Sports players are ambassadors for their sport, their sponsors and their own personal reputation, as any sport played at an elite level is a high profile and lucrative industry in this society.
Employers (including sporting clubs) do not have a broad right to exercise control over the out-of-hours behaviour of their employees. They only have this right in exceptional and limited circumstances; Graincorp Operations Ltd v Markham [2002] AIRC 1318, [39].
That is why contractual clauses such as ‘the individual must not bring the game (or the sport, or themselves) into disrepute’ can extend this right to a time and place unrelated to the sport.
Used by associations such as the Australian Olympic Committee, the Football Federation of Australia and the Australian Football League, key concerns with this clause to associations and players include:
What conduct is disreputable?
Whose reputation must be damaged by the conduct?
Whether the conduct needs to be publically known?
Some codes of conduct specify what actions constitute disrepute, such as the Football Federation of Australia, listing examples such as violence, sexual harassment, abuse of position in order to obtain a benefit and commission or charge of a criminal offence (clause 2.2).
It is important to note that each code specifies whether it is the individual or the sport that needs to be brought into disrepute. Take for example the cases of Nick D’Arcy and Mikhail Zubkov.
D’Arcy struck former swimmer Simon Cowley in the face with his elbow causing serious facial injury. In D’Arcy v AOC [2008] CAS 2008/A/1539 at [7.1], the Court of Arbitration of Sport defined bringing a person into disrepute ‘is to lower the reputation of a person in the eyes of ordinary members of the public to a significant extent.” As such, it was found that D’Arcy did bring himself into disrepute to the satisfaction of the code, therefore his ban from the Olympics was legally validated.
On the other hand, Zubkov had a physical altercation with his daughter during the Olympics involving verbal abuse, pushing and shoving. FINA expelled Zubkov from his position as swimming coach of Ukraine, barring him for 6 years, as he had ‘brought the sport of swimming into disrepute.’
CAS overturned FINA’s ruling and said the sport wasn’t brought into disrepute because FINA did not show, to ‘comfortable satisfaction’, that his conduct actually caused the general public to think less or poorly of the sport of swimming (as opposed to thinking less of Zubkov, like with D’Arcy). In other words, the act need adversely affect the promotion and encouragement of the development of swimming in all possible manifestations throughout the world; Zubkov v FINA (2007) CAS 2007/A/1291 at [18] and [58].
Clearly, the thing to be wary of is the structure of these phrases.
This article was written by Paul Horvath, Principal of SportLawyer
