Www.sportslawyer.com.au Sporting Integrity: Rule Compliance and Investigations Presented by Paul Horvath, Principal Andrew Vincent, Lawyer

www.sportslawyer.com.au

Sporting Integrity:Rule Compliance and Investigations

Presented by

Paul Horvath, Principal

Andrew Vincent, Lawyer

http://www.sportslawyer.com.au/


Today’s presentation: Compliance, Integrity, Misconduct and Investigations

1. Main Basis for Disciplining Athletes, Officials etc is under the Contract of Employment

2. Policies, By-Laws, Rules and Codes of Conduct also are applied – incorporated under contract or part of membership agreement, affiliation agreement etc.

3. Workplace investigations





Recent Integrity and Compliance Issues in Sport

In Competition Doping – Essendon; Lance Armstrong

Out of Competition Gambling in Sport & Match Fixing Illicit (recreational) Drugs Alcohol related incidents - assaults



Fascination with Athletes on the wrong side of the law The incidence of professional and elite

athletes and their indiscretions is far lower amongst athletes than the general population.

Positive IDP drug tests in AFL – 26 in 2012, (1979 tests ie .0131%); 15 in 2013 (1998 tests ie. .0075)

Around 15% of the population have used an illicit drug in the past 12 months – cannabis (60%); methamphetamine (10%) and ecstacy (10%)



The athlete contract

Athlete contracts now are complex and lengthy; numerous rules, codes & policies may be incorporated into the athlete contract in order to maintain this higher standard. For example: the World Anti-Doping

Authority (WADA) code applies to all professional athletes in Australia which applies in a strict liability manner – athlete is presumed guilty.



Sporting associations derive their right to act against players for “on-field” and "off-field" behaviour under the playing contract if the athlete is deemed to have "brought the game/sport into disrepute".

Case example: Nick D’Arcy on the following slide.

This phrase is intentionally broad to capture any behaviour by the athlete as athletes are often deemed to be 24/7 role models. This is because it is necessary for a sporting club or association to protect its brand and reputation. It relies on sponsorship revenue and sponsors cannot afford to be associated with misconduct, criminality or illicit substance abuse.



Case examples: The athlete contract – personal conduct policies compared

Nick D’Arcy case:

The relevant Australian Olympic team Code of Conduct states that the athlete must not: “(7) have not engaged at any time in conduct which (a) is publicly known and in the absolute discretion of the President of the AOC…….has brought or would be likely to bring the athlete, the athlete’s sport, the AOC or the Team into disrepute or censure”.





2012 London Olympics – pre-games

Athletics – John Steffensen – 2012 breach of IAAF Rules (international) and AA By-Laws & Olympic team agreement – conduct prejudicial and brought sport into disrepute; breach of AA Code of Conduct for AA team members – breach of media policy to “not criticise or disparage the company (AA)…”; athletes to “conduct themselves in a proper and professional manner…to ensure squad harmony…”



Offence & Penalty John Steffensen – pre 2012 London Olympics

said AA CEO was a liar and that he had been discriminated against/racially vilified by AA on many teams - charged with bringing sport into disrepute following investigation – accepted findings and made submission on penalty – six (6) months suspension because of previous indiscretion.

NB: challenge to investigator – conflict of interest alleged – live issue in many workplaces



Bringing the sport into disrepute – case settled, no guilty plea; agreed penalties The Essendon Football Club was sanctioned by the AFL for its

supplements program during the 2011 and 2012 AFL seasons. Penalties include: Being ruled ineligible to play in the 2013 AFL finals series; Loss of first and second round draft picks in the 2013 and 2014 AFL

Drafts; and Receiving an Australian sporting record fine of $2 million.

Penalties for individuals include: Suspension for senior coach James Hird for 12 months (backdated

from 25 August 2013) Suspension for operations manager Danny Corcoran for 4 months

(starting from October 2013 with a further 2 months withheld) $30,000 fine for assistant coach Mark Thompson.



Official at 2007 FINA Melbourne World Swimming Championships 2007 – Zubkov – swim coach – life FINA ban

reduced to 8 months by CAS – guilty of ‘misbehaviour’ but did not bring the sport into disrepute

The act must cause the public to think less of the sport; must affect the promotion and encourgaement of swimming throughout the world – FINA did not show evidence of this



An example of “off-field” misbehaviour discipline – not sport related

The Queensland Crime and Corruption Commission has alleged that Karmichael Hunt, Beau Falloon and Jamie Dowling arranged for the supply of cocaine for personal use or to on-supply to friends and colleagues between June and December 2014.

