Sports Law - With Aaron Lloyd
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Transcript Commences
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Chris Patterson (00:06):
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Hello and welcome to the "Law Down Under" podcast with barrister Chris Patterson. We will give you insights into the law in New Zealand and Australia, its application, and the law's future. Each episode features a new guest who will inspire interest in the law and give you a greater understanding of the legal issues that helped shape our justice system here Down Under. We thank you for tuning in and enjoy the podcast.
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On this episode of the "Law Down Under" podcast, I'm joined by one of Australasia's leading sports lawyers, Aaron Lloyd, as we discuss the topic of the law of sport. Now, it's a lengthy podcast, not because we get into a real deep granular level of the law and its application to sports. There just wasn't the scope for doing that in this podcast. What we decided to do was cover more general discussion, which would act as a really good introduction to someone who's either considering becoming a sports lawyer, wants to learn more about what sports law entails, or is already a sports lawyer and wants to have a better understanding of some of the more policy levels surrounding the main key topics that involve sport both at an international, national, and grassroots level. I found that absolutely thoroughly interesting discussion, and I got a lot out of it. I'm sure you will too. So please sit back, relax, and enjoy this episode of "The Law Down Under" podcast. Today, I am very privileged to be joined on the podcast by Aaron Lloyd. Aaron is a partner in the litigation and dispute resolution division of Minter Ellison Reed Watts in Waikato. He specializes in trial advocacy, white-collar crime, and Regulatory Affairs. He also does a lot of employment work, and one of his specialist areas, which we are going to discuss today, is that of sports law. Aaron is recognized as one of Asia Pacific's top sports lawyers and recently received the Best Lawyers Award of the Year in 2023 for sports law. He has affiliations with several esteemed organizations, including the Legal Research Association, the American Bar Association, the Auckland Medico-Legal Society. He serves on the panel of counsel for the sports tribunal in New Zealand. Aaron is an experienced advocate, having worked with leading counsel in the United Kingdom, the United States of America, Asia, and numerous cross-border white-collar crime matters. He continues to advise sports organizations and athletes on a wide range of issues in New Zealand and overseas. He regularly shares his views, some of which receive a little bit of commentary and, in themselves, critical acclaim on sports matters across several platforms, including Twitter, LinkedIn, and his commentary is often sought by mainstream media outlets. Aaron has and continues to be the trusted legal adviser to a number of the top international rugby unions. Aaron, welcome. Thanks for joining me on the podcast.
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Aaron Lloyd (03:11):
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Oh, thanks, Chris. It's so privileged to be here. It's really good.
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Chris Patterson (03:14):
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Hey, now we're going to dive into sport, and not in a sports cafe-style, because we are going to talk about sports law. Aaron, look, let's start by asking what I think is a very big question. And that is, why is sport important? Why does anyone care about it?
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Aaron Lloyd (03:32):
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I think there are two answers. I think one is the emotional, personal answer. And the other is the commercial answer. So the emotional, personal answer, I think, is that sport is good for us. For those of us who are participating in sport, it's good for us physically, and increasingly, we understand it's good for us from a mental health perspective. So people want to participate. People want to do sports, if you'd like. They also want to watch it, partly because they enjoy watching what they do. But partly also because there's a sort of cultural tribalism or community association with sport. In some instances, sports still provide actual physical community engagement, you know, the local club, local sports club, local squash club, the local rugby club, whatever it is. And then on the other side, of course, it's becoming increasingly commercial. Sports is big business, with billions and billions of dollars generated by the sporting industry around the world. So accordingly, it's become important in that respect as well. Look, you know, as you know, humans, we're social creatures. Sport plays a vital role in maintaining social cohesion, etc. It occupies a quarter of our news every night. It really is such an important point. And I mean, for anyone who really wants to see how important it is, just turn up on any Saturday morning at any sports field and see families and children, you know, just how much commitment is put into it. And that's even at the basic grassroots level.
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Chris Patterson (05:00):
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Yeah, yeah, absolutely, totally agree with everything you've said about it. Now, it's an important matter and needs to be organized and regulated to a degree so that everyone's expectations of a critical pillar of sport and that a sport is fair is maintained. Let's go to a really high level before we start drilling down into, I mentioned grassroots before, right down to neighborhood sports. At a high level, there are a couple of organizations, one of them is the International Olympic Committee, the IOC. What role does the committee have in sport?
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Aaron Lloyd (05:42):
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So the IOC is effectively the focal point for running the Olympic Games, both the Summer Olympics and the Winter Olympics. In doing that, it creates a sort of umbrella federation, if you like, that all of the sports that wish to compete in the Olympic Games become members of. So all of their International Federations become members of the International Olympic Committee, the International Olympic Federation, if you like, however, you want to describe it. Really, the IOC becomes the focal point for a number of sports, which we sort of know as Olympic sports, right? So athletics, swimming, judo, and many others are prominent examples of them that we watch every four years at the Olympics. In the winter area, it's sledding, skeleton, skiing, and all those sorts of things. So the International Olympic Committee really serves as an umbrella organization for a lot of those individual sports to be a member of and participate in the Olympic environment.
