13sports and the law - Oxford University Press

Transcription

13
sports and the law
outcome
At the completion of this chapter you should be able to explain one or more area/s of civil law, and discuss
the legal system’s capacity to respond to issues and disputes related to the selected area/s of law.
Key knowledge
This chapter is designed to help you understand the key knowledge of:
• legal principles relevant to the selected area/s of
law
• the capacity of the legal system to respond to
demands for change
• a contemporary issue for the selected area/s of
law
• methods and institutions for resolving disputes
arising under the selected area/s of law.
chapter 13 sports and the law
Key legal terminology
assault The direct or indirect application of force by a
person to the body of another person, without
lawful excuse and with the intent to inflict harm
or being so reckless as to inflict harm.
contract A legally-binding agreement where a
promise (or set of promises) are exchanged for
adequate consideration.
criminal negligence Actions of negligence that are
so gross that they become a criminal matter.
domestic tribunal A tribunal set up by a private
company or group rather than by parliament.
trademark Logo or emblem used to identify a
product or organisation.
vicarious liability A club, association or business can
be held liable for the actions of an employee or
voluntary worker as long as the worker does not
act beyond their given duty or outside normal
behaviour.
volenti non fit injuria A situation (often in sport)
where the parties involved accept the dangers
of a known and appreciated risk, either
expressly or by implication.
natural justice A common-law principle that states
people must be treated fairly, for example,
an unbiased decision-maker must hear any
disputes.
The purpose of the law
Sports law is relevant to the administration of sport and a person’s participation in sport
whether they play at amateur, professional or international level. The legal issues that arise
from a sporting activity can involve aspects of contract law, tort law, criminal law, antidiscrimination law and trade practices law.
The courts will usually decide sporting issues that involve criminal activity or a breach
of a person’s individual or contractual rights. The courts do not usually get involved with
breaches of sporting rules or codes of behaviour. The courts prefer to leave these decisions to
the relevant sporting body or association that makes the rules.
To ensure the safety of participants and the integrity of their game, each sporting
association has established rules about who can play, when they can play and how they
will play the game. These sporting associations also have regulatory bodies that resolve any
problems or disputes, such as the Australian Football League Tribunal. These regulatory
bodies can be committees, boards or tribunals that listen to complaints and make decisions.
In all cases, these bodies are expected to make their decisions in accordance with the
principle of natural justice. This is a common-law principle that states people must be
treated fairly. This includes the right to be heard by an unbiased decision-maker. People
need to know the nature of any allegation made against them and they should be given a fair
chance to put their case or respond to allegations. There should also be an avenue to appeal
a decision that has been made.
The courts may become involved if the governing body or its disciplinary tribunal:
• did not follow the principle of natural justice in making the decision or the penalty
applied was disproportionate to the offence committed
• did not follow its own rules or there is a dispute as to the meaning of a rule
• makes a decision relating to an issue that is against the law — for example, cases
involving discrimination.
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Torts and sport
Negligence
The Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 (Vic.) allows
consumers to sign a waiver where they accept a reasonable risk if participating in dangerous
recreational activities such as bungee jumping or white-water rafting. The waiver does not
protect the operator if there is gross negligence.
Bungee jumping
People who sustain serious injuries while participating in sport or recreational activities
may sue their opponents or the organisers of the event under the law of negligence. In most
cases, people who participate in contact sports or dangerous recreational activities accept
there is a certain degree of risk associated with these activities.
Under the legal principle of volenti non fit injuria, the injured sportsperson has,
either expressly or by implication, previously agreed to accept the dangers of a known and
appreciated risk. This principle does not apply when illegal behaviour is involved or when a
person’s actions are so careless that a reasonable person should have known that someone
might be hurt. For example, people who run a white-water rafting activity will be legally
responsible for any injury caused if they tell people it is safe to go out during a storm or give
participants boats that are poorly maintained and not fit for the purpose.
CASE STUDY
Failure to warn of danger
In the case of Rooke v. Shelton (1967) CLR, the driver of a boat towing a water skier failed
to warn the skier of the dangers of a boat in the path of the skier. The skier and the
boat collided and the skier was injured. The skier sued the skiing event organisers for
negligence.
To be successful in proving negligence it must be shown that:
• the person who was negligent owed a duty of care to the person injured
• the duty of care was breached
• the breach of the duty of care caused loss or damage and
• harm or loss was caused as a result of the breach of duty of care.
Whether an action for negligence is successful will depend on the circumstances of the
case. A greater duty of care is owed when activities are risky or involve younger people or
beginners in a particular sport or recreational activity. In such cases the court may expect
the person running the activity to foresee that a person with little experience might be
injured when participating in a risky activity that requires them to have a certain level of
skill. For example, a gym coach may be considered negligent in forcing a novice gymnast to
perform a complex manoeuvre that requires a high degree of ability.
If there is gross negligence on the part of a sporting organisation, the organisation may be
charged with criminal negligence.
Contributory negligence
In some cases it is found that the injured person contributed towards the injuries sustained.
For example, if a person is injured through the negligence of others, but it can be shown that
he or she did not take the usual precautions, it might be assumed that he or she contributed
to the injury. This is contributory negligence.
Vicarious liability
In some instances a sports club or association can also be held liable for the actions of an
employee or voluntary worker — as long as the worker does not act beyond their given duty
or outside normal behaviour. This is known as the doctrine of vicarious liability.
A sporting club or the owners of a recreational facility may be held liable for something
a worker does even if the club or owners are not specifically to blame. This is because the
law says that there is a special relationship between the employer and the employee. An
employer selects, appoints and trains an employee and may be responsible for the employee’s
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ACCESS AND JUSTICE
conduct. The person injured has a better chance of recovering damages from a company,
large sporting organisation or employer than from an employee with little means.
Sporting facilities
Sometimes owners of sporting facilities or local councils can be sued if the sporting facilities
they provide for public use or hire are not safe. The organisers of sporting events owe a duty
of care to provide a safe environment for participants, spectators and officials.
Sporting facilities
such as local
cricket and
football grounds
must be kept in a
safe condition
Learning activity 13.1
Negligence
1 Read the cases of Foscolos v. Footscray Youth Club and ‘Man left quadriplegic after
diving incident’ and answer the questions.
a Use the three elements of negligence to explain the decisions in each of these cases.
b What is contributory negligence? Could it be used in these cases?
c What is vicarious liability? Does it relate to these cases?
d Would the defence of volenti non fit injuria be applicable in these cases?
CASE STUDY
Foscolos v. Footscray Youth Club (2002) Victorian Supreme Court
Foscolos, 23, was a regular attendee at the Footscray Youth Club where he commenced wrestling under the
coaching of Samuel Parker. Foscolos was injured in a practice bout with a more experienced wrestler, Hardip
Bassi. Foscolos claimed that during the bout Bassi attempted a suplex throw where Foscolos was thrown over
the top of Bassi. He sustained severe spinal injuries when his head hit the mat.
Parker and Bassi both denied that the suplex throw was used but the judge did not believe their evidence.
The suplex manoeuvre can be very dangerous. The court found the coach negligent because he should have
been paying more attention during the bout and stopped it when he saw that the suplex manoeuvre was
about to be used.
CASE STUDY
Man left quadriplegic after diving incident
In Swain v. Waverley Council (2002) NSW Supreme Court, Guy Swain, 28, sued the Waverley Council after he
dived into the water at the beach and hit his head on a sandbar. He had assumed the area was safe because
he was swimming between the lifesavers’ flags. He was left a quadriplegic following the incident. At a trial
before a jury, he was awarded $3 750 000 in damages, after being found to have contributed to his injuries
by 25 per cent. In 2003, the Waverley Council appealed to the NSW Supreme Court of Appeal where the
decision was reversed.
In Swain v. Waverley Municipal Council (2005) HCA 4 (9 February 2005), Swain appealed to the High Court
where the appeal was allowed 3:2. The judges ruled that it is up to the jury to decide questions of fact (such
as how the man was injured and whether it was common practice in beach safety procedures to erect flags
near sandbars). The High Court found that the Court of Appeal erred in overturning the jury’s decision even if
‘in some ways, the jury’s verdict in this case was a surprising one’.
2 Explain the decision in the case of Cafest v. Tombleson. Do you agree with this decision?
Explain the reasons for your views.
CASE STUDY
Accepted risk
In Cafest v. Tombleson (2003) NSWCA 210, a woman who hurt her wrist while roller-skating
sued the venue for negligence on the basis that she was not given wrist guards and not
warned of the dangers involved. The court did not agree and said that she had accepted
an obvious risk associated with the activity.
However, in another case, a local council was found liable when a girl was injured at a
swimming carnival when spectator seating affixed to a wall collapsed.
3 Why might a sportsperson decide to sue the organisers of a sporting event? Explain. Use
an example to illustrate your explanation.
4 Read the case of Trevali Pty Ltd v. Haddad and answer the questions.
a Apply the elements that have to be proved in a negligence case to this case.
b Do you agree with the decision in this case? Discuss.
CASE STUDY
Trevali Pty Ltd v. Haddad
In Trevali Pty Ltd v. Haddad (1989) Australian Torts Reports 80–286, it was decided that
the defendant owed a duty of care to a novice skater. It was reasonably foreseeable that
a novice skater could be accidentally pushed and consequently injured if placed on a
skating rink with experienced skaters who were travelling much faster than the novice
skater.
Although the novice skater consented to the activity, that did not alter the fact that
the defendant had allowed a risk situation to occur. The court believed that the risk could
have been avoided by reducing the number of skaters or appointing more supervisors.
The court awarded damages to Haddad against Trevali Pty Ltd (trading as Campbelltown
Roller Rink).
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5 Read the case study ‘Attack on golfer by kangaroo’ and answer the following questions.
a Apply the criteria to be proved in a negligence case to this case to explain the rulings in
the original court and the appellate court.
b Would the defence of volenti non fit injuria apply in this case? Explain.
c Explain why this case does not involve criminal negligence.
CASE STUDY
Attack on golfer by kangaroo
Shorten v. Graften District Golf Club Ltd
(unreported Supreme Court of NSW Court of
Appeal, 23 March 2000)
A 13-year-old golfer (Steven Shorten) and his
friend were playing golf. They had played a
number of times before on the golf course and
had encountered kangaroos on each occasion.
They were not aware that the kangaroos could be
dangerous. The boy went into the rough to find his
ball. He was confronted by a kangaroo much bigger
than he was. The kangaroo grabbed him around
the waist and knocked him to the ground. The
kangaroo then began to jump up and down on him.
The trial judge thought the golf club had
exercised reasonable care toward its patrons.
The Court of Appeal held that the failure to warn
golfers that kangaroos might attack players was
negligence, and was a breach of the golf club’s duty
of care, even though the risk was small.
The golf club gave evidence that in the 10 years
prior to the attack on the boy, there had been
almost 400 000 rounds of fold played on its golf
course and there had only been four prior attacks
by kangaroos on golfers.
The Court of Appeal found that although
the golf club knew of the danger of attack, it did
not require employees to check for aggressive
behaviour by kangaroos, and it did not warn golfers
of the dangers. The court therefore found in favour
of Shorten and awarded damages to Shorten.
After the attack, the golf club added the words
‘Wildlife can be hazardous — do not approach’
to the scorecards distributed to golfers using the
course.
Kangaroo with
large claws
Defamation
Sports personalities have a vested interest in protecting their reputation because a lowering
of their public image could have an impact on their ability to negotiate future player and
sponsorship contracts. A defamatory statement, according to the Law of Torts by J. G.
Fleming, is one which ‘tends to lower a person in the estimation of his fellow men by making
them think less of him’. The law of defamation aims to balance free speech with the right of
an individual to enjoy a reputation free from an indefensible attack.
To prove defamation it must be shown that:
• a statement is defamatory
• the defamatory statement refers to the plaintiff
• the statement has been published (communicated to people other than the person it
refers to) by the defendant.
If the person making the statement can show that the statement was true, the person
who is referred to in the statement is unlikely to be successful in claiming defamation.
