News & Events

Madonna King on the legal implications of the Brendan Fevola Sacking by the Brisbane Lions.
ABC 612, 21st February 2011

Madonna King:
Last night the Brisbane Lions AFL club advised Brendan Fevola that his contract with the club had been terminated and in a statement from the club it was announced that the grounds for the termination were that Brendan had engaged in serious or wilful misconduct through persistent breaches of his obligations as a player to the club and the club had therefore lost confidence in his ability to meet his obligations as a player due to these persistent breaches.  The Brisbane Lions will hold a media conference at a quarter to three this afternoon.  Paul Horvath is an expert in sports law, sitting on numerous AFL tribunal boards and was the National Co-Ordinator of the AFL Players’ Association 24 hour legal advice service.  Paul, good morning and welcome to 612 ABC Brisbane.
Paul Horvath:
Good morning Madonna.

Madonna King:
Do you think the Lions have done the right thing?

Paul Horvath:
Well, that’s a hard question to answer.  I can make comments and assist people to draw their own conclusions as to that, because as we know there’s often many background facts and information that aren’t known more broadly, sometimes to protect the athlete themselves involved in this type of situation.  I just comment on something in your introduction, or a couple of things that I wasn’t aware of from the Brisbane club’s announcement, that is, firstly that the club says, I think it was “serious and wilful misconduct”.

Madonna King:
Serious or wilful misconduct.

Paul Horvath:
Yes.  That’s an expression often used in employment law, so it is interesting that they chose that expression as the basis for termination.  So I guess in a nutshell what they’re saying is that he has breached his contract in such a fundamental way that the contract cannot continue and has effectively come to an end.  That’s the first thing.  The second thing from the wording chosen and it may have been legally drafted – is that they refer to the club having lost confidence and there’s a concept in employment law which is called trust and confidence that exists between an employer and an employee and when one of the parties breaches that, the other party’s entitled to terminate the contract. 

Madonna King:
So, does a party need a reason to terminate the contract in terms of the player’s behaviour?

Paul Horvath:
Well, in a nutshell, yes.  One can’t simply terminate a contract because of the damages consequences and by that I mean, given that there’s two years to run on the contract, if there was no serious and wilful misconduct, the simple answer is that Mr Fevola is entitled to the payment out of the balance of $1.9 million, as I’ve read in the media being the amount of the contract.

Madonna King:
So he will be paid out that remainder?

Paul Horvath:
No, I’m saying that if there were no serious and wilful misconduct – now it would seem that there are incidents and it’s a question of where one puts those incidents that he’s engaged in, and as I say, some of them are publicly known, namely his indiscretion over Christmas that led to his recent hospitalisation and as I understand there may have been other incidents as well, some of which we don’t know about, one of which involved I think the married woman at the park as well, was another well known incident.  So when one puts these things together, sometimes jointly they can constitute the serious and wilful misconduct, and everywhere in between there’s room for negotiation and we’ve seen that in the Andrew Lovett case in Melbourne, where it’s been alleged that he was guilty of a serious sexual offence and was terminated from St Kilda.  And ultimately that matter was settled for a financial amount.

Madonna King:
So, who decides whether there has been a serious or wilful misconduct?  Is it up to the club or does that, is that determined by a court of law?

Paul Horvath:
Well, at the moment it’s determined by the club.  So they say, we’ve got grounds to terminate your contract and like anything, no one can stop the club from terminating his contract. 

Madonna King:
But is there a right of appeal then if the Fevola camp, as it has, believes that there are grounds to do this, legally?

Paul Horvath:
Of course.  Of course.  So, what they say is, the club has acted unlawfully and we will go to the court, if it gets that far, to enforce our rights.  Now, one would think that there would be at least some process and I would be amazed if the club haven’t turned their minds to that, and I’m sure they have, that they know that there would be a process of discussion with Mr Fevola’s manager rather than simply saying “We’re not prepared to pay any compensation”, I would think that … I would be confident that they’d entertain discussing what’s called an exit package in employment law parlance, or in his case, a payout of part of his contract.

Madonna King:
You’re listening to Paul Horvath, who’s an expert in sports law and we’re talking about the sacking of Brendan Fevola this morning.  Now Paul you’ve dealt with AFL players from angles like this for a long time, what kind of career options are available to someone in Brendan Fevola’s position?