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Chris Patterson (06:49):
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Yeah, and of course, winning or succeeding at the Olympics can not only change an athlete's life but it can actually alter a whole nation. I mean, suddenly, if we take New Zealand, for example, we win some medals in canoeing. All of a sudden, we're very proud of canoeing, and we're proud as a nation. So winning on the Olympic stage does have significant well-being effects right through to the nation that's represented.
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Aaron Lloyd (07:18):
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But it also depends on how you define winning, right? So one of the debates in sport, in particular, one of the debates in sport funding, is how do you fund sports? Well, we historically have and still continue to do so. Fund sports according to their ability to get medals at the Olympic level, right? And that's one definition of winning, right? So unquestionably, if we have athletes meddling, they're winning, and it's good for the sport. It's good for the psyche of the nation, and so forth and so on. But participation in the Olympics in and of itself, of course, is also winning, right? I mean, not everyone gets to go. I'm never going to be an Olympic athlete. I never have been, and I never will be. The percentage of people who are at the elite level required to be able to compete at the Olympics is pretty small. So, of course, for some of the smaller sports, in particular, just having someone go to the Olympics to represent them, seeing them on television, wearing the Silver Fern, New Zealand flag flying around. That in and of itself can be quite an aspirational moment for sport as well. So, yeah, winning is important, and success is important, but I think it partly depends on how you define success.
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Chris Patterson (08:27):
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Now there are two other things I'd like to go over with you, two other, I guess, let's just call them... Well, one of them is captive international competition, that's the Commonwealth Games, and then we have individual sports' world championships or World Cup events. Let's just talk about the Commonwealth Games. I mean, the Commonwealth Games, certainly not as large or as important as the Olympics, but it's something that both New Zealand and Australia compete in, so it does have a prominence there. And again, I think your comments would be the same around winning Commonwealth Games medals, importance to New Zealanders in that space?
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Aaron Lloyd (09:04):
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100%. I think for the countries who compete at the Commonwealth Games, that comes by goal in and of itself to go to the Commonwealth Games, to do well, potentially medal. But it also becomes part of the overall program leading towards the Olympics. In some respects, the Commonwealth nations get a trial run in the off-cycle, if you like, to the Olympics. For a lot of the Commonwealth sports, not all of them, the metric comparing Commonwealth Games sports to Olympic sports isn't 100%. Obviously, you know, some sports, like netball, for example, Commonwealth Games probably becomes the pinnacle alongside perhaps the world champs because it's not at the Olympics. But other sports, rugby, for example, Stevens at both Commonwealth Games and the Olympics. So, in a lot of core sports like swimming, athletics, and so forth, are important for both games. But it's not the only one, of course. You've got the Pan Pacific Games and the Asia Pacific Games, and outside of our awareness, probably there are other multi-year tournaments that rank up there. And, of course, for all athletes, the World Championships are incredibly important. You see that in particular in sports like cycling and rowing, where the world champs are the best of the best. If you're a world champion, that's quite something. Again, Olympic champion, world champion, Commonwealth champion, those are all titles that athletes, I think, are very, very proud of.
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Chris Patterson (10:31):
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Now, if we thought about that sort of tree structure, we mentioned the International Olympic Committee. It works with individual sport national and international federations. I think that's a good segue to talk about World Cups and how they're organized because it's those international sporting federations that are responsible for organizing the respective sporting code's World Champs, World Cup, and there are a number of them. The more famous ones that we hear about are FIFA for football, FIBA for basketball, World Rugby for rugby union, etc. What sort of governance structure do they generally have, and what role can lawyers play in those organizations, or even the International Olympic Committee?
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Aaron Lloyd (11:29):
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Yeah. So as I said, the ISA really focuses on the two Olympic Games, the Summer and Winter Olympics, and it becomes a governing body for those events, but it's also a body that all the sports wishing to participate in those events must be affiliated with. They set certain rules and also influence the rules of the sports, particularly regarding things like selection, eligibility, doping, and so on. Then, right, you really look at the top of the tree, the International Federations for each sport, which are effectively member organizations. These International Federations are made up of all the national bodies for that sport around the world. Oftentimes, they have in excess of 100 member nations of these International Federations.
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Chris Patterson (12:18):
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Basketball has in excess of 200, right? Here we go.
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Aaron Lloyd (12:22):
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You know, and these International Federations are formed by and consist of representatives from all around the world. Some of them may have different constitutional and voting structures. Some may allocate more votes or positions to the bigger or more established national federations. Others may have a more democratic one-country, one-vote system. They have their own structures, including councils and subcommittees. These International Federations generally set the Laws of the Game or the rules of the game for their respective sports. These sporting rules, whether on the field or court, will then get promulgated, and the national unions in each country, like New Zealand, for example, will generally take these international rules and regulations, not only the on-field rules but also the regulations regarding sports' broader management. They'll implement these rules and regulations, either in their international versions or in a localized version, and in their national bodies, like New Zealand Rugby, Basketball New Zealand, they become the governing body responsible for the sport within their jurisdiction, in this case, New Zealand.