Defences to defamation
There are a number of defences relevant to defamation. Some of the defences available are
shown below.
• justification — The defence of justification applies when a defamatory statement is
substantially true. A person who commits an act of indecent exposure before a crowd
of 50 people cannot claim defamation if a publication wrongly states that there was a
crowd of 30, as the substance (core issue) of the publication is true.
• contextual truth — The defence of contextual truth applies when a number of
defamatory statements are made within the same context and the plaintiff objects to one
statement but not all. An example of contextual truth is where a publication correctly
states that a person caused a serious accident by riding a bike into oncoming traffic
while intoxicated, but incorrectly states that the rider was without a bike helmet. If the
plaintiff claims that the incorrect statement is defamatory, then the defendant may argue
contextual truth because, when read in context, the statement is substantially true. The
truth of the more serious allegations overrides the falsehood in the less serious allegation,
because the effect of the untrue statement on the plaintiff’s reputation is insignificant.
• absolute privilege — A person may be able to use the defence of absolute privilege if
he or she can prove that the defamatory material was published in relation to proceedings
of parliament, parliamentary bodies, courts, tribunals or communication between
husband and wife.
• honest opinion — A defendant may claim that the defamatory material is an expression
of his or her honest opinion (as a commentator) rather than a statement of fact. The
matter must be of public interest and the opinion must be based on proper material.
Proper material is a statement that is substantially true or relates to public documents or
a fair report of proceedings of public concern.
Defamation need only be implied and may be an indirect association. The person
defamed need not be mentioned by name. It may be sufficient to prove that people reading
the statement would reasonably conclude that it was about the plaintiff. A plaintiff may also
be defamed as part of a group. The group must be sufficiently small for it to be recognised
that the plaintiff is part of that group and that his or her reputation is lowered by reference
to the group.
Defamation
1 Read the case study ‘Olympic cyclist suing for defamation’ and answer the questions.
a What has occurred in this case to damage Mark French’s reputation?
b Describe what must be proved for a successful defamation case. Link these
requirements to this case.
see more defences
in chapter 5
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ACCESS AND JUSTICE
c If you were acting for the Herald and Weekly Times, what defence would you use?
d Do you think the outcome in this case was fair? Discuss.
e Explain what other defamation case Mark French was successful in pursuing.
CASE STUDY
Olympic cyclist suing for defamation
In April 2010, Olympic cyclist Mark French initiated proceedings to sue the Herald and Weekly Times for
defamation after being labelled a disgraced drug cheat.
The former junior world champion was banned from cycling for two years in 2004 and also suffered a
lifetime Olympics ban after the Court for Arbitration of Sport found him guilty of using and importing banned
substances. He was cleared of all charges on appeal the following year.
French is suing the Herald and Weekly Times (HWT) for damages in the Victorian Supreme Court over two
articles published in the Herald Sun newspaper in August 2004, which he claims tarnished his reputation.
French’s barrister Paul Hayes said one of the articles referred to his client as a disgraced drug cheat.
French told the court ‘There’s no greater slur to be cast upon a character of a sportsperson, especially a
young sportsperson. It’s a slur that sticks for a long, long time.’
Hayes said French was further defamed when the newspaper reported he had falsely alleged five other
cyclists were taking banned substances.
Hayes said his client denied being a drug cheat and had appealed against his ban but these facts were
not included in the article. French also said that he had not alleged that other cyclists were injecting illegal
substances.
On 28 April 2010, the Herald and Weekly Times was ordered to pay $175 000 in damages and $18 500
in costs to French after the Supreme Court found reports labelling him as a disgraced drug cheat were
defamatory.
French also successfully sued radio station Triple M in 2008 for wrongly painting him as a drug cheat and
labelling him un-Australian for naming other cyclists involved in injecting vitamins, which led to $350 000
damages and $57 000 in legal costs.
Olympic cyclist
Mark French sued
the Herald and
Weekly Times for
calling him a drug
cheat
2 Read the case of Boyd v. Mirror Newspapers Ltd and answer the questions.
a What occurred in this case?
b What was the outcome of this case? Using the definition of defamation and defences
to defamation, discuss the finding in this case and explain why you think one statement
was seen as defamatory and one statement was not seen defamatory.
CASE STUDY
Boyd v. Mirror Newspapers Ltd (1980) 2 NSWLR 449
This case refers to a newspaper article in the Mirror newspaper that was headed ‘Boyd is
fat, slow and predictable’. The article went on to say that Boyd, who had recently suffered
an injury, ‘waddled into the sunshine’.
Les Boyd was a rugby league footballer. The author of the article stated:
• his incredulity that the person he saw on the field was Boyd
• that Boyd had, amongst other things, ‘waddled’ onto the oval
• that Boyd was ‘overweight mainly because of injury … every time Boyd took a pass …
he did what any self-respecting prop should do — go straight up the middle … The
pace and the step were gone’. (Reported in Sports Law: A practical guide edited by
Mark Fewell, published by LBC Information Services 1995)
Boyd took exception to the newspaper’s description of him and the tone and content
of this report. He felt the report had gone further than the right of the media to make ‘fair
comment’. It was implying that Boyd:
• was too fat and slow to properly play first-grade rugby league
• was so fat that he appeared ridiculous when he was on the field
• had allowed himself to degenerate to such an extent that, due to his physical
condition, he was a hopeless player.
The court in this case had to decide if the statement was defamatory according to the
court’s view of how an ordinary person would interpret the statements.
Justice Hunt found that the statement that the plaintiff ‘waddled’ was defamatory, but
he would not label the statement that the plaintiff was ‘fat and slow’ as defamatory.
3 Read the case study ‘Defamed as part of a group’. Explain why you think Clive Lloyd was
successful in claiming defamation when he was not playing on the day that the newspaper
report was referring to.
CASE STUDY
Defamed as part of a group
In Lloyd v. David Syme & Co Ltd (1985), Australian Torts Reports 80–325, the court ruled that Clive Lloyd (the
captain of the West Indies cricket team) was defamed by an article in The Age newspaper suggesting that the
West Indies team ‘took a dive’. The story had the headline ‘C’mon Dollar C’mon’, which implied that a oneday cricket match had been rigged. While Clive Lloyd was not mentioned personally and had not played on
the day in question due to illness, the court held that the words could be associated with him because of his
position as West Indies team captain.
A jury awarded Clive Lloyd $100 000 in compensation. The Court of Appeal overturned this decision, but
Lloyd then successfully appealed to the Privy Council in the United Kingdom.
This case is different from a person saying that ‘all cricketers are dishonest’. This statement would not be
defamatory, as it does not identify any particular cricketer or team.
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3 Read the case of Ettinghausen v. Australian
Consolidated Press (1991) ATR 81–125 and
answer the questions.
a Why do you think this case involved a
claim for defamation? Explain.
b Do you think the decision in this case was
fair? Give reasons for your answer.
CASE STUDY
Ettinghausen v. Australian
Consolidated Press (1991)
ATR 81–125
Andrew Ettinghausen, a rugby league
player, was successful in establishing that
Australian Consolidated Press had defamed
him by publishing a photograph of him in
the nude. The photograph had been taken
of him coming out of the shower after a
match and was taken without his permission.
He claimed that this photograph lowered
his reputation in the eyes of the public. The
fact that the photograph was published
implied that Ettinghausen had deliberately
permitted a photo to be taken of him in
the nude for publication in a magazine with
widespread readership. He was awarded
$350 000 against the publisher. On appeal
the finding of defamation was upheld, but
the amount of damages was said to be
excessive.
Andrew Ettinghausen, Australian rugby league player
and member of a world champion team
5 Read the case study ‘Michael Irvin’s reputation has been damaged’ and answer the
questions.
a How has Michael Irvin’s reputation been damaged?
b Do you think the woman who has made the allegations should be able to do so without
being made to look as if she is the ‘bad guy’ by the press? Explain.
c Do you think this is a case of defamation? What would it depend on? Explain.
dInvestigation
Investigate the progress of this case and explain any further actions that have been
taken in relation to this case.
CASE STUDY
Michael Irvin’s reputation has been damaged
Michael Irvin is a former American football player for the Dallas Cowboys and an actor. He is also a former
broadcaster for ESPN’s NFL Countdown and currently an analyst for the NFL Network. Irvin was self-nicknamed
‘The Playmaker’ because he was known for making big plays in big games during his college career.
Irvin was noted for his big plays and his big personality. Even after his retirement from pro football, Irvin
stayed in the spotlight. He had a radio show in Dallas and did broadcasting for the NFL network. He is also a
public figure who plays in charity golf tournaments and participates in many activities set up by the University
of Miami.
In February 2010, a woman accused him of raping her at the Hollywood Hard Rock Casino in South
Florida. Her allegations were made in a week when Irvin was scheduled for many media appearances as his
thoughts and views were sought by many for the Super Bowl.
Since the accusations were announced, Irvin has been let go from his radio show in Dallas with ESPN.
A statement issued by the NFL said, ‘We are aware that a civil lawsuit was filed. Our security department is
looking into the allegations. According to Michael’s lawyer, the accusations are `totally untrue’. He will be onair this weekend’.
The woman claims Irvin tried to get her drunk, lured her to his hotel room and raped her. Another
unidentified man also forced her to perform oral sex that night, she said.
Michal Irvin is fighting back against the woman who claims he raped her. The former Dallas Cowboys
Superstar has filed a US$100 million dollar countersuit against the woman claiming civil extortion and
defamation. Irvin’s lawsuit called her ‘morally bankrupt’ and alleged the woman was trying to destroy Irvin’s
reputation as a highly acclaimed sports broadcaster. According to Irvin’s lawsuit, the woman’s lawyers pushed
for five months for Irvin to pay up to $1 million. The lawsuit alleged that the woman’s attorney threatened to
sue during the Super Bowl and destroy Irvin’s career.
Florida authorities have decided not to lay sexual assault charges against Irvin.
Michael Irvin
issued a
countersuit
against a woman
who alleged that
he raped her
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ACCESS AND JUSTICE
Did you know?
The origins of golf can
be a little murky as some
researchers claim they have
discovered references to a
form of golf from Egyptian
hieroglyphics, while in China,
Chui Wan (‘chui’ = striking
and ‘wan’ = small ball) a game
of driving a ball with a stick
into holes in the ground, was
first mentioned in records from
the 11th century.
Nuisance
The law of nuisance refers to unreasonable annoyance or interference with a neighbour’s use
or enjoyment of their land. In some instances a sporting facility may cause a nuisance. It can
be private nuisance, affecting an individual, or public nuisance, affecting the public at large.
To successfully pursue a claim for nuisance, it is necessary to establish:
• whether the act or omission created an inconvenience
• whether the act or omission was unreasonable
• what actual loss or harm was caused.
In general, the nuisance must be either continuing or recurrent, although on
occasions an isolated incident causing physical damage can be considered a nuisance.
Defences to private nuisance
A defendant could claim that the nuisance was not continual or recurrent, in which case it
might not be seen as a nuisance.
A defendant could claim that the act or omission was reasonable for the particular
locality, but it is not reasonable for the defendant to say that the plaintiff brought his or her
trouble upon themselves by moving into a particular area, such as close to an airport or noisy
factory. However, a person buying a house in an industrial area cannot force a noisy factory
to close down. Whether a nuisance exists depends on the activities carried on in a locality
being reasonable given the nature of the locality.
Nuisance
1 What is private nuisance?
2 What must the plaintiffs prove for their private nuisance claim to be successful?
3 Read the case study ‘Campbelltown Golf Club Ltd v. Winton’ and answer the questions.
a What defence to nuisance might apply to this case? Explain your answer.
b Is the outcome to this case fair? Justify your answer.
CASE STUDY
Campbelltown Golf Club Ltd v. Winton
A couple purchased vacant land adjacent to a golf club in 1990. They built their home on the land. After
moving into their home they found that the constant barrage of golf balls coming over the fence from the
golf club seriously interfered with their enjoyment of their property. They complained of 1262 golf balls and
numerous golfers coming onto their land. Entries from a diary kept by the homeowners in 1995 showed that
from 1 January 1995 to 17 May 1995, 421 balls had come onto the property from the fifth fairway. Some of the
golf balls struck the house and its windows, others came into the garden, and on one occasion a golf ball
struck the homeowners’ child.
