aviation Pty Ltd. (1991) a company was engaged to conduct aerial surveillance ofAustralia’s northern coastline. It did not, however, have sufficient aircraft to do the job, prompting the Commonwealth toterminate the contract. The contract required the Commonwealth to give Amann the opportunity to ‘show cause’ why thecontract should not be cancelled following a breach. Chief Justice Mason found the term required the decision-maker ‘toarrive at a decision after weighing in the balance of the matters . . . as might bear upon the issue of cancellation’(Commonwealth v Amann Aviation Pty Ltd., 1991, p. 62). As such, the Commonwealth had wrongly terminated the contractbecause it did not provide Amann with the right to state its case as the contract required.

In general, however, the principles of natural justice do not apply where the CEO is contractually entitled to penalise amiscreant athlete. Having stated this, a CEO would be wise to ensure the accuracy of any reports of ‘misconduct’ to avoid thewrongful termination of an athlete’s contract—a breach of contract in itself.

2 See below at 3.8: ‘The CEO’s problem of contract interpretation’.

D. Thorpe / Sport Management Review 14 (2011) 269–286272

3.3. Implying terms into a contract

There is great difficulty in anticipating every possible contingency which may arise within a contractual relationship andconsequently, to enable a contract to function effectively, a court may be called upon to imply further terms governing thedealings between parties. That is, the court will incorporate into the contract an additional term not expressly agreed to bythe parties but one, nonetheless, the court believes the parties would have included had the need to do so crossed theirminds. An implied term is endowed with the same legal force as an express term to allow a party who has suffered a breach toseek redress before a court of law (Ellul v Oakes, 1972). Whether additional terms should be implied in respect to CEO anddomestic tribunal penalisation are considered below.3

A number of elements must be present before a court will imply a term into a contract:

‘... for a term to be implied the following conditions must be satisfied: (1) it must be reasonable and equitable; (2) itmust be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effectivewithout it; (3) it must be so obvious that ‘‘it goes without saying’’; (4) it must be capable of clear expression; (5) it mustnot contradict any express term of the contract’ (BP Refinery (Westernport) Pty Ltd v Shire of Hastings, 1977, pp. 282–283).

Of these elements, ‘business efficacy’ and ‘it must be so obvious it goes without saying’ are the essential requirements forimplying a term into a contract. An implied term must also accord with the presumed common intention of the parties (TheMoorcock, 1889).

In essence, a term will be implied where the contract will not work as intended in its absence (Hospital Products Ltd. vUnited States Surgical Corp, 1984, p. 66). Or, as similarly stated a term will be implied to give the contract a ‘sensibleoperation’ (Con-Stan Industries of Australia Pty Ltd. v Norwich Winterthur Insurance (Australia) Ltd., 1986, p. 241).

A term will be ‘so obvious that it goes without saying’ if:

‘. . . while the parties were making their bargain, an officious bystander were to suggest some express provision for it intheir agreement, they would testily suppress him with a common ‘‘Oh, of course’’’ (Shirlaw v Southern Foundries,1926, p. 227).

It is important to realise that each contract is unique and what may be implied in one industry may not be implied inanother. As the High Court of Australia said in Byrne v Australian Airlines Ltd. (1995, p. 448): ‘. . . terms implied by theapplication of what one might call the business efficacy test are terms unique to the particular contract in question,depending upon the form of the contract, the express terms and the surrounding circumstances.’

3.4. Penalisation and implications of good faith

A player facing penalisation may advance the argument that implied into the contract is a requirement that the CEO act ingood faith when exercising the right of termination. An average player may, for example, claim the decision to terminate hiscontract was not made in good faith where a better player committing the same offence does not face contract termination orwhere the CEO refused to consider an excuse of, say, intoxication.

The concept of good faith is, however, an uncertain question in law. As one commentary stated, ‘saying that the role ofgood faith in Australian contract law is currently unsettled and that the law is in a state of flux would be an understatement.It may be closer to the mark to say that it is in a state of utter confusion’ (Carter & Peden, 2003). The concept has not beenaddressed by the High Court of Australia other than to recognise the currency of the debate: ‘whilst the issues respecting theexistence and scope of a ‘‘good faith’’ doctrine are important, this is an inappropriate occasion to consider them’ (RoyalBotanic Gardens and Domain Trust v South Sydney City Council, 2002, p. 40). Indeed, in the same case Justice Kirby stated, ‘. . .

in Australia such an implied term appears to conflict with fundamental notions of caveat emptor that are inherent incommon law conceptions of economic freedom. It also appears to be inconsistent with the law as it had developed in thiscountry in respect to the introduction of implied terms into written contracts which the parties have omitted to include’(Royal Botanic Gardens and Domain Trust v South Sydney City Council, 2002, p. 88). In the New South Wales Supreme Court,Justice Brereton commented similarly: ‘the implication of a term that a contractual right will be exercised only in good faithdoes not fit neatly into the structure of Australian contract law’ (Hunter Valley Skydiving Centre v Central Coast Aero Club,2008, p. 48). The doubt in respect to the concept of ‘good faith’, it may be suggested, arises because the contract grants to aparty an express right, say to terminate the contract when a certain event occurs, which the other party seeks to nullify byimplying a contradictory term which has the effect of limiting that express right. There is an inconsistency between the twopositions which is difficult to reconcile conceptually. Nonetheless, the issue is live and should be considered.

3 In respect to domestic tribunals see below at 4.2: ‘The implication of freedom of interpretation’ and at 4.3‘The Good Faith limits on tribunal autonomy’.

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3.5. The difficulties of implying a term of good faith in athlete penalisation

The process of implying a term into a contract is a form of ‘gap filling’ whereby a court will, in effect, place a term into thecontract where the implication is necessary to enable the contract to function efficaciously and where the need to do so is ‘soobvious it goes without saying’ (BP Refinery (Westernport) Pty Ltd. v Shire of Hastings, 1977, p. 282–283). Courts, it should bepointed out, are often reluctant to imply terms into contracts given that the parties would normally be expected to include allnecessary terms in their express agreement—it is not, in effect, the role of a court to write the terms for contracting parties(BP Refinery (Westernport) Pty Ltd. v Shire of Hastings, 1977, p. 282–283).

There are, in addition, a number of difficulties facing athletes who wish to imply a term of good faith into their contractthat should be briefly considered. The initial difficulty for an athlete proposing such a term is found in the legal requirementthat a term can only be implied into a contract where it does not contradict an express term (BP Refinery (Westernport) PtyLtd. v Shire of Hastings, 1977, p. 282–283)—in short, it is not for a court of law to remove or limit the operation of a term theparties have independently agreed to. The CEO will argue, for example, that an implied term limiting the right to terminatecontradicts the express term permitting termination wherever there is misconduct.

Secondly, it is widely recognised that a party need not act reasonably in exercising an express right under contract. Thisproposition was explained by Lord Reid in White and Carter (Councils) Ltd. v McGregor (1962, p. 429):

‘. . . it never has been, the law that a person is only entitled to enforce his contractual rights in a reasonable way, andthat a court will not support an attempt to enforce them in an unreasonable way. One reason why that is not the law is,no doubt, because it was thought that it would create too much uncertainty to require the court to decide whether it isreasonable or equitable to allow a party to enforce his full rights under a contract.’

Carter (2011) has commented similarly: ‘where the termination clause is exercisable simply on the basis of breach, it isdifficult to see why the promisor [the person breaking the promise] should be entitled to insist on a ‘‘reasonable’’ exercise ofthe right.’ In summary, a term cannot be implied into a contract where it would derogate from a term expressly agreed to bythe parties: ‘the principles of good faith . . . do not block use of terms that actually appear in the contract’ Kham & Nates Shoesv First Bank of Whiting (1990, p. 1357).

