New Zealand competes on the international sporting stage, belying its modest population of approximately 4.9 million.2 Rugby Union plays a strong part in New Zealand's sporting identity. The All Blacks were inaugural winners of the Rugby World Cup in 1987, and following victory in 2015, became the first team to win three world championships, and to defend back-to-back titles. New Zealand's national men's and women's Rugby Sevens teams have won multiple world championships, and the Black Ferns (the women's national 15-a-side team) won its fifth World Cup at the 2017 World Rugby Women's World Cup held in Ireland.
Rugby Union is not the only sport in which New Zealand excels. At the 2016 Rio Olympics New Zealand finished 14th overall in terms of total medals, and 19th in terms of medal type.3 New Zealand has also enjoyed success belying its modest size in yachting (particularly the America's Cup, which it most recently won in 2017), rowing, cycling and athletics. The national women's netball team and national men's rugby league team have been crowned world champions, and its national men's cricket team, the Black Caps, recently finished runner-up to Australia in the 2015 Cricket World Cup. NBA star Stephen Adams has become New Zealand's highest paid sportsperson, edging Premier League footballer Winston Reid. The appointment of young motor racing driver, Brendon Hartley, to the Torro Rosso Formula 1 team in 2017 echoes not only historical success in that sport (past drivers include Bruce McLaren, Chris Amon, Jack Brabham and Denny Hulme), but also contemporaries of Hartley (such as Earl Bamber with whom Hartley won the Le Mans 24 Hour in 2017, Scott Dixon (IndyCar) and Hayden Paddon (WRC)).
In sports administration, New Zealand also contributes significantly on the international stage. A number of leading officials and administrators in rugby, cricket, netball, athletics, sailing and rowing come from New Zealand. In addition, pioneering sports lawyer David Howman, the founding director-general of the World Anti-Doping Agency (WADA), and Maria Clarke (a key participant in the recent overhaul of governance at the IAAF) are both 'Kiwis'.
As sport has become more commercial, the law across the globe has developed accordingly. New Zealand law is no different, especially as it has taken a leading role in some of the most commercially successful global sports such as rugby, cricket and the America's Cup.
In this chapter, we look at the sports law landscape in New Zealand, and how sports administrators and legal practitioners might engage with the legal system in the sporting environment.
II ORGANISATION OF SPORTS CLUBS AND SPORTS GOVERNING BODIES
i Organisational form
A range of legal entities are used by sports clubs, national sporting organisations (NSOs), and professional sports organisations and teams in New Zealand.
The most common legal entity in sport in New Zealand is the incorporated society. An incorporated society is a membership-based organisation provided for under the Incorporated Societies Act 1908. An incorporated society has its own legal identity, separate from its members, and the group must exist for some lawful purpose other than making a profit. The incorporated society must have in place rules that govern the operation of the entity. Decisions of an incorporated society may be amenable to judicial review in the court system, given that the actions of an incorporated society are undertaken pursuant to statutory powers provided for in the Incorporated Societies Act. Examples of sporting organisations incorporated in this manner include New Zealand Cricket, New Zealand Rugby and its member unions,4 and New Zealand Netball. In addition, players' associations have also traditionally been formed as incorporated societies in New Zealand, often registering as a union under New Zealand employment law. Examples of this include the New Zealand Rugby Players Association (NZRPA),5 the New Zealand Cricket Players Association6 and the New Zealand Netball Players Association.7
Historically, many sporting organisations have, in addition to being formed as an incorporated society, sought registration as a charity (currently under the Charities Act 2005). However, to obtain charitable status certain requirements need to be met, including the requirement that the organisation benefit the community as a whole (thereby excluding sporting organisations that are focused on elite level sport).8 Reform of this area of the law has been under discussion for some time, although concrete legal reform has failed to materialise. A change in government in late 2017 means the scope of future reform is now unclear. However, change is likely at some stage, and care should be taken to ensure compliance with current and future legal requirements in this area.