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Chris Patterson (13:48):
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So, starting at the international level, it follows the structure of having a clear delineation between governance and operations. The governance is typically elected at the international level. They'll have a president and committees, and they might have regional committees. The operations are generally led by a secretary-general or a chief executive officer at the international level. Does this model carry over to the national level, such as the New Zealand Rugby Union, Basketball New Zealand, New Zealand Football, etc.?
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Aaron Lloyd (14:49):
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Generally speaking, you'll have a division between governance and operations. The operations side will consist of the organization's employees, starting with the CEO or the top executive, and they will employ a staff to handle the day-to-day tasks. For example, FIFA employs hundreds, if not thousands of employees worldwide, including regional offices. From a legal perspective, it's interesting to consider why one organization should necessarily control a sport and all its variations worldwide. Part of the answer lies in the legal structures that make it happen, but part of the answer lies in the natural tendency of sports to come back together. Some sports have had breakaway attempts, but they often return to the larger sports community. It's a tension that can play out over time.
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Chris Patterson (19:19):
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Yeah, and at the international level, the International Federations essentially hold a monopoly, and anyone wishing to participate in world championships or Olympic Games must be a member. They become the gatekeepers, and this incentivizes participation and compliance. The threat of exclusion from major events is a powerful tool to maintain control. This model has worked for sports like rugby union and cricket, where the international game is considered the pinnacle, and exclusion from international competitions is a significant deterrent for breakaway attempts.
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Aaron Lloyd (19:37):
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Exactly, and the control International Federations have over these major events, like the Olympics, is significant. The threat of exclusion from these events is a powerful tool to maintain control and discourage breakaway attempts. The international game being the pinnacle in sports like rugby union and cricket has helped maintain the unity of those sports. However, some sports have experienced fragmentation and breakaway attempts, like golf or rugby league, and these issues are still being resolved.
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Chris Patterson (20:43):
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Yeah, and there's also an issue of funding, but we might come back to that in a second. Going more local, here in New Zealand and Australia, and just dealing with national sporting organizations, how are they governed? What's the way in which they regulate themselves? How are they set up? Are they companies? Are they charities? Are they partnerships? What's the general mode?
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Aaron Lloyd (21:13):
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Most sports organizations are incorporated societies under New Zealand law. It's an organizational structure, which means they are member organizations made up of individual members who pay subscriptions (subs) to join. They have an elected committee from the membership to run the organization. So most sports clubs are incorporated societies.
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Chris Patterson (21:32):
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Okay. And how is an incorporated society set up, and where can one find their rules?
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Aaron Lloyd (21:37):
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They set their own rules. Each incorporated society is required to have a constitution or a set of rules, which then gets published and is available online. If you go to the Companies Register, it allows you to search the Incorporated Societies Register. So the rules for all incorporated societies should be posted on that, and you can access them.
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Chris Patterson (22:17):
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Are these rules set in stone when they are incorporated? Should clubs or larger organizations revisit and update their constitution?
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Aaron Lloyd (22:41):
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Incorporated societies are going through a forced refresh at the moment due to new incorporated societies legislation passed in recent years. It's making it good practice to revisit and modernize the constitution, including adding elements like dispute resolution clauses, addressing election and appointment processes, and considering issues like in-person meetings. Many constitutions have outdated requirements, and modernizing them is essential. Sport New Zealand provides valuable community guidance on what your constitution should look like. It's a great resource for clubs and organizations.
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Chris Patterson (24:10):
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Sport New Zealand, based in Wellington and funded by the state, promotes sports in New Zealand through education and resources. They provide resources for clubs and associations to help them better organize themselves because running a sporting organization isn't easy. You often get involved when problems arise.
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Aaron Lloyd (24:48):
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Exactly, and sports organizations deal with issues at all levels. I'm currently working with a national federation, a local federation, and recently completed work for a club. Passion runs high in sports, and perceived unfairness can lead to disputes. Having clear rules about members' rights and responsibilities, as well as transparent processes for committee elections and decision-making, is crucial. This allows organizations to navigate crises and disputes using a well-established process. In sports disputes, process compliance is essential.
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Chris Patterson (26:59):
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Good lawyering involves interpretive skills, which allow you to understand the intent behind a set of rules, whether they are internal regulations or an organization's constitution. The other critical skill is understanding process and procedure, ensuring natural justice is maintained to provide everyone with a fair opportunity.
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Aaron Lloyd (27:34):
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Yeah, and I think overarching, both of those, Chris, is judgment, right? Objective judgments. So one of the reasons why sports lawyers get called in to disputes is because they are an objective, skilled person. The objectivity and the ability to look at things dispassionately is really important, but also the judgment to be able to look at it in the context of the sport, in the context of what's going on, is really important as well because rules on their own are just rules. You've got to put them into context to be able to apply them. And, I'd agree, I think interpretation and adherence to process, and natural justice in contextual, objective, contextual judgment, those would be the three things that I think sports lawyers really need to be able to focus on.
