This achievement is thanks to our team’s dedicated and close partnership with our clients.

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Defamation

The team at Sportslawyer received urgent notification from a national sporting association alleging a high-profile television and radio presenter had defamed association members during their programs. We acted promptly and successfully obtained a confidential settlement including retractions of the statements, and public apologies from the presenter on national television and on radio.

Social Media Policy breach – NST Appeal

The team at Sportslawyer acted for a state level athlete disciplined for an allegedly offensive post on social media. The athlete’s initial sanction would have resulted in their inability to participate in their teams’ finals campaign. We successfully advocated for a reduced sanction before the Tribunal allowing our client to return to their team in the finals. Upon the athlete’s return, their team won their respective semi-final and grand final matches.

Illicit drug use (proven to be out-of-competition)

We represented a high-profile national athlete, relating to an anti-doping rule violation. The athlete was immediately provisionally suspended, just as his team was commencing a finals campaign. The team at Sportslawyer provided urgent advice following notification and successfully reduced the athlete’s suspension to one (1) month from four (4) years arguing that the rule violation occurred out-of-competition, was for a specified substance (recreational drug), and the athlete undertook an education course. The case was finalised within 30 days (including all NST hearings) of the athlete’s original notification and suspension.

Meat Contamination (anti-doping)

We acted for an Australian international-level athlete facing a serious anti-doping charge following an adverse analytical finding arising from out-of-competition testing. The team at Sportslawyer produced detailed submissions to support the athlete’s innocence based on contaminated meat and strategically advised the athlete on their interactions with the international sporting integrity body which resulted in the matter not proceeding to charges.

Discrimination (VCAT matter)

We acted for a Victorian state league sporting association against whom proceedings were brought by a former director alleging discrimination. We provided targeted and timely advocacy and strategic advice. The team at Sportslawyer coupled its sports law experience with its employment law expertise, and with the assistance of experienced counsel provided the client with confident and commercially appropriate legal advice which led to the matter resolving at mediation.

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Considering all these factors coaches are open to a lot of scrutiny. In light of this it becomes very important that coaches protect themselves as far as possible. In this article Solicitor, Paul Horvath aims to help coaches not only avoid the escalation of concerns by establishing suitable management strategies but also to ensure a fair resolution of legal issues should they arise.

Negligence Claims

For a negligence claim to be successful, it must be proven that a coach has a duty of care, that they breached that duty and that this breach caused the injury. Considering the position of power, control and trust held by coaches it is not hard to see why coaches owe a duty of care to their athletes under the law of torts. (The law of torts addresses and provides remedies for issues arising out of civil wrongs and not out of contractual obligations)

Whether there has been a breach of care depends upon the standard of care necessary, which is a flexible concept. It is likely that a higher standard will be expected to professional coaches in comparison with volunteer coaches. It is also likely that a higher standard will be expected for a coach of a high risk activity. The test is whether a reasonable person in the position of the coach would have foreseen that the acUomission involved a degree of risk that was real.

It must also be shown that it was the act/omission that caused the injury.

Following Whitehead v Carlton, professional athletes are no longer entitled to statutory worker’s compensation. It is likely that injured athletes will now seek common law damages from parties who may have been negligent. This will lead to a greater risk of personal liability for coaches. In this case, Whitehead, a professional footballer for Carlton Football Club, sued the club for injuries to his foot and ankle. He was given injections and sent back onto the field to play, which worsened the injury, shortened his career and led to long term physical damage.

Coach take out: If a coach directs a player to play knowing they are injured, and encourages medical treatment to facilitate this, they may be legally liable for the injury that flows.

For a negligence claim to be successful it must be proven that a coach has a duty of care, that they breached that duty and that this breach caused the injury.

Considering the position of power, control and trust held by coaches in respect of their athletes (or clients), it is not hard to see why coaches owe a duty of care to those athletes under the law of torts.

Whether there has been a breach of care depends upon the standard of care necessary. This can be a flexible concept. For example it is likely that a higher standard of care will be expected of professional coaches in comparison with volunteer coaches. It is also likely that a higher standard will be expected for a coach of a high risk activity such as in combative or contact sports.