Thirdly, the exercise of a right to penalise for breach of an express term is dissimilar to those recognised breaches of goodfaith which concern conduct by one party to prevent the other party from performing its obligations under the contract.Consider in this respect a statement in Metropolitan Life Insurance Co. v RJR Nabisco Inc. (1989, p. 1517):

‘The implied covenant (of good faith) will . . . never impose an obligation which would be inconsistent with other termsof the contractual relationship. . . . The implied covenant of good faith is breached only when one party seeks toprevent the contracts performance or to withhold its benefits.’

An example of preventing performance occurred in the case Burger King Corp v Hungry Jack’s Pty Ltd. (2001). HungryJack’s, the Australian franchisor of Burger King, was required under contract to open at least four new restaurants a year incertain States of Australia (either itself or a through a third party franchisee associated with Hungry Jack’s). In 1995, BurgerKing, apparently wishing to exclude Hungry Jack’s and ‘take back the Australian market’ blocked Hungry Jack’s fromrecruiting third party franchisees and refused financial and operational approval. As might be expected, by 1996 HungryJack’s was unable to meet its contractual obligation to open the required number of restaurants and in consequence BurgerKing terminated the contract. In actively preventing Hungry Jack’s from performing as required, the New South Wales Courtof Appeal found that Burger King ‘was in breach of the implied obligation of co-operation’ and had ‘breached its obligations ofgood faith and reasonableness’ (Burger King Corp v Hungry Jack’s Pty Ltd., 2001, p. 369).

The termination of an athlete’s contract for breach of an express termination clause, such as engaging in misconduct, is anentirely different matter to actively blocking the athlete from performing an obligation the contract demands. Theequivalent of the ‘Burger King prevention’ in a sports contract would be, perhaps, barring the athlete from entry to theground to then claim he or she has breached their contract by not playing.

3.6. The duty of honesty may prevail

Despite the apparent difficulties in implying a term of good faith, there is a strong argument that a CEO is fettered bya requirement to make an honest determination in respect to an athlete’s misconduct—honesty being a form of goodfaith. Again, given the apparent right to apply an express term without limitation, the legal position is less than clear. Itwould not be honest, for example, to terminate an athlete’s contract for the extraneous purpose of freeing-up a club’ssalary cap. It would not be honest to penalise an athlete to provide a place for a nephew or niece in the team. In fact ithas been argued that honesty underpins the entirety of contract law: ‘. . . good faith is seen in the construction ofcontract and in defining the ‘‘default standard’’ of behaviour required, which is where the implied term of goodfaith is said to operate. That ‘‘default standard’’ should be seen as requiring honest adherence to the bargain’ (Peden,2009).

Provided there is a relevant breach of the misconduct proscription and provided a CEO has an honest belief that the game,or club, would be better-off without the miscreant athlete given the misconduct in question, the obligation of honestdecision-making is likely to be met.

D. Thorpe / Sport Management Review 14 (2011) 269–286274

3.7. Differential punishment according to athlete status

A recurring theme in sports discipline is the extent to which a CEO may selectively punish athletes according to theirworth to the sport or a club. For instance, in 2006 it was reported in the media that rookie NRL player Dane Tilse had hiscontract terminated by the Newcastle Knights ‘after an alcohol-fuelled incident involving a woman at Bathurst . . . and waskicked out of the club and the NRL . . .’, whilst in comparison Penrith Panthers captain Craig Gower ‘was fined $30,000 andsacked as Penrith Captain after groping Wayne Pearce’s daughter at a charity golf day, but his career can continue unabated’(Stanton, 2006). The article suggests by implication that the lesser player was treated unfairly.

Whilst the argument as to unfair treatment may well be correct, it has no legal significance. Where a breach of contractoccurs, the innocent party has an option as to whether the contract will continue or end—after all, the innocent party maystill find an overall benefit in continuing to have the other party perform their obligations (this rule also prevents a partyfrom committing a deliberate breach to end the contract for reasons of their own; Bowes v Chaleyer, 1923). The principle of‘election’ is summed up in the following passage:

‘If it is a condition that is broken, that is, an essential promise, the innocent party, when he becomes aware of thebreach, has ordinarily the right at his option either to treat himself as discharged from the contract and to recoverdamages for loss of the contract or else to keep the contract on foot and recover damages for the particular breach’(Tramways Advertising Pty Ltd. v Luna Park (NSW) Ltd., 1938, p. 641).

In coming to a decision in respect of the athlete’s misconduct the CEO will, in all likelihood, consider the cost to the club orsport in terminating the contract. If the CEO believes it is in the best interests of the sport, whether for team success,financially or otherwise, he or she may elect to continue with the athlete’s services. Where the player is of less value to thesport, the CEO is entitled to terminate the athlete’s contract—provided, should good-faith be in issue, that he or she honestlybelieves the sport is better off without the athlete.

Consequently, claims by commentators that CEO’s are biased or acting according to personal fiat may well be accurate butare legally irrelevant. Of course being correct in law may not always compensate for vociferous expressions of unfairtreatment by players, clubs, the media and the general public. As to be discussed below, the entitlement to differentialpenalisation is argued to be very different when the matter is heard before a domestic tribunal.

Herein is the great advantage of CEO initiated penalisation: where an athlete engages in misconduct the CEO mayterminate the contract without resort to the precepts of natural justice or without regard to any preceding punishmentvisited upon another athlete. As the injured party, the organisation, through the CEO, is entitled in law to cancel the athlete’scontract and, in the absence of a contrary implied term, is justified in so doing with regard only to the interests of theorganisation. In closing, it should be noted that a CEO who is aware of the athlete’s misconduct but permits the athlete tocontinue to play will be deemed to have elected to affirm the contract and will not be permitted to terminate for that specificbreach at a later date (Sargent v ASL Developments Ltd., 1974). It will not, however, be deemed an affirmation where anathlete is permitted to play pending the outcome of an investigation or hearing.

3.8. The CEO’s problem of contract interpretation

Despite the general availability and indeed the advantage of exercising the contractual authority to summarily terminatean athlete’s contract, the CEO remains exposed to a possible claim for wrongful imposition of punishment should he or shewrongly construe the misconduct proscription. Where this occurs, the CEO (in fact the organisation the CEO represents) is inbreach of contract and may be ordered to reinstate the contract and pay damages to the aggrieved athlete (Sargent v ASLDevelopments Ltd, 1974).

A CEO may only penalise an athlete where there has, in fact, been an instance of contractual ‘misconduct’. The difficultythe CEO faces in interpreting the word ‘misconduct’ is its breadth of meaning and the number of different forms of conduct itmay include. Does ‘misconduct’, for example, apply to every possible form of misconduct from assault to failing to payincome tax to parking in a clearway? There is, in contrast, no difficulty in interpreting the words ‘commit a criminal offence’.Broad descriptors like ‘misconduct’ or ‘discredit’ or ‘conduct unbecoming’ do not possess a precise meaning and, as such, areambiguous. Where a word is ambiguous or open to more than one interpretation, a court of law, where a party objects to theother party’s interpretation, will be called upon to construe the meaning and legal effect of the word—that is, to determinewhether the word applies to the athlete’s conduct in question. The process of interpreting contractual words is often referredto as ‘construction’ or ‘construing’. As stated in the High Court of Australia, ‘There is more to the construction of writteninstruments than merely assigning to them their plain and ordinary meaning’ (Codelfa Constructions Pty Ltd. v State RailAuthority of NSW, 1982, p. 348).