The Court of Appeal held that homeowners living next to a golf course must expect some balls to enter
their property. They were, however, not bound to accept having their property peppered with golf balls on a
daily basis, which posed a threat, not only to their property, but also to their physical safety.
The court stated that the fact that the couple had built their home knowing that there was a golf course
close by did not provide a defence to an action in nuisance, or provide a reason for damages to be reduced.
The amount of $15 000 damages awarded by the court was held to be reasonable in the circumstances. The
court also held that the golf club must relocate the fifth hole or provide appropriate screens.
4 Read the newspaper article ‘Woman awarded $15 000 damages for inconvenience and
discomfort caused by flying golf balls’ and answer the questions.
A barrage of golf
balls
a Explain the nuisance in this case and why it was thought to be a nuisance by the judge.
b What was the outcome of this case? Do you agree with the outcome? Discuss.
EXTRACT
Woman awarded $15 000 damages for inconvenience and
discomfort caused by flying golf balls
A widow whose house was placed under siege from ‘Happy Gilmore’ golfers at a nearby driving range at
Plenty was awarded $15 000 damages today.
Judge Chris O’Neill said he was satisfied the barrage of golf balls landing in Denise Chapman’s property
from the Plenty Views Golf Park constituted a legal nuisance.
He said the award was warranted for the inconvenience, discomfort, apprehension and concern, and to
some extent the need to collect the golf balls.
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‘While most patrons behave responsibly, a proportion drives the golf balls with great vigour, but without
great accuracy,’ said Judge O’Neill in his County Court judgment.
‘There was reference in the evidence to ‘Happy Gilmore golfers’, so named after a character in a movie
who was known to run at the golf ball and take an energetic swing, with unpredictable results.
‘In my view the activities upon the golf range resulting from patrons striking golf balls into the Chapman
property over the period from May 2007 does constitute a nuisance.’
The judge also granted an injunction and ordered that the Plenty Views Golf Park must stop using the
golf range in such a way that it ‘permits the entry of golf balls onto the plaintiff’s property, so as to cause a
nuisance’.
Ms Chapman and her children collected 20 000 golf balls from the property in the two years after they
moved in.
The judge said in the five years before the Chapman family took occupation Robert Di Carlo, the range
manager, arranged for a diver to go into the dam on the property where he recovered 10 000 golf balls.
This was repeated in 2004 or 2005, when another 5000 golf balls were collected.
The judge said Ms Chapman bought the property in Heard Avenue, Plenty in 2007 for $700 000 and has
lived there with her five children. Her husband died in 2004.
The golf park in Yan Yean Rd has a car park, a restaurant, 20 golf driving bays set in a line, and a large
fairway with holes or markers set at various distances.
Judge O’Neill said no part of the original 1997 permit to establish the golf park contained a condition that
a net be constructed to stop golf balls going into the Chapman property.
He said some golfers were known to target landmarks in the area, including the dam on the Chapman’s
five-acre property.
From January 2007 to December 2007, approximately 2.4 million golf balls were struck from the bays of
the golf range. In the period from January to December 2008, a further 1.8 million golf balls were struck.
In their defence the owners of the range said they spent a considerable amount of money to alter bays,
erect nets and increase supervision of patrons.
Judge O’Neill said none of the measures had significantly reduced the problem.
Source: Norrie Ross, Herald Sun, 16 October 2009
Trespass to the person
The tort of trespass to the person includes assault, battery and false imprisonment.
Assault
An assault is any direct threat by a person that places another person in reasonable fear of
imminent contact by the other. Usually assault is an intentional threat although the threats
can also be reckless or careless.
Threats which constitute an assault are usually actions accompanied by words. If a
member of a committee approaches the chairperson with a clenched fist threatening to pull
the chairperson out of the chair, this would be an assault. The threats do not have to be
accompanied by words — actions alone can constitute an assault. A person brandishing a
whip and chasing another person in a menacing way would be seen by the courts to have
committed an assault.
To prove assault:
• the defendant must pose a direct threat to the plaintiff
• the plaintiff must have reasonable fear of the defendant
• the plaintiff must have knowledge of the threat.
Defences to assault
In defending a claim for assault, a defendant could claim that:
• he or she did not pose a direct threat to the plaintiff
• the plaintiff was not in fear of his or her actions
• the plaintiff had no knowledge of the threat.
Battery
Battery is a direct act by a person which has the effect of causing contact with another
person without their consent. The contact is usually intentional but could be reckless or
careless contact. Thus assault is the threat of contact and battery is the actual contact.
Assault and battery usually occur together, and are often combined in a single reference
to an ‘assault’. There can, however, be assault without battery, or battery without assault. For
example, in circumstances where there was no awareness of the imminent contact, there
would be no threat — as would happen if the offender came up behind the victim and hit
the victim on the head.
To prove battery:
• there must be direct contact with the body of the plaintiff by the defendant
• there must be intention to cause contact
• the act must be voluntary (for example, a sleepwalker stepping on your face while
you were asleep on the floor would not be liable for battery as it would have been done
involuntarily).
Defences to battery
In defence of a claim for battery, a defendant could claim:
• there was no direct contact with the body of the plaintiff
• there was no intention to cause contact with the body of the plaintiff
• the action was done involuntarily
• there was consent to the injury, also referred to as volenti non fit injuria
• self-defence.
A defence to
battery is that
there was consent
to the injury
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The defence of volenti non fit injuria refers to the fact that the person agreed to partake
in an activity that may result in battery and that the injury suffered could have been
reasonably expected from engaging in the activity. For example, if a boxer is hurt during a
boxing match and within the rules of the sport, he or she cannot sue for battery.
False imprisonment
False imprisonment is the wrongful total restraint of the liberty of a person, directly brought
about by another person. The act is usually brought about intentionally, although there may
be actions for negligent or reckless false imprisonment.
Trespass
1 How is the tort of negligence relevant to sport?
2 Explain the three types of trespass. What can occur on a sports ground that could be
considered as trespass?
3 Read the case study ‘Trespass to the person for injured Aussie rules player’ and answer
the questions.
a What occurred in this case?
b Why was the injured player able to sue for trespass? Answer this question in relation to
the elements that have to be proved for trespass.
c Explain the meaning of the term volenti non fit injuria. Why was this used as a defence
in this case? Why was this defence not successful?
CASE STUDY
Trespass to the person for injured Aussie rules
player
In the case of McNamara v. Duncan, (1979) 26 ALR 584, the plaintiff, a player of Australian
Rules football, was injured during a game by a sharp blow to the head and sought
damages for trespass to the person. Both parties agreed that an intentional blow was not
part of the rules of the game.
The plaintiff sued the defendant for trespass to the person. He maintained that the
defendant struck him intentionally. The defendant claimed the defence of volenti non
fit injuria, maintaining that the plaintiff, by partaking in the game, consented to accept
injuries that are part of the game. The plaintiff was successful. The court held that the
plaintiff did not consent to receive a blow that was contrary to the rules of the game.
4 Read the case study ‘Umpire wins $172 000’ and answer the questions.
a What type of trespass occurred in this case?
b What action was seen by the court as trespass?
c How do these actions constitute the tort of trespass? Explain, referring to the key
elements of trespass that need to be proved for a case to be successful.
d What was the outcome of this case?
e How would the player who hit the umpire be affected in the future by this one loss of
control on his part?
f Do you think the outcome was just? Give reasons.
CASE STUDY
Umpire wins $172 000
A former district football umpire was awarded $172 000 damages for injuries that resulted from being hit by a
player in a shower after a match. The match was a senior game in the second division between Lancefield and
Macedon. After the match, a player from the losing team went into the shower rooms, threatened the umpire
and then hit him on the nose, forcing his head onto the tiles. The umpire received injuries to his nose, back,
neck and jaw, and has since undergone several operations. He required regular pain-killing medication. The
incident led to stress in his marriage and sleeping problems. He was working as a contract painter, but had to
go on an invalid pension because he was unable to perform his work.
The case went to the County Court, and the umpire was awarded $160 000 general damages, plus $12 000
interest. The liability for the damages was distributed between the player (65 per cent), the football club and
the umpires league (15 per cent), and the Riddell District League (five per cent). This meant that the player
would have to pay 65 per cent of $172 000.
Violence in sport
The World Medical Association wants boxing banned. It considers boxing a dangerous sport
because the game is based on opponents causing each other bodily harm. The Australian
Medical Association (AMA) is also against all forms of boxing and would prefer it banned.
However, if authorities allow it to continue, the AMA suggests the sport be restricted to
people aged 18 and over. Dr Bill Glasson from the AMA said ‘boxing is not a sport; it is
organised violence’.
Doctors oppose the sport because repeated punches to the head and body for any human
are dangerous and can lead to brain injury. Multiple blows to the head can cause repeated
mini-fits and blindness.
Other people think that a ban on boxing would drive the sport underground, where there
is potential for matches to take place without rules or appropriate medical attention. John
Scida, who is a boxing trainer, says boxing is safer than most sports. According to Scida,
horse riding and rock fishing are the number one death sports and boxing is pretty safe in
comparison to other sports.
Female boxing
The first boxing matches between women were staged in London in the 1700s. Women’s
boxing was a display event at the third modern Olympic Games in 1904 but the sport
was not sanctioned by the Amateur International Boxing Association until 1994. In some
countries there are laws against women boxing. Female boxing is legal in Australia except in
NSW. Female participation in boxing is growing, particularly in the USA.
Some people believe women should not participate in a violent sport because it is
unfeminine and unsafe. They argue that women are more likely to be hurt than men. Other
people say that if women adequately prepare and train for a match and only fight women
then they will be exposed to the same level of risk as male boxers and should be entitled to
the prize money attached to a win in the ring.
There are special rules for females to protect them from harm. For example, female
boxers in Australia wear breast protectors. In championship bouts, female boxers aged 17
and above fight for three rounds of two minutes duration while males of the same age box
for four rounds of two minutes duration. Some people who want to see the sport remain in
its traditional form argue that the rules should be the same for men and women because
otherwise people will not take the sport seriously.
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Child boxing
In Victoria, children over 12 are able to participate in boxing, although the Australian
Medical Association (AMA) has suggested that boxing should be banned for all ages because
of the dangers of participation.
Ultimate fighting
‘Ultimate
fighting’ arrived
in Australia
when 20 000
fans filled Acer
Arena to view
the controversial
sport for the first
time
The Ultimate Fighting Championship (UFC) is a mixed martial arts (MMA) promotion
company based in the United States that hosts numerous events worldwide.
It has been called a cross between the movie Fight Club, rock’n’roll, a vicious bar-room
brawl and the fall of Saigon. The idea is that it is ‘multi-discipline fighting’, across three fiveminute rounds, incorporating everything from boxing to wrestling, kick-boxing to karate,
judo to jujitsu to just about anything, including choke holds.
The rules ban biting, eye-gouging and attacks to an opponent’s groin. The fighters wear
light gloves rather than bare knuckles.
Violence in sport
1 Should sport that is clearly violent and dangerous be allowed? Discuss.
2 Read the case study ‘13-year-old Perth girl boxing for Australian title’. The Perth girl would
not be allowed to box in Victoria. Do you agree with this? Discuss the pros and cons of
female boxing, referring to this case.
CASE STUDY
13-year-old Perth girl boxing for Australian title
In November 2009, a 13-year-old Perth girl was set to make history as the youngest woman
to fight for an Australian boxing title, prompting an outcry from doctors who want the
sport banned.
Haylee Verrier, from Wandi, south of Perth, has been sparring with teenage boys and
women more than twice her age since she took up boxing two years ago. Verrier recently
fought an exhibition match against former kickboxer Marijanna Smith, 24, over three
90-second rounds.
Verrier, who trains at Smithy’s Boxing Gym in Wandi, took up the sport to strengthen
her shoulders for swimming but was quickly identified as a natural boxer.
