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The football season is around the corner and fans are relishing
the prospect of watching the big guns go hard in the week to week
combat of professional footy. Nervously, administrators of the
major football codes in the country hope and pray that the season
can kick off in style -and not be faced with an off-field scandal
that threatens to derail the season opener of their respective
leagues before a ball is kicked in anger.
Unfortunately, in recent seasons off-field misconduct has taken
centre stage at untimely periods of the season. The most noteworthy
was the situation of two seasons ago when the Brett Stewart
incident cast a pall over the NRL and its launch of season
2010.
Behavioural misconduct from players is one of the biggest
challenges for sporting organisations in professional sport.
Protection of brand and reputation is paramount for administrators
in the highly competitive world of sport. Behaviour or conduct from
players that potentially damages or devalues the brand and value of
a club are not going to be treated lightly by administrators. What
positive measures do clubs take to ensure the value of their
product is not diminished?
The terms and conditions of an athlete's contract often
stipulate what constitutes a breach for behavioural misconduct. In
certain sports, the governing body will use a grading system to
determine the severity of the offence. For example, the
International Cricket Council (ICC) grades misconduct on a scale of
1 to 4. Minor offences on the scaling system might be gesturing or
verballing to the crowd by a player, and crimes like match-fixing
are at the top end of the scale.
If the severity of the offence is sufficient, the sporting body
will have grounds to sanction the athlete for a breach of their
playing contract. In many cases, the right of an organisation to
terminate the playing / employment contract is exercised. In recent
times, the sporting public has observed decisions to terminate the
agreements of NRL player Ryan Tandy for involvement in a betting
scandal, swimmer Nick D'Arcy for misconduct from the Australian
swimming team and swimmer Stephanie Rice and her sponsorship
agreement with Jaguar Australia.
An issue that has proven difficult for sporting bodies to
reconcile is how to act when a contracted athlete is charged with a
criminal offence. One of the fundamental bedrock principles to the
Australian legal system is the presumption of innocence. How does a
sporting body sanction an athlete for misconduct when the athlete
is facing an accompanying criminal charge? Whilst the two can be
separated legally (contractual v criminal), the situation can
provoke challenging circumstances. For instance, Ryan Tandy was
required by his NRL club, the Canterbury Bankstown Bulldogs, to
appear before the Board for a show cause meeting to explain his
conduct. Tandy, accompanied by his solicitor, declined to make a
statement on legal advice - and subsequently had his employment
terminated. It is a difficult situation as statements at this
meeting from Tandy could have been used against him at a later date
in his criminal trial.
The behavioural covenant that athletes contractually agree to in
various sports can differ significantly depending on the sport.
What is common though is use of the term 'disrepute' within
the specific clause relating to behaviour. 'Bringing a sport
into disrepute' will often give rise to a sporting body
terminating employment for a culpable athlete. What exactly does
'disrepute' mean in the sporting context? Most sports do
not specifically define this term - deliberately so! By keeping
'disrepute' as broad and wide-ranging as possible, a
sporting body has the flexibility to determine each situation on
merit and make decisions accordingly.
With professional sport facing ongoing battles with doping,
gaming, behavioural misconduct and other misdemeanours, the right
to penalise through contract has never been stronger and more
likely to be utilised in modern day professional sport.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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