‘We’re not bluffing’ : 30 bush footy players, officials strike after Mathew Nean’s 20-year ban not addressed

30 players and official have confirmed strike action in the Group-4 competition after Mathew Nean’s controversial 20-year suspension wasn’t addressed at a meeting.  See the full list of those on strike.

The strike is on.

A total of 30 players and officials in Group 4 have indicated they will not participate in the upcoming season after a league meeting failed to meet their demands.

Prior to Tuesday’s meeting, the group of players, coaches, a referee and official said they would stand down if Mathew Nean’s 20-year suspension wasn’t addressed.

It stems from his suspension in the 2016 Group 4 grand final where he was handed an 18-week ban for making contact with referee James Brown, extended to 20 years after he was unsuccessful at the judiciary.

Chris Vidler is one of the 30 vowing not to participate until the suspension is overturned, and said the group believes he has been unfairly treated over the past decade.

‘We said last week we weren’t bluffing,” Vidler said.

“This isn’t about headlines.  This is about standing up when something isn’t right.”

“Matt has already lost nearly ten years of his life in the game.  We’ve watched him be locked out of grounds, unable to coach, unable to even support his kids properly on the sideline.”

“We were hoping this meeting would finally deal with it.  It didn’t.”

“When compassion disappears, people in the community start asking whether the system treats everyone the same.”

This masthead understands in response to the strike action, an extraordinary meeting will be held this Friday afternoon to discuss Nean’s case.

The meeting was called by the Group 4 committee of the NSWRL, with current chair Shane Cullen to the chair the meeting.

Indications suggest only evidence-based material relevant to the case will be considered.

PLAYERS/OFFICALS ON STRIKE

If you missed the featured story on Mathew’s ban on A Current Affair, please click HERE to watch.

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Recently, our principal Paul Horvath was featured on Channel 9’s A Current Affair in its story about Mathew’s circumstances. It is a story about redemption, grit, and resilience. We strongly encourage you to watch the story below.

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Listen to Paul Horvath, Principal of SportsLawyer as he chats with Tony Jones of 3AW on how political statements have changed a lot over the years in sport, particularly in relation to Usman Khawaja and Cricket Australia.

Click here for the full story:

Tony Jones calls out ‘lack of consistency’ from the ICC in light of Usman Khawaja shoe ban

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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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They provide their key takeaways from that matter – highlighting the harsh
realities athletes face in selection disputes.

Read it here: bit.ly/3gmCoXj

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We will cover the four grounds for appeal, the appeal process, what happens if an athlete is successful in their appeal as well as what happens if it is found there have been minor mistakes or flaws in the selection process.

We also cover what to know and do in your organisation to minimise the risk of future disputes in sports.

Note: Given that different sports use different terms, when we use the term ‘selection’ throughout this article, we are referring to both nomination and selection of athletes.

Grounds for Appeal in Non-Selection

Strict appeal points must be established by an athlete challenging their non-selection.

There are generally four grounds for appealing non-selection. They are, if:

1. The Selection Policy was not properly applied;
2. The non-selected athlete was not afforded a reasonable opportunity to satisfy the Selection Policy;
3. The decision was affected by actual bias; and, if
4. The decision was one that no reasonable selection panel could have arrived at.

We will explore proper application, reasonable opportunity, actual bias and ‘reasonable’ decision making by selectors in more detail below, as some are often misinterpreted in the sporting context.

Proper Application of Policy

Any sport’s selection policy needs to be applied strictly, consistently and in a transparent manner. That includes informing all athletes about events, training and preparation so they can be in the best position for selection. 

This also includes letting eligible athletes know what selectors are likely to be looking for and impressed by when making their selection. Regular communication by way of meetings, phone and zoom calls, and attendance at training by coaches, high performance staff and selectors is ideal. 

If everyone is getting the same information at the same time, then it is not unfair to anyone. If some people are getting the information more easily, then there is a disadvantage to some and procedural fairness comes into question, making it a valid point of appeal. 

The application of the policy consistently over the lead up period to an event is what will minimise the risk of selection disputes in sports. The lead up period can be two or three years for events such as the Commonwealth Games or Olympic Games, so the lead up period and education and informing of athletes must be consistent throughout any lead up period.

Risk can be reduced by seeking professional advice and education of selectors about transparent, consistent and fair application of selection policies.

Reasonable Opportunity

Usually, once a selection policy is in place, it won’t need changing or updating for some time, however, if the policy is insufficient and opens your organisation up to disputes, it may be required.

Given that athletes are planning to get their best results and peak at intervals for the purposes of selection, changes to selection policies need to be made at appropriate times. When a policy is changed, it can have the effect of turning an athlete’s preparation on its head, as their training will be geared to meet the criteria for key events in different parts of the world. For this reason, changes to the policy need to be very carefully considered, timed, managed and communicated to all athletes vying for selection. 