Or, as similarly expressed, ‘. . . what seems clear by reference only to the words on the printed page may not be so clearwhen one takes into account as well what was known to both parties but does not appear in the document’ (Ryledar Pty Ltd. vEuphoric Pty Ltd., 2007, p. 108). Hence, the correct interpretation of ‘misconduct’ may concern more than what the plainmeaning of the word conveys.

Because a contract is an agreement between private parties it is not for a judge to interpret the term of a contact in apersonal sense but, rather, to assign a meaning corresponding to that which the parties intended at the time of contracting.The court’s interpretation, however, is not based on what the parties subjectively or individually believe but rather, what is

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objectively revealed from the contract and the circumstances under which it was formed. The method of discerningcontractual meaning was expressed by the High Court of Australia in the following passage:

‘The meaning of the terms of a contractual document is to be determined by what a reasonable person would haveunderstood them to mean. That, normally, requires consideration not only of the text, but also the surroundingcircumstances known to the parties, and the purpose and object of the transaction’ (Toll (FGCT) Pty Ltd. v AlphapharmPty Ltd., 2004 [41]).

It is quite obvious that not all possible forms of misconduct were intended by the parties, the organisation and athlete, toconstitute a punishable office. Whilst some acts will clearly justify termination of contract, other acts will be open tointerpretation of the ‘misconduct’ term. Should, for example, the proscription ‘misconduct’ apply to driving under theinfluence of alcohol? What if the reading was low range? What if driving under the influence concerned an illicit drug orwith an expired licence? Would it be misconduct to publicly insult a sponsor? What of insulting a club supporter or asupporter of another team or intrusive media? The possibilities are of course endless and from time to time the CEO will beconfronted with a ‘grey area’ where the decision to terminate risks wrongfully cancelling the contract of the disciplinedathlete.

The decision to terminate in circumstances where misconduct has been alleged is a matter of judgment which may, in thecontext of sport, involve the CEO in interpreting the athlete’s conduct according to his or her personal value system—notnecessarily a safe means of contract interpretation, particularly if made in the heat of the moment. Because terms such as‘misconduct’ or ‘disrepute’ are widely interpretable, it is quite possible that the judgment of a CEO, even where made in goodfaith, will be at variance to the interpretation given the term by a court of law. In contrast, it is argued below that concerns ofwrongful interpretation are not visited upon the decisions of a domestic tribunal.

In summary, CEOs possess a contractual freedom to terminate or otherwise punish an athlete who has breached his or herobligation not to engage in misconduct. Provided there is no countervailing term, the CEO may avoid the precepts of naturaljustice and to a large extent the implied obligations of good faith expected of a domestic tribunal when penalisingmisconduct. More specifically the CEO need not, for example, be unbiased, need not provide a hearing or be impartialbetween athletes of differing ability.

4. Domestic tribunals: rights and risks

Despite the obvious advantages of a single person being able to terminate the contract of a miscreant athlete, the CEOremains, as stated, exposed to litigation should he or she fail to correctly interpret the term of proscription. Incontradistinction, it is suggested below that exposure to litigation is all but eliminated where the proscribing term isinterpreted by a domestic tribunal.

4.1. What is a domestic tribunal?

As stated above, a domestic tribunal is a private or ‘in-house’ forum established for the purpose of adjudicating on mattersof contention within an organisation. A domestic tribunal is also a creature of contract and must, accordingly, adhere to theexpress and implied contractual terms which govern its procedures.

The foundational rationale in establishing domestic tribunals was espoused by Lord Justice Denning in Enderby TownFootball Club v Football Association (1971 p. 603).

‘Justice can often be done better by a good layman than by a bad lawyer. This is especially so in activities like footballand other sports, where no points of law are likely to arise, and it is all part of the proper regulation of the game.’

Drawing upon the legalities necessary to imply a term into a contract as discussed above, it is argued that a domestictribunal is entitled to determine whether or not conduct constitutes ‘misconduct’ for the purposes of the sport and as the‘keeper’ of the sport’s standards to do so, with few exceptions, without judicial interference. By and large a domestic tribunalis argued to be constrained only by obligations of good faith and natural justice.

4.2. The implication of freedom of interpretation

As noted earlier, when implying a term the court must consider whether the parties would have, had it crossed theirminds, incorporated the proposed implied term into the contract at the time of writing:

‘. . . what the law desires to effect by implication is to give such business efficacy to the transaction as must have beenintended at all events by both parties . . .’ (The Moorcock, 1889, p. 68).

When the parties are in disagreement as to whether a specific term should be implied into the contract (there would be nolitigation if the parties were in agreement) the court must look to the parties’ ‘presumed common intention’. The partiespresumed common intention is determined on the basis of what an ‘officious bystander’, a person listening in at the time,would think if asked, ‘is it ‘‘so obvious that it goes without saying’’ that the parties would have intended such a term to beincorporated into the contract’. The touchstone is that of the parties’ intention.

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The question, then, for consideration is: Would the officious bystander apprised of the circumstances under which thecontract was formed, believe it is so obvious that it goes without saying that the parties intended the tribunal to interpret theterm ‘misconduct’ free from judicial interference (provided it does so in good faith)?

The parties’ intention is revealed from the text of the contract and the pertinent circumstances of the sport in question ratherthan sport generally. As such, the implied authority of a domestic tribunal to determine the guilt or otherwise of an accusedathlete, unimpeded by a court of law, must be gleaned from the circumstances appending the contract at the time of formation,including the object to be achieved in establishing a domestic tribunal as the decision making forum. The concern is not merelywith the intention to create a means of punishment but why this particular means, a domestic tribunal, is favoured.

The implication of freedom of interpretation of ‘misconduct’ is argued to arise from three sets of interactingcircumstances:

(1) The establishment of a domestic tribunal as the selected means of resolving issues as misconduct(2) The intention of the parties to avoid costs, delays and technicalities associated with court proceedings(3) The intention of the parties that the expertise of tribunal members should apply in deciding whether the standards of the

sport have been breached and what constitutes a fitting sanction

The third point should be clarified in respect to a domestic tribunal’s operations. A major purpose of creating an in-house domestic tribunal composed of those associated with the sport is to ensure that determinations are madeaccording to the standards of the sport. It is for the sport to decide the forms of misconduct which offend it. In thisrespect it should be emphasised that sporting organisations may vary as to what constitutes acceptable conduct or thedegree to which misconduct will be tolerated. For example, conduct breaching the standards of a lawn bowls club maynot offend the standards of a motor cycle club. Similarly, standards of conduct may vary across sections of thecommunity, between a city and a country club or according to certain characteristics of membership such as age, genderor religious affiliation.

Unacceptable conduct is very much in the ‘eye of the beholder’, such that it rightly falls to the parties alone,represented through an expert tribunal applying the parochial standards of the sport, to decide the forms of conductwhich, to it, are offensive. The importance of expertise in judgment is demonstrated in the requirement of the NationalRugby League and the Australian Football League that tribunal membership is confined to those with ‘hands-on’experience in the game. In the case of the NRL, the Judiciary Code requires members of the Match Review Committee (apanel to consider whether there is a prima facie case against a player) to have been a ‘former player, coach or referee ofrugby league football’ (NRL, 2008, Rule: 18). An Adjudicator (effectively a jury) must have been a ‘former player of rugbyleague football (NRL, 2008: Rule 27). Indeed, even the Judiciary Counsel (prosecuting the case against the player) musthave been a ‘former player of rugby league football’ as well as a barrister or solicitor of the Supreme Court of any State orTerritory of Australia (NRL, 2008: Rule 15). Consider in this context comments of the Chairman of the National RugbyLeague Judiciary in respect to the value of sporting expertise in tribunal decision-making. The case in point concerned theplayer Danny Williams who ‘king-hit’ an opponent who had moments before tackled him around the head. To get to thetarget tackler, Williams moved past several other players before delivering the blow. Williams’ defence was that of‘automatism’ (acting without conscious control) and provocation. The Adjudicating Panel refused to accept Williams’defence. According to the Judiciary Chairman, ‘The provocation and the mental state of the player were minutelyconsidered in the evidence and, no doubt, by the (adjudicating) Panel. The Panel consisted of former players who mustinevitably in the course of their vast experience have themselves been provoked, knocked and subjected to various formsof irritations of one kind or another. There is no doubt that they were well qualified to determine the matter, even withmedical evidence involved’ (Dobinson & Thorpe, 2009).

