Is a Domestic Sporting Tribunal hearing a Commercial Arbitration?
Published by Elizabeth Brimer
ASADA v 34 Players and One Support Person  VSC 635 (19 December 2014);  VSC 14 (30 January 2015)
Croft J was asked to consider whether a hearing before the AFL Anti-Doping Tribunal was a “domestic commercial arbitration” pursuant to the Commercial Arbitration Act 2011 for the purpose of issuing subpoenas to compel third parties to give evidence or produce documents.
ASADA and the AFL sought the issue of subpoenas pursuant to section 27A of the Commercial Arbitration Act 2011 (the Act”) to compel Mr Alavi-Moghadam and Mr Charter to give evidence and four corporate entities to produce documents to the AFL Anti-Doping Tribunal (“the Tribunal“) in the Essendon players matter. The central issue determined by Justice Croft was whether the proceeding before the Tribunal was a “domestic commercial arbitration” under the Act.
Croft J. considered the ten criteria of arbitration raised in Walkinshaw v Diniz  2 All ER (Comm) 237. He found that the criteria as applied was consistent with (or not inconsistent with) the Tribunal properly being characterised as a domestic disciplinary tribunal, which operated in a contractual framework under which its decisions were enforceable against those privy to that contractual web. As such, the product of the deliberations of the Tribunal was not an arbitral award.
His Honour found that the type of dispute to which the proceeding related was primarily a conduct and disciplinary dispute with respect to the players and was not commercial in the relevant sense. The relevant relationship to consider for the purpose of determining whether the proceeding was “commercial” was the relationship between the players and the entity. That relationship was analogous to those of employees and other professionals. The proceedings were properly, therefore, characterized as being a labour or employment, and not a “commercial” dispute.
His Honour considered that should it have been necessary to decide the point (it was not as His Honour found that the proceeding was not an “arbitration” nor was it “commercial” in the relevant sense), His Honour would have found, subject to some reservation, that the requirements of subsection 1(3) of the Act were satisfied and that the arbitration would be considered to be a domestic arbitration for the purpose of the Act.
Other findings made by His Honour included that both ASADA and the AFL were parties to the proceeding before the Tribunal, but as His Honour found that the proceeding was a domestic disciplinary tribunal proceeding, the issues in respect of s27A of the Act did not arise. In response to a supplementary submission made on behalf of ASADA that the NAD Scheme provided for a statutory arbitration, His Honour held that the character of the NAD scheme did not change the nature of the proceedings before the Tribunal. This therefore left the matter in the same position as considered previously; that is, the proceedings were not properly characterised as “arbitration” proceedings, nor were they “commercial” in nature.
Consequently, the Act was not available to ASADA and the AFL for the purpose of the issue of subpoenas pursuant to section 27 of the Act.
His Honour refused to issue subpoenas to compel the attendance of the witnesses or the production of the documents. His Honour awarded indemnity costs against ASADA and the AFL.
The case highlights the difficulties of compelling witnesses who are not parties to the relevant contract from attending at or producing documents to a domestic disciplinary tribunal proceeding.
The costs ruling  VSC 14 (30 January 2015), highlights that where a non-party opposes the issue of a subpoena, they are likely to receive indemnity costs, if successful.