Procedural fairness in Australian sports tribunals: Ooi v Ice Hockey WA

The National Sports Tribunal (NST) has made it clear that where a domestic sports tribunal denies a participant procedural fairness, it may change the outcome. Domestic sports tribunals must be conducted so that participants are given a fair hearing.

In Arlene Ooi v Ice Hockey WA (with Ice Hockey Australia) (NST-E25-124664), the NST made clear the standards expected of domestic sports tribunals and sporting organisations. In this matter, Ms Ooi was accused of having breached several Ice Hockey WA (IHWA) policies and was sanctioned for those breaches. On appeal, the NST found that the tribunal had not been conducted in a procedurally fair manner. The NST set aside some of the sanctions against Ms Ooi and significantly reduced the others.

For sporting organisations, the decision shows that even volunteer-run disciplinary processes must meet basic standards of notice, fairness and transparency, or risk being overturned on appeal.

What happened in the Ice Hockey WA tribunal?

Ms Ooi was an ice hockey player, coach and senior official with IHWA, the volunteer-run state governing body for ice hockey in Western Australia. IHWA is a member of Ice Hockey Australia (IHA), the National Sporting Organisation for ice hockey in Australia.

On 30 July 2024, IHWA sent Ms Ooi a letter (Notice). The Notice set out that a tribunal would be convened to consider two incidents:

• an alleged interaction with a minor official at a youth game on 20 July 2024, at which Ms Ooi was a coach; and
• a social media post made on 22 July 2024.

The Notice referred to relevant IHWA policies but did not clearly identify the alleged conduct or specific breaches.

On 31 July 2024, following a request for further information, IHWA advised that it was alleged Ms Ooi had “abused an official who is a minor” prior to the game. No further material was provided before the hearing.

The tribunal, comprised entirely of volunteers, convened on 6 August 2024 (Tribunal). IHWA relied on a statement from the minor official, which was not provided to Ms Ooi. The minor official did not otherwise give evidence at the Tribunal. At the hearing, Ms Ooi was informed she was alleged to have sworn at the minor official and to have posted criticism of IHWA and its coaching selections on social media. She admitted making the post but denied the allegation involving the official.

After the hearing, the Tribunal obtained additional oral evidence from two witnesses without Ms Ooi present and without allowing her to respond.

On 10 August 2024, the tribunal issued its decision in writing (Decision). The Decision set out findings of fact in relation to the first incident. Notably, it stated only that Ms Ooi had “an opportunity” to say what she had been accused of saying. In relation to the first incident, Ms Ooi was suspended from coaching for the remainder of the 2024 season, together with a deferred suspension for the entire 2025 season. In relation to the second incident, Ms Ooi was suspended from representing IHWA until 31 December 2027. The Decision did not clearly identify the policies breached.

Ms Ooi sought to appeal the Decision pursuant to the relevant IHWA regulations on account of a video she had obtained which, she said, exonerated her. Those regulations allowed an appeal where a party could demonstrate that there had been a lack of natural justice or new evidence had come to light. IHWA refused to consider the appeal, setting out that “video evidence is not permissible unless all parties are in agreement”. Ms Ooi then escalated the matter to IHA, which referred the dispute to the NST.

What did the National Sports Tribunal find about procedural fairness?

The NST found that Ms Ooi was denied procedural fairness both at the Tribunal and on appeal. It also held that the sanctions imposed were excessive (see part II of this article for matters addressing the reasonableness of the sanctions).

The NST confirmed that procedural fairness requires, at minimum:

1. informing the individual with sufficient particularity of the nature of the proceeding, what they are accused of and by whom;
2. providing the individual a reasonable opportunity to consider the specific allegations in advance of a hearing;
3. conducting a hearing at which the individual has an opportunity to put their case (including presenting evidence and making submissions); and
4. affording a fair hearing in which the decision-maker hears evidence and submissions from both sides before making findings, and acts without bias.

The reasoning can be broken down as follows:

• Inadequate Notice
  The NST found that the Notice was deficient as it did not identify the individuals involved, the specific conduct alleged, or the particular IHWA policy alleged to have been breached. The further information provided on 31 July 2024 did not remedy these issues. Informing Ms Ooi of the allegations only at the Tribunal did not give her a proper opportunity to prepare. IHWA also failed to provide complete policy extracts, some of which were not publicly available, further undermining procedural fairness
• Unfair hearing process
  The NST determined that the Tribunal proceedings were procedurally unfair. The Tribunal received further oral evidence in Ms Ooi’s absence, without giving her an opportunity to respond, contrary to IHWA’s own policies. She was also not heard on sanction. However, the NST did find that it was not unfair for the Tribunal not to call the minor official to give oral evidence nor was it unfair to deny Ms Ooi the opportunity to question the minor official.
• Deficiencies in the Decision
  The Decision did not clearly find, on the balance of probabilities, that Ms Ooi had engaged in the alleged conduct. Instead, it referred only to an “opportunity” to do so. It also failed to identify the policies breached. The NST found that these deficiencies compounded the unfair process the Tribunal had adopted and hindered any appeal.
• Appeal process also unfair
  Given the procedural issues at the Tribunal hearing, the NST held that Ms Ooi’s appeal should have been upheld under IHWA’s regulations. IHWA’s refusal to admit video evidence was also procedurally unfair. The NST found, and IHWA conceded, that IHWA controlled both the decision to admit the evidence and the appeal itself, effectively giving it control over the appeal outcome.

What orders did the National Sports Tribunal make?

The NST set out that relief will only follow from a finding of procedural unfairness if the person affected is able to establish that there was a realistic possibility that the outcome of the matter would have been different if they had been afforded procedural fairness. The NST found that Ms Ooi had done so in this case. Accordingly, the NST ordered that:

• the decision of the Tribunal in respect of the first incident is overturned; and
• the suspension imposed by the Tribunal in respect of the second incident is reduced to three months.

The result was that Ms Ooi was no longer subject to any suspensions in her capacity as a coach in the IHWA winter league. Having already served more than three months of her suspension from representing IHWA, Ms Ooi was no longer subject to any suspension in that regard either.

What this decision means for sporting organisations

The NST has sent a clear message that tribunals must afford participants procedural fairness, even if the tribunal and the sport are entirely run by volunteers. Where tribunals are not conducted in accordance with the principles of procedural fairness, they risk having their sanctions substituted and their decisions overturned by the NST. Ultimately, sporting organisations bear the responsibility  of ensuring their tribunals are conducted fairly.

If you have been involved in a sports disciplinary process and believe the hearing was unfair, or if your sporting organisation is reviewing its tribunal procedures, reach out to a member of the Macpherson Kelley sports law team for a confidential discussion.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.