In such circumstances a court of law clearly lacks the expertise to judge whether conduct is offensive to the sport inquestion and what, given those standards, is a fitting punishment.

On a practical level domestic tribunals allow for speed of adjudication without the expense, inconvenience andtechnicalities associated with court based proceedings. In respect to concerns regarding the expense of litigation, Patersonmakes the point that the ‘surrounding circumstances’ pertinent to implying terms into contracts, may be ‘assessed byreference to their likely cost consequences’ (Paterson, 1998, p. 1): ‘In a commercial contract, as courts have recognised,parties are likely to prefer terms which give business efficacy by allowing their contract to work in a more business-likemanner. To this end it is suggested that parties will typically be concerned to reduce the costs incurred in performing theircontract. Indeed in the relatively well-defined context of a gap in a particular contract, a simple cost-benefit analysis mayoften be useful in identifying the appropriate term implied in fact’ (Paterson, 1998, p. 5). The costs and delays associated withcourt-based litigation are notorious such that the implied entitlement of a domestic tribunal to interpret ‘misconduct’ freefrom judicial interference is essential to its business-like functioning.

In summary, a domestic tribunal is established to ensure that the standards of the organisation are maintained, its rulesfollowed and any hearings conducted by people who have an interest in, and a familiarity with, the organisation. Thepurposes in creating a domestic tribunal arguably necessitates the incorporation of a number of implied terms into thecontract, specifically that the tribunal is entitled to interpret the term ‘misconduct’ as it sees fit and, provided the decisionreflects the standards of the sport in question, is reached in good faith and in accordance with the principles of natural justice,to do so without judicial interference.

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4.3. The good faith limits on tribunal autonomy

Just as a domestic tribunal is entitled, as a matter of implication, to interpret the term ‘misconduct’ according to thestandards of the sport, a tribunal is also, as a matter of implication, required to come to its decisions in good faith. Forinstance, a domestic tribunal formed for the purpose of hearing complaints, listening to defences and considering evidence,necessarily implies that a domestic tribunal must approach its task in a judicial manner. As a matter of implication, it iscorrect to say that a domestic tribunal must determine, in good faith, whether the charge against the athlete has been madeout and whether any defence is applicable.

A mere proclamation mandating good faith in a domestic tribunal’s decision-making processes does not, however, revealthe extent of the obligation or the circumstances where the obligation will be breached. Whilst the notion of good faith isconceptually wide ranging there are, nonetheless, three common approaches members of domestic tribunals may take intheir decision-making which could be argued to threaten the obligation of good faith:

� Taking a personal interest in the sport� Applying a low standard of proof� Making a determination that is not reasonable

These approaches, it is argued below, are not absolute concepts but operate circumstantially such that each approach, althoughperhaps outwardly concerning, does not in and of itself abridge the implied obligation of good faith.

4.4. Good faith: personal interest and bias

A private domestic tribunal is not a court of law and is not a panel of independent arbitrators. In most cases it is agreedbetween the parties that the domestic tribunal will be comprised of those with knowledge of the sport, indeed an interest in thewelfare of the sport and further, that decisions will be made on the basis of that interest. To emphasise: tribunal members areentrusted to render a verdict calling upon their expert knowledge of the sport and its ethos. Given that expertise is almostinvariably initiated through personal interest, those making a determination are unlikely to be disinterested in the outcome ofthe case before them. Clearly, the independence expected of a court of law does not, as a matter of implication, apply to a privatedomestic tribunal.4 Similarly, the organisation must also accept the verdict of the appointed tribunal. In short, neither party canbe seen to complain where the tribunal assesses conduct as concerned members of the sport rather than as detached outsiders.

On the basis that members of associations almost inevitably know each other, it may be expected that tribunal memberswill hold personal views of the accused. Even the personal dislike of an accused is to a large extent unavoidable. In Maloney vNew South Wales National Coursing Association Ltd. (1978) a member of the Coursing Association faced expulsion for usingobscene language. A member of the domestic tribunal had some animosity towards Maloney, the accused. According toJustice Glass this could not be helped:

‘. . . Tribunal members cannot, in the nature of things, divest themselves of the manifold predilections and prejudicesresulting from past associations with members. . . . If reasonable suspicion were a disqualifying consideration, theenforcement of consensual rules would be largely unworkable’ (Maloney v New South Wales National CoursingAssociation Ltd., 1978, p. 171).

Personal interest is of course different to personal bias. The parties would be unlikely to have intended that tribunalmembers, although concerned with the well-being of the sport and aware of an individual’s reputation, should be permittedto actualize personal animosity towards the accused athlete or be unable to objectively weigh evidence. Bias before adomestic tribunal occurs where a member is incapable of rendering an unbiased decision, that is, where the member is‘invincibly biased’, or as it is also termed ‘actually biased’, rather than the mere apprehension of bias (James Winslow Jacksonand Roland Eric Brooks v Western Australian Basketball Federation, 1990). In Rose v City Bowling Club Ltd. (1991, p. 12) theplaintiff was suspended after questioning certain financial arrangements of the club. Prior to the hearing Rose was informedthat, ‘at its next meeting the Committee proposes to suspend your membership of the Club’. Justice Powell found thedeclarants of the statement to be ‘. . .invincibly biased against (Rose)’, on the basis that they had prejudged the matter andassumed the role of ‘prosecutors’.

It should perhaps be pointed out, particularly in the light of Maloney v New South Wales National Coursing Association(1978), discussed above, that there is a vast difference in respect to bias between a member of a tribunal taking a personalinterest in a sport, and a member who is personally connected with the grievance in question or who may gain financially orotherwise from the accused’s conviction. In the Australian case of Dickason v Edwards (1910), Dickason was expelled forusing ‘vulgar abuse’ to official of his organisation; the ‘Ancient Order of Foresters.’ The ‘insulted official’ in fact sat on thetribunal determining Dickason’s fate. Chief Justice Griffith stated in respect to that official’s presence: ‘It is of course, ageneral rule of natural fair play that a man cannot be a judge in his own cause. . . . He was present when it was heard, and

4 This is in contrast to statutory tribunals which, given requirements of separation of powers, must be formed by members who are disinterested. See for

example, Gleeson v NSW Harness Racing Authority (1990).

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applying the ordinary rules, I cannot say that his being there did not vitiate the proceedings altogether’ (Dickason v Edwards,

1910, p. 252). Consequently the tribunal’s decision was deemed invalid.To avoid confusion in respect of bias, it should also be noted that the private nature of a domestic tribunal is to be

contrasted with a statutory tribunal formed under the auspices of Parliament. Members of statutory tribunals aredisqualified from decision-making where it can be shown that there is a ‘real possibility’ of bias, or as it is usually expressed,‘apprehended bias’ (Ebner v The Official Trustee of Bankruptcy: Clenae Pty Ltd v ANZ Banking Group, 2000). The differingstandard is based on the notion that judges should not be subject to accusations of actual bias; it ‘would be unseemly for thecourt to purport to pry into the state of mind of any judicial officer’ (Dale v NSW Trotting Club Ltd., 1978, p. 555). In contrast adomestic tribunal must expect some annoyance by tribunal members at behaviour soiling the reputation of a favoured sport.Indeed, as Justice Mahoney pointed out in Hall v NSW Trotting Club (1977, p. 396) even ‘strongly expressed words’ areacceptable provided they are not indicative of a ‘closed mind’.