It is the duration of the lead time up to the event that needs to be considered when making changes to selection policies, but only if this is absolutely necessary. For example, the lead up time for the Commonwealth Games or the Olympics is two or three years so timing the changes to policies needs to be carefully considered.

Actual Bias

Bias is commonly misunderstood in the context of non-selection in sport. It is a serious allegation to make, and often involves seeking to impugn the integrity or character of the decision maker, and so requires a high standard of proof. Actual bias rather than perceived or apparent bias is what is required. What is difficult is that for actual bias to be considered grounds for appeal, it must be proven, and that requires a very high standard of proof that is generally very difficult to meet. There must be clear and direct evidence that the decision maker was in fact biased. Suspicions, assumptions, equivocal statements and the like will not suffice. 

Reasonable Decision Making

Your policy should detail your selection criteria and be written using language so it cannot be misinterpreted. 

This can become a valid point of appeal if your selection policy does not sufficiently detail your selection criteria or it is not written in clear language. It can also be an issue when the policy does not state the need for selectors to be given very broad or absolute discretion in exercising their judgment.

Additionally, detailed note taking by the selectors throughout the selection period and during selectors meetings is strongly recommended. Even though the process may run for years, this notetaking can be used later to show that the selection policy has been properly followed.

What Happens if an Athlete Succeeds in their Appeal?

Even if the athlete succeeds in his or her appeal, this does not mean they will be automatically selected onto the team. Generally, if the selection appeal is successful, the matter is referred back to the same selection committee to remake the selection decision. Only this time, they need to apply it strictly and properly, following the selection criteria. 

Selectors may arrive at the same selection decision (and often do) as originally made, which excludes the appealing athlete from the team. 

What if there have been Mistakes or Flaws in the Selection Process?

Even if there have been modest mistakes and flaws in the selection process, this may not lead to the selection being overturned. Generally, the selectors need to be shown to have taken into account irrelevant facts or considerations in selecting an individual or team, or they must be shown to have failed to take into account factors they should have considered. 

Given that selectors often have a very broad discretion, small mistakes rarely lead to a successful appeal for the athlete.

Enabling Discretionary Judgment in Selection

If you regard your selectors as the people with the greatest expertise in the sport, who are in the best position to understand what will put the team in the best position to achieve the best results at the relevant national or international competition, then your selection policy must reflect that. 

Equally, in sports where discretion is considered vital to allow for the consideration of athletes for team fit and so on, your policy must detail this. Unlike in sports such as athletics or swimming where there are objective criteria about times that makes team selection clear cut, in instances where multiple people meet that threshold, and there is a limit to how many can be on the team, then the sport may need to also take into account additional factors such as team chemistry. 

While an athlete may argue their race results and ranking position compared to other athletes may be better, other factors sufficiently described in a selection policy usually mean that an athlete’s compatibility within the team, and potential to be a future Olympic, Commonwealth Games or World Championship competitor can be considered. This alone often leads different experts to arrive at different selections, so it is not an exact science. Your policy must clearly detail the broad degree of selector discretion, specific to the requirements of your sport.

Avoid Selection Disputes in Sports

To minimise the risk of selection disputes in sports, ensure the following:

• The selection criteria is applied strictly and consistently;
• No additional or inappropriate (or unspecified) criteria are to be applied;
• Transparent application of the policy throughout the selection process; and
• Selectors act in good faith and without bias to an athlete or group of athletes.

And, given that selection disputes in sports arise due to unclear policies or issues in the application of the policy, including the lead up time, seek professional advice in these instances:

• When planning to update your selection and nomination policies;
• Ensure best practices are applied to ensure transparent and consistent application of the policy to all athletes; 
• To educate selectors about when and how bias may be alleged, and conflicts of interest for selectors to avoid; 
• To educate what may give rise to an arguable selection appeal, and therefore identify what selectors are to avoid; and
• To determine if your policy and process could withstand being challenged in a dispute or be considered clearly written and applied.

If you know your organisation has covered each of these elements effectively it should provide comfort that you are in a pretty strong position when faced with a selection dispute.

Article by Paul Horvath

Related Articles: Avoiding Selection Disputes

Procedural Fairness and Appeals in Sport

Discrimination Against Women in Sport? The Participation of Women in Sports Competition

Ethics in Sports: Mitigating Risk for Sports Organisations

Our team specialises in working with sporting organisations of all sizes, across all capital cities and regions of Australia. We focus on managing and minimising your risk, so you can focus on your sport. To enquire about our services, fill in this form or call our office on (03) 9642 0435.