The limited liability company is a commonly used legal entity under New Zealand law (currently provided for by the Companies Act 1993). Less common in sport than the incorporated society (particularly with community or amateur sports organisations), the company nevertheless has significant benefits as a legal entity, particularly for sporting entities wishing to engage in trade with any desire to make a profit. The use of the company is often combined with partnership (or limited partnership) arrangements, particularly in the 'franchise' sporting sector. Examples of such an approach can be seen in professional rugby, where the Super Rugby franchises in New Zealand (Blues, Chiefs, Hurricanes, Crusaders and Highlanders) are all structured utilising company or partnership structures, or both.
ii Corporate governance
The Incorporated Societies Act and the Companies Act both prescribe procedural and organisational requirements for incorporated societies and companies, although New Zealand law is not particularly prescriptive regarding its governance requirements. For example, New Zealand registered companies can, as a matter of law, have sole directors. While some sectors have in place additional governance and regulatory requirements (most notably the finance sector), there is no law in New Zealand providing for mandatory governance arrangements in the sporting context.
There is, however, a push in New Zealand to see 'best practice' and 'good governance' models put in place in sporting organisations. This is driven largely by government policy and funding organisations, such as Sport New Zealand.9 Sport New Zealand has worked extensively to produce a range of resources for sports organisations in relation to matters of governance. Some resources, such as its Nine Steps to Effective Corporate Governance, provide broad guidance as to best practice for sports organisations' governance and management.10 In addition, specialist resources focus on areas such as health and safety,11 event risk management12 and sports integrity topics such as match-fixing.13 Sport New Zealand has also produced a template set of rules to establish a framework for sporting organisations set up as incorporated societies. In some cases, Sport New Zealand insist on sports organisations adopting best practices before government funding or assistance will be provided, at both the community and elite or high-performance levels (through Sport New Zealand's related organisation, High Performance Sport New Zealand).
iii Corporate liability
Directors and officers of sports organisations carry potential liability under general New Zealand law such as the Companies Act and the Crimes Act 1963. With the exception of recent amendments to the Crimes Act to confirm match-fixing or manipulation as a criminal offence, there are very few, if any, sporting-related offences under the general law. As a rule, sporting rules and regulations are a matter of private law rather than public law.
The area of health and safety is, however, an area worthy of specific mention. 2015 saw the passage through Parliament of the Health and Safety at Work Act 2015. This was the biggest reform of health and safety law in New Zealand in more than 20 years. It followed not only the Pike River Mine Disaster of 2010, but also the recognition of New Zealand's generally poor health and safety record in the workplace compared with similar countries in the Organisation for Economic Co-operation and Development. This was observed by the Independent Taskforce on Workplace Health and Safety, which was put in place by the government in June 2012 to report to the Minister of Labour on whether New Zealand's workplace health and safety system was fit for purpose. Its report to the Minister in April 2013 made it clear that it was not, and this led to legislative reform and the establishment of an independent regulator, WorkSafe New Zealand (which received an increase in funding).14
Directors and officers of entities owing duties under the Health and Safety at Work Act have specific duties of due diligence in relation to health and safety matters. These duties, new to New Zealand law, require directors and officers to take significant proactive steps to ensure health and safety is properly considered and implemented by their organisations. Significantly, a failure to comply with these obligations (as with other obligations under the Act) can result in individual criminal liability, and penalties including fines, imprisonment, or both. Under the legislation, it is illegal to put in place insurance or any other form of indemnity for fines, meaning that directors and officers will be personally liable for any fines should they commit a breach. Individuals can be fined up to NZ$600,000 or face up to five years' imprisonment.
IIi THE DISPUTE RESOLUTION SYSTEM
i Access to courts
New Zealand operates a parliamentary system in the Westminster tradition, with three divided branches of government (the Parliament, the executive and the judiciary). Unlike the United States, Canada and Australia, New Zealand has no written constitution. However, the Constitution Act 1986 does record many of New Zealand's constitutional arrangements.