She will be too young for the 2012 London Olympics, when women’s boxing will be
included for the first time, but has her sights on competing in Rio de Janeiro in 2016.
Victorian laws allow children older than 12 to participate in boxing. In New South
Wales, boxers must be older than 14.
3Investigation
Investigate ‘ultimate fighting’ and write a report. In your report include:
• what ultimate fighting is
• what dangers exist for the boxers
• opinions of the Australian Medical Association (AMA) about ultimate boxing
• your opinion about ultimate fighting.
Issue — discrimination in sport
Discrimination is the act of treating someone less favourably than others. Discrimination
is prohibited in Australia under the following federal and state acts of parliament, except in
certain circumstances:
• Equal Opportunity Act 2010 (Vic.)
• Age Discrimination Act 2004 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Racial Discrimination Act 1975 (Cth)
• Sex Discrimination Act 1984 (Cth).
The Commonwealth Government announced its intention to review four federal antidiscrimination laws with a view to merging them into a single act. The review will be part of
the government’s new human rights framework aimed at tackling inequality.
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The Equal Opportunity Act 2010 (Vic.)
The Victorian Equal Opportunity Act 2010 replaces the Equal Opportunity Act 1995. It
prohibits discrimination on the grounds of 17 attributes as shown in the extract below.
Discrimination occurs when a person or a group of people are treated less favourably
than others in the public areas of accommodation, clubs and club membership, disposal
of land, education, employment, goods and services, and sport. A person who has been
discriminated against can choose whether to pursue their case using either state or federal
laws. The Victorian Equal Opportunity and Human Rights Commission and the AntiDiscrimination List of the Victorian Civil and Administrative Tribunal (VCAT) deal with
discrimination complaints at state level while the Australian Human Rights Commission
deals with complaints lodged under a Commonwealth act.
EXTRACT
Equal Opportunity Act 2010
No. 16 of 2010
Assented to 27 April 2010
The Parliament of Victoria enacts:
PART 1 — PRELIMINARY
1 Purposes
The main purposes of this Act are:
(a) to re-enact and extend the law relating to equal opportunity and protection
against discrimination, sexual harassment and victimisation and
(b) to amend the Racial and Religious Tolerance Act 2001 in relation to dispute
resolution and
(c) to make consequential amendments to the Racial and Religious Tolerance Act 2001,
the Victorian Civil and Administrative Tribunal Act 1998 and other Acts.
3Objectives
The objectives of this Act are:
(a) to eliminate discrimination, sexual harassment and victimisation, to the greatest
possible extent
(b) to further promote and protect the right to equality set out in the Charter of Human
Rights and Responsibilities
(c) to encourage the identification and elimination of systemic causes of
discrimination, sexual harassment and victimisation
(d) to promote and facilitate the progressive realisation of equality, as far as reasonably
practicable, by recognising that:
(i) discrimination can cause social and economic disadvantage and that access to
opportunities is not equitably distributed throughout society
(ii) equal application of a rule to different groups can have unequal results or
outcomes
(iii) the achievement of substantive equality may require the making of reasonable
adjustments and reasonable accommodation and the taking of special
measures
(e) to enable the Victorian Equal Opportunity and Human Rights Commission to
encourage best practice and facilitate compliance with this Act by undertaking
research, educative and enforcement functions
(f) to enable the Commissioner of the Victorian Equal Opportunity and Human Rights
Commission to resolve disputes about discrimination, sexual harassment and
victimisation in a timely and effective manner, and to also provide direct access to
the Victorian Civil and Administrative Tribunal for resolution of such disputes.
Part 2 — What is Prohibited Discrimination?
6 Attributes
The following are the attributes on the basis of which discrimination is prohibited in
the areas of activity set out in Part 3 —
(a) age
(b) breastfeeding
(c) employment activity
(d) gender identity
(e) impairment
(f) industrial activity
(g) lawful sexual activity
(h) marital status
(i) parental status or status as a carer
(j) physical features
(k) political belief or activity
(l) pregnancy
(m) race
(n) religious belief or activity
(o) sex
(p) sexual orientation
(q) personal association (whether as a relative or otherwise) with a person who is
identified by reference to any of the above attributes.
Division 7 — Discrimination in sport
71 Discrimination in sport
A person must not discriminate against another person:
(a) by refusing or failing to select the other person in a sporting team; or
(b) by excluding the other person from participating in a sporting activity.
72 Exception — competitive sporting activities
(1) A person may exclude people of one sex or with a gender identity from
participating in a competitive sporting activity in which the strength, stamina or
physique of competitors is relevant.
(2) A person may restrict participation in a competitive sporting activity:
(a) to people who can effectively compete or
(b) to people of a specified age or age group or
(c) to people with a general or particular impairment.
(3) Subsection (1) does not apply to a sporting activity for children under the age of
12 years.
Source: Equal Opportunity Act 2010 (Vic.)
While the areas of discrimination in sport, clubs and club membership are the most
relevant to sporting organisations, the other areas of discrimination may also apply in certain
circumstances. For example, a public golf club that has a policy of hiring only male ground
keepers is discriminating in the area of employment on the basis of sex. If the manager of
the golf course’s cafeteria refused to serve two Indigenous youths then this could be a case of
discrimination in the provision of goods and services on the basis of race.
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It is illegal to discriminate against another person who is playing, coaching, umpiring,
refereeing or administering sporting activities. It is also illegal to exclude a person from
a sporting activity. However, it may be lawful to exclude a person from competitive sport
because of:
• competitive standards — for example, a C-grade table tennis player cannot demand to
be included in the A-grade competition if he or she has not qualified to compete at that
level
• age — for example, a 21-year-old cannot expect to compete in a veteran’s triathlon
competition
• disability — for example, able-bodied athletes cannot compete in the Paralympics and
vice versa
• sex — for example, a male tennis player cannot expect to play in the women’s
competition in the Australian Open because of the differences in build, strength, and
stamina of the sexes — particularly after the age of 12.
Clubs and club membership
The Equal Opportunity Act 2010 (Vic.) states that a club cannot restrict access to
membership or its facilities unless it can show that special circumstances apply. For
example, a club, or a member of the committee of management or other governing body of a
club, may exclude from membership:
• a person on the basis of that person’s sex if membership of the club is available only to
persons of the opposite sex
• a person on the basis of that person’s sex if it is not practicable for men and women to
enjoy the benefit at the same time, but must give equivalent access to enjoy the benefit at
a different time
• a person who is not a member of the group of people with an attribute for whom the club
was established if the club operates principally to preserve a minority culture
• a person who is not in a particular age group — when the club exists principally to
provide benefits for people of that age group.
The Victorian Civil and Administrative Tribunal (Anti-Discrimination List) may grant
an organisation an exemption under the act if the organisation can show good reason for the
discrimination.
CASE STUDY
Discrimination at the MCC
A Melbourne man challenged the Melbourne Cricket Club’s (MCC) membership rule that
allows long-time members to give up their right to a lady’s card or guest card so that they
can nominate a woman from the MCC membership waiting list. The man said that the rule
was discriminatory. It was introduced to boost female MCC membership as the club has, in
the past, been criticised for only having male members. When the MCC rejected the man’s
attempt to use the rule to nominate his brother for full membership, he took the case to the
Equal Opportunity Commission and then to the Victorian Civil and Administrative Tribunal.
In Mangan v. Melbourne Cricket Club (Anti-Discrimination) (2006) VCAT 73 (8 February
2006), the tribunal declared the rule unlawful and ordered the MCC to review the rule to
either allow men to be admitted in the same way as women or to abolish the rule. It also
ordered the MCC to pay a ‘modest’ award of costs.
Sex discrimination
If men and women played in the same competitions, it could mean that men would almost
always win if physical strength gave a significant advantage. Under the Equal Opportunity
Act 2010 (Vic.), people of one sex may be excluded from participating in a competitive
sporting activity in which the strength, stamina or physique of the player is relevant. This
does not include coaching, refereeing or administration. This exception does not apply to
sporting competitions for children under the age of 12.
CASE STUDY
Woman fights to play lawn bowls with the men
Emily South fought the Royal Victorian Bowls Association (RVBA) for two years against sexual discrimination,
because she was barred from playing lawn bowls in the men’s pennant on Saturdays. Ms South was aiming
to play for Australia and stated that the women’s weekend bowling did not give her competition of a high
enough standard. She said that the complaints from the men were more based on emotions rather than a
claim that her physical stamina did not match that of the men. Many men felt uncomfortable with the women,
and refused to play with women.
The matter was eventually taken to the Victorian Civil and Administrative Tribunal Anti-Discrimination
List. RVBA argued that men had a distinct advantage over women because of their greater muscle bulk,
which allowed them to project the bowl at greater speed. The tribunal decided that they could not exclude
Ms South from playing men-only Saturday pennant competition. It was clear that lawn bowls was not a sport
where ‘strength, stamina or physique’ was relevant to participants’ ability to effectively compete.
The tribunal ordered that the RVBA delete from its rules the requirement that only males could be
affiliated members. RVBA president Arnold O’Brien said he was disappointed about the decision.
In 2003, the RVBA applied to the Anti-Discrimination List for an exemption to run single-sex competitions
in some divisions. The tribunal awarded the exemption for State Championship events (given that national
and international squads are selected on a single-sex basis) but not for club championships and pennant
events.
Sexual harassment
Sexual harassment is also strictly prohibited by Victorian and
Commonwealth legislation. Examples of behaviour that could be sexual
harassment include:
• a spectator making inappropriate and unwanted sexual comments
towards a referee
• a coach giving an athlete a massage that involves unwanted sexual
contact
• a team official staring and leering at an athlete
• a team manager asking players intrusive questions about sexual activity
• a club official ‘wolf whistling’ or making sexual gestures towards a team
member
• an athlete making repeated sexual invitations towards another team
member when the person invited has refused similar invitations before
• a club publishing a sexist joke (or sexually explicit images) on its website
• team members conducting initiation ceremonies that involve unwelcome
sexual or sexist behaviour such as ‘hazing’.
Hazing
Hazing is a US term to
describe the bullying of a
student by groups of other
students because they do
not fit into a group or they
refuse to conform to the
expectations of a group
of peers. For example, a
student who will not join
in the culture of drinking
alcohol and/or lowering
their own standards to that
of the group.
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Disability discrimination
It is illegal to discriminate against a person with a disability or impairment. This includes
those with physical, mental, psychological or intellectual impairment and people who suffer
from a disease. However, a person who has not met the required competitive standards
can lawfully be excluded from a sporting competition. For example, a person who has only
one leg could compete against two-legged swimmers if they had qualified for the event in
the same way as other competitors. As this is unlikely, disabled athletes usually compete in
separate tournaments.
State and Commonwealth laws make it unlawful to:
• directly or indirectly discriminate against a person because of their disability
• harass a person because of their disability
• require a person with a disability to provide information that might be used to
discriminate against them
• victimise a person because they have made a disability discrimination complaint.
CASE STUDY
Scooter access to club
A man was refused entry to his local club unless he could transfer unaided from his scooter
to a wheelchair provided by the club. The club was concerned about the general safety
of its members. Through conciliation, the club agreed to adopt a mobility devices policy
under which scooters and other mobility devices would be permitted to enter as long as
they complied with strict safety regulations such as a 3 km/h speed limit.
There have been thousands of complaints lodged under the Disability Discrimination
Act (Cth). Of the complaints that have been dealt with, a majority have been settled by
conciliation. Since this act came into operation in March 1993, thousands of individuals
and organisations have used the act to create changes in attitudes towards discrimination,
either by making complaints of discrimination or educating organisations on their
responsibilities. There has been improved access to buildings and sporting facilities and
standards for accessible public transport have been adopted and widely implemented.
Racial discrimination
State and Commonwealth legislation makes it unlawful to discriminate against a person on
the grounds of race, colour or religious beliefs. It would therefore be unlawful to exclude
someone from a sport because of his or her race.