The test is whether a reasonable person in the position of coach would have foreseen that the act or the omission involved a degree of risk that was real.

It must also be shown that it was the act/omission that caused the injury.

Avoiding Negligence Claims

Coaches have a duty to supervise, that is, to observe and control athletes under their care. The more risk involved in an activity, the more critical it is that proper supervision is provided. Open communication with athletes is important and coaches should tell athletes of the risks involved with the sport.
Coaches can avoid negligence claims by referring to other people if they are in doubt. For example, if a coach is unsure whether an athlete will cause further injury if they continue to participate, the coach should suggest to the athlete that they consult a medical practitioner. Coaches can undertake some form of medical training so they are aware about the possibilities of injury and the basic treatment necessary if injury does occur.

Having the right insurance cover as a coach is essential. In Victoria for example volunteer coaches engaged by an incorporated club or association are immune from legal liability. The club, association or community organisation which engages the coach usually carries the liability.

In Foscolos v Footscray Youth Club, a fairly inexperienced young male wrestler was mis-matched against a more experienced wrestler. During the bout the plaintiff landed on his head causing immediate and severe injury. It was found that the supervision given by a wrestling coach was inadequate and that this breach of duty led to the plaintiffs quadriplegia. The judgment for the plaintiff was for a sum in excess of $5,000,000.

Coach take out: Although the coach cannot control the actions of another wrestler, if proper supervision had occurred, the match could have been stopped immediately when it appeared to be too dangerous. A coach supervising a high risk activity like wrestling must not get distracted even momentarily or they could be held liable for injury that occurs.

McCracken v Melbourne Storm Rugby League begs the question whether coaches should be liable for overly aggressive conduct of their players. In this case, a Rugby League coach said that elite players of this sport are taught and encouraged by their coaches to ‘make significant impact at the collision stage of a tackle by…accelerat[ing] into the tackle with optimum force’. He also said that ‘when they have caught an attacking player’ they are to ‘put him onto the ground forcefully to cause hard and bruising impact with the ground which will hurt and discourage the attacker.’ Although in this case it was found the actions of the two players involved went beyond what had been taught and that they employed unreasonably dangerous methods it is interesting to speculate about liability if they were simply adopting methods taught and encouraged by their coach. There seems no reason why a coach could not be held liable in such a case.

Coach take out: Coaches should not teach or encourage dangerous behaviour. They should discourage dangerous methods and communicate with athletes as to the risks involved in adopting such methods.

Avoiding Complaints

Coaches can be bound to the rules and policies of sporting organisations. Sporting organisations manage their own risk by introducing policies and codes of behaviour for people in specific roles including coaches, athletes and officials. Coaches have a greater chance of avoiding a breach of the rules if they know and understand the rules they will be judged against.

Codes do give hints to coaches on how they can manage risk. For example, the code of behaviour that accredited coaches are required to sign includes the following.

• Wherever practical, avoid unaccompanied and unobserved one-on-one activity (when in a supervisory capacity or where a power imbalance will exist) with people under the age of 18 years.
• Adopt appropriate and responsible behaviour in all interactions.
• Ensure your decisions and actions contribute to a harassment free environment.
• Any physical contact with a person should be appropriate to the situation and necessary for the person’s skill development.

In Zubkov v FINA (involving the Ukrainian swim coach from the Melbourne 2007 World Swimming Championships and his daughter) although it was concluded that the confrontation between the father and daughter was of a personal nature, Zubkov was suspended for eight months after being found to have committed an act of misbehaviour. This result was only achieved after an appeal to the Court of Arbitration for Sport in Switzerland led to the overturning of an initial lifetime ban.

Coach take out: Sporting codes now include provisions which penalise conduct which has the potential to bring the sport into disrepute. This includes personal conduct. Coaches, like athletes, must act professionally and behave ethically at all times if they are to avoid complaints.

Ensuring a fair resolution after a complaint

An allegation, even if cleared, can leave a coach’s reputation undermined. Therefore the best practice is to take steps to avoid allegations. However, it is not always possible and mistakes are a part of life.