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 Paul Horvath on info@sportslawyer.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.

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SportsLawyer is proud to share with you the following recent March 2022 success stories with helping clients achieve desirable results.

Success Story 1: Bad behaviour fully explained

Basketball – last week we advised a client who was charged with offensive conduct, umpire abuse, threatening behaviour and bringing the sport into disrepute.  This coach of a mid-age girls team had motioned the referee for a confrontation before being escorted out of the stadium.  After the event and the adrenalin had gone, the coach could not believe his conduct.  He did not recall clearly the events as recorded in the summary before the tribunal.  He sought medical advice, and was diagnosed with depression, put on medication and referral to a counsellor.  He wrote a heart-felt apology to the referee involved, explaining his mental health condition, heavily contributing to the offence, though that was not an excuse, rather than explanation.  His excellent coaching and playing record over a thirty year period, coupled with excellent references led to a good behaviour bond outcome.

Success Story 2: Defamation in Sports Club

We advised a senior club official about a defamation that had occurred during the course of a disciplinary tribunal hearing held at the club premises.  Following the issue of a letter of demand, the offending party paid legal costs and issued an apology which was displayed for one month at the club premises.  See the client’s testimonial here: https://au.trustpilot.com/reviews/61aed8790b7cbbcbfe035772

Success Story 3: Golf Club Disciplinary Process

We assisted a golfer disciplined and suspended by their club for behaviour during golf play.  The player lodged an appeal, and we assisted with submissions.  Following a successful appeal, we issued court proceedings to obtain a copy of the appeal panel decision with a view to commencing court proceedings due to various breaches of procedural fairness in the disciplinary process.  A settlement was reached which included an apology to the golfer.

Success Story 4: Olympic Selection

We recently represented a national athlete who was not nominated for selection for the Tokyo 2020 Olympics. The athlete appealed to the Court of Arbitration for Sport (CAS) and Paul Horvath represented them on the appeal involving complex arguments against the international federation, and “field of play” arguments.  The clients review of our services can be found here:  https://au.trustpilot.com/reviews/61b980be9f60695a25f4f165

Other recent wins include:

• Sportslawyer represented a national level athlete in an investigation conducted by ASADA relating to an alleged doping offence, part of a broader investigation.  After making comprehensive submissions to ASADA and providing supporting documentation in response to proposed assertions by ASADA of alleged anti-doping violations, and in support of the athlete’s position, the charges were not proceeded with and the athlete received no penalty.
• Provided detailed advice to a national sport in relation to a child safety investigation, and assisted in ensuring that any allegations by the respondent that the investigations and findings were unlawful, or in any way breached the respondent’s rights to procedural fairness, or were defamatory, were properly dealt with and responded to, such that the matter resolved satisfactorily for our client without legal action ensuing, despite legal letters.
• Drafted constitutions for a number of State sporting Associations under the umbrella of a national client, tailoring the constitution to the number of individual members and member clubs;
• Advised a client as to a draft National Child Safety Policy and draft Member Protection Policy, providing comment on the draft;
• Paul Horvath of the Team presented a detailed seminar to the Law Institute of Victoria on the duty of care in sport and child protection on 12th March, 2019.
• Conducted a major review of the governance process of a significant Victorian sporting organisation.
• Represented a World Champion sportsperson in relation to an alleged breach of anti-doping rules (under WADA Code) and succeeded in having charges fully dismissed
• Represented a swimming coach banned at the World Swimming Championships for life for alleged misbehaviour, and had the ban reduced to eight (8) months which was time already served up to the date of the appeal, and the case set new law on defining what constitutes behaviour that “brings a sport into disrepute”; attended Court of Arbitration for Sport (“CAS”) Lausanne, Switzerland to run the case
• Represented an eight time national go-kart champion in the Australian Motor Sport Appeal Court and succeeded in having a race penalty overturned at the national championships, resulting in the driver successfully receiving his next National Championship Trophy
• Successfully represented a national champion boxer in CAS after arguing that banning a boxer with a pacemaker was a breach of the International Boxing Rules, and was discriminatory after producing medical evidence that there was no significant risk to the boxer’s health by boxing.
• Acted on behalf of an AFL Club and its players in relation to AFL Tribunal and AFL Tribunal Appeal hearings.
• Acted on behalf of National Sporting Body in drafting complex Athlete and Official Agreements for participation in international competition.
• Represented a leading Australian Group 1 winning greyhound trainer in defending charges brought by Greyhound Racing Victoria.

If you would like to become another of our many success stories, please contact Paul Horvath at SportsLawyer on 03 9642 0435 or reach out to us at info@sportslawyer.com.au.

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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