Sports lawyer Paul Czarnota outlines how the AFL can prove charges against Essendon Paul Czarnota
From: Herald Sun
August 20, 2013 THE AFL has charged Essendon and four officials with bringing the sport into disrepute. What do these charges mean and what will be the likely outcome?
First some background.
AFL rule 1.6 1.provides that: "A person must not engage in conduct which is unbecoming or likely to prejudice the interest or reputation of the AFL or bring the game of football into disrepute.''
Therefore, the AFL is concerned, not only with conduct which actually brings the game into disrepute, but also conduct likely to do so.
Overall, the rules fail to conclusively define what conduct (aside from criminal conduct) will violate the disrepute clause.
Despite references to James Hird and company being "charged'' with "offences'', they are technically being provided notice of alleged contractual breaches.
Therefore, ordinary principles of contract interpretation apply in determining whether the "charges'' are proven.
This involves ascertaining the meaning of the contractual words (''bringing the game of football into disrepute'') as understood by a reasonable person, having regard to relevant background information, including the commercial context and the sporting market.
The AFL is increasingly a big commercial machine and any unsavoury behaviour which could jeopardise its profitability or success is frowned upon.
Precisely what conduct will violate the disrepute clause has yet to be determined by a Victorian court.
However, such charges will likely be determined according to whether the Commission is "comfortably satisfied'' (a standard "below beyond reasonable doubt'') that the sport has been, or is likely to be, significantly lowered in the eyes of the general public (ie, they think "less or poorly'' of the game).
AFL general counsel Andrew Dillon has indicated no infraction notices for Anti-Doping Rule violations were being issued against Essendon players at this time.
Essendon has released its own statement confirming the charges laid, and stating all charges would be "vigorously defended''.
Proving a breach of the disrepute clause can be problematic.
In swimmer Nick D'Arcy's case, the Court of Arbitration for Sport paid due regard to the "voluminous number of media reports that have accompanied his misconduct'' which it stated ``could not help but be likely to bring him into disrepute''.
Similar evidence could be tendered by the AFL, as could the Switkowski report.
Ziggy Switkowski considered there were various failings in Essendon's governance systems, noting (among other things) the: "rapid diversification into exotic supplements, sharp increase in frequency of injections, the shift to treatment offsite in alternative medicine clinics, emergence of unfamiliar suppliers, marginalisation of traditional medical staff (which) combine to create a disturbing picture of a pharmacologically experimental environment never adequately controlled or challenged or documented''.
In response to Switkowski's report, the AFLPA released a statement labelling the report "incredibly disturbing to read'' and emphasising that: "No AFL Player should ever go to work in an environment which can be described as 'pharmacologically experimental' with potential exposure to 'exotic compounds.'''
While welcoming news there were no infraction notices issued on any players, Essendon conceded that "the club and individuals have made mistakes and that our governance and people management had significant gaps''.
Based on the above, it appears more likely than not the AFL Commission would find that (at the very least) Essendon has violated the disrepute clause.
Assuming the Commission finds any charges proved, courts have been reluctant to interfere with decisions of sporting associations, particularly where the league's rules provide a grievance procedure which affords natural justice (ie, a right to legal representation and a fair and unbiased adjudicator), and such rules have been exercised for a proper and "bona fide'' purpose.
Any litigation following the Commission's decision will examine whether these legal rights have been afforded to Essendon & Co.
Paul Czarnota is a solicitor with Wisewould Mahony Lawyers who specialises in sports law.
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