If an allegation is made against you, your responsibilities in managing your risks continue. There are steps to take to ensure a fair hearing which mean you have to know your rights to be able to enforce them. Sporting disputes are heard outside the legal system and sporting tribunals do not always ensure a fair and transparent process and therefore coaches need to be aware of their own rights before it is too late.

The principles of natural justice generally prevail, which means you are to be afforded time to prepare and present your case. You are entitled to know the allegations against you and which rules have allegedly been breached. You are entitled to be heard by an unbiased tribunal. If penalised, your penalty is to be proportionate to your misconduct.

If such rights are not enforced the consequences can be dire. Zubkov v FINA highlights this perfectly. Zubkov, was not told of the allegations against him, was not afforded appropriate time, and was banned from the sport for life. Zubkov appealed because the appropriate principles had not been applied. On appeal the penalty was said to be·disproportionate and was reduced to an eight month suspension.

Coach take out: It is important coaches check that the standard of the complaints handling process is appropriate when you sign up to be bound by it, otherwise it may be too late once proceedings’ commence.

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The A-League Scandal

The recent match-fixing scandal in the A-League Men’s competition, the premier national league for football (soccer) in Australia, has reintroduced the conversation around betting within sport, and has resulted in five professional players being criminally charged. The players of Macarthur FC, based in Campbelltown south-west of Sydney, were charged with multiple offences.

It is alleged that the main perpetrator, former English Premier League club Chelsea midfielder Ulises Dávila, took instructions from an organised crime figure in South America to receive a yellow card in certain games. He was charged with number of offences, including two counts of engaging in conduct that corrupts a betting outcome of an event.

It is alleged that Mr Dávila then paid other players of Macarthur FC $10,000 to receive yellow cards in games. Those players have been charged with multiple offences, including the participation in a criminal group.

The Law

Criminal Offences

Match-fixing has been criminalised in most states and territories, meaning any charges are laid within the relevant state or territory law enforcement agency (i.e. Victoria Police).

In Victoria, the Crimes Act 1958 (Vic) prohibits activity which may constitute match-fixing. These include:

1. engaging in conduct that corrupts or would corrupt a betting outcome of an event or event contingency;
2. facilitating conduct that corrupts or would corrupt a betting outcome of an event or event contingency;
3. concealing conduct, an agreement or an arrangement that corrupts or would corrupt a betting outcome of an event or event contingency; and
4. use of corrupt conduct information for betting purposes.

These offences carry a maximum penalty of 10 years’ imprisonment.

Ulises Dávila and his counterparts have allegedly breached similar provisions in the New South Wales Crimes Act.

Sporting Policies

Within sporting codes, competition rules and regulations can contain offences relating to match-fixing or betting. These act in conjunction with Government legislation and the case law. For example, Racing Australia and its state and territory bodies have introduced the “Racing Rules”. These are hundreds of pages of rules for the sport, which includes prohibitions on jockeys, trainers, stewards, owners, or any other official involved in the sport from betting on races.

The National Integrity Framework (NIF) is a consistent set of policies created by Sports Integrity Australia (SIA), in collaboration with the Australian Olympic and Paralympic Committees. Sporting codes in Australia can opt-in to the framework, which will then make the sport subject to the policies made for the NIF.

The NIF provides an example of the policing of match-fixing matters, contained in the Competition Manipulation and Sport Gambling Policy (CMSGP). This is utilised by organisations that are signatories to the NIF such as Athletics Australia or Swimming Australia. This policy outlines what prohibited competition manipulation conduct is, as well as how complaints and allegations will be managed.

For the NIF, the CMSGP refers complaints to the Complaints, Disputes and Discipline Policy (CDDP), which sets out the investigatory and disciplinary processes. Similar types of policies can be adopted for other sporting organisations to have clear alignment of rules and processes for issues such as match-fixing.

The types of sanctions that can be made under the CDDP, and through guidance provided by SIA for gambling and match-fixing offences includes:

• For betting on one’s own sport:
  • Formal conciliation or mediation;
  • Counselling;
  • Restricted duties or access;
  • Supervision and mandatory oversight;
  • Mandatory education and programs; and/or
  • Temporary suspension from relevant event /entity /club.
• For match fixing, any of the above and/or:
  • Formal Reprimand;
  • Requiring an apology;
  • Role change;
  • Withdrawal of accreditation from the relevant sporting event;
  • Permanent suspension /exclusion from the event /entity /club; and/or
  • Return of awards.

