Dealing with misconduct: The NRL’s no-fault stand down policy
The NRL would have been expecting fireworks on the pitch for last weekend’s opening round of the Premiership, but the implementation of their controversial ‘no-fault stand down’ policy has meant the only fireworks so far have been in the courtroom.
This article will consider the enforceability of the NRL’s policy, and discuss other ways sporting organisations can regulate player misconduct.
NRL’s new policy
The media is regularly reporting on NRL athletes who have been involved in domestic violence, sexual and drug related offending. It’s no secret that the NRL has struggled to implement measures to curtail the off-field behaviour of their players.
The ARL Commission recently announced it had approved the automatic standing down of any player facing charges carrying a maximum sentence of 11 years' jail time or more, with players unable to take the field until the outcome of their charges have been finalised. Under the policy, players that don't reach the automatic stand-down threshold can still be banned under the "no-fault" policy at the discretion of the NRL’s chief executive.
The NRL’s new powers have already been used to suspend St George Illawarra Dragons player Jack de Belin, who has pleaded not guilty to sexual assault charges, as well as Manly’s Dylan Walker and Penrith’s Tyrone May.
De Belin has launched a legal challenge to the NRL’s policy. A substantive hearing has been set down for 16 April, where de Belin’s lawyers will argue that the policy is unenforceable.
Dealing with player misconduct
NRL’s policy raises a common issue that sporting bodies are constantly grappling with – how can a player’s off-field behaviour be managed? The policy reminds us of the importance of ensuring that any measures imposed which deal with player misconduct are actually enforceable.
It is important to ensure provisions governing off-field player misconduct are contained in documents which the sporting participant agrees to be bound by:
For professional athletes, this will often be an employment agreement, a code of conduct and various policies implemented by the athlete’s employer, which may be the local club, or in some cases the national sporting organisation.
Local clubs with amateur athletes should also consider implementing similar policies and provisions. While amateur athletes do not typically sign employment agreements, clubs can impose rules and policies when first registering an athlete’s membership with the club, or when renewing the membership each year.
Sporting bodies should ensure the provisions which address player off-field misconduct:
Impose a positive obligation on participants to behave appropriately;
Prohibit participants from engaging in specific acts of misconduct, as well as general behaviour likely to bring the club or organisation into disrepute; and
Clearly define the consequences of the athlete failing to act in accordance with those provisions.
Limiting civil liberties
When implementing policies, such as the ‘no-fault’ stand down policy implemented by the ARL commission, careful consideration is required around how an athlete’s basic civil liberties are impacted. The import of the ‘no-fault’ policy is such that by standing an athlete down, there is a presumption of guilt even before the athlete has had a chance to provide a defence or consider the evidence of any alleged wrongdoing, a point De Belin’s lawyers will likely argue will prejudice their client prior to a formal hearing being held. The presumption of innocence until proven guilty is a fundamental civil right, and bodies exercising public functions like the NRL should be careful when limiting those rights.
While the NRL’s no fault stand down policy had good intentions of curtailing the off-field behaviour of their athletes, a policy which is difficult to enforce, or will result in lengthy and time consuming legal challenges, will not be effective in achieving their aims.
Cavell Leitch has experience in drafting agreements and rules for a range of sporting bodies. We also have experience in cases of player misconduct and challenging local and national body rule changes.
If you are a sporting body or athlete who has some questions about these matters, do not hesitate to contact a member of our sports law team.