Some people may argue that racial discrimination appears in the make-up of various
sporting teams. For example, it is unusual to see a Vietnamese-born cricketer. One
explanation for this could be cultural preferences for a particular sport, for example, many
Italian-born Australians choose to play soccer rather than Australian Rules football. The
Australian Cricket Board is trying to break down cultural barriers by seeking participation
from a more diverse group of Australians.
Examples of behaviour that could be offensive include:
• an athlete making fun of a teammate because of the teammate’s race
• a coach imitating an athlete’s accent
• a sports administrator telling a racist joke
• a referee calling a player an offensive name or using unsuitable language because of the
player’s race.
EXTRACT
Racial Discrimination Act 1975–83 (Cth) — SECTion 9
(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based
on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental
freedom in the political, economic, social, cultural or any other field of public life.
Source: Racial Discrimination Act 1975–83 (Cth) — Section 9
CASE STUDY
Example of indirect racial discrimination
A basketball club makes a rule that all athletes have to train on Fridays to be eligible for
selection in the representative team. The rigidity of this rule inadvertently excludes a
number of players (such as Muslim and Orthodox Jewish players) who cannot attend on
Fridays because of religious commitments.
The players believe by imposing this rule, the club has indirectly discriminated
against them. The club would need to make a more flexible rule or demonstrate why the
requirement to train on Fridays is reasonable. Otherwise the club risks action being taken
against them for indirectly discriminating against some of their members.
Racial vilification
Sport is a cross-cultural pastime and racial vilification of any kind is frowned on. Racial
vilification is speaking in a menacing way and putting someone down because of their race,
colour or national or ethnic origin.
Racial vilification laws
The Racial Hatred Act 1995 (Cth) amended the Racial Discrimination Act (Cth). Under the
Racial Hatred Act, offensive behaviour based on racial hatred is prohibited. It is unlawful
for a person to act, other than in private, in a way that is reasonably likely to offend, insult,
humiliate or intimidate another person or a group of people, when the act is done because of
the race, colour or national or ethnic origin of the other person or group.
An act is not done in private if it causes words, sounds, images or writing to be
communicated to the public, or is done in a public place, or is done in the sight or hearing of
people who are in a public place.
The Racial and Religious Tolerance Act 2001 (Vic.) deals with racial vilification. Under
this act it is unlawful to incite hatred, serious contempt, revulsion or severe ridicule.
AFL racial vilification policy
The Australian Football League is determined to send a strong message to the football
community that racial vilification is unacceptable. A player, umpire or club can bring a
complaint under the AFL’s racial and religious vilification rule. If a complaint is brought, the
AFL commission appoints a person who will try to get the parties to discuss the matter and
work out an agreement.
If this confidential conciliation process is unsuccessful, then the matter is referred to
the AFL Tribunal or the AFL Commission for a decision. The player’s club can be fined up
to $50 000 unless it can show it took appropriate measures to prevent the vilification from
happening.
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CASE STUDY
Racial taunts by Peter Everitt
Racial taunts made by St Kilda’s Peter Everitt during a game against Melbourne led to a number of articles
in the media about the inappropriateness of such offensive behaviour. Everitt apologised to Scott Chisholm,
voluntarily suspended himself from playing four matches and agreed to donate $20 000 to a charity
nominated by Scott Chisholm. Everitt‘s apology was sanctioned by the AFL.
St Kilda now has a very detailed ‘Play Fair Policy’.
Capacity of the legal system to respond to demands for
change
In 2010, the Victorian Parliament passed the Equal Opportunity Act. This act represents a
significant shift in the approach taken to equal opportunity law in Victoria, and may foreshadow
a change in the focus of laws in this area from other states and territories in the future.
Under the previous law, the Victorian Equal Opportunity and Human Rights Commission
would investigate and try to resolve individual complaints of unlawful behaviour. Under the
new act, the Commission’s role is refined to one of education and resolution of individual
complaints, with its investigative and inquiry role reserved for issues affecting a broader group
of people in an effort to deal with systematic discrimination.
Equal opportunity laws have been constantly changing to keep up with changing attitudes.
For example, the Equal Opportunity Act 2010 (originally enacted in 1995) makes it unlawful to
discriminate against a person on the grounds of pregnancy. This applied to some people who
were banned from playing their sport because of pregnancy.
In 2000, the Equal Opportunity (Gender Identity and Sexual Orientation) Act was passed.
This act made it unlawful to discriminate against a person on the grounds of gender identity or
sexual orientation and amended the then Equal Opportunity Act 1995.
CASE STUDY
Netball Australia’s ban on pregnant players
In 2003, the Federal Magistrates Court found Netball Australia had discriminated against Trudy Gardner.
Gardner was banned from playing netball because she was pregnant. In November 2004, following this
case, Netball Australia revised its policy with regard to pregnant players. The current position allows
pregnant players to continue to play, although they are encouraged to discuss their decision to play with
their medical practitioner.
EXTRACT
Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000
Assented to 12 September 2000]
The Parliament of Victoria enacts as follows:
1.Purpose
The purpose of this Act is to amend the Equal Opportunity Act 1995 to prohibit discrimination on the
basis of gender identity or sexual orientation.
Source: Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000 (Vic.)
Methods and institutions for resolving disputes —
discrimination
Sporting tribunals
Sporting organisations have legal responsibilities in relation to harassment, discrimination
and child protection. They also have moral obligations in relation to establishing standards of
appropriate behaviour and providing safe, respectful and appropriate sporting environments.
A tribunal hearing forms part of an organisation’s complaints procedure and will assist
sporting organisations in managing these issues, should they arise. It also assists the sport in
implementing the rules and regulations of the organisation as set out in its constitution, bylaws and policy documents.
A tribunal hearing is not required to follow any specific legal process other than that
outlined in the organisation’s constitution and by-laws. A tribunal hearing is not expected to act
as a court of law, but should conduct the hearing as quickly, informally and comprehensively
as practicable. The tribunal hearing procedures should be clearly stated and accessible and
enforceable to all members/participants. Justice should be done and seen to be done.
Natural justice requires that a person be given the opportunity to address the tribunal
panel when the question of penalty is to be determined. The penalty options that a tribunal
can impose must be specifically outlined in the organisation’s disciplinary by-laws. Any
discretionary penalty imposed on someone found guilty by a tribunal must be reasonable in
relation to the circumstances of the issue.
An avenue of appeal is often provided by the relevant sporting tribunal. A matter can
be taken through the court system, if it is thought that a person has not been given natural
justice.
Courts
Some issues can be taken through the court system, such as when a player believes he or
she has not been given natural justice in a sporting tribunal hearing. The Supreme Court of
Victoria or the Federal Court can hear such disputes.
The Victorian Equal Opportunity and
Human Rights Commission
Issues of discrimination can be taken to
the Victorian Equal Opportunity and
Human Rights Commission (VEOHRC).
The VEOHRC will attempt to reach a
resolution through conciliation between
the parties, although it will no longer do
any investigation on behalf of the parties.
The Australian Human Rights and Equal
Opportunity Commission will also try to
help parties to resolve disputes relating to
discrimination.
VCAT Anti-Discrimination List
As an alternative to conciliation by VEOHRC,
or if such conciliation is unsuccessful,
the dispute can be taken to the AntiDiscrimination List of the Victorian Civil and
Administrative Tribunal (VCAT). VCAT will
hear the dispute and make a binding decision.
CASE STUDY
The VEOHRC speaks about
homophobia in sport
On 19 April 2010, the VEOHRC stated that it ‘welcomes
recent public statements by Olympian Daniel Kowalski
on sexual orientation and sport, and comments from
AFL footballers condemning the discrimination that is
present in the game’.
‘The Commission remains concerned that
homophobia is still prevalent in sport, and this
discrimination is wholly unacceptable’ Dr Helen Szoke,
the Victorian Equal Opportunity and Human Rights
Commissioner said. ‘The courage of an elite sportsman
to speak about his own circumstances is commendable,
and reminds us that many other people may be living in
silence and restricting their own opportunities in fear of
discrimination or harassment.’
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OUTCOME 3
Area of study 3
Key knowledge
Key skills
law
• define key legal terminology and use it
appropriately
• a contemporary issue for the selected area/s of law
• research and gather information about legal cases
and issues, using print and electronic media
demands for change
• explain the current law and discuss related legal
issues for the selected area of law
• discuss the ability of the law to respond to
demands for change
• explain the different methods of dispute resolution
to resolve legal problems.
ASSESSMENT TASK structured assignment
Discrimination
1 Explain the term ‘discrimination’ as it relates to sport. (1 mark)
2 When is it lawful to exclude a person from competitive sport? (1 mark)
3 How can the law relating to discrimination restrict club membership? (1 mark)
4 Can women play lawn bowls in the same competition as men? Explain. (1 mark)
5 A 15-year-old female friend has asked for your advice. She wants to play in the local senior
men’s football team but she has been told she cannot because she is a girl. Give her your
opinion about whether she should be able to play or not. (1 mark)
6 Read the case study ‘Women only’. Do you think women-only recreational activities
should be allowed? Discuss. (2 marks)
Women-only time
In 2006, Moreland City Council asked VCAT’s permission to open the Fawkner Leisure
Centre on a women-only basis between 3 p.m. and 7 p.m. on Sunday — a time when the
centre is normally closed. The exemption was granted on the basis that it will give women,
who would not otherwise have the same opportunities to use the centre due to cultural,
religious or other reasons, a limited opportunity to do so.
7 Read the case study ‘Netball Victoria (Exemption) (Anti-Discrimination) (2005) VCAT 1934’
and discuss whether you agree with the decision. (2 marks)
Netball Victoria (Exemption) (Anti-Discrimination) (2005) VCAT 1934
Following the Football Australia report in 2005, Netball Victoria sought permission to be
allowed to offer girls-only competitions for 12-year-olds and older. In 2005, VCAT granted
Netball Victoria an exemption to organise separate boy and girl competitions for 12 and
13-year-olds. The decision was based on the fact that boys aged 12 and 13 are generally
slightly stronger and have better ball skills and a mixed competition at these ages would
discourage girls from playing the sport.
8 Read the case study ‘Sexual orientation discrimination’ and answer the questions.
a Do you think people should be able to be excluded from a sport because of a
person’s sexual orientation? Explain. Use this case to illustrate your answer. (2 marks)
b Identify the section of the Equal Opportunity Act that this action contravenes. (1 mark)
Sexual orientation discrimination
James, a keen football player, was a talented member of the local football team and one
of the first picked. When James’ sexual orientation became known by his teammates and
coach, he was fired from the team.
9 Read the case study ‘Justin Harrison’s racial comments’ and answer the questions.
a What is racial vilification? How is this relevant to sport? (2 marks)
b Give another example of racial vilification in sport. (1 mark)
c Do you agree with the decision in the Justin Harrison case? How would you decide?
Give reasons. (3 marks)
Justin Harrison’s racial comments
Justin Harrison was a veteran of the 2003 Rugby World Cup. He joined the New South Wales Waratahs at the
beginning of 2004 for one season before moving to the northern hemisphere to play for Ulster.
Harrison voluntarily stood down from the Waratahs rugby union team after he made racial comments
during the NSW v. Cats Super 12 match in Johannesburg in March 2005. Afterwards he said he deeply
regretted what he said to Chumani Booi and sent letters of apology to South Africa.
The South Africa New Zealand Australia Rugby (SANZAR) Judicial Committee decided to suspend
Harrison for three Super 12 matches. He was fined $20 000 and suspended from playing all forms of
rugby until April 2005. Payment of the fine was suspended on the condition that Harrison attend an antidiscrimination course run by the Anti-Discrimination Board of NSW.
10 Has discrimination occurred in each of the cases shown below? Try to apply the provisions
of the Equal Opportunity Act when giving reasons for your answers. (7 marks)
a Michelle wants to play in a male darts competition, but she is refused entry because
her application form was two days late.
b Jackie, a male-to-female transsexual who has not yet begun the sex re-assignment
process, wants to play in the women’s tennis competition.
c Kzenja’s basketball coach often takes her off the court and substitutes her with a much
taller player.
