Appeal

In the event that there is a discrepancy between the information presented on this page, and that which is found in the published PDF version of the policy / guidelines, the process outlined in the published PDF documents will take precedence.

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Appeals

1. This section relates to appeals within the jurisdiction of the NBSSCM.

2. It provides Participants with a fair and expedient appeal process that aligns with the requirements of the NBSSCM Guidelines.

Scope and Application of the Appeal Section

1. This Appeal section applies to all Participants and PSOs/MSOs that are members of Sport NB who are eligible to participate in the NBSSCM. Appeals may be submitted on two bases:

a) Any Participant or PSOs/MSOs who is directly affected by a final arbitral decision made by a Mediator/Arbitrator appointed under the NBSSCM Guidelines and the accompanying policies may appeal that final decision, if there are sufficient grounds for the appeal under the Grounds for Appeal as set out below.

b) Any Participant who is directly affected by a decision made by a PSO/MSO shall have the right to appeal that decision where there is an alleged failure of a PSO/MSO to follow its Constitution or by-laws or policies, if there are sufficient grounds for the appeal under the Grounds for Appeal as set out below.

2. This policy will not apply to decisions relating to:

a) employment;

b) infractions for doping offenses;

c) the rules of the sport;

d) selection criteria, quotas, policies, and procedures established by entities other than a PSO/MSO;

e) substance, content and establishment of team selection or carding criteria;

f) volunteer/coach appointments and the withdrawal or termination of those appointments;

g) budgeting and budget implementation;

h) a PSO/MSO’s operational structure and committee appointments;

i) decisions or discipline arising within the business, activities, or events organized by entities other than a PSO/MSO;

j) commercial matters for which another Appeal process exists under a contract or applicable law; or

k) decisions made under the Appeal section of this policy.

Designated Appeal Manager

1. An Appeal Manager will be appointed by the ITP to oversee the Appeal process as set out in the policy.

2. The Appeal Manager must not be in a conflict of interest or have any direct relationship with the Parties, including any past involvement in any capacity in the matter under appeal.

Timing of Appeal

1. Participants who wish to Appeal a final decision have fourteen (14) working days, from the date on which they received notice of the final decision under Appeal, to submit the following, in writing, through the designated reporting mechanism:

a) notice of the intention to Appeal;

b) their contact information;

c) name and contact information of the Respondent and any Affected Parties, when known to the Appellant;

d) date the Appellant was advised of the decision being appealed;

e) a copy of the decision being appealed, or description of decision, if written document is not available;

f) grounds for the Appeal;

g) detailed reasons for the Appeal;

h) all evidence that supports these grounds; and

i) requested remedy or remedies.

2. A Participant who wishes to initiate an Appeal beyond the fourteen (14) working day period must provide a written request stating the reasons for an exemption. The decision to allow, or not allow an Appeal outside of the fourteen (14) working day period will be at the sole discretion of the Appeal Manager and may not be appealed.

Grounds of Appeal

1. A decision cannot be appealed on its merits alone. An Appeal may only be heard if there are sufficient grounds for Appeal. Sufficient grounds include that the PSO/MSO or the Mediator/Arbitrator:

a) made a decision that it did not have the authority or jurisdiction (as set out in the applicable governing documents) to make;

b) failed to follow its own procedures (as set out in the applicable governing documents, including the NBSSCM Guidelines);

c) made a decision that was influenced by bias (where bias is defined as a lack of neutrality to such an extent that the decision-maker appears not to have considered other views); or

d) made a decision that was unreasonable.

Screening of Appeal

1. The Appeal Manager has the following responsibilities:

a) to determine if the Appeal falls under the scope of the Appeal section;

b) to determine if the Appeal was submitted in a timely manner;

c) to decide whether there are sufficient grounds for the Appeal.

2. In the case of an Appeal based on the alleged failure of a PSO/MSO to follow its Constitution, by-laws, or policies, the Appeal Manager must determine if the Appellant has exhausted all internal dispute resolution procedures provided by the policies of the PSO/MSO.

3. A PSO/MSO internal dispute resolution procedure is deemed exhausted when:

a) the PSO/MSO or its internal Appeal process has rendered a final decision;

b) the PSO/MSO has failed to apply its internal Appeal policy within reasonable time limits or on reasonable grounds; or

c) the PSO/MSO has waived the requirement to exhaust its internal Appeal process.

4. If the Appeal Manager denies the Appeal because of insufficient grounds or it was not submitted in a timely manner, or because it did not fall under the scope of this policy, the Appellant will be notified, in writing, of the reasons for this decision. This decision may not be appealed.

5. If the Appeal Manager is satisfied there are sufficient grounds for an Appeal, the Appeal Manager will appoint a single Appeal Arbitrator to hear the Appeal.

Determination of Affected Parties

1. To confirm the identification of any Affected Parties, the Appeal Manager will engage the PSO/MSO.

2. The Appeal Manager may determine whether a Participant or PSO/MSO is an Affected Party, in their sole discretion.

Procedure for Appeal Hearing

1. The Appeal Manager shall notify the Parties that the Appeal will be heard.

2. The Appeal Arbitrator shall then decide the format under which the Appeal will be heard. This decision is at the sole discretion of the Appeal Arbitrator and may not be appealed.

3. If a Party chooses not to participate in the hearing, the hearing will proceed.

4. The format of the hearing may involve an oral in-person hearing, an oral hearing by telephone or other electronic means, a hearing based on a review of documentary evidence submitted in advance of the hearing, or a combination of these methods. The hearing will be governed by the procedures that the Appeal Manager and the Appeal Arbitrator deem appropriate in the circumstances. The following guidelines will apply to the hearing:

a) The hearing will be held within a timeline determined by the Appeal Arbitrator.

b) The Parties will be given reasonable notice of the day, time, and place of an oral, in-person hearing or oral hearing by telephone or electronic communications.

c) Copies of any written documents which any of the Parties wish to have the Appeal Arbitrator consider will be provided to all Parties in advance of the hearing.

d) The Parties may be accompanied by a representative, advisor, or legal counsel at their own expense.

e) The Appeal Arbitrator may request that any other individual participate and give evidence at an oral in-person hearing or oral hearing by telephone or electronic communications.

f) The Appeal Arbitrator may allow as evidence at the hearing any oral evidence and document or thing relevant to the subject matter of the Appeal but may exclude such evidence that is unduly repetitious and shall place such weight on the evidence as it deems appropriate.

g) If a decision in the Appeal may affect another Party to the extent that the other Party would have recourse to an Appeal in their own right, that Party will become an Affected Party to the Appeal in question and will be bound by its outcome.

5. In fulfilling its duties, the Appeal Arbitrator may obtain independent advice.

Med/Arb Process

1. The Appeal Manager, if appropriate, may confirm whether the Parties wish to proceed under a Med/Arb process.

2. The Parties may agree, in writing, to proceed under the Med/Arb process as set out above, to attempt to resolve the Appeal.

3. The Appeal Arbitrator will determine the appropriate steps to follow under the Med/Arb process. This process must respect the rights of the Parties and comply with the principles of natural justice and procedural fairness.

Revised January 2024