New Zealand has a hierarchical and specialist court system. The main law courts are the District Court and the High Court, which have both criminal and civil law jurisdiction. In addition, the Environment and Employment courts sit with specialist jurisdiction. The Court of Appeal (which hears appeals from the High Court and the specialist courts, and some appeals from the District Court) sits as a superior appeal court. The final appeal court in New Zealand is the Supreme Court, which was established in 2004 to replace appeals to the Judicial Committee of the Privy Council based in London. In addition to the courts, there are various administrative tribunals under New Zealand law, including the Disputes Tribunal (which generally hears civil claims of less than NZ$15,000) and the Employment Relations Authority (a first instance tribunal for the hearing of employment-related claims).
Sports disputes can, and do, end up before any of New Zealand's courts or tribunals. Employment disputes may be heard in the Employment Relations Authority or the Employment Court. Matters related to planning and resource consents may be heard by the Environment Court (usually after first instance planning decisions or hearings at local government level). Commercial disputes alleging breach of contract, negligence or claims in equity will often be advanced in the District Court or High Court. One recent example is the High Court litigation between media outlets TVNZ and NZME, and pay-tv broadcaster Sky TV, with respect to 'fair use' by the media outlets of Sky TV's licensed sports content.15
Pure sports matters, however, such as selection disputes, doping or other integrity-related matters, or matters involving on-field or on-court disciplinary matters, are rarely heard in the court system, with such matters being heard within the sport's own disciplinary tribunals, or through the Sports Tribunal of New Zealand (the Tribunal), a statutory body set up to determine sports disputes. Notable exceptions usually take the form of applications to the High Court for the judicial review of decisions made by sporting bodies. Examples of such actions from the sports of rugby and horse racing include Finnigan v. NZ Rugby Football Union Inc  2 NZLR 159 and Cropp v. A Judicial Committee and ANOR SC 68/2007.
ii The Sports Tribunal of New Zealand
The Tribunal was established in 2003 to hear and determine 'certain' disputes in sport. Its membership is composed of lawyers, doctors, former athletes and other notable individuals with experience in the sports industry. Its chair is required to be a lawyer (of senior standing), and is currently the former president of the Court of Appeal, Sir Bruce Robertson.
The Tribunal operates pursuant to the Sports Anti-Doping Act 2006, and hears and determines:
- anti-doping violations;
- appeals against decisions made by an NSO or the New Zealand Olympic Committee (NZOC) if the rules of the NSO or the NZOC allow for an appeal to the Tribunal;
- other 'sports-related' disputes that the parties agree to have referred to the Tribunal; and
- matters referred to the Tribunal by the Board of Sport New Zealand.
The Tribunal is government funded, and maintains a register of sports lawyers willing to assist athletes and sports organisations in disputes before the Tribunal on a pro bono or reduced-fee basis.16
Almost all sporting codes that are a signatory to the WADA Code submit the hearing of their anti-doping matters to the Tribunal. The most notable exception, at least in the New Zealand context, is rugby, which has its own anti-doping hearings consistent with the Code.
The Tribunal is seen as an alternative to the Court of Arbitration for Sport (CAS) for the resolution of sports disputes in New Zealand. That said, CAS is still utilised, either as an alternative to the New Zealand court system or the Tribunal, or on appeal from decisions of the Tribunal.
Iv ORGANISATION OF SPORTS EVENTS
i Contractual relationships
Contract law provides the legal foundation for many of the relationships present in relation to the conduct of sports events. The common law of contract (borrowing heavily from the United Kingdom and other Commonwealth jurisdictions) is supplemented by a range of statutes, including the Contract and Commercial Law Act 2017, the Consumer Guarantees Act 1993 and the Fair Trading Act 1986. In some cases, entities may have procedural requirements that must be met for entry into contracts: for example, for incorporated societies, a requirement to use a 'common seal'.
ii Accident compensation scheme
A significant feature of the New Zealand legal landscape is the accident compensation scheme (currently governed by the Accident Compensation Act 2001). The scheme, introduced in the 1970s, provides for a state-funded compensation and medical treatment scheme for all persons in New Zealand who suffer 'injury by accident'. A consequence of the scheme is that it generally bars legal action for personal injury.