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d Trudy, who is pregnant, is not allowed to play netball because the competition
organisers fear that it will harm her unborn child.
e Nick, a one-armed man, is told he cannot join a tenpin bowling league because the
centre does not have appropriate facilities for the disabled.
f Pat, an Aboriginal man, tries to join the local surf-lifesaving club and is told, ‘your type
are not really what the club is looking for in new members’.
g Matt is HIV-positive and applies to play in a country football league. His application is
refused on the basis of his illness.
11 Read the case study of Campagnolo v. Benalla and District Football League Inc. and
a What was the discrimination in this case? (1 mark)
b What sections of the Equal Opportunity Act are relevant to this case? (1 mark)
c How did Campagnolo say the discrimination would affect him? (1 mark)
d Which two avenues of dispute resolution were used by Campagnolo? (1 mark)
e What was the outcome of the case? (1 mark)
Campagnolo v. Benalla and District Football League Inc. (2009) VSC 228
Ken Campagnolo claimed he had experienced discrimination on account of his bisexuality in that he had
been dismissed from his position as sports trainer at the Bonnie Doon Football Club Inc. (‘Bonnie Doon’),
one of five clubs in the League. Although employed there since 1997 and open about his sexuality, publicity
surrounding his involvement in a sexual discrimination matter with a government department in February
2007 brought his sexuality status into the public arena.
Subsequently, on 10 April 2007, the President of Bonnie Doon expressed reservations about continuing
to employ him and gave him notice. According to Campagnolo, this alleged direct discrimination as
detailed in the Equal Opportunity Act 1995 (Vic.) (now replaced by the 2010 act) would adversely affect the
provision of services to him, particularly his free admission to, as well as travel expenses for club games.
The matter was compounded by physical threats from Bonnie Doon’s senior coach. In Campagnolo’s
opinion, this victimisation was motivated by his remarks to the Herald Sun concerning the discriminatory
treatment.
This case was heard in the Victorian Civil and Administrative Tribunal (Anti-Discrimination List) (VCAT).
Campagnolo brought the case against Benalla and District Football League Inc. because Bonnie Doon
Football Club is part of this League. Campagnolo claimed that the League should have acted to protect him
from this discriminatory action. VCAT dismissed the claim because of insufficient evidence.
Campagnolo appealed to the Supreme Court. This case was also dismissed.
12 Read the case study ‘Discrimination due to the wearing of a hijab’ and answer the
questions.
a This case study refers to two incidents, one in 2004 and one in 2010. Describe what
occurred on both occasions. (4 marks)
b How did Australian soccer react to the FIFA ban? (1 mark)
c How have the girls in the Lakembaroos team benefitted by being part of this soccer
team? (2 marks)
d Give your opinion on wearing a hijab during sport, and particularly while playing
soccer. Is it any different to AFL players having long hair and wearing a headband?
Discuss. (4 marks)
Lakembaroos soccer team after their grand final success in September 2009
Discrimination due to the wearing of a hijab
In 2004, a Melbourne teenager who is a devout Muslim played under-17 women’s soccer in a white hijab
(traditional scarf worn by Muslim women) and long track pants under her soccer uniform. A referee told her
she could not play as the scarf did not match her blue soccer uniform and he delayed the game until he could
confirm the rules with the Victorian Soccer Federation.
The federation cleared her to play but the delay caused the game to be rescheduled. The issue went to
the Victorian Soccer Federation Tribunal. They found the referee made an error of judgment and was not
motivated by racism. The federation apologised to the girl for the distress the incident caused. The Victorian
Equal Opportunity and Human Rights Commission said the young woman might have grounds to lodge a
religious discrimination complaint.
Soccer’s world governing body FIFA banned Muslin headscarves from competition in April 2010. This hijab
ban forced the Lakembaroos girls’ soccer squad out of the first summer Youth Olympic Games to be held in
Singapore in October 2010. The Lakembaroos is a Western Sydney women’s soccer team made up of Iranian
girls.
Lakembaroos coach Hiba Ayache said ‘Soccer means a lot to us’. She said that while playing soccer in a
hijab is more difficult than playing bare-headed, there are no safety concerns as for other activities, tragically
demonstrated when a young Sydney mother was strangled after her hijab reportedly became entangled in
the wheel of a go-kart she was driving.
Ayache and three other women in her all-age team wear headscarves, and she said they would be forced out
of the competition they won last year if the hijab were banned. She says her teammates, many of them Christian,
have told her they would refuse to play, out of solidarity. Instead they would form their own private team.
The Iranian girls’ soccer team was replaced by a Thai team following the decision of FIFA. They felt let
down after their hard work.
Australian sport moved immediately to reject any hijab ban. Jim Forrest, president of Football NSW,
issued a statement condemning reports of FIFA’s banning of the Iranian girls’ team as a ‘serious act of
discrimination’. He says banning the hijab would mean condemning girls to their own surroundings and
never interacting with others. ‘The girls don’t regard the hijab as a cultural symbol or a political symbol. It is a
religious obligation. They have no choice [but to wear it].’
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13 Describe two avenues of dispute resolution for sportspeople who have been
discriminated against. (2 marks)
14 Discuss the capacity of the legal system to respond to demands for changes in the law in
relation to discrimination. (3 marks)
15 ‘Anti-discrimination laws are ineffective in stamping out discrimination in sport’. Discuss.
(4 marks)
(Total 50 marks)
Sponsorship and advertising
Etihad Stadium
in Melbourne is
sponsored by
Etihad Airlines
The organisers of national and international sporting events seek corporate sponsorship to
provide enough prize money to attract big-name players and increase ticket sales. Media
companies bid for the rights to broadcast major sporting events and other companies
advertise their products at these events themselves or during media broadcasts. Sponsors
may pay for the naming rights of a venue. Two examples are Hisense Arena (a major sport
and entertainment centre in Melbourne) and Etihad Stadium (also known as the Docklands
Stadium).
Sportspeople and teams seek sponsorship deals to increase their income. This is common
in tennis where players wear or use a particular manufacturer’s clothing or equipment.
Sports teams are often sponsored by a particular company.
Sports stars in the sponsorship market
According to the Sweeney sports report (an advertising agency report about the most
bankable sports stars), Ricky Ponting was the top sports star in the Australian sponsorship
market in 2008–09. The survey involved 50 major sports played or covered by the media.
People were asked if they had heard of various sports stars and how they would rate him or
her as someone worthy of being sponsored. Part of the 2008–09 list of top sports stars is
shown in table 13.1 on the next page.
The Australian
Netball team is
sponsored by
Holden
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Table 13.1 Australian top sports stars 2008–09
Points
Rank
Ricky Ponting
71
1
Grant Hackett
68
equal 2
Adam Gilchrist
68
equal 2
Glen McGrath
67
4
Pat Rafter
66
5
Ian Thorpe
65
6
Stephanie Rice
63
7
Cathy Freeman
60
Steve Waugh
The Sweeney report also listed the most
recognised sports sponsors. Nike has hit the top
as the most recognised brand ahead of Uncle
Tobys. Part of the Sweeney sponsorship list of the
most recognisable brands for 2008–09 is shown in
table 13.2.
Table 13.2 Leading sports sponsors
Points
Rank
Nike
32
1
equal 8
Uncle Tobys
28
2
60
equal 8
Nutri-Grain
26
3
Casey Stoner
59
10
Adidas
24
equal 4
Brett Lee
57
11
Ford
24
equal 4
Leisel Jones
56
12
Speedo
20
equal 6
Libby Trickett
55
equal 13
Toyota
20
equal 6
Layne Beachley
55
equal 13
Holden/GMH
19
8
Harry Kewell
53
equal 15
Telstra
18
9
Greg Norman
53
equal 15
3/three.com
15
10
Mark Skaife
49
17
Source: Sweeney Sports Report 2008–09
Craig Lowndes
48
equal 18
Shane Warne
48
equal 18
Michael Clark
47
20
Chris Judd
45
equal 21
Tim Cahill
45
equal 21
Lauren Jackson
45
equal 21
James Hird
44
24
George Gregan
43
25
<figure 1314 still to come>
Source: Sweeney Sports Report 2008–09
The Uncle Tobys Big Splash Swimathon is a national
fundraising event held in swimming pools across Australia to
help raise funds for the Royal Life Saving Society to reduce
child drowning and support safe
Loss of sponsorship
Sponsors generally want a clean image for their products, one that people want to be
associated with and copy. For example, Uncle Tobys cereals sponsors the Royal Life Saving
Society promoting safe swimming.
Sportspeople are often personally sponsored by a brand such as Nike. Torah Bright,
Australian gold medal winner at the Vancouver winter Olympics in the snowboard women’s
halfpipe, is sponsored by Roxy clothes by Quicksilver. Since her Olympic win she is likely to
be offered other sponsorships as well.
Sometimes a player may lose sponsorship opportunities due to poor behaviour or
because they are no longer a top player in their game. For example, Gatorade withdrew their
sponsorship of Tiger Woods when his clean image was tainted by the public revelation that
he had been having extra-marital affairs.
Torah Bright
showing Roxy
sponsorship on
her snowboard
CASE STUDY
Collingwood loses TAC sponsorship
The Transport Accident Commission (TAC) ended its Collingwood Football Club sponsorship deal after
a seven-year association. Sharrod Wellingham was charged with drink-driving in January 2008. His blood
alcohol content was 0.13. The club fined him $5000. The Collingwood president, Eddie McGuire, warned that
the loss of the club’s TAC sponsorship could have far-reaching consequences. It was worth about $500 000
for 2008.
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Sportspeople who are found to have been cheating by taking drugs are very often
dropped by sponsors because they no longer portray the best image for their products.
Drugs and sport
Australian and worldwide sporting groups ban the use of performance-enhancing drugs. The
use of these drugs is considered cheating and they can affect an athlete’s health.
There have been numerous drug scandals and media reports that suggest the use of
drugs in sport is a continuing problem. Advances in medical technology have created new
ways to try to enhance performance — as well as new ways to detect illegal drug use.
The World Anti-Doping Agency (WADA), which is headed by Australian John Fahey,
is an independent non-government organisation, funded by governments around the world,
whose aim is to eliminate illegal drug-taking by sportspeople. WADA has developed a code
for anti-doping policies, rules and regulations to be followed by sports around the world.
The Australian Sports Anti-Doping Authority (ASADA)drug-tests Australian athletes
who compete at state and national level.
CASE STUDY
Olympic gold medallist LaShawn Merritt banned
Beijing Olympics gold medal 400 metres champion LaShawn Merritt of the United States
has been suspended after testing positive for an anabolic steroid contained in an overthe-counter product.
The 23-year-old American, who faces a two-year ban, said ‘I hope my sponsors,
family, friends and the sport itself will forgive me for making such a foolish, immature and
egotistical mistake. Any penalty that I may receive for my action will not overshadow the
embarrassment and humiliation that I feel inside.’
Merritt failed tests for the steroid DHEA which is banned by the US Anti-doping
Agency (USADA). This ban has put his entire career under a cloud. He will not compete
until his case has been heard by USADA.
CASE STUDY
Shane Warne banned
In 2003, the Australian Cricket Board banned Shane Warne from playing any competitive
cricket, including test cricket, after he tested positive to a banned drug. Warne maintained
he took a diuretic tablet (moduretic) because he wanted to shed fluid from his body and
appear slim for a media interview. However, the drug can also be used as a masking agent
because its presence in the body renders drug tests for anabolic steroids inconclusive.
The board suspended Warne for one year because he recklessly took a prohibited
substance with no regard for the consequences.
Copyright and trademarks
Copyright laws govern whether a person can legally copy material in official sporting
publications or broadcast and distribute copies of sports events. In some cases companies
purchase the exclusive rights to reproduce this material. The right to use a sporting logo is
also protected in law.