4.5. Good faith and evidence

It goes without saying that a tribunal operating in good faith must base its determination on some evidence—adetermination cannot be conjured up. Does the implied obligation of good faith require, as a matter of implication, that thetribunal must be persuaded of a witness’s veracity or the validity of evidence to a particular standard, for example, on thebalance of probabilities or beyond a reasonable doubt?

When considering matters of evidence, it is essential to distinguish between the requirements of a domestic tribunal formedunder contract for the purpose of decision-making by in-house experts in a cost effective manner, and those of a court of law. Adomestic tribunal, in contrast toa court, need not ‘go through the . . . process ofdotting every ‘‘i’’ and crossing every ‘‘t’’ . . .’ (Wilcoxv Kogarah Golf Club Ltd., 1995, p. 12). Such judicial proclamations permit a tribunal to operate flexibly when receiving anddigesting evidence—an intended object of establishing a domestic tribunal. To illustrate, consider the possible approach of a courtcompared to a domestic tribunal in respect to ‘similar fact evidence’. Similar fact evidence concerns the presentation of evidenceindicating that the accused has ‘done the same thing before’. In a criminal trial similar fact evidence is generally inadmissible forfear a jury will infer guilt based on the accused’s previous behaviour (Perry v R, 1982). In contrast, before a domestic tribunal suchevidence is receivable allowing the tribunal to legitimately consider, say, an accused’s known pre-disposition to act in a certainway or whilst under certain influences, such as alcohol, where there may otherwise be doubt. (Having said this, some evidencemust nonetheless exist in respect to the charge in question to which the previous conduct relates.) Consider also an accused’sright to silence when charged with a criminal offence. A jury in a criminal trial is not permitted to draw an inference of guilt whenan accused exercises his or her right to remain silent (Tumahole Bereng v R, 1949). A domestic tribunal on the other hand may,with impunity, draw an adverse inference from an athlete’s refusal to give evidence on a particular issue.

The flexibility with which a domestic tribunal may receive evidence was summed up in comments of Justice Dixon inAustralian Workers Union v Bowen (1948, p. 628): ‘. . .a tribunal . . . has no rules of evidence and can inform itself in any way itchooses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn. . .’ Justice Dixon’s comments reflect the implied intention of the parties to leave it to the domestic tribunal to considerevidence as it sees fit and without recourse to the rules of courts. Domestic tribunal members are permitted to base adecision on what they have been told, take heed of reputation and past wrongs—there are, as Justice Dixon affirmed, no rulesof evidence before such tribunals. For a domestic tribunal to exclude evidential technicalities is not only permissible but willoften serve to deliver the parochial justice the parties intended at the time of contracting.

Once it can be seen that there is ‘some evidence’ supporting the determination of the tribunal, provided the tribunal issatisfied of the truth of evidence, a court has no jurisdiction to review the tribunal’s decision. This then leaves the decision tothe good judgment, a ‘value judgment’, of the tribunal members based upon some probative evidence believed, in theopinion of the tribunal, to be true. Although tribunal members will measure, perhaps subconsciously, the likely truth ofevidence, there is no specified standard mandated in law. It is sufficient, according to the ruling of Justice Dixon in Australian

Workers Union v Bowen, that members believe one version over another or the evidence of one witness to another.

4.6. Good faith and the standard of proof

Can it be said that a domestic tribunal must be satisfied of an accused’s overall guilt to a particular standard. That is, can astandard of proof be implied to the tribunal’s decision-making?Some sporting contracts expressly state the standard of proofto be met before the tribunal can find the athlete a guilty and issue a penalty. Where, on the other hand, the contract does notmandate a standard of proof an athlete may argue, as a matter of implication, that a certain standard of proof should guidethe tribunal’s determination; from the athlete’s perspective a higher standard of proof. Several standards of proof could beargued as applicable to the operation of domestic tribunals:

� The civil standard on ‘balance of probabilities’.� The ‘Briginshaw’ standard, where the level of proof necessary to secure liability increases with the consequences of guilt

(Briginshaw v Briginshaw, 1938).� That of the ‘comfortable satisfaction’ of the tribunal bearing in mind the seriousness of the charge and consequences of

guilt (essentially Briginshaw).

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� The minimum ‘domestic tribunal standard’ requiring merely that the tribunal to be ‘satisfied of the truth’ of evidence(Australian Workers Union v Bowen, 1948).

Given the civil nature of the matters domestic tribunals deal with and the fact that there is no threat to a person’s liberty, thecriminal standard of ‘beyond a reasonable doubt’ is almost always inapplicable.

Whilst these differing standards of proof may be expressly incorporated into an athlete’s contract, there is no reason whyone standard should be contractually implied as the governing standard. Arguably where a standard is not expressed, thetribunal may make a determination on the somewhat lower ‘domestic tribunal standard’ proposed by Justice Dixon inAustralian Workers Union v Bowen (1948) (discussed above) without calling into question the implied obligation of goodfaith. That is, the tribunal need only be satisfied of the truth of evidence or satisfied that the ultimate verdict is correctaccording to the evidence.

There is, nonetheless, a body of thought proposing that both the reception of evidence and the final verdict should beweighed according to some wider community or objective standard. The question posed is this: is evidence ofmisconduct sufficient when considered in the light of a particular standard of proof for the tribunal to condemn theathlete?

Consider the approach to evidence taken by the court in Australian Football League v Carlton Football Club (1998). GregWilliams of the Carlton Club was found liable before the tribunal in that he ‘did unduly interfere with Field Umpire . . .’ andwas suspended for nine games following an incident at the Melbourne Cricket Ground. As the players entered the tunnel atthe conclusion of the game, an Essendon player, Denham, verbally abused Williams. In attempting to physically get toDenham, Williams pushed at field umpire Coates causing him to lose his step. Although Coates did not believe he had been‘unduly interfered with’ he nonetheless stated there ‘was no doubt that Williams knew he was pushing me’ (AustralianFootball League & Ors v Carlton Football Club Ltd., 1998, p. 562).

Video evidence of the incident was played to the tribunal and to the court. Williams in his defence stated that he was notaware he was pushing an umpire. This defence was supported by a neuropsychologist who informed the tribunal thatWilliams’ line of vision was obscured. Williams claimed the AFL tribunal’s determination was one that no reasonable personcould have come to. At trial Justice Hedigan had formed a similar view: ‘there was an implied term in the contract that thetribunal would properly interpret the rules of football and would make decisions only on evidence that proved the caseagainst the player’ (Australian Football League & Ors v Carlton Football Club Ltd., 1998, p. 566).

When the case was heard on appeal, Justice Hayne found the AFL tribunal had not erred:

‘the film showed Williams pushing the umpire away in circumstances where it cannot be said that the umpire was sopositioned that Williams was necessarily unaware of who it was he was pushing. . . . it cannot be said there was noevidence. . . . The tribunal was called upon to assess what Williams knew and intended and it was entitled to do so fromits own observation of the film of the incident. . . . The film showed an incident in which there was no reason to say thata conclusion that Williams knew that he was pushing an umpire was manifestly untenable’ (Australian FootballLeague & Ors v Carlton Football Club Ltd., 1998, p. 566).

