The Illawarra Hawks have been in a very different court lately. Photo: Hamilton Lund.
A showdown between two NBL clubs and Australia’s National Basketball League has been ordered to go to Switzerland.
The owners of the Illawarra Hawks and the South East Melbourne Phoenix are considering bringing breach of contract claims against the NBL.
They want to investigate allegations that the NBL has undertaken misleading or deceptive conduct, and breached the Competition and Consumer Act, among other claims.
One of the clubs is also contemplating seeking a declaration that certain aspects of the licence are void as an unlawful restraint of trade.
To support their case the clubs have called for the NBL to release a number of documents, which the NBL has declined to do.
In response, the clubs have asked the NSW Supreme Court to compel the NBL to release the documents.
The court has knocked back the clubs’ initial request, however, due to a clause in their licensing agreements that requires disputes to be arbitrated by the Court of Arbitration for Sport (CAS) in Switzerland.
The NBL argued that the purpose of the clause is to preserve the reputation of the competition by resolving disputes behind closed doors.
“The parties have agreed to resolve all issues only through private dispute resolution and not in a court,” Judge Elisabeth Peden said.
“Part of that bargain is that the parties are precluded from accessing court procedures, even if they are not available in CAS.
“I order the proceedings are stayed.”
The clubs were also ordered to pay court costs.
The NBL has released a statement welcoming the decision.
“This ruling is an important moment for the NBL, and Australian basketball,” the statement read.
“It reinforces the need for all parties to respect their contractual obligations and to act consistently within the proper governance of the league.
“We hope today’s decision allows all parties to move forward.
“The NBL remains focused on what matters most: strengthening the competition, supporting its clubs, and delivering world-class basketball to fans in Australia, New Zealand and around the world.”
The case isn’t over however; the clubs said they will appeal the Supreme Court decision.
The ownership group behind the Hawks, Crest Sports and Entertainment, said the stay ruling was not a judgement on the claims the club intends to bring against the NBL.
“Crest will continue to do everything possible to shine a light on the NBL and clean up the sport,” the spokesperson said.
“The NBL’s attempt to frame this technical decision as anything more than that reflects its deeply troubling approach to governance and its pervasive insistence to hide material facts.
“Fundamental issues such as lack of transparency and financial disclosure remain unchecked and must be addressed.
“This discovery application was simply an effort to obtain information that should already be available, as it would be in any other sporting code.”
If the dispute proceeds to the Court of Arbitration in Switzerland, it may return to Australian courts if it can’t be resolved through the arbitration process.
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