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Trademarks are logos or emblems used to identify a product or organisation. The owner
of the trademark has the right to its exclusive use. Legal action can be taken to protect an
infringement of trademark rights. In 1995 an Australian manufacturer applied to register
its RECDOK trademark in respect of footwear. Reebok, an international manufacturer of
sporting apparel, was successful in opposing the application on the grounds that the new
trademark RECDOK was designed with the intention of getting as close as possible to the
lettering used in the widely known form of the REEBOK mark.
CASE STUDY
Nike trademark
In 1993, Nike asked the Federal Court to ban the trademarks of a Spanish cosmetic
company called Nike. The Federal Court disallowed the application saying that the matter
should have been decided when the trademarks were registered.
Did you know?
A Portland State University
student designed the Nike
‘swoosh’ and received the
princely sum of $35 for his
effort.
Sponsorship and advertising
1 Why is sponsorship necessary for sporting clubs?
2 Explain a recent situation where sponsorship has been removed because of inappropriate
behaviour.
3 Go through the list of top sports stars in the table of Australian top sports stars and see
how many you can identify with a particular product they advertise.
4 Go through the list of brands in the table of leading sports sponsors and see how many
you can identify with a particular sport that they sponsor.
5 In your opinion, which sport-associated advertising campaign is the most successful?
Discuss.
6 Comment on any new advertising campaigns or new sports stars that you think will be on
these lists in the future.
7 Read the case study ‘Ricky Ponting and Twenty20 cricket’ and answer the questions.
a Explain what conflict is being referred to.
b Name a sponsor of the Australian cricket team.
cInvestigation
Investigate and identify three of Ricky Ponting’s personal sponsors.
CASE STUDY
Ricky Ponting and Twenty20 cricket
In 2008, Australia captain Ricky Ponting said he was unconcerned by reports that he and several of his teammates may lose lucrative contracts to play in India’s official Twenty20 competition, the Indian Premier League
(IPL).
The Board of Control for Cricket in India reportedly claimed that the IPL might not include any members
of the then Australia squad because Cricket Australia wanted to protect its sponsorship deals.
The first IPL tournament took place in April 2008.
Ponting said he was focusing on Australia’s preparations for the tri-series match against Sri Lanka at the
Sydney Cricket Ground, rather than off-field developments in the IPL.
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No concerns …
Ricky Ponting
8Name the sponsors for two sporting venues.
9Name one of the sponsors of the AFL.
10 Name one of the sponsors for basketball in Australia.
11 Read the case study ‘Sponsorship conflicts — AFL’ and answer the questions.
a What conflict of interest arose in this situation?
b Do you believe players have a right to earn ‘additional’ money through sponsorship?
Explain.
c Using a possible contract between the AFL and Toyota as an example, explain the offer,
acceptance and consideration that would exist in such a contract.
CASE STUDY
Sponsorship conflict — AFL
Prior to the 2007 Grand Final, conflicts arose relating to Ford and Toyota. As part of the AFL’s sponsorship
arrangements, Geelong players had to parade in Toyota vehicles at the Grand Final parade, but the club was
reluctant to do this given its long-standing sponsorship history with Ford. Geelong’s major sponsor, Ford,
said they would not stop the Cats participating in the grand final parade.
12 Discuss the problems that inappropriate behaviour by
sportspeople can cause for sponsors. What are the likely
consequences for the sportsperson? Give an example
of a sportsperson who has lost sponsorship because of
inappropriate behaviour.
13 What are logos? Find and copy two logos that are used
in a sporting arena.
14 What do copyright laws govern?
15 Visit the Federal Government’s patents, trademarks and
design website to answer these questions.
a What are trademarks?
b What items can be used or included in a trademark?
c Do trademarks need to be registered?
d Would the trademark ‘24-hour gym’ be easy to
register in Australia? Explain.
Issue — contracts, salary caps
and free agency
Most professional sporting clubs and associations have
a standard player contract that serves as a model
employment contract between players and their clubs.
The contracts can be modified according to the special
needs and talents of individual players. With the high
salaries and sponsorship deals available to sportspeople,
agents now represent many players. The relationship
Cricket Australia contracted player Ryan Harris
between the agent and the player is also likely to be
governed by a contract.
The clubs have a salary cap, a total amount they can pay to the players. The players are
seeking free agency, that is, the right to move around after they have completed their original
contract without going into a draft.
Contracts are agreements that the law will enforce. To be legally binding as a contract,
something must be exchanged for ‘adequate consideration’. Adequate consideration is a
benefit which one party receives that reasonably and fairly induces him or her to enter the
contract. For example, a player agrees to play sport in exchange for a salary or prize money
from the club or event organisers.
A contract comes into existence when:
• one person makes a proposal (offer) to another person
• the other person accepts the offer (acceptance)
• there is a benefit (something of value) that passes between the parties (consideration).
useful websites
There must also be an intention to create legal relations (an intention to be legally
bound by the contract) and the parties must be capable of understanding the terms of the
contract (capacity).
Intellectual
Property Australia
www.ipaustralia.
gov.au
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ACCESS AND JUSTICE
A contract can be written or oral. We all make oral contracts frequently. Each time you
buy something from a store, or even something as simple as a bus ticket, you are making a
contract. Sporting contracts can involve a verbal promise.
An example of a sporting contract is the collective bargaining agreement negotiated
between the Australian Football League (AFL) and the Australian Football League Players
Association (AFLPA). This agreement allows players to enter into contracts with individual
clubs, media groups or sponsors as long as these agreements do not prejudice the AFL or the
player’s club.
There are restrictions on the contracts that AFL players can enter into and on when they
can choose to move from one club to another.
The AFL collective
bargaining
agreement was
explained to
these players in
January 2010
AFL draft, salary cap and free agency
The AFL draft, salary cap and decisions about whether to allow free agency are all issues
that come under the rules of the game. However, they are also relevant to contract law and
affect the ability of players to negotiate the contracts of their choosing. They can therefore
potentially become legal issues.
AFL draft
In the AFL draft, clubs receive choices (picks) of new young players based on the position
that the clubs finished on the ladder in the previous season. The draft is held each year
at the end of November to allow draftees to finish their school examinations before being
drafted. The selection is determined by reverse order, with the team that had the poorest
performance during the season getting the first pick. This was introduced as an equalisation
strategy to ensure that no single team can get all the best players and dominate the league.
Salary cap
The salary cap or Total Player Payments (TPP) is the total amount a club can spend
on players on the playing list of the club. The cap is in place to assist in maintaining a
competitive balance across the league, preventing more wealthy clubs from stockpiling
the best talent. Primarily, an effective salary cap prevents wealthy teams from behaviour
that would destroy the competition, such as signing a multitude of high-paid star players,
preventing their rivals from accessing talented players and ensuring victory through superior
economic power.
With a salary cap each club has roughly the same economic power to attract players,
which contributes to roughly equal playing talent in each team in the league, which in turn
brings economic benefits both to the league and to its individual teams.
The sports that have adopted salary caps generally do so because they believe allowing
richer teams to accumulate talent affects the quality of the game. If only a handful of
dominant teams are able to win consistently and challenge for the championship, many
games will be a walk-over, and therefore less interesting to watch for fans and for television.
Television revenue is an important part of the income of many sports around the world,
and the more evenly matched and exciting the contests, the more interesting they are to
watch. This increases the value of the television broadcast rights. An unbalanced league also
threatens the financial viability of the weaker teams, because if there is no long-term hope of
their club winning, fans of the weaker clubs may gravitate to other sports and leagues.
Salary caps are not used in the English Premier Soccer League and this league is
dominated by the wealthier teams such as Manchester United, Arsenal, Chelsea and
Liverpool. Other teams are mostly competing for fifth place, with little or no chance of
breaking into the top four.
The 2010 AFL salary cap is listed at $7 950 000 per club, an increase of 3.2 per cent on
2009. In 2011, the salary cap will rise to $8 212 500. The total TPP across the competition
for 2010 is set at a maximum of $127.2 million across 16 clubs.
EXTRACT
What is not counted when calculating TPP?
The TTP does not count:
• relocation expenses paid to first-year draft choice players, rookies or other players required to relocate
and first-year draft choice players and rookies who are delisted within the first two years
• airfares for visiting parents and taxi fares (to attend training, matches and functions) for players under 18
that are paid by the club
• bereavement assistance (up to $2000)
• a percentage of football payments made to players on the Veterans List
• football payments to a rookie list player promoted to replace a player on the long-term injury list
• payments made under additional service agreements to players (and associates)
• testimonial payments
• match payments for AFL finals series matches
• airfares and accommodation expenses for one person per player playing in the grand final
• 50 per cent of football payments made to nominated rookie list players
• premiership prize money
• top 5 draft pick recognition payment.
Source: AFLPA website http://aflpa.com.au/articleimage/cba-explained
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CASE STUDY
Melbourne Storm breach of
salary cap
The National Rugby League announced on 22
April 2010 that they had stripped Melbourne Storm
of the club’s 2007 and 2009 Telstra Premierships
and the 2006-2008 minor premierships, and its
2010 competition points, after confirming a series
of salary cap breaches amounting to at least $1.7
million over five years.
The club will lose all competition points earned
to date in 2010 and also the right to accumulate
points for the rest of the 2010 season. Competition
tables will record wins and losses but the club will
not be awarded competition points on the basis of
any wins.
The club has also been fined $500 000 and will
be forced to return $1.1 million in prize-money,
which will be distributed evenly among the other 15
clubs.
The Storm’s two major sponsors, ME Bank and
superannuation fund HOSTPLUS, both walked
away from the club after the news, saying they were
shocked by Melbourne’s behaviour.
When the new Gold Coast team is introduced,
they will be able to pay above the salary cap to attract
players to get the club up and running. For example, it
has been suggested that Gary Ablett, who will be out
of his contract with Geelong, may be attracted to play
for Gold Coast.
Minimum salaries
A player who does not fall into one of the categories
below is paid a minimum base payment each year
along with a minimum match payment for AFL
matches. Players who are exempt from this include:
• first-year draft choices (e.g. Tom Scully)
• second-year players (e.g. Jack Ziebell)
• rookie list players (e.g. Majak Daw)
• players promoted from the rookie list (e.g. Zac
Dawson and Shane Mumford in 2009).
In 2011, the base salary is $66 900, and the
senior match payment is $2900. The minimum base
payment includes a superannuation contribution and
payment for pre-season matches.
Melbourne Storm 2009 Premiership
Free agency
The AFL and the clubs currently control which club a player plays with. This means players
are unable to sell themselves to the highest bidder because movements between teams are
restricted by AFL rules.
Players are legally bound to the club they are contracted to and cannot choose to join another
club when their contract ends. They must first go into the AFL draft process and wait for a club
to select them and offer them a contract. Clubs are restricted in who they can offer a contract to
because of the salary cap. The reasoning behind the draft and salary cap is to ensure that those
clubs with the most money are not able to make claims on all the best players.
Players, like other people in the workforce, would like the right to change where they work.
For example, Brendan Fevola went to Brisbane even though he had expressed a reluctance to
move to Brisbane. Fevola was no longer wanted as a player at Carlton and so Carlton traded his
contract to Brisbane.
The AFL Players’ Association (AFLPA) has suggested that players should have free agency,
that is, the right to move around after they have completed their original contract without going
into a draft.
A player may want to play in a certain city or for a club with greater opportunities for him
or may have family reasons to move or stay. Free agency gives players options and the right, at
some point in their career, to exercise control over their professional occupation.
According to the AFLPA, an out-of-contract player should be able to negotiate his next
contract freely with any club in the competition. For example, a player with five years’ service
at his club would have a right to negotiate directly with other clubs, but if his existing club
matches the best offer then it can retain the player; this is called restricted free agency.
In February 2010, the AFL agreed to introduce free agency after the 2012 season. After
eight years service at the player’s original club, the player would become a free agent, entitled to
negotiate directly with a new club without any restrictions.
The AFLPA stated that players should not be considered as assets that can be bought, sold
or traded at the whim of a club. Brendan Gale, the chief executive of AFLPA, believes that free
agency could help struggling AFL clubs compete on-field amid the league’s expansion plans.