According to Justice Hayne all that is required is some evidence on which to found the decision: ‘. . . it cannot be said therewas no evidence’ (Australian Football League & Ors v Carlton Football Club Ltd., 1998, p. 565). The statement reflects that ofJustice Dixon in Australian Workers Union v Bowen (1948), affirming that provided the members of the tribunal are satisfiedof the truth they are acting lawfully and in good faith.

The ‘Briginshaw’ standard was used by Justice Hansen (a judge of the High Court of New Zealand but not acting in suchcapacity) in the appeal hearing of the International Cricket Council against Harbhajan Singh. The charge put to Singh was oneof racial vilification in that he was alleged to have called Australian player Andrew Symonds, a man of African descent, a ‘bigmonkey’.

In Justice Hansen’s opinion the charge carried such serious consequences that it was necessary to apply a standardapproaching ‘beyond reasonable doubt.’ His Honour commented:

‘As the allegations approach those equating to criminal behaviour so the standard of proof will equate with thecriminal standard. While this is a civil proceeding and while the offences . . . are not criminal offences they are tosome extent mirrored in various racial vilification and anti-hate legislation now common in many jurisdictions. Ineffect I need to ‘‘be sure’’ in relation to the allegations and if I am left with an honest and reasonable uncertaintythen I must make a finding favouring Mr Singh. . . . I have to be sure that the words were said. That they wereprobably said is insufficient. I have not been persuaded to the necessary level required that the words were said.’[italics added]

Before continuing, it is worthwhile briefly reviewing the origins of the Briginshaw standard and consider in a generalsense its applicability to domestic tribunals. Briginshaw v Briginshaw (1938) did not concern sport but rather the standard ofproof necessary to prove adultery in divorce proceedings. The evidence before the court was not direct but concerned‘conflicting evidence of conversations’ in circumstances where the trial judge was unable to discern whether any witnesswas not telling the truth. The trial judge applied the criminal standard of ‘beyond a reasonable doubt’. The plaintiff believedthis was the wrong standard to apply and claimed on appeal to the High Court of Australia, that had the judge had not appliedthe criminal standard, adultery would have been proven.

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The origins of the sporting application of the Briginshaw standard can be seen in an extract from the judgment of JusticeDixon who, after affirming that allegations must be made out to the ‘reasonable satisfaction of the tribunal’ stated that‘reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence ofthe fact or the facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of agiven description, or the gravity of the consequences flowing from a particular finding, are considerations which must affectthe answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters‘‘reasonable satisfaction’’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ (Briginshawv Briginshaw, 1938, pp. 361–362).

The generation of the Briginshaw standard is also found in words of Chief Justice Latham who stated, ‘. . . the ordinarystandard of proof in civil matters must be applied to the proof of adultery in divorce proceedings, subject only to the rule ofprudence that any tribunal should act with much care and caution before finding that a serious allegation which as that ofadultery is established.’ The first thing to note is that Justice Dixon used the word ‘tribunal’ in a general sense, the forum wasnot a domestic tribunal but a public court of law. The second point concerns the overall context of the statement whichdemarks the difference between proof of an event and an absence of proof: ‘The truth is that, when the law requires the proofof any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found’ (Briginshaw vBriginshaw, 1938, p. 361). Clearly, where a domestic tribunal is not persuaded of the truth of a fact it should not accept thatfact as evidence. Where the domestic tribunal is persuaded that a matter is true, this should be accepted.

Whilst Justice Hansen adopted a standard believed by him to be appropriate there is, however, no requirement, in theabsence of an express term that the Briginshaw standard should necessarily apply to matters of athlete misconduct. Indeed,the use of such a standard may be so overly cautious as to defeat the intention of the parties to the contract. Furthermore,almost without exception being found liable for misconduct carries potentially serious consequences for any athlete,particularly a professional athlete, including termination of contract and exclusion from the game with consequentialfinancial loss. A club, in addition, may lose a player for months to the cost of hundreds of thousands of dollars. To mandate theuse of the Briginshaw standard in all matters carrying ‘serious consequences’ would, in effect, result in all cases concerningprofessional athletes being adjudged to a standard approaching the criminal standard. It should not be thought, withoutmore, that the Briginshaw standard is the implied default standard whenever the consequences of a guilty finding rise abovethe minimal. In fact, it is doubtful that the recent proclamation of the Briginshaw standard in Singh was within thecontemplation of the parties at the time of contracting.

To close on this point, Justice Tadgell remarked sharply in AFL v Carlton (1998, p. 557), ‘. . . a tribunal might fall into errorby following rules of evidence, and thereby depriving itself of information . . .’ It might similarly be observed that a tribunalwill fall equally into error by imposing upon itself a standard of proof beyond that necessary to function as a private decision-making body. That is, a domestic tribunal, lacking both the forensic and financial means to render a verdict better suited tocivil or criminal litigation, will be in danger of defeating its raison d’etre.

In answer to the question, ‘must a tribunal be satisfied to a particular standard of proof’, the short answer is ‘no’, butneither can evidence be illusory and, of course ‘no rules of evidence’ does not mean ‘no evidence’. Although the tribunal mustbe ‘satisfied of the truth’ of evidence put before it, this requirement does not imply that either the evidence or the ultimateverdict must be measured against any particular standard of proof. Indeed, being satisfied to a particular standard issomewhat redundant where members need merely believe a fact is true or the veracity of one witness over another. It mayalso be suggested that where tribunal members are entitled to ‘act upon their own knowledge’ it is difficult to envisage anindividual undergoing a process of self-analysis to affirm what is already known on a personal level to be true.

4.7. Good faith and the reasonableness of a determination

An athlete charged with misconduct may argue that good faith requires the tribunal to come to a ‘reasonable’ decision.What is reasonable in respect to the determination of a domestic tribunal has two possible applications. One: that thedecision must be reasonable by the standards of the general community. Two: that the decision must be reasonable inrespect to the standards and norms of the sport or club itself.

A point previously made was that a domestic tribunal is instituted so that the standards of the sport apply to accusationsof misconduct rather than the standards of the wider community. In this sense the applicable standard is ‘subjective’, beingreferenced to the private standards or norms of a private organisation.

Some doubt exists because in Dickason v Edwards (1910)5 two standards of ‘reasonableness’ were suggested in obiter(obiter being passing comments of a judge which do not establish a legal principle but are more akin to an observation). ChiefJustice Griffith CJ opined: ‘. . . I think the true test is this, that the conduct must be such that reasonable men might think itwas likely to bring disgrace on the Order’ (Dickason v Edwards, 1910, p. 249)—an objective standard based on communitystandards. Justice O’Connor on the other hand indicated that the correct moral yard-stick to convert ‘conduct’ into‘misconduct’ was that pertaining to the membership itself:

5 See case facts above at ‘Good faith: personal interest and bias’.

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‘Now what may be calculated to bring disgrace on the Order is a matter peculiarly for the members of the Orderthemselves. There is a certain standard of conduct which necessarily obtains in the Order. Nobody can judge as well asthey can what would or would not be a disgrace to the Order, and I think it may be taken generally that if the Committeehonestly come to the conclusion that the conduct complained of was calculated to bring disgrace on the Order, and theconclusion is neither absurd nor unreasonable, the court would be loth to interfere’ (Dickason v Edwards, 1910, p. 254).

That is, the reasonable person, according to Justice O’Connor, is a member of the association in question applying thestandards of that association.