Although Football Australia is not a signatory to the NIF, Ulises Dávila and the other members of the Macarthur team could be subject to a range of disciplinary measures from the Club (Macarthur FC), League (A-Leagues), and National Body (Football Australia). This could include Football Australia’s Code of Conduct and Ethics, which is applicable to all professional players within Australia and contains a prohibition against match manipulation under clause 2.10.

The Mitigation Strategies

Although sporting administrators can be charged with match-fixing offences, it is primarily the athletes or players that are involved. The greater issue is the flow-on effect of instances such as the A-League scandal that have a significant impact on a particular sport or sporting organisation. Football Australia CEO James Johnson stated that the conduct of Macarthur FC players was “very troubling news for the Australian football community and beyond… the conduct that has been alleged has no place in our game”.

In the 2011 National Policy on Match-Fixing in Sport, expectations were set out for sporting organisations and sport controlling bodies (i.e. Football Australia) in protecting the threat of match-fixing and the corruption that flows from it. This included:

1. Adopting an anti-match-fixing/anti-corruption code of conduct which aligns with the nationally agreed principles;
2. Applying the code of conduct to all players, player agents, support personnel, officials, and staff;
3. Applying a disciplinary framework within the code of conduct including sanctions and appropriate investigative processes with minimum and meaningful sanctions;
4. Developing and entering into national integrity agreements with betting organisations in relation to the provision of betting and information sharing on the sport;
5. Providing appropriate information to betting agencies to support preventative and investigative measures in a timely manner;
6. Providing appropriate education of players, player agents, support personnel, officials, and staff on their responsibilities under the code of conduct and to provide information on match-fixing to assist with prevention, detection and disciplinary actions in accordance with the policy; and
7. Providing and exchanging information on suspected match-fixing or corrupt activities with the over-sighting/coordinating agency, betting agencies, and law enforcement agencies.

The advice from the policy is still practical today. Having an appropriate integrity policy or code of conduct can set out how organisations address these issues, and provides clarity to senior management, members, and fans in times of trouble. This document can instruct athletes on what they are not allowed to do, and the process of responding to requests to engage in match-fixing.

Among other things, an effective competition manipulation and gambling policy should:

• Clearly describe what match-fixing is and provide examples of how it can occur;
• Explicitly state the possible consequences of match-fixing;
• Clearly describe the disciplinary process which is used to deal with allegations of match-fixing, ensuring that the process is procedurally fair (meaning providing opportunities for alleged offenders to hear the case against to them, including any evidence, having the opportunity to respond to allegations, and having independent, unbiased investigators or decision-makers); and
• Clearly describe the circumstances in which the sports organisation should direct the allegations to law enforcement for investigation.

It is recommended that sporting organisations seek legal advice from law firms experienced in sports law and sporting integrity matters to assist in the creation and implementation of such a policy or code of conduct.

Sporting organisations must ensure that their athletes, staff members and clubs are aware of this policy. Ways to do this could include:

1. Set out time for when an athlete or staff members first joins the organisation to read and acknowledge all policies. This can then be followed up with a quiz or questionnaire;
2. Providing training and education programs which are aimed at developing and enhancing people’s understanding of the policy and why it has been put in place. Such training and education should include details of the consequences of breaching the policy;
3. Keeping the policy up-to-date and providing updates and training (where necessary) to people to ensure that their understanding of the policy is current; and
4. Ensuring that the policy is accessible to all athletes, clubs, and staff members, including hard copies in the workplace where appropriate.

In terms of internal procedures, the policy should generally require the sports organisation to thoroughly investigate any allegations of match-fixing. The investigation must be done in a procedurally fair manner, in which the alleged perpetrator is provided all details of the allegations made against them, and a fair and reasonable opportunity to respond to such allegations. After the investigation is completed, the organisation should inform the alleged perpetrator of its decision. It is generally up to the organisation whether it would like to provide reasons for its decision.

