When is a sports suspension unreasonable? Ooi v Ice Hockey WA

The process of suspending a participant from a sport must be fair, and the suspension itself must be reasonable. Whether a suspension is fair depends on the subjective standards of the relevant sport, not the objective standards of the community.

In Part I of this article, we examined the findings of the National Sports Tribunal (NST) in Arlene Ooi v Ice Hockey WA (with Ice Hockey Australia) (NST-E25-124664) regarding procedural fairness. In this article, we will examine the NST’s findings on the reasonableness of the sanction.

What suspension was imposed?

Part I of this article provides a detailed summary of the facts in this matter. Below is a summary only of the facts that are important to understanding the reasonableness of the suspension that Ms Ooi received from Ice Hockey WA (IHWA).

Ms Ooi was accused of:

• swearing at an official who was a minor before a youth ice hockey game in which she was coaching; and
• posting criticism of IHWA and its coaching selections to three separate Facebook pages (her personal page, her ice hockey club members only page and the IHWA page).

At a tribunal conducted by IHWA on 6 August 2024 (Tribunal), Ms Ooi admitted to making the social media post, but denied she had sworn at the minor official.

In a written decision dated 10 August 2024 (Decision) the Tribunal sanctioned Ms Ooi in respect to both alleged offences.

• First incident: Ms Ooi was suspended in her capacity as a coach for the balance of the 2024 IHWA winter season (approximately eight games over two months), together with a deferred suspension for the entire 2025 IHWA winter season (conditional on her not appearing before another IHWA tribunal during that time).
• Second incident: Ms Ooi was suspended from representing IHWA in any capacity until 31 December 2027 (approximately 3.5 years). The suspension prevented her from representing IHWA as a player, coach or official at the state or national level in any capacity (including attending training and development camps). The suspension also prevented Ms Ooi from nominating for any IHWA board, council, committee or sub-committee for the same period.

The suspension did not, however, prevent Ms Ooi from participating in IHWA at the local level, save for her suspension from coaching in relation to the first incident.

Ms Ooi’s internal appeal to IHWA was rejected. She then appealed the decision to Ice Hockey Australia, who referred the dispute to the NST.

NST finds the suspension was unreasonable

Ms Ooi brought her appeal to the NST on the grounds of procedural fairness and reasonableness of the sanction and was successful on both grounds.

The NST found that the 3.5 year suspension for the second incident was unreasonable because:

• the Decision lacked justification, transparency and intelligibility; and
• the suspension fell outside the range of possible, acceptable outcomes which were defensible in respect of the facts and law.

While IHWA regulations permitted consideration of factors such as seriousness, harm, prior conduct and organisational objectives, the NST found these were not meaningfully addressed in the Decision.

The NST also set out that other permissible considerations, which were not addressed in the Decision, included:

• risk of harm to others;
• aggravating and mitigating factors;
• whether the conduct was isolated or a repeated pattern of behaviour;
• whether the conduct involved an honest and reasonable mistake;
• deterrence, punishment and accountability;
• denunciation of the conduct;
• rehabilitation; and
• the impact of the conduct on the integrity of the sport.

In the absence of comparable IHWA decisions, the NST considered its own decisions, noting that similar conduct had previously attracted suspensions between two and six months.

In light of these factors, the NST found that the suspension handed down by the Tribunal was unreasonable.

NST substitutes a new suspension

Having found that the suspension was unreasonable, the NST set aside the Tribunal’s suspension and imposed a three-month suspension on the same terms.

In doing so, the NST noted that:

• Ms Ooi had admitted to the conduct;
• IHWA had not wholly suspended Ms Ooi’s membership, in so far as she was able to participate in some activities at the local level;
• the posts, while published to three separate pages and having breached several policies, arose from a single course of conduct;
• freedom of expression is important, but sporting organisations may impose reasonable limits on that expression;
• the posts were measured but were still disparaging of IHWA and could have brought it into disrepute;
• the posts were limited, but made to an interested audience, making that both a mitigating and an aggravating factor;
• Ms Ooi had no prior disciplinary history;
• previous NST decisions could have guided the Tribunal; and
• any period of suspension was sufficient to achieve both specific and general deterrence.

Key Takeaways

Sporting organisations must justify suspensions by reference to the facts of the matter and ensure that sanctions are proportionate to both:

• the disciplinary conduct in question; and
• outcomes in comparable cases.

Where those suspensions are unreasonable, they may be set aside and substituted by the NST.

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 one of our experts today 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.