There can be little doubt that in forming a domestic tribunal the parties intend the standards of the sport to prevail evenwhere these may be unreasonable by the objective standards of the general public. To illustrate, in Faramus v Film ArtistsAssociation (1964) a member of the Association, Faramus, was expelled under the rule: ‘no person who has been convicted ina court of law of a criminal offence . . . shall be eligible for, or retain membership.’ Faramus’ offence, taking a motor carwithout consent, occurred in 1938 when he was seventeen years old on the island of Jersey. The case was heard in 1964.Although expressing some sympathy given the relative triviality of the crime and the passage of time, Lord Diplockcommented: ‘these words in their context can only mean, on their fair reading, that a person who has been so convicted isdisqualified altogether from becoming a member’ (Faramus v Film Artists Association, 1964, p. 28). That is, in some cases theparties may intend the term to function unreasonably as against the values of the reasonable bystander. Lord Diplock notedfurther that, ‘judicial sympathy must not be elevated into a principle of law’ (Faramus v Film Artists Association, 1964, p. 28).Stated similarly in Rush v Western Australia Amateur Football League Inc. (2005, p. 198): ‘the fact that a penalty mightappear to be disproportionate (does not) justify a court interfering with it . . .’

A somewhat different approach based on the ‘rationality’ of the determination was proposed by Justice Tadgell inAustralian Football League v Carlton Football Club (1998), the case discussed above concerning a charge of ‘undueinterference’ with an umpire. Justice Tadgell’s presents an approach which arguably reflects the outer boundary of thedecision-making authority of private domestic tribunals:

‘The criterion of undue interference which is specified by law... to constitute an offence is so imprecise, and itsapplication so much a matter of impression, that different decision-makers, each acting rationally, might reachdiffering conclusions when applying it to the facts of a given case. When a domestic tribunal is given the task ofapplying such a criterion to the facts that it finds, a court is entitled to substitute its own opinion for that of the tribunalonly if the tribunal’s decision is so aberrant that it cannot be considered rational’ (Australian Football League & Ors vCarlton Football Club Ltd., 1998, p. 559).

What is the difference, if any, between an unreasonable decision and a decision that is not ‘rational’? It would appear,given the above statement, that judicial review is available where the determination of the tribunal is ‘irrational’ in apsychological sense.

Where a proscription is expressed in general terms such as ‘disrepute’, there may well be differences in applicationbetween sporting tribunals or indeed different tribunal members in respect to a fitting punishment. This does not necessarilyindicate that a harsher penalty must, axiomatically, be unreasonable or irrational. Much will depend on the individual sportand its character. This is the obvious implication from relying on broad proscriptions to describe an offence and indeed can beseen as a purpose behind the introduction of such terms. In contrast, criminal laws are framed in narrow and specific terms toensure citizens are not subject to a wide discretionary punishment. In respect of irrationality, it may be suggested thatprovided there is a logical reason for a tribunal’s determination the tribunal cannot be acting irrationally and cannot be inbreach of good faith obligations. This again is an implication of allowing a tribunal to base its decision upon ‘some’ evidence.In terms of proportionality of punishment, provided the tribunal has directed its mind to meeting the needs of the sport, anypenalty should not be seen as irrational even if unreasonable by objective standards.

There is also another way to look at the question of unreasonableness; one which has a similarity with the ‘rationality’approach of Justice Tadgell. In Paton v Sydney Press Club (1940, p. 58) the question of reasonableness was deemed notrelevant unless ‘. . .so obviously absurd that it may be inferred that it was not really an opinion at all.’ By inference, the Paton

decision seems to be directed at tribunal members who are deemed to have produced an absurd, or irrational, decisionbecause any person who had actually considered the question could not have so decided—a somewhat different approach toirrationality.

It must be stated that any argument as to whether the correct requirement is ‘rationality’ or ‘reasonableness according tothe standards of the association’ is, in respect to most sports, highly refined with little to be gained through members’ deepcontemplation of the issue. The decision of a tribunal, if it were to be adjudged at all as to reasonableness, must arguably becompared to the ‘reasonable person of the organisation or sport’. That is, the tribunal exists to apply the standards the sportwishes to project into the behaviour of its athletes and indeed, to the public in general. In this sense too, decision makers indifferent sports may, applying their own standards of reason, deliver differing verdicts in the face of similar offences.

5. Honesty and natural justice

Whilst the requirements of ‘honesty’ and ‘natural justice’ in the decision-making process of domestic tribunal justice maybe classified as implied or a sub-set of good faith, their import is of such a fundamental nature that the inclusion of each has

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at times been ‘assumed’. Consider again the words of Justice Tadgell: ‘I do not think it is satisfactory to regard a tribunal’sobligation to act, for example, honestly and in good faith as depending on any implication of a contractual term. . . . the lawaxiomatically assumes that that will be done’ (Australian Football League v Carlton Football Club, 1998, p. 552). The arguableconsequence of a court so assuming is that rather than a party attempting to imply such terms into the contract, the burdenmay well fall on a party wishing to deny their existence to imply that honesty and natural justice are not part of the impliedcontractual terms establishing the tribunal.

5.1. Honesty

The quasi-judicial nature of a domestic tribunal necessitates that all determinations are made with an honestappraisal of whether the conduct in question constitutes ‘misconduct’ as defined by the standards of the sport. Ofcourse, it could not be seriously suggested that the parties intended dishonesty to prevail in tribunal decision-makingor were indifferent to dishonesty. Had the parties turned their minds to the question, ‘should the tribunal behonest in bringing in a verdict’, the response would be with little doubt ‘of course’ (Shirlaw v Southern Foundries, 1926, p.227).

The obligation of honesty was put in formal terms by Justice Dixon in Australian Workers Union v Bowen (1948, p. 628)where, after affirming that ‘a tribunal that has no rules of evidence and can inform itself in any way it chooses’ his Honourincorporated the additional requirement that ‘the tribunal is bound to act honestly, that is to say it must have an honestopinion that what the member before it did amounted to misconduct and its decision must be given in the interests, real orsupposed, of the body it represents and not for an ulterior or extraneous motive.’

Whilst an argument can be made that a CEO could, where there is a proven misconduct, use the breach of contract as aexcuse to secure some extraneous objective,6 there can be no doubt that a tribunal engaging in such a practice would breachits contractual obligation of honesty and good faith. To use the misconduct term to dismiss or otherwise punish a player inorder to secure a voting block for a club election, to provide an opportunity for a favoured player or as an act of revenge, are allexamples of impermissible ulterior motives.

The obligation of honesty does not, though, limit the freedom of a tribunal to decide as it sees fit in respect to thestandards of the sport. Provided it acts honestly, the tribunal may decide ‘wisely, discretely, temperately or harshly’ (DrWarrens Case, 1857, p. 371).

5.2. Natural justice

At a fundamental level, natural justice requires that the accused be notified of the charge, be given an opportunity toanswer the charge and have the matter be determined without invincible bias or ulterior motive (Rose v Boxing NSW, 2007).

The requirements can, however, extend to the provision of other entitlements where circumstances fairly dictate: Naturaljustice, ‘depend(s) on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, thesubject matter that is being dealt with, and so forth’ (Russell v Duke of Norfolk, 1949, p. 188). Or, as it was similarlyexpressed, ‘what the law requires in the discharge of a quasi-judicial function is judicial fairness’ (Mobil Oil Australia Pty Ltd.,1963, p. 504).

Natural justice may require, for example, that the accused should be granted legal representation where charges arecomplex or require comprehension skills to a high level. Where a witness is important to the accused’s defence the tribunalshould consider, in the interests of natural justice, permitting the witness to speak on the accused’s behalf (Rose v BoxingNSW, 2007). Where the charge consists of one person’s word against another, natural justice may necessitate the accusedbeing permitted to question the accuser (R v Dobson; Ex parte ANM, 1975). As indicated, in respect to natural justice theprovision of such opportunities is not mandated per se, but depends on the circumstances.