The scheme has been eroded over time, and there are some exceptions to the bar against suing for personal injury. However, in general terms the prohibition remains, and this makes New Zealand quite unlike any other major legal jurisdiction in that people injured in accidents cannot sue those responsible.
This is significant in both event organiser and spectator relationships, and between event organisers or clubs and athletes participating in their events.
iii Potential liability for event organisers
Notwithstanding the existence of the accident compensation scheme, significant risk of personal and corporate liability stills exists under New Zealand law for event organisers. The risk of claims for alleged breaches of contract or for acts of negligence causing non-injury-related losses remains, and disputes in such regard are often proceeded with before the courts or using forms of alternative dispute resolution.
In addition, criminal liability can attach to the operation of an event should such an event breach the regulatory requirements for permits or consents, create risk of reckless endangerment, or otherwise promote, encourage or cause illegal activity (such as a breach of transport laws).
Finally, as noted above, reform in the health and safety area creates an increased and significant risk for event organisers should they fail to undertake appropriate due diligence, planning or execution of an event from a health and safety perspective.
V COMMERCIALISATION OF SPORTs EVENTS
i Increasing value of 'sports rights'
Sport as a business is about the 'commercialisation' of sporting 'products' and 'rights' by sports organisations and those associated with them. As in other jurisdictions, New Zealand law allows for a range of participants in the sports sector to commercialise and profit from their sporting activity, depending upon the role they play.
Broadcast rights remain among the most valuable of sporting rights present in the New Zealand market, depending on the popularity of the sport. Rugby, cricket, netball and rugby league all have significant broadcast deals in place, allowing pay-tv broadcaster Sky TV to broadcast those sports in New Zealand, and for offshore broadcasters to broadcast New Zealand sporting content abroad. Unlike Australia, New Zealand has no legislation in place requiring sport to be made available on free-to-air television. In practice, state-owned broadcaster Television New Zealand, and private free-to-air broadcaster MediaWorks (which operates TV3), provide some free-to-air sports broadcasting. In addition, Prime TV (a free-to-air TV channel owned and operated by Sky TV) offers free-to-air coverage of sports, often as delayed coverage of events that Sky TV holds the principal broadcasting rights to.
The entry into the market of over-the-top broadcasting of sport in New Zealand has been a major disruptor in sports broadcasting in recent years. This started with some major sports broadcasting content, such as live English Premier League Football (EPL) and USPGA Golf, being only available in this format. Alternative products, such as club-specific broadcast content (with respect to the EPL, club TV channels such as MUTV, LFCTV and Chelsea TV), were picked up by the historical football broadcaster Sky TV, but this resulted in delayed rather than live coverage, and only on the pay-tv platform. Sommet Sports TV (SSTV) entered the New Zealand broadcast market for a brief period of time, with a free-to-air sports television service. SSTV's content drew largely on minority sports (e.g., the Australian Football League, surfing, bull-riding) or on alternative content for more mainstream sports (e.g., the German Bundesliga in football, the Caribbean Premier League in cricket). However, SSTV went into liquidation in December 2014 and ceased broadcasting.
As the delivery market for sports broadcasting has matured in the past two to three years, there was an initial swing back toward the main players (and in particular Sky TV) obtaining broadcast rights, although this has, in part, involved those traditional players developing their own over the top or internet-based delivery platforms. The requirement for innovation to continue is highlighted by the publicly observed decline in Sky TV's subscription numbers throughout 2016 and 2017, with some media reporting value of up to NZ$300 million wiped from Sky TV's market listing, and further losses for the business likely as subscriber numbers continue to decline.17 In 2017, developments in this area continued, with Sky TV losing out on rights to broadcast the next Rugby World Cup, Formula 1, the Heineken Cup (rugby) and the English Premier League (football), to local telecommunications company Spark.18
Outside broadcast rights, image rights, merchandising and sponsorship remain significant commercial commodities, although overall value is often limited by the relatively small nature of the New Zealand sporting market. Some New Zealand sporting brands, such as the All Blacks (rugby) and Team New Zealand (yachting), have significant global value, as evidenced by New Zealand Rugby's global sponsorship arrangements with adidas and with insurance giant AIG and Team New Zealand's association with Emirates Airline. In 2016, New Zealand Rugby ceased its commercial relationship with Coca-Cola Amatil New Zealand Limited (the local Coca-Cola affiliate) in favour of a relationship with Gatorade.19 While this may look like swapping one multinational beverage sponsor for another, the manner in which the Gatorade sponsorship was launched (with the All Blacks being 'welcomed' to 'the family', which included such international sports stars as Usain Bolt and Lionel Messi) indicated the increasing value of the All Blacks brand in overseas sporting markets.