On the other hand, the AFL has said that free agency could undermine the evenness of the
competition. They said that player poaching, witnessed in European soccer, plus sky-rocketing
wages among players, could give a negative impression to the public.
In Australia, rugby league, rugby union, soccer and basketball all have free agency for their
players, although team choices are limited by a salary cap. In the USA, basketball, baseball, ice
hockey and the NFL all have free agency, as do all the professional soccer leagues in Europe,
although generally without the restrictions of a salary cap.
While all these sports have their own unique differences in how they structure free agency,
it is reported that none of the sports have suffered since it was introduced. It would seem
instead that they have enjoyed increases in the number of clubs, supporters and key revenue
streams. Without free agency, the AFL has overseen large increases in advertising revenue,
player payments and the evolution of a very even and entertaining competition.
Free agency would not affect the even distribution of talented young players among the
clubs that occurs via the national draft. The pre-season draft could also be retained for players
who do not have free agency rights.
Mechanics, lawyers and teachers — and even AFL coaches — all change jobs at the end of
their contracts without their employer receiving any form of compensation.
Free agency would mean that Australian Rules football players would not have to work
under conditions the law does not allow for other employees. Under the AFL system, when
clubs lose a player, they get a vacant position on their list and room in their salary cap to attract
a new player. Clubs have also received the player’s services for years, two of which would have
been at a fixed salary, with little or no guarantee of ongoing employment for the player.
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ACCESS AND JUSTICE
The downside of free agency for players is that they would lose the right to be paid as
veterans of a club, because of their long service to that club. Veterans are able to have a
portion of their salary excluded from the salary cap. However, proponents say that free
agency is more about choice and self-determination than money.
CASE STUDY
Luke Ball 2009 AFL draft prospect
Luke Ball is an AFL inside midfielder. He was picked up by St Kilda at No. 2 draft in the 2001 draft. Since that
time he has shared the club’s best and fairest award, won All-Australian selection in 2005 and captained the
club in 2006-07.
Ball has consistently averaged around 20 disposals a game. He fell out of favour at St Kilda towards the
end of the 2009 season, although he still played in all three finals.
In late 2009, Ball left St Kilda and placed himself in the national draft. He expressed his wish to join
Collingwood. He attempted to get to Collingwood during trade week, when the teams trade player
contracts. This did not occur because Collingwood was unable to strike a satisfactory deal with St Kilda.
In the 2009 draft, Melbourne took young midfielders Tom Scully with the No. 1 pick and Jack Trengove
with No. 2 pick. Ball was a little different to other 2009 AFL draft prospects in that he already had seven years
of senior AFL experience. Collingwood secured Ball at pick 30, finally granting the former St Kilda captain his
wish to join Collingwood through the AFL’s national draft.
Luke Ball (No. 12) playing for Collingwood meets his old team St Kilda
Capacity of the legal system to respond to demands for
change
The Australian Athletes’ Alliance (AAA), which includes cricket, football, netball and
swimming associations, has made submissions to the Australian Industrial Relations
Commission (AIRC) that the AIRC should, as part of the award modernisation process,
make a modern award specifically applying to professional sportspeople. The AAA
believes that the specific circumstances applying to professional sportspeople make it
appropriate for a discrete modern award to be enacted, distinct from a modern award
applying to other employees in the sports industry (such as administrative staff).
The Fair Work Act 2009 (Cth) was passed to provide a balanced framework for
cooperative and productive workplace relations. This includes employment contracts
for sportspeople. Under this act, employers must guarantee fair conditions and ensure
freedom from discrimination. Collective bargaining must be based on good faith
bargaining obligations.
The demand for free agency with respect to sportspeople’s contracts implies that
many people are keen to see changes in the conditions that are able to be included in a
professional sportsperson’s contract.
Institutions for resolving disputes relating to contracts
Free agency and salary caps are part of the AFL rules that apply to AFL players. These
rules are established by the AFL, which is not able to make laws that are enforceable
through the courts. Likewise, tribunals that regulate sporting competitions are not legal
bodies. They are known as domestic tribunals. However, a matter can be taken to the
Supreme Court if it can be shown that a tribunal:
• has not followed its own rules
• has not acted fairly
• has made a ruling that is not within its power to make.
The principles of natural justice apply to all decisions of domestic tribunals, unless it
can be shown that these rules have been excluded from a player’s contract (that is, that
they are inconsistent with the terms of the contract).
The Court of Arbitration for Sport
The Court of Arbitration for Sport (CAS) is an international arbitration body set up to
settle disputes related to sport. Its headquarters are in Lausanne. There are additional
courts located in New York and Sydney, with ad-hoc courts created in Olympic Games
host cities as required.
CAS will hear a dispute when a sporting code or contract has specified that the
Court of Arbitration for Sport will settle any disputes that may arise. The court can
hear contractual or commercial disputes (sponsorship, player transfers and employment
contracts) or appeals resulting from disciplinary proceedings related to doping or on-field
violence. The court will hear the case and then make an award that is binding on the
parties.
The Supreme Court
If a contract has been breached, or there are disputes over the terms of a contract, the
dispute can be taken to court for a resolution to be reached. Very often the court that
hears such disputes is the Supreme Court of Victoria. This applies to sportspeople’s
contracts that set out conditions of their engagement and sponsors that engage the
services of sportspeople.
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ACCESS AND JUSTICE
OUTCOME 3
Area of study 3
Key knowledge
Key skills
law
• define key legal terminology and use it
appropriately
• a contemporary issue for the selected area/s of law
• research and gather information about legal cases
and issues, using print and electronic media
demands for change
• explain the current law and discuss related legal
issues for the selected area of law
• discuss the ability of the law to respond to
demands for change
• explain the different methods of dispute resolution
to resolve legal problems.
ASSESSMENT TASK structured assignment
Contracts in sport
1 Explain the main elements of a contract. Use an everyday example to illustrate your
explanation. (3 marks)
2 What types of contracts do sports people have? (1 mark)
3 Read the case study ‘Verbal contract did not exist’ and answer the questions.
a What occurred in this case? (1 mark)
b Do you think there is a contract here? Explain. (1 mark)
Verbal contract did not exist
In Francis v. South Sydney District Rugby League Football Club Ltd (2000) FCA, an injured
rugby player sued his club after his coach promised to re-sign him for the next season if he
delayed surgery and resumed play within three weeks. The club did not re-sign the player
at the end of the year and the player sued for breach of contract but was unsuccessful in
his claim.
The Federal Court ruled that a verbal contract did not exist because the coach did
not have the authority to make the promise, the player should have known that the club
might overrule the coach, and in accepting the coach’s offer, the player did not exchange
something (consideration) for the promise, he was merely adhering to the terms of his
current contract.
4 Read the case study ‘Dispute over contract’ and answer the questions.
a Why could the Bradford Bulls only take one player and not both Orford and Walker?
(1 mark)
b How did this dispute arise? Whose contract was being breached in this case? (2 marks)
c What was the final outcome? (1 mark)
Dispute over contract
Matt Orford is a professional rugby league player. Orford played with the Northern Eagles
before joining the Melbourne Storm and later the Manly-Warringah Sea Eagles. He was
captain of the Sea Eagles in 2008 when they beat Melbourne Storm to win the grand final.
Orford was considering a two-year deal with the Sea Eagles, but instead accepted a
big-money deal from the premier English rugby league Bradford Bulls. The deal, which
was reportedly for $1.5 million over three years, was thrown in doubt when a dispute arose
involving Gold Coast winger Chris Walker.
Unwanted by the Titans, Walker signed a two-year deal with Bradford — worth a total
of $400 000, but the Bulls refused to lodge the official contract with the English RFL after
signing Orford. Under the rules of the English Super League, Bradford has a five-player
import quota. They already had four overseas players under contract, which meant they
could take Orford or Walker but not both.
Walker’s agent, Chris Orr, said he might try to block Orford’s three-year deal unless
Bradford honoured the Gold Coast Titan’s alleged signing. Orr claimed the Bulls agreed
to recruit his man but when Manly scrum-half Orford, 31, became available, they backed
out.
Orr said he would lobby the English Rugby League to block Orford’s move to Bradford.
The eventual outcome for Walker was being signed by the French Catalan Dragons.
5Investigation
Visit the AFL Player’s Association website to find information about the AFL collective
bargaining agreement. Answer the following questions.
a How long does the current agreement last? (1 mark)
b What is the length of a contract for a first year player? (1 mark)
c How much can a first year player earn? (1 mark)
d What is the salary cap for each of the AFL clubs? (1 mark)
6 Explain the meaning of salary cap. How can a salary cap affect what the players are paid?
(2 marks)
7 Do you think the practice of imposing salary caps is a fair process for the players, the
clubs and the competition? Explain. Include in your explanation a comment about the
new Gold Coast team. (3 marks)
8 Explain what occurred to the Melbourne Storm rugby club in 2010 in relation to salary
caps. (1 mark)
9 Read the case study ‘Secrets of Chris Judd’s pay packet revealed’ on the next pageand
a Describe extra payments being made to Chris Judd and the role he plays in relation to
these payments. (2 marks)
b Do you believe Chris Judd should be paid these extra payments when you consider
the restrictions of the salary cap? Explain. (1 mark)
useful websites
AFL Player’s
Association
www.aflpa.com.au
541
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ACCESS AND JUSTICE
Secrets of Chris Judd’s pay packet
revealed
Exclusive: a jigsaw puzzle is a key piece of
Carlton superstar Chris Judd’s lucrative contract with
cardboard giant Visy.
The Herald Sun can reveal the list of obligations
placed on Judd in his role as Visy’s ‘environmental
ambassador’.
As well as the use of Judd’s image on an
environmental puzzle, his duties include providing
green tips for the AFL footy record and appearing at
Visy staff functions.
Cash payments from Visy to Judd — believed to
total several hundred thousand dollarsa year — come
on top of his $1 million-a-season Carlton pay packet.
AFL chiefs have approved the arrangement.
Visy is owned by embattled billionaire and Blues
powerbroker Dick Pratt.
Pratt, 74, stood down as Carlton president last
year to face criminal charges that he lied to the
Australian Competition and Consumer Commission
over price-fixing.
The Visy deal is believed to have been a deciding
factor in Judd choosing Carlton after he left West
Coast Eagles in 2007.
Both Carlton and Visy have refused to disclose
the size of Judd’s off-field payments.
‘The exact details of his contract with Visy are
confidential,’ company spokesman Tony Gray said.
‘We are more than happy with the arrangement
and believe Chris has delivered excellent value for us.’
Mr Gray said Judd would be the face of
Visy’s school program to be launched on World
Environment Day in June.
He would also host lectures for schoolchildren in
the Visy Sustainable Living Centre to be opened at
Princes Park.
Blues spokesman Ian Coutts said he knew
nothing of the arrangement.
‘I have no idea. It’s completely separate to
Carlton,’ he said.
Judd has previously defended the Visy contract.
‘What I do for them is largely based around
increasing awareness of recycling,’ he said last year.
‘One of Visy’s major pushes is the use of recycling
as a tool against climate change. I have done a
couple of talks for them . . . I’m pretty green.’
Judd’s long-time partner Rebecca Twigley, a
model and part-time speech pathologist at The
Alfred hospital, has emerged as one of Melbourne’s
A-list personalities.
Coutts denied suggestions a public relations firm
had been hired to help Judd improve his own image.
‘I don’t know where that has come from. It would
be a pleasure if all of our players were like Chris
Judd,’ he said. ‘He presents as well as anyone — on
and off the football field.’
Source: Michael Warner, Herald Sun.com.au, 2 March 2009
10 What is the meaning of free agency in relation to sporting clubs? (1 mark)
11 How can the lack of free agency affect AFL football clubs in their decisions about their
future? Do you think the situation should be changed? Refer to suggestions made by the
AFLPA. (2 marks)
12Investigation
Each member of the class is to create a profile of a sportsperson of their choosing. This
can be done in a multimedia format and can include information from newspapers and
the internet. Make a five-minute presentation to the class. (4 marks)
(Total 30 marks)

13sports and the law - Oxford University Press

Transcription

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