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Chris Patterson (28:28):
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Yeah, absolutely. And look, in a way, maybe this is a bit of a call out to our profession. There are great opportunities that exist for lawyers to get involved in sport and make a real positive difference, whether it's at the community level or beyond. The type of work that we do, a lot of it is behind closed doors, not necessarily in the public sphere because we're resolving things that need to be dealt with at that level. And then some of it is more administrative, dealing with a lot of the administration that just has to be done. If it's not done, the wheels fall off the bus.
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Aaron Lloyd (29:40):
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Yeah, and look, I'd say a couple of things about that. First is, I agree with you that sport needs more people volunteering, particularly on the admin and organizational side of things, the officiating side of things. If you love your sport, whatever your sport is, ask yourself, is there a way I can volunteer, get involved, and contribute? You should, whether that's through coaching your children's teams or refereeing or umpiring your children's teams if you've got children or whether it's going and volunteering or sitting on a committee to help them make decisions or to sit on a judicial panel. For lawyers, a lot of sports have rules that set up judicial panels to deal with internal sporting issues, either conduct on-field or off-field conduct issues. Having a lawyer to sit on that panel and just help manage that process is really helpful. So there's plenty of opportunities to get out there. If you want to be a sports lawyer, you've got to start by volunteering and doing a bit of pro bono stuff, to be honest, because in New Zealand, the sports industry is not as wealthy as even in Australia, let alone going up to the States or Europe or many Asian countries. So a lot of sports organizations around the country can't afford to pay commercial rates for lawyers to do work for them. So there are plenty of opportunities to do some low-fee or pro bono work to assist either athletes or sports organizations. Couple that with a bit of volunteer work in the sports industry, whether it's refereeing, umpiring, sitting on committees, or whatever you choose to do. If you're a lawyer wanting to get into sports law, doing a little bit of that is a good way to get experience, build up that judgment, and develop that contextual, objective, and contextual judgment that I was talking about.
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Chris Patterson (31:38):
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So in addition to interpretive skills, which allow you to understand the intent behind a set of rules, whether they are internal regulations or an organization's constitution, you need to have the skills to understand process and procedure to ensure that natural justice is maintained and everyone has a fair opportunity. Judgment is a critical skill in sports law, as it allows lawyers to make objective decisions while considering the context of the sport and its specific circumstances.
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Aaron Lloyd (33:47):
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That's right, judgment is an essential aspect of sports law. Lawyers need to apply rules and processes within the context of the sport and ensure fairness and natural justice are upheld. It's also important to remain objective and dispassionate when dealing with highly emotional sports disputes.
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Chris Patterson (34:39):
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We're talking about the role that schools play in New Zealand and sport. I mean, school rugby, for example, is a significant part of the landscape. How does school sport fit into the broader sporting structure in New Zealand?
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Aaron Lloyd (37:09):
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School rugby is a unique example. In New Zealand, young players start rugby at a very early age, often as young as four or five, playing for club teams. However, once they reach high school age, rugby in New Zealand shifts primarily to school competitions. Secondary school rugby takes over for this age group, and the club involvement decreases during these years. After high school, participation in club rugby resumes. Other sports like basketball and football maintain a strong club culture parallel to school competitions. Rugby's unique approach creates a challenge, as many participants drop out after high school. There have been discussions on how to better transition young rugby players from schools to clubs to improve participation at the club level.
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Chris Patterson (38:45):
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School sports play a significant role in New Zealand's sporting culture, with school rugby being a prominent example. It's important to address the challenge of maintaining participation in club rugby after the high school years. Creating a smoother transition for young players from schools to clubs is crucial to increase participation and engagement in sports at the community level.
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Chris Patterson (39:48):
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Is that for high-performance pathway development? Because, I mean, you mentioned five-year-olds playing rugby. And it just seems to me that you've got clubs, which can play an important role in implementing a national development strategy, particularly around high performance. And then suddenly the schools take over. Doesn't that create a disconnect when you're trying to develop talent?
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Aaron Lloyd (40:17):
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Yes and no. I don't think the disconnect from club rugby going into school at age 13 is creating a big problem because I don't think anyone is seriously talent spotting 12-year-olds in rugby.
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Chris Patterson (40:35):
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Although Jonah Lomu got appointed to the Sevens for the All Blacks while still in school, right? I mean, it's a rare example.