At the athlete level, individual contractual arrangements for the use of image rights or for sponsorship are common. However, it is important to ensure that individual contractual arrangements do not interfere or conflict with overarching arrangements entered into by a club or NSO. In some sports, rules provide for dealing with such conflicts, and the employment arrangements between New Zealand Rugby (NZR) and its players (represented by the NZRPA) is a good example of athletes permitted to personally endorse non-competing products or services to those that sponsor NZR.
ii Rights protection
New Zealand has strong laws relating to copyright, trademarks and other intellectual property, providing rights holders with significant legal protection against improper use. New Zealand law recognises automatic copyright protection for the creator of original works. In addition, application can be made for intellectual property protection for a range of other forms of intellectual property, including trademarks. While New Zealand law does not prohibit parallel importing of merchandise, the New Zealand Customs Service (the government agency responsible for policing New Zealand's borders) is tasked with intercepting and holding pirated and counterfeit goods, and interfaces with commercial entities with respect to this.
A significant development in New Zealand's rights protection landscape was the passage of the Major Events Management Act 2007 (MEMA). MEMA allows events designated as 'major events' to have special rights protections put in place to preserve the economic value for sponsors and commercial partners involved in the events. MEMA creates criminal offences for those who use protected words and emblems without authorisation, and creates clean zones around event venues where commercial entities that are not formally associated with the event cannot advertise. MEMA is a major tool for the avoidance of ambush marketing and for the protection of sports events' economic rights.20 Events that have operated with MEMA protection in New Zealand include the 2010 Rowing World Championships, Rugby World Cup 2011, FIFA U-17 World Cup 2015, International Cricket Council Cricket World Cup 2015 and the Rugby League World Cup 2017.
Vi PROFESSIONAL SPORTS AND LABOUR LAW
i Mandatory provisions
Professional athletes are generally engaged as either 'employees' or as 'independent contractors' depending on the nature and extent of the relationship between the athlete and his or her sport.
Employment arrangements are governed by the Employment Relations Act 2000, and related statutes including the Human Rights Act 1993, the Health and Safety at Work Act and the Holidays Act 1993.
Employment law in New Zealand prescribes minimum entitlements for employees, including minimum hourly wage rates (currently NZ$16.50), the requirement to provide holidays and to pay additional remuneration to employees who are required to work on those holidays, and the documentation of employment terms and conditions in writing. In addition, New Zealand is not an 'at will' employment jurisdiction. Accordingly, unless an employee is engaged on a valid fixed-term employment arrangement, his or her employment may only be terminated for cause or in the case of redundancy or medical incapacity, and only after the employer follows a fair process (which requires employers to provide sufficient information relating to any decision that might affect the future employment of the employee to him or her ahead of any decision about his or her employment being made, and allowing him or her an opportunity to comment on the same to the employer).
Whether someone is an employee or an independent contractor is a significant matter under New Zealand employment law. With only limited exceptions (the motion picture film industry being the principal example), whether someone is an employee or a contractor will not turn on how they choose to describe the relationship, but whether in fact their relationship is one or the other. If an employing sports organisation gets this wrong, and engages employees as independent contractors, there can be significant consequences if that position is successfully challenged (including the requirement to provide minimum employment entitlements that may not have been provided to a contractor, and the payment of unpaid income taxes).