If the alleged perpetrator is found guilty, the organisation should provide them with an appropriate sanction which is proportionate to their offending after providing them an opportunity to make submissions on penalty. Additionally, if the conduct may constitute a criminal offence under the relevant state or territory law, then the organisation should refer the matter to the relevant law enforcement body.

Conclusion

Although Ulises Dávila may not see the football field any time soon, the impact the scandal has had on the sport in Australia and its national body is deep and troublesome. To avoid a similar situation, sporting organisations must set clear policies and procedures, handle complaints correctly, and provide fair and reasonable sanctions for any competition manipulation wrongdoing. It is imperative that athletes, coaches, and officials are all aware of their obligations in match-fixing on an ongoing basis to protect the reputation of individuals, organisations, and sports.

SportsLawyer is here to assist sporting organisations and clubs in mitigating sporting integrity risks, including policies and procedures, board and governance consulting, dispute resolution, and more. Please call (03) 9642 0435 to meet with our award-winning Sports Law team.

Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought.

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Who’s Who Legal canvas hundres of sources in Australia, New Zealand and worldwide to identify those lawyers who stand out in their area of expertise.

Paul has been a Sports Law Specialist ………

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Who’s Who Legal identifies and lists the leading lawyers in the world on multiple legal practice areas.

Paul’s inclusion on the list is a demonstration of his expertise and competence in all things sports law. This year is the fifth year in a row in which Paul has been included on this list, having also being listed as a leading Sports & Entertainment Lawyer in Australia and New Zealand between 2019 to 2020.

On his latest achievement, Paul said:

“I am thrilled for the recognition by my peers for five consecutive years now.  However, it is a team effort by all at SportsLawyer, and without them this accolade would not come to me.  We feel blessed by the clients and colleagues who put their trust in us to represent to the very best of our ability on an ongoing basis.  I am also delighted to be recognised alongside other very experienced and high calibre leading Australian and New Zealand sports lawyers”. 

Paul and the team look forward to continuing to help SportsLawyer’s clients to achieve successful results in the future.

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With more than twenty years experience in the sporting industry, together with our expertise in employment law, we are well suited to support the VAFA organisation in the ongoing changing landscape of community sport.

We welcome you to read further details via the announcement by the VAFA:

https://www.vafa.com.au/news/2023/03/31/vafa-partners-with-sports-lawyer/

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A Legal Analysis on Wimbledon’s Ban on Russian and Belarusian Players

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Paul believes that the AFL’s emphasis on protecting the head means that Stewart will likely receive a suspension of at least 3 weeks.

https://www.theage.com.au/sport/afl/it-still-sits-in-my-gut-sorry-stewart-urged-to-strike-a-deal-over-prestia-bump-20220627-p5awzr.html

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Director IDs are required for all directors and alternate directors of companies, registered Australian bodies (which includes incorporated associations with an Australian Registered Body Number), registered foreign companies, and Aboriginal and Torres Strait Islander corporations. They are not required for directors of incorporated associations (with no ABRN) registered with the Australian Charities and Not-for-profits Commission, company secretaries who are not directors, external administrators of a company, sole traders or partnerships.

To get a director ID, directors should make an application on the Australian Business Registry Services (ABRS) website. Applications are free of charge. Directors will need a myGovID to make an application and the application must be personally made by the director themselves. Directors only need to make an application once as director IDs are permanent.

When a director must apply for director ID depends on the date a person became a director.

1. If the person was a director on or before 31 October 2021, they must apply for a director ID before 30 November 2022.
2. If the person became a director between 1 November 2021 and 4 April 2022, they must apply for a director ID within 28 days of their appointment.
3. If the person became/becomes a director on or after 5 April 2022, they must apply for a director ID prior to their appointment as a director.

Directors who do not comply with director ID legal requirements may be liable for serious criminal and civil penalties.

If you would like further advice on your obligations regarding director IDs, please contact our sports law team at SportsLawyer on (03) 9642 0435 or reach out to us at info@sportslawyer.com.au.

Disclaimer:  Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought. Please contact us on info@sportslawyer.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.

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