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Aaron Lloyd (40:43):
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But we're still talking about, even legendary players like Jonah, Jeff Wilson, some of these players in the All Black space, really only became prominent in senior secondary school. When Jonah was running around on the flank at Wesley College at age 15, that's when people started paying attention to him. So, look, I don't think the club transition into school is a problem at all in terms of elite development, but there is a disconnect the other way around. But what you are getting now is this sort of situation where 17 and 18-year-olds are coming straight out of school and going into professional rugby. Actually, I don't give credit to New Zealand Rugby. They're not just focused on the high-performance development pathway. And in fact, I would hazard a guess and say that on this topic, you know, how do we deal with schools controlling secondary rugby and the need to transition to clubs? I actually think the primary focus is around participation in the community and community, not just high-performance development. High-performance development will find a way. If you've got a phenomenally talented young man or young woman playing rugby at senior secondary school level who's good enough to take that next step up, someone's going to find them, someone's going to put them into a sub-elite Academy, someone's going to start giving them provincial time. For example, a couple of the NPC provinces had schoolgirls playing in the NPC while still in high school.
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Chris Patterson (42:25):
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I guess I'm wondering, Aaron, if it's not broken, should we try and fix it? If the system works, a large part of it depends on priorities and policy around development. Let me take football as an example. New Zealand hosted the FIFA under 20 World Cup in 2018, and it was a phenomenal event. But the time on the ball in terms of young Argentine and New Zealand players is significantly different. Argentine players have done over 14,000 hours on a soccer ball by the age of 19, whereas New Zealand players have done around 7,000 hours. It's also a matter of resources and policies in New Zealand. What are your views on this as a broad general policy?
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Aaron Lloyd (45:01):
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My own personal view is that in some sports, we have been too focused on this idea of medals being the most important thing for either funding or for participation in the Olympics. But it's a complicated issue, as it's not just about funding. It's also about the selection process. To make the New Zealand Olympic team, you not only need to secure a spot at the Olympics but also meet the New Zealand Olympic Committee standards, which generally require a top 16 performance capability. Some sports seek even higher expectations. For example, an athlete may be ranked in the top 30 globally but not meet the criteria, which can be disappointing for both the athlete and their sport. However, we don't want people going just for the sake of making up the numbers. It's a balance, and whether we're getting that balance right is a debate that will continue.
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Chris Patterson (49:35):
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If the policy objective is to inspire New Zealanders and the measure is focused on medal-winning, it can be overly simplistic, as not all sports are the same. The cost of sending a cyclist around the world is significantly less than sending a rugby or football team. In addition to resources, socio-economic and geopolitical factors also play a role in an athlete's development. It's a complex issue that requires ongoing debate and adaptation.
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Aaron Lloyd (50:26):
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It's a complex issue, and it's not just about funding but also the development of sports across various factors. Achieving a balance is challenging. For instance, the top 16 criteria isn't perfect, but finding a better solution is also challenging. Balancing the interests of athletes and sports organizations is key, and the ongoing debate is necessary to evolve our approach.
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**Chris Patterson (51:17):**
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Absolutely, I mean, I'll jump in with a sport I'm a little bit biased in, basketball, I mean, so to New Zealand. And in 2002, they ended fourth in the World Champs, which is an exceptional outcome for a nation like New Zealand because basketball is a massive global sport. You know, and look, the reality is beating the United States or even beating our nearest neighbors Australia is often a big ask. But if we go back to inspiring New Zealand, as you know, I did my informal survey a few years ago with a bunch of school kids about naming New Zealand athletes. And I asked, and I won't mention the sports, but these are gold medalist Olympic sports. If these bunch of school kids couldn't name any of these athletes, and none of them could. And then I said to them, "Can you name a basketball player?" Now they all said Steve Adams. Okay. And in fact, it was a little unfair, I was asking a kid who had an Oklahoma City Thunder top on with Adams's name. So, you know, Steve Adams has done a lot for inspiring New Zealanders, but he's never played on our national team. And New Zealand's never going to win a world championship in the foreseeable future anyway because of the way the sport is set up. But it's still important to Kiwi kids who are coming through and the other one, they are our future. They're the ones we want to develop and all the good things that come with sports, even if they don't become elite athletes, it doesn't matter. If they enjoy the sport and get a lot out of it, then they're going to be better people, and that's what we want. It's individuals like, this isn't a plug for Steve Adams, I'm just using him as an example.
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**Aaron Lloyd (53:08):**
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You could have a Steve Adams, you could have a Lydia Ko, any one of a number of those high-profile individuals who inspire. What about Scott Dixon in motorsport, as a motorsport standard, all of this.
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**Chris Patterson (53:27):**
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And look at the career that he's had. I mean, the money that he's generated through that is just phenomenal. So, I think I look at health first to be having all of these debates around things like funding and participation and selection and schemes. And as a sports lawyer, for me, particularly as an advocate, sports lawyer. I don't do a lot of work in the contracting space. Occasionally, I'll get involved in the preparation of contracts for specific sports or in specific circumstances. I'm doing some work in motorsport in that space, which I'm really enjoying. It's a privilege to do. But by and large, I'm actually advocating clients' positions. So luckily, I can sit here and argue both sides of this debate. I'm pleased others can too, and I think they will continue to evolve.