In practice, athletes in New Zealand operate as both employees or independent contractors depending on the sport and the nature of the engagement. Professional rugby players, for example, are employees, while professional cricketers operate on an independent contractor model. Such arrangements are yet to be subject to any significant scrutiny by the courts, and notwithstanding the difference, both rugby and cricket employ a collective approach to bargaining of terms of engagement for the players through their respective player associations.
ii Free movement of athletes
It is common practice in New Zealand sporting leagues, and for New Zealand-based teams in Australian-run leagues, to place limitations on the number of foreign athletes allowed to compete in the competition. Examples include rugby's Super Rugby competition, netball's ANZ Premiership Competition (and the former Trans-Tasman Netball League) and the Australian NBL basketball league. However, New Zealand does have, in the form of the Human Rights Act, a law clearly prohibiting discrimination in an employment context on the basis of race and ethnic or national origins, meaning that such practices could be open to potential legal challenge.21
The use of 'restraint of trade' clauses in employment arrangements is permitted under New Zealand law where the restriction is necessary to protect the legitimate economic interests of an employing party. This can, and is, used to justify restrictions on the absolute free movement of athletes between respective employers for the duration of an athlete's engagement. In addition, the use of fixed-term employment agreements where both the athlete and the sporting organisation are bound to honour the agreement for its duration can have the same effect. However, there is neither a culture of athlete drafting, nor of transfer fees, in the New Zealand sporting landscape such as exists in many offshore jurisdictions. In practice, transfer fees may arise out of the operation of private law arrangements put in place by international governing bodies. World Rugby's provisions requiring compensation payments between unions transferring professional players is one example.22 Another case where this might arise is where clubs agree a release fee to compensate a club where an athlete is leaving before the end of his or her contract term, particularly where the transfer is cross-competition (e.g., Rugby League to Rugby Union).
VII SPORTS AND TAXATION
New Zealand has a variety of different taxation rules that are relevant to sporting organisations and athletes that carry out activities in New Zealand. Sporting organisations and athletes that are New Zealand tax residents will generally be required to pay New Zealand income tax on their worldwide income. An individual that is either present for more than 183 days in a 12-month period, or has a 'permanent place of abode' in New Zealand, will be tax resident in New Zealand. Sporting organisations will be tax resident where they are incorporated, have a head office or are centrally managed in New Zealand.
The rate of income tax applicable will depend on the particular characteristics of the sporting organisation or athlete. For most incorporated sporting organisations, a 28 per cent tax rate will apply. However, sporting organisations that are charities or non-profit bodies established to promote amateur sport may be tax exempt. Athletes are taxed at graduated income tax rates of between 10.5 and 33 per cent.
A New Zealand tax resident athlete could be either an employee or an independent contractor for tax purposes (or in some cases both). Where the athlete is an employee, their employer will be required to deduct any tax on any employment income they derive at source under New Zealand's pay-as-you-earn (PAYE) system. An independent contractor athlete will generally be required to pay tax on their income themselves, and must file an individual tax return each year.
Non-resident sporting organisations and athletes will generally only pay New Zealand tax on income that is deemed to have a New Zealand source. In most cases, the New Zealand party that makes payments to the non-resident organisation or athlete will be required to deduct the applicable tax out of payments to the non-resident sporting organisation or athlete at source under the PAYE rules. The applicable deduction rate will generally be 20 per cent and the deducted tax will generally be treated as a final tax from the perspective of the non-resident.
Most tax treaties entered into by the New Zealand government include Article 17 of the Organisation for Economic Co-operation and Development Model Tax Convention, which allows income from the activities of entertainers and sportspersons to be taxed in the country in which those activities are performed. A limited number of tax treaties include provisions that prevent Article 17 from applying to certain sporting events (e.g., league competitions in New Zealand's tax treaty with Australia). As a result of the complex nature of taxation laws, and the additional complications created by sport often being cross-border, it is strongly advised that specialist taxation advice is sought when structuring sports arrangements in or connected to New Zealand.