Paul Horvath:
Well, firstly I can comment on what I’ve seen in the media in the last few days.  There’s talk of an NFL possibility and one might think that with his very high quality kicking abilities, he would be a sought after commodity in the NFL football, where Darren Bennett and others have made a career well into their late thirties.

Madonna King:
You don’t think he could be picked up by another AFL club?

Paul Horvath:
Well, the difficulty it seems to me, is that he’d have to wait until the end of this season and go into the draft for the 2012 season.  So, he’d have to wait out, as I understand the rules, he’d have to wait out that period of time.  If he’s prepared to do that, he could go back to another AFL club but otherwise he might seek another career.

Madonna King:
And given he’s 30, those options may be declining.

Paul Horvath:
You might think so.  And of course, I mean, there’s certain health issues and so on which have to be resolved and it may well be that like Ben Cousins who had a year out of the game and made significant progress in terms of his own health issues.  If that were to occur then Mr Fevola might present as a useful addition to a certain type of football side.

Madonna King:
What about the duty of care?  Does a club have a duty of care given Fevola’s mental health issues?  In their statement the Lions say the club has no legal obligations to do so, but it’s advised Brendan it will provide financial support to enable him to continue to receive the necessary assistance within his financial situation and prepare him for his future life.

Paul Horvath:
It’s interesting Madonna I think that there was a case of, I think, Travis Tuck the Hawthorn player, who had the three strikes late last year in the AFL and there was a lot of talk about that case of the club’s obligation there to continue to provide support to him, given that he was showing signs of, and I hope I’ve got that player right, because I don’t want to name the wrong person in that circumstance – as needing some help in terms of drug addiction and so on.  And what I say, is that’s a change probably from the past.  I think that there’s much more paternalistic attitude shown within the AFL environment these days perhaps than in years gone by and obviously clubs and fans and so on benefit from all of the aspects of an individual, so you’ve got to take the player warts and all, for the good and the bad.

Madonna King:
Well, having said that, do you think sitting where you do, and with your expertise, that the Lions had any other choice but to sack him?

Paul Horvath:
I’m not sure I’d necessarily use the expression “had any other choice”.  I guess I look at it to say were they within their rights to do what they did.  Without seeing a fulsome statement as to their reasoning and so on it would seem to me that they had a reasonable and rational basis on which to terminate the contract and the question is, what, if any, compensation is payable for the termination of the contract?

Madonna King:
You describe it like any other area of employment law. 

Paul Horvath:
Yes.

Madonna King:
Is that the case now with professional athletes?

Paul Horvath:
Look, the simple answer is no.  Obviously there’s different aspects.  A person’s a public figure and so on and certainly on a personal level I have very much enjoyed watching Brendan Fevola for many years – I’ve felt that he was a colourful character in the game when we were becoming a fairly staid and more conservative group of people, and so it’s very disappointing that someone, both with his talents and perhaps a bit more personality, has fallen in the way that he has.

Madonna King:
So how do you think this will affect the AFL brand in Brisbane, given that other sports are doing so well?

Paul Horvath:
In my view these things come and go.  And I also think that the termination of his contract is a culmination of things that have occurred in his past that have come back to haunt him.  So I think his conduct whilst at the Brisbane Lions is not particularly outrageous in the isolation of the events that have occurred in I think it’s only about twelve to fifteen months that he’s been in Brisbane, so it’s a number of other things.  So in that sense it hasn’t been a long term thing, it’s just the fact that he’s there when the termination occurs that is attracting obviously a lot of media attention and so on.

Madonna King:
And when this happens is it the club that sacked him or does the AFL have a hand in it?

Paul Horvath:
Players sign a three-way contract when they enter the AFL, so the three parties to the contract are the player, the club and the AFL.  So certainly the AFL are a party to the contract and one suspects that’s why, among other things, obviously salary cap issues, why the delegation went to the AFL for a meeting last Friday to discuss the situation and the consequences.

Madonna King:
So what happens now?  What right of reply does Fevola have?

Paul Horvath:
Well, as I say, in simple terms, it’s through the courts.  I would imagine there’d be communication with the club and/or their lawyers in relation to compensation would be the first port of call, and once that option’s exhausted, if it doesn’t come to an agreeable outcome between the two parties, then it would go to the courts.

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