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**Chris Patterson (54:15):**
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Alright, now let's move on to an area in which sports lawyers can really get into being a real lawyer, and that is around dispute resolution. We'll just start with one area, and that is matters that come before the sports tribunal. We're talking about the New Zealand sports tribunal as opposed to the Australian National Sports tribunal because that's an area that you and I are more familiar with. What sort of matters does the New Zealand sports tribunal deal with? What turns up on its plate?
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**Aaron Lloyd (54:47):**
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The sports tribunal of New Zealand is a statutory body created around the time we got serious about doping in sport. It holds anti-doping violation hearings for almost all sports in New Zealand. There are some exceptions like rugby. The Tribunal also handles selection disputes, and any other sports disputes when parties agree to its jurisdiction.
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**Chris Patterson (56:05):**
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When there is a sporting-related dispute in a sport that signed up, it's usually the National Federation that signed up. Usually, it binds the structure and cascades down to resolve it internally. It deals with a small percentage of disputes that can't be resolved internally, avoiding lengthy judicial processes.
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**Aaron Lloyd (57:05):**
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The Tribunal has a chair and Deputy Chair, who are often former judges or senior lawyers. There's also a set of members, including former athletes, coaches, administrators, and lawyers, who sit as a panel of three. It operates in a quasi-judicial manner, with an initial conference to determine issues and manage cases.
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**Chris Patterson (59:27):**
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Mediation, as a form of dispute resolution, is a great model to deal with sporting disputes early on and get them resolved by agreement, providing parties with certainty of outcome. It's especially valuable for disputes at the club and community level, where parties should collaborate to find solutions rather than resorting to an imposed outcome.
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**Chris Patterson (1:01:27):**
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Yeah, look, I think I've probably seen this a million times. This next iteration, by the way, of disputes is inherently corrosive. You know, I never hear anyone say, "I really enjoyed that dispute. I'm looking forward to the next one." And often in sport, New Zealand, a large part of it is a group of volunteers. They all mean well, they have the best intentions, but it can be a massive distraction. So I'm with you, early resolution via mediation is a great way to work through some of the tougher issues in sport. Okay, so, Sport New Zealand Sports Tribunal. Here in New Zealand, the Australian equivalent is the National Sports Tribunal. If there's an adverse outcome and someone decides they're not happy with it, what can they do?
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**Aaron Lloyd (1:02:16):**
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Well, oftentimes, the default appeal option out of the Sports Tribunal in New Zealand is the Court of Arbitration for Sport, often referred to as CAS. It's an arbitral body seated in Switzerland and operates under Swiss law. But going to CAS doesn't mean you physically go to Switzerland.
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**Chris Patterson (1:02:43):**
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It's not like a trip to the Privy Council.
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**Aaron Lloyd (1:02:46):**
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No, it's not. CAS has regional seats, with the regional seat for the Oceania region generally being in Sydney. Often, hearings are done remotely or held locally, but CAS becomes the default appeal body for decisions made by the Sports Tribunal.
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**Chris Patterson (1:03:09):**
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And not to do a massive plug for David Williams, who is one of New Zealand's most successful and capable arbitrators, serving as an arbitrator in various cases. He was a UN High Court judge and later resigned to pursue arbitration. My colleague at the Victorian Bar, Leigh Midland, has been appointed to the Court of Arbitration for Sport, showing the high caliber of arbitrators. The judgments and determinations from CAS have generally been of very high quality.
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**Chris Patterson (1:06:08):**
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A significant part of the work for the Sports Tribunal and CAS is related to anti-doping. What is WADA (World Anti-Doping Agency), and what is its mandate?
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**Aaron Lloyd (1:06:22):**
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WADA is an international organization. All countries that want to implement anti-doping regimes following international norms have signed up to WADA. Each country has its own national anti-doping agency. In New Zealand, it's Drug Free Sport New Zealand, while Australia has the Australian Sports Anti-Doping Agency. WADA sets the rules for acceptable and unacceptable behavior in anti-doping, including defining anti-doping rule violations (ADRVs) and publishing the prohibited list, which outlines substances and methods prohibited for athletes' use.
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**Chris Patterson (1:08:50):**
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Under our domestic legislation, the Anti-Doping Rules give effect to WADA's policies and rules. Drug Free Sport New Zealand plays a critical role in educating athletes and all those involved in sports, from coaches and administrators to parents. Doping findings can have serious consequences, including suspensions and bans from sport, affecting both athletes and organizations.
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**Aaron Lloyd (1:09:29):**
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Both athletes and organizations can face bans under the Act, and the bans can last for two or four years, sometimes even longer for organizations with multiple athletes involved in doping scandals. Drug Free Sport New Zealand takes a proactive role in educating and regulating anti-doping and has recently been involved in discussions about the possibility of forming a new sports integrity organization for New Zealand. This change is similar to what has occurred in Australia with the establishment of the Australian Sports Integrity Authority.