VIII SPECIFIC SPORTS ISSUES
Sports doping is not a criminal offence in New Zealand, although some of the substances used to dope might be regulated or prohibited under medicines or narcotics legislation. Relevant legislation includes the Medicines Act 1981 and the Misuse of Drugs Act 1971. New Zealand is a signatory to the WADA Code, and has a national anti-doping organisation in the form of Drug Free Sport New Zealand (DFSNZ).23 As noted earlier, proceedings against athletes and others for anti-doping rule violations are generally heard by the Tribunal, although some sports retain the operation of their own anti-doping tribunals.
New Zealand has a legal but highly regulated betting market. The New Zealand Racing Board (NZRB) is a statutory body (state-controlled) that regulates the racing industry, and manages all legal gambling on racing and sport.24 Betting is permitted on a range of sports, and legislation requires the NZRB to make payments to NSOs with respect to gambling on their sport (irrespective of whether the gambling is on New Zealand or foreign examples of the sport). This is a major source of funding for a number of New Zealand sports.
In 2014, Parliament passed an amendment to the Crimes Act confirming that any manipulation of the outcome of a sports event or any part of a sports event with the intent to influence a betting outcome would amount to a breach of the crime of obtaining by deception.
The Crimes Act (Match-Fixing) Amendment Act 2014 inserted a new Section 240A to the Crimes Act to specifically include instances of match- or spot-fixing in a sporting event as falling within the crime of obtaining by deception (Section 240) where the person involved intended to influence a betting outcome. The amendment does not, therefore, capture instances of match- or spot-fixing that are unrelated to gambling, and instead motivated by another purpose, or where the intent to influence a betting outcome cannot be made out. Anyone convicted under the law is liable to a term of imprisonment of up to seven years. As of the time of writing, no prosecutions have yet been taken under this legislation.
IX THE YEAR IN REVIEW
The Tribunal, which hears the majority of New Zealand's anti-doping cases, reported 19 anti-doping decisions in the year to publication, up from eight in the previous year, and four the previous year to that.25 A significant reason for the increase in anti-doping violations is the increase in non-analytical investigations, conducted by DFSNZ, in conjunction with government agencies Medsafe and Customs.
Of the 19 cases, 10 of them were as a result of such action, with nine of them resulting from one investigation (a combined Medsafe, Customs and police investigation into the website 'clenbuterol.co.nz', which resulted in the operator of the website being jailed, and information in relation to athletes passed on to DFSNZ). The remaining case involved the interception of erythropoietin by Customs.
Of the remaining nine cases, two related to a Rugby League athlete who breached a previous anti-doping ban; one for the athlete and one for his coach who was found to have encouraged his ban. A third proceeding in relation to an administrator who was alleged to have also encouraged the breach was dismissed. The remaining six cases were all analytical findings, for the substances terbutaline, higenamine, GW1516, testosterone and dimethylpentylamine. Of the 19 cases, six were in Rugby League, two each in cycling, basketball, ice hockey and cricket, and one each in powerlifting, athletics, hockey and muaythai (a form of martial art). The final case involved a minor, and so no details regarding the sport are recorded.
The obvious trend is the increase in non-analytical prosecutions. The use of supplements without proper checking, and the use of medication without considering alternatives, also remains an issue for athletes.
In addition to the Tribunal's decision, one decision was also delivered by the CAS in 2018, being the case referred to last year involving cyclist Karl Murray. Murray had received a regional ban in New Caledonia in 2014 following a positive anti-doping test. That ban was recognised by the Union Cycliste Internationale and became a global ban as a result. It was alleged in 2016 by DFSNZ that Murray had violated that ban by coaching athletes. Murray was initially successful in proceedings before the Tribunal, but DFSNZ appealed to CAS and CAS upheld part of the appeal, finding Murray had breached his ban, but not overturning the Tribunal's decision that Murray was not liable for 'tampering' as a result of misleading DFSNZ. The end result, therefore, was that Murray had to re-start his New Caledonian ban. However, while the parties awaited the CAS decision, Murray tested positive for the prohibited substance clenbuterol. Murray alleged that there had been discrepancies in the testing process, but the Tribunal ruled against Murray, and he was sanctioned for an anti-doping rule violation. After unsuccessful challenges to jurisdiction (Murray claimed he was not a member of Cycling NZ at the time of the test, but that argument was rejected by the Tribunal), and further argument as to whether the New Caledonian ban counted as a first anti-doping rule violation under the WADA Code (it did, notwithstanding the argument that it was not a Code-compliant regime at the time), Murray was issued with an eight-year suspension.