Nevertheless, the need for the tribunal to function sensibly and practically may take precedence over thecircumstantial forms of natural justice—natural justice is ‘not a one-sided business’ (Mobil Oil Australia Pty Ltd, 1963).To illustrate, in Gamilaroi Boomerangs v New England Rugby League (1999) the Boomerangs team, after being removedfrom the competition, complained they were unfairly denied the opportunity to cross-examine witnesses. Justice Brysondenied the claim stating, ‘In the world of practicalities the Court cannot expect that a committee of 28 persons fromwidely separated country districts would continue to reassemble itself from time to time for long enough toenable examination of each complainant’ (Gamilaroi Boomerangs v members of New England Group 19 Rugby League,1999, p. 59).

The opportunity to know the charge, offer an explanation or defence and an unbiased decision will, in general, satisfy theobligations of natural justice owed to an accused in the setting of a domestic tribunal. The provision of additional forms ofnatural justice, such as cross-examining witnesses, is a matter for the judgment of the tribunal taking into account questionsof fairness and questions of practicality.

6 See discussion above in the section ‘The difficulties in implying a term of good faith in athlete penalisation’.

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5.3. The unequal treatment of athletes

For purposes of completeness, a domestic tribunal’s position in respect to the differential punishment of athletesaccording to their value to the sport will be briefly considered. As discussed earlier, a CEO is entitled to impose differentpenalties on athletes who have breached the ‘misconduct’ term despite a similarity of offence.7 A party injured due to thebreach of an essential term is entitled to elect whether to continue with the contract or not (Holland v Wiltshire, 1954). Inshort, it may not be in the interests of the injured party to discontinue the contract. In taking up the election the CEO will nodoubt weigh the potential loss to the club or sport in terminating the athlete’s contract—despite committing a dismissibleoffence the loss to the team may exceed the gain of termination. The CEO is, as such, permitted under the law of contract tomildly punish prominent players and harshly deal with those of lesser stature, should he or she so desire.

Election is not, however, an option afforded a domestic tribunal. A tribunal does not maintain the implied obligation ofgood faith and honesty where it imposes on individual athletes different punishments based purely on the status of theplayer.

6. Conclusion

On the basis that a sporting organisation possesses a moral and financial interest in preserving its good image, thepenalisation of athletes for off-field misconduct is an essential component of modern sports management. The capacity topenalise athletes who engage in misconduct serves the dual role of deterrence and remedy. An athlete fearful of contracttermination or other forms of penalisation will modify his or her behaviour to conform to the recognised standards of thesport. An athlete who drains the morale of the team or causes the image of the sport to be damaged due to his or hermisconduct may be removed from the environs of the organisation.

The authority to penalise for off-field misconduct is that of contract. The contract will usually authorise the sport toterminate the athlete’s services without proving the breach of an ‘essential term’. That is, the parties, the sport and theathlete, have agreed that engaging in misconduct may result in contract termination.

The power to sanction for misconduct is granted, under contract, to either, or both, a CEO or a domestic tribunal appointed‘in-house’. Some sports appoint a board or committee to hear complaints of misconduct, in which case the obligations ofgood faith and natural justice generally associated with a domestic tribunal will apply to determinations of the board.

Being formed under contract, the right to penalise for misconduct is governed by the law of contract. Differing legal rightsand obligations are suggested to apply as between a CEO and a domestic tribunal in respect to athlete penalisation. For thoseengaged in sports management, knowledge of these differing legal capacities is useful in avoiding litigation, negotiatingfuture contractual terms and effectively using athlete services.

It has been argued that a CEO, as the party injured through the athlete’s breach, may take a purely private approach to abreach of contract and terminate or otherwise penalise the athlete without regard to the precepts of natural justice. Theessence of this private approach to penalisation rests on the fact that the CEO does not perform in a quasi-judicial capacity. Asdiscussed, the entitlement to terminate for breach of a specifically expressed obligation is well established in law. Thecapacity of a CEO to summarily dismiss an athlete involved in misconduct is argued, nonetheless, to also expose the sport topossible litigation where the right to terminate is wrongly interpreted or construed. Terms like ‘misconduct’ or ‘discredit’ areopen to a wide interpretation enabling an athlete to claim the termination of his or her contract concerned a form of conductnot intended by the parties to constitute misconduct. Courts construe contractual terms objectively, that is from the point ofview of a reasonable bystander taking into account the context of the document read as a whole and the surroundingcircumstances under which the contract comes into existence. Except perhaps in the clearest cases of misconduct there is noguarantee, given the court’s methodology of construing contractual terms, that a court will interpret ‘misconduct’ in thesame manner as the CEO. Where the court disagrees with the CEO’s interpretation the sport is in breach of contract and liableto pay damages to the athlete. In this sense, it was suggested that the capacity, or indeed the advantage in summarilyterminating an athlete’s contract must be weighed against the possibility of misconstruing the proscriptive term.

The extent to which, if at all, a CEO is required to act in good faith when terminating the contract of a miscreant athletewas also considered. As discussed, the breadth of the obligation of good faith remains unclear in Australian contract law.There is, though, no doubt that a CEO must not, as a matter of good faith, prevent an athlete from performing his or hercontractual obligations. Such prevention does not occur, however, where the CEO exercises a contractual right to penalise formisconduct. That is, a right to terminate may be exercised merely on the occurrence of the triggering event, in the presentcontext, misconduct. It is, in contrast, arguable (though not clear) that a CEO must act honestly in coming to a conclusion thatthe sport is best served by termination of the athlete’s contract.

It was argued that, unlike a CEO, a domestic tribunal, as the contractually agreed mechanism for defining misconductaccording to the parochial standards of the sport in question, is all but immune from challenges to its interpretation of‘misconduct’. This claim is based on the notion that domestic tribunals are formed with the intention of avoiding costly,technical and time-consuming hearings commonly associated with court proceedings and, additionally, with the intentionthat the tribunal will apply its knowledge of the sport and its parochial expertise to the decision-making process. It was also

7 See above at 3.7: ‘Differential punishment according to athlete status’.

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argued that because a domestic tribunal is established to apply the standards of the sport to issues of misconduct, thetribunal must interpret the term according to those standards—a task which, incidentally, is arguably beyond a court of law.To not do so is to breach the obligation of good faith decision-making. A domestic tribunal, despite the surety of itsinterpretation of ‘misconduct’, is required, however, to exercise its authority to penalise in good faith as a natural implicationof performing a quasi-judicial function.

An important corollary flowing from the varying legal capacities between CEOs and domestic tribunals, relates to theentitlement of each to differentially penalise athletes according to their rank or worth to the sport. A CEO, it was argued, mayelect to terminate the athlete’s contract without concerns for natural justice and, perhaps, without regard to notions of goodfaith. A tribunal, due to the quasi-judicial nature of its operations may only penalise the athlete with accordance to the actualmisconduct committed—to do otherwise is to breach the obligation of good faith.

A mechanism to both dissuade and deter athletes from engaging in damaging behaviour has become an essential tool ofsports management. Because this mechanism invariably concerns the law of contract there are legal rights and obligationsassociated with its exercise. There are, as argued, different advantages and risks to using a domestic tribunal as thedisciplining mechanism over CEO initiated penalisation. Being aware of the legalities associated with athlete discipline notonly permits an informed approach to existing instances of athlete misconduct but permits the sport to plan for the inclusionof disciplinary terms most suitable to its future needs.

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