It is not uncommon for sports governing bodies to be faced with the difficult situation where it is alleged that an athlete has engaged in unlawful behaviour beyond the field of play. One option is to allow the criminal justice system to take its course, and to bring disciplinary proceedings only once a determination as to innocence or guilt has been reached. However, criminal proceedings, particularly when more serious, can take significant time.
Sports governing bodies face a difficult balancing act in that interim period. On the one hand, it is imperative to protect the reputation and image of the sport by ensuring that appropriate sanctions are in place for off-field misdemeanours. On the other, preventing players from plying their trades before due process is complete sits uneasily with the presumption of innocence.
The reaction between nations and across sports can vary greatly. When CCTV footage emerged of England cricketers Ben Stokes and Alex Hales involved in a brawl outside a nightclub in Bristol, the England and Wales Cricket Board immediately suspended both players from playing for England.
In contradistinction, when Franck Ribery, the French soccer star, was alleged to have been involved in an under-age prostitution scandal, he was not suspended from the French national team and was able to play in the 2010 World Cup. Similarly, mixed martial arts’ UFC took no action to suspend star fighter Conor McGregor when he famously attacked a bus full of UFC fighters with a trolley, causing at least one fighter to suffer facial lacerations, an incident for which he was prosecuted.
The NRL’s ‘No-Fault Stand Down Rule’
This issue has been brought into sharp relief in Australia following the recent off-season, in which multiple players in Australia’s National Rugby League were alleged to have been involved in an avalanche of serious off-field incidents, the most high-profile of which include:
• Parramatta Eels’ superstar, Jarryd Hayne, was charged with aggravated sexual assault and inflicting actual bodily harm;
• St George Illawarra Dragons’ lock, Jack De Belin, was charged with aggravated sexual assault in Wollongong in the early hours of the morning;
• The 2018 Super League man of Steel, Ben Barba, signed for the North Queensland Cowboys for 2019, was charged with two counts of public nuisance after CCTV footage emerged of him appearing to assault his wife in a Townsville casino; and
• Hours after being named Australian captain, South Sydney Rabbitohs’ Greg Inglis was arrested and charged with drink-driving and speeding.
The NRL insists that the rule does not attribute any fault to the player concerned, but rather is aimed at protecting the reputation of rugby league and improving the culture within the game
In an attempt to find an appropriate solution to the delicate balancing act described above, the NRL has introduced a ‘no-fault stand down rule’. Under the rule, a player is automatically suspended from playing in the NRL where charged with an offence carrying a maximum sentence of 11 or more years’ imprisonment. The NRL insists that the rule does not attribute any fault to the player concerned, but rather is aimed at protecting the reputation of rugby league and improving the culture within the game.
The first player to be subject to the rule is De Belin. The charges laid against him are awful and, if found guilty, he will be severely punished.
However, if found to be innocent, De Belin will have been prevented from playing in the NRL for up to 18 months for a crime which he has been found not to have committed. Although he can continue to train and will be paid during that period, there is no substitute for playing matches in the league for which he has trained his entire life and the suspension will undoubtedly have a significant impact on his playing career.
However much the NRL emphasises the ‘no-fault’ nature of this rule, the damage to players’ career and reputations is difficult to square with a presumption of innocence. In truth, the NRL has decided on policy grounds that the means, namely punishing a player prior to the court’s determination as to innocence or guilt, justify the end of cleaning up the culture in the game.
It remains to be seen whether the rule will have the desired effect. In the more immediate term, however, the lawfulness of the NRL’s decision is being challenged in the Australian courts. De Belin has already instigated proceedings in the Federal Court in Sydney challenging the NRL’s decision under Australian law.
In England and Wales, the court has an inherent supervisory jurisdiction to intercede where a sports governing body has made a decision which is:
• Outside of its powers and/or unlawful;
• Procedurally unfair or contrary to natural justice; and/or
• Unreasonable in the sense that it is irrational, perverse, arbitrary or capricious.
Had the NRL’s decision come before the courts of England and Wales, it is not difficult to imagine how players affected by ‘no-fault stand down’ might have sought to rely on any or all of the grounds for challenge identified above.
In particular, there are serious questions about the procedural fairness of introducing a career-altering policy with retrospective effect. Predictability is a fundamental principle of natural justice and players like De Belin will have been banned pursuant to a rule which was not in place at the time of their alleged offences.
It might be said that a blanket suspension triggered by charges alone is irrational
It might also be said that a blanket suspension triggered by charges alone is irrational. It is one thing for a governing body to rely on the fact that charges have been brought as evidence that an existing test for a provisional suspension has been met, but what of charges brought in countries with less robust police and prosecution procedures than Australia? And what of criminal procedures which do not match the common-law tradition of charges? In France, for example, prosecutors often place suspects in a lengthy ‘investigative phase’ which shares certain characteristics with charges in other jurisdictions, but not all. In the circumstances, the reasonableness of mechanistically banning players based on the fact of charges alone is not beyond doubt.
Despite efforts to improve the culture across sport, there will always be occasions where certain players make poor choices as to how to conduct themselves during their spare time. In the long term, sports governing bodies might wish to take note of what, if any, impact the ‘no-fault stand down’ rule has on the behaviour of NRL players.
In the meantime, it will be of interest to sports bodies and sports lawyers in common law jurisdictions to await the decision of the Australian court as to the lawfulness of the new rule. Whatever is decided, this issue will remain a thorn in the side of governing bodies for the foreseeable future.
William Harman, barrister at 4 New Square, also contributed to this article.