Using Australian Consumer Law to Fight a CAS Decision

In many jurisdictions, consumer law legislation protects consumers from unfair standard form contracts. A 'standard form contract' is a contract that has been prepared by one party to the contract (the business offering the product or service) without negotiation between the parties. In other words, it is offered on a ‘take it or leave it’ basis. Many contracts entered into by athletes when entering an event could be considered a standard form consumer contract and may be subject to consumer legislation.

This situation is being challenged in Australia with a case currently at the Victorian Civil and Administrative Tribunal (VCAT Ref C6767/2020) concerning the 2014 Sailing World Cup regatta in Melbourne.

Paul Coady was subject to numerous disciplinary hearings after competing in the regatta (click for more details). He claims:

  • He entered into a standard form consumer contract with Yachting Victoria;
  • The terms and conditions of the contract were defined in the Racing Rules of Sailing and The Notice of Race;
  • The consumer contract contained unfair terms:
    • Prohibiting of the exercising of all legal rights through the courts;
    • Strict time limits applied to the consumer only and, multiple investigations can be conducted on the same facts. Consumers can be subject to further action in the future with no finality from a hearing;
    • Acceptance of the rules mandated on the consumer only;
    • Misconduct rules only apply to the consumer;
Paul also claims the CAS and World Sailing decisions should not be recognised as this would be at odds with the public policy provisions of the International Arbitration Act 1974 (Cth) and the Commercial Arbitration Act 2011 (Vic) :
  • Misleading and deceptive conduct due to the arbitration clauses that purport to exclude all legal rights.
  • Denial of natural justice due to fabricated evidence and false statements.

The respondents, Yachting Victoria, applied for summary dismissal of the case claiming they did not conduct the disciplinary hearings and that  VCAT did not have jurisdiction to hear the case as it had already been heard by a World Sailing disciplinary panel and the CAS appeal division.

Yachting Victoria's summary dismissal application was unsuccessful. VCAT ruled they had jurisdiction to hear the case as a consumer contract had been entered into. The case is listed for hearing.