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**Chris Patterson (1:11:14):**
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For this to work, and by "this," I'm referring to having a fair and clean sport, it's great that Drug Free Sport is well-staffed and well-resourced, doing a lot of good work. However, that's only part of the solution. There has to be buy-in from all the other participants in sport. Because there will be pressures on some athletes, and there are also what I call "innocent" WADA rules violations, cases where the athlete didn't realize what they were doing was wrong but are still punished because of the strict liability scenario. You are responsible for what goes into your body.
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**Aaron Lloyd (1:12:07):**
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Correct. Oftentimes, education is the starting point, and it can be a silver bullet. When you look at all the cases of anti-doping violations in New Zealand, they usually fall into two categories: athletes who deliberately violated the rules and knew they were not allowed to do it, and those who inadvertently violated the rules because they didn't understand. Education can help with the first category by dissuading athletes from intentionally violating the rules. The second category, with inadvertent violations, can also be addressed through education. Education is a powerful tool to prevent doping violations, and Drug Free Sport plays a significant role in this area.
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**Chris Patterson (1:14:55):**
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Agreed. I often advise sports administrators, CEOs, and board members to understand the risks their organizations face. They should be aware of the integrity risks such as doping, match-fixing, and athlete welfare issues, which could harm the organization's reputation. It's the responsibility of sports governance to invest time and resources into taking preventive measures and avoiding such scandals.
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**Chris Patterson (1:15:23):**
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Have you come across the misconception that WADA's anti-doping rules only apply to professionals or international athletes?
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**Aaron Lloyd (1:15:23):**
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Yes, it is a misconception. The reality is that anyone playing organized sports in New Zealand, whether at an elite, sub-elite, or purely recreational level, is subject to the WADA Anti-Doping Code and New Zealand's anti-doping rules. The key factor is whether they are a member of a sporting organization that is a signatory to the WADA Code. So even if you're playing golf recreationally and you're a member of a golf club, you're bound by the anti-doping rules.
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**Aaron Lloyd (1:16:24):**
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One improvement in recent years is a more common-sense approach to dealing with recreational athletes regarding anti-doping violations. There's a growing recognition that the response to recreational-level anti-doping violations may not need to be as severe as those at professional levels. However, the principle remains the same: anyone participating in a sport under a WADA-signatory organization is subject to anti-doping rules. While it may not be ideal for government funding to police anti-doping at recreational levels, some level of regulation and education is still essential. A balanced approach is needed.
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**Aaron Lloyd (1:21:11):**
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That's why there needs to be a distinction between someone who is a serious athlete and someone who is not. For recreational club golfers, if they accidentally breach the rules because they're taking something for hair growth or unrelated reasons, it probably doesn't matter. They're unlikely to be subjected to testing. Even if they get caught up in some kind of violation, the response should be more proportionate than what we had five years ago. But it highlights the importance that if you're a serious athlete at any level, you should be familiar with what is allowed and what's not allowed. You should also be cautious about what you put into your body. That's a fundamental role in sports and anti-doping.
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**Chris Patterson (1:22:13):**
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Or even high school-level athletes because a four-year ban at that stage could end their career.
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**Aaron Lloyd (1:22:57):**
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Exactly. I once represented a rugby player who, at 18, ordered human growth hormone as a joke. They had no intention of using it, but they got caught. That young, talented athlete faced a four-year ban, which was a severe setback. The message to all athletes or parents of aspiring athletes, especially at the high school level, is to be extremely careful about what you consume. Check the prohibited lists, buy from reputable companies, and research before taking supplements. Organizations should also take steps to minimize the risk of anti-doping violations.
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**Chris Patterson (1:25:21):**
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Let's switch gears but stay with integrity and move on to two other areas quickly before we wrap up. It has been a fantastic discussion. Let's talk about match-fixing in sports wagering as an integrity issue. How does that fit in with our laws?
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**Aaron Lloyd (1:25:21):**
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New Zealand, in recent years, amended the Crimes Act to specifically criminalize the fixing of sports events. It's now a criminal offense under our Crimes Act, akin to fraud offenses. This is in line with an international trend, as Australia has also criminalized it. Match-fixing and doping are two of the biggest threats to the integrity of sport. The appeal of sports lies in its unpredictability, drama, and genuine competition. If you know that the outcome is scripted, it undermines the value of sport. Match-fixing and manipulation destroy this value and should be taken seriously. New Zealand is committed to enforcing the standards around doping and match manipulation. Measures like banning athletes from gambling and sharing information are essential to prevent sports manipulation, protecting the integrity of the sport and maintaining the excitement and unpredictability it offers. I've worked on match-fixing cases, such as Chris Cairns' allegations, where he was alleged to have fixed matches. I was successful in defending Chris in a defamation trial. Corruption in sport can be deeply unpleasant and sophisticated, particularly in other parts of the world. Corruption destroys the value of sport, making it less appealing to the public and participants. Knowing that the outcome is fixed takes away the genius and drama of it, undermining the beauty of the sport.