These players were stood down by the club pending the outcome of their hearing but have been reinstated as of the 17th of March, pending the outcome of their court proceedings in May.

Hunt has since plead guilty to four charges of cocaine possession, receiving a $2,500 fine and no conviction from the Southport Magistrates Court.

The Australian Rugby Union and Queensland Rugby Union further suspended Hunt for six weeks and fined him a further $30,000.

The Titans are still without a major sponsor and have had to move their home ground (The Southport School) as in the “circumstances it is not appropriate for the team's training facilities to be based in an education facility among impressionable young people," Gold Coast Titans chief executive Graham Annesley said in a statement.



Another example of “off-field” misbehaviour discipline Stephanie Rice posted a homophobic

slur on Twitter saying “Suck on that faggots!” following the Wallabies’ win over Springboks in 2010.

Despite her public apology, Jaguar terminated their sponsorship deal with her.



On Field Misbehaviour

Leigh Matthews (VFL) N Bruns – GB Bond Barry Hall/Brent Staker – 7 weeks, lucky no police

charges Most on-field misbehaviour results in tribunal

hearings under the sport’s rules Includes: racial comments; actions “behind play”;

unsportsmanlike conduct Ryan Tandy (NRL), jailed Pakistan cricketers &

Southern Stars soccer team, Melb. – match fixing Other examples?



Examples of athletes charged with criminal offences

Greg Inglis – assault on girlfriend – diversion (caution) – legal fees $90k

Gary Niewand – Olympic Cyclist – 4 Olympic medals & World Champ – depression post cycling – 18 months jail for repeated intervention order breaches against ex girlfriend

Nathan Baggaley – kayaker – 9/5 yrs jail, drug trafficking Scott Miller – Olympic silver medallist – drug trafficking –

Community service (2009); suspended sentence 2014; 60 minutes, sad story

Marion Jones – 6 months jail – perjury Any other examples?



Other disciplinary penalties Wendell Sailor – two years for cocaine use taken

outside competition but minor traces in system on game day

Lance Armstrong – life ban for systematic doping, non-co-operation and deceit – now seeking reduction

Tyler Hamilton (cyclist) – 6 month ban, gave evidence against Armstrong – made $M’s in pro cycling

Alex Rodriguez – US baseball – suspended 162 games or a full season – used human growth hormones



Workplace Investigations

1. Workplace investigations

2. Play true -WADA

3. Practice

4. Anything more – legal framework



WADA – Play True

https://www.youtube.com/watch?v=XsTYYGELvFc#action=share


https://www.youtube.com/watch?v=XsTYYGELvFc#action=share


WADA – the best & worst of us

Sport brings out the best in usdedication, courage, hard work & respect

Athletes who use PED cheat everyone – mostly themselves

Sport is about equality – who knew?



Workplace investigations are…

An enquiry into an allegation of behavioural misconduct by an organisation May be an investigation arising from an complaint from

one employee against another Misconduct

Bullying, Discrimination Fraud Harassment



Workplace investigations - features

What type of investigation should I undertake?

What are the key stepsscope, allegations, plan, interviews, evaluate

& decision

What evidence should I collect? What evidence is relevant?What do I do with contradictory evidence?



Reconciling theory with practice



There is nothing more – legal principles

Procedural fairness (natural justice) 1. The person accused should know of the nature

of the accusation2. Be provided with the opportunity to state their

case, and3. Tribunal should act in good faith

I do not think there is really anything more*



Put another way

Duty to act in accordance with the requirements of procedural justice excludes the right to decide to arbitrarily, irrationally, or unreasonably

It excludes the right to act on preconceived prejudices or suspicions



Take homes

Procedural fairness is a means to reconcile workplace/organisations aspirations with realities of conducting investigation

A fair go all round – complainant, respondent, investigator & organisation



Level 4, 179 Queen StreetMELBOURNE VIC 3000(03) 9642 [email protected]


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Documents

Www.sportslawyer.com.au Sporting Integrity: Rule Compliance and Investigations Presented by Paul Horvath, Principal Andrew Vincent, Lawyer