Finally, it is worth noting that, in addition to the 20 cases noted above, a further 11 anti-doping cases were heard by the New Zealand Rugby Anti-Doping Judicial Committee, which retains jurisdiction to hear WADA Code violations in rugby, separate from the Tribunal. Of these 11 cases, 10 arose from the clenbuterol.co.nz investigation referred to above. The remaining violation was by a female provincial rugby player who took an amphetamine substance to stay awake while driving home, having been told by her travel companion that it was Ritalin and it would help her stay awake.26
ii Other Tribunal disputes
In addition to the anti-doping cases noted above, the Tribunal heard five other cases of significance in the year to publication. The case of Sloan Frost followed earlier proceedings in the Tribunal in 2017, relating to results and the process of appeals conducted by Motorcycling NZ in relation to the Superbike series, which Mr Frost was a competitor in. The Tribunal found in favour of Frost in part, and further remitted matters back to Motorcycling NZ for them to deal with. The Tribunal records only one selection dispute decision for the 2018 Commonwealth Games, being the case of Jason Christie, in cycling. Mr Christie failed to overturn his non-selection for the Games. Other selection disputes heard by the Tribunal included the cases of Laurel Hubbard in weightlifting (a failed attempt to require weightlifting to send Ms Hubbard to a pre-Commonwealth Games event), Mitsuko Nam in roller skating (a successful appeal against non-selection for the 2018 World Artistic Skating Championships) and Andi Liu in fencing (a failed appeal against non-selection for the 2018 Commonwealth Senior Fencing Championships).
X OUTLOOK AND CONCLUSIONS
As in recent years, we remain convinced that integrity breaches remain the key risk for sports organisations in New Zealand, and around the world. The potential for a doping, match-fixing or some other corruption scandal to embroil an athlete or a sports organisation must remain of significant concern not only for athletes, but just as importantly sports administrators and governors. If such a scandal does arise, it has the very real potential to cause irreparable reputational and financial harm to sports organisations and to the individuals involved. The integrity scandals surrounding rugby in 2016 and again in 2107 are evidence of both the damage that such matters can cause, but also the need to have defendable practices in place when athletes go 'off-piste'. New Zealand Rugby is to be commended for the work done in 2017 that now sees it out of the headlines.
The government continues to struggle with the appropriate level of intervention in this area, and nothing of significance has been advanced by way of proposed policy change or legislative reform during 2017 and 2018. The relatively recent criminalisation of match-fixing is likely to be followed by the strengthening of criminal laws in relation to doping. Further, any cases of sports corruption (whether flowing from the recent FIFA scandal or in relation to other sports) are likely to be closely investigated and prosecuted under existing anti-bribery and corruption laws, given the importance of sport in terms of New Zealand's economy and global image. However, a key question remains at present as to who would investigate and prosecute such matters. Currently New Zealand has no overarching sport integrity body, resourced and tasked with investigating matters of sports corruption other than the DFSNZ, which has as its ambit only anti-doping. This is something that is likely to be addressed in some way in the near future.
As sport becomes more valuable, commercial disputes are likely to increase, whether in relation to the disrupting and evolving the broadcast market, or in relation to sponsorship or other commercial activity. Athlete power is also growing, and the development of athlete unions beyond the traditional powerhouses of cricket, rugby and netball remains a possibility.
However, the hot topic of the moment remains integrity in sport. It is a topic that is as broad as it is significant, and this is expected to be the touchstone for many of the leading developments in sports law and administration for the near future.
1 Aaron Lloyd is a partner at MinterEllisonRuddWatts.
20 See generally www.majorevents.govt.nz/major-events-management-act-2007.
21 Section 21, Human Rights Act.
22 World Rugby Handbook 2016, Regulation 4.