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**Chris Patterson (1:29:45):**
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And the Warriors are going through a tough time. We talked about refereeing, and the importance of that, but I won't get into too much detail on that topic. Let's move into one final area, which is incredibly important to me, and it's a growing area that I'm pleased is receiving attention, and it's safeguarding. Can you tell the listeners what safeguarding is and where we are with it?
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**Aaron Lloyd (1:30:17):**
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Safeguarding is about the steps that sports take to ensure that the participants in that sport are safe. It's about making sure that sports are safe and free from harm. The most significant aspect of it is the prevention of child abuse in sports, ensuring young people's safety. It's about athlete welfare and participant welfare. It covers issues like sexual abuse, but it's not limited to that. It also includes addressing bullying, harassment, discrimination, and other forms of harm. Safeguarding is about making sure that sports organizations are aware of the risks and have the right policies and processes in place to minimize those risks.
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**Chris Patterson (1:31:16):**
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Education also plays a role in safeguarding, doesn't it?
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**Aaron Lloyd (1:31:16):**
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Yes, education is vital. It's not just about preventing sexual abuse but also addressing bullying behaviors, harassment, and discrimination. Safeguarding encompasses all aspects of participant welfare and athlete welfare. It's about promoting an environment where athletes and participants are safe and free from harm.
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**Chris Patterson (1:32:10):**
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And it's about making the line less gray and giving people clear guidance on what's acceptable behavior.
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**Aaron Lloyd (1:32:10):**
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Exactly. Providing clear policies and procedures helps define acceptable and unacceptable behavior, making the line between them clearer.
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**Chris Patterson (1:34:28):**
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One issue I've observed is parents getting too enthusiastic on the sidelines of youth sports, yelling and screaming. It can detract from the experience for the kids. The best thing parents can say is, "I enjoyed watching you play." Leaving it at that can lead to positive outcomes for the children.
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**Aaron Lloyd (1:35:26):**
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It's natural for passionate sports fans, including parents, to want to comment or yell from the sidelines. It's a behavior we often see in ourselves when watching sports. However, it's essential to educate and raise awareness to change this culture. Some sports organizations have used sandwich boards on the sidelines to remind parents that kids are out there to enjoy themselves, and excessive yelling or criticism can negatively impact their experience. Respect is the key; respecting people is the fundamental principle.
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**Aaron Lloyd (1:35:58):**
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Respect and education play crucial roles in safeguarding, creating a safer and more positive environment in sports. It's about building a culture of respect for all participants, including match officials.
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**Chris Patterson (1:36:01):**
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Respect is essential, but recent debates about referees in the NRL show how challenging it can be. It raises questions about free speech and respect for match officials. Accusing match officials of cheating or deliberately attacking the integrity of the sport is a severe issue. However, when match officials make mistakes, it's essential to address them and debate them.
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**Aaron Lloyd (1:36:30):**
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Balancing the need to hold match officials accountable for their mistakes while maintaining respect is challenging but necessary for the integrity of the sport.
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**Chris Patterson (1:38:06):**
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When we discuss referees, particularly when they're professionals, there's a distinction between professional referees and...
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**Aaron Lloyd (1:38:11):**
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At the same time, you can't expect perfection, right? We don't expect perfection from players, and that's why match officials should be allowed some margin for error. We need to have leniency for match officials just as we do for players.
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**Chris Patterson (1:38:38):**
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We have selective memory. We remember and debate adverse referee calls for weeks or months, but we quickly forget the ones that go in our team's favor.
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**Aaron Lloyd (1:39:01):**
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Exactly, as long as the refereeing is consistent and balanced, we can handle mistakes.
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**Chris Patterson (1:39:50):**
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It's essential to address poor refereeing and debate it when it occurs. But we should differentiate between holding match officials accountable for their mistakes and accusing them of bias or cheating.
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**Aaron Lloyd (1:40:28):**
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Respect is the key, and we need to be passionate but respectful when discussing referees.
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**Chris Patterson (1:41:49):**
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We should remember that children learn from adults, and sports offer a great opportunity for them to learn values like sportsmanship and respect for others. Demonstrating good sportsmanship at all levels is essential for the development of the next generation.
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**Aaron Lloyd (1:42:23):**
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At the professional level, we often see players who have spent 80 minutes physically competing against each other come together with genuine camaraderie. That's the beauty of sports, the camaraderie that exists beyond the competition.
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**Chris Patterson (1:43:10):**
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Thank you, Aaron Lloyd, for joining me on *The Law Down Under Podcast*. We've covered a lot, and while we could talk for hours, we'll wrap it up. Aaron Lloyd, sports lawyer, thank you for this great discussion.
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**Aaron Lloyd (1:43:13):**
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You're welcome, Chris. Thank you.
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**Chris Patterson (1:43:13):**
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Thank you for tuning in and listening to this episode of *The Law Down Under Podcast*. You're welcome to join the discussion on my podcast page at patterson.co.nz. Thank you for supporting the podcast. Stay tuned for more discussions on the law, its application, and the future of the law in the Southern Hemisphere.