Sport (HSC SSCE Legal Studies): Revision Notes
Sport
Introduction to law reform and sport
Australian sport has undergone significant transformation over recent decades. Sport has become deeply embedded in Australian culture, with the nation achieving considerable success in international competitions since World War II. Domestically, major codes including rugby league, rugby union, Australian Rules football, association football and basketball now operate as large commercial enterprises with substantial prize money and public prestige attached to winning national competitions.
The commercialisation of sport has brought corporate sponsorship deals that provide significant financial support to athletes and teams. In return, companies gain advertising exposure and media coverage. Sponsorship refers to the support of an individual, event or organisation financially or through the provision of products or services. Major competitions now incorporate sponsor names as part of their official titles, demonstrating the close relationship between sport and business.
This professionalization means athletes are now considered employees when competing. The pressure to perform and an apparent 'win at any cost' mentality has created numerous legal challenges that require ongoing law reform.
These issues are governed by multiple areas of law, representing a shift from the traditional approach that 'what goes on the field, stays on the field'. The need for law reform in Australian sport arises from changing social, legal and technological factors:
- Off-field criminal behaviour
- Gambling and match fixing
- Injuries sustained during competition
- Use of performance-enhancing drugs
- Player safety and long-term injuries
Areas of sport law
Sport law encompasses several distinct legal domains:
- Criminal offences: Including drug use, assault and match fixing (e.g. Ryan Tandy, Leigh Matthews cases)
- Discrimination laws: Protecting equal opportunity in sport (e.g. Trudy Gardner case)
- Contracts: Governing professional athletes' employment relationships (e.g. Sonny Bill Williams case)
- Torts: Covering both negligence and trespass to the person for injuries sustained in sport
Criminal law: off-field behaviour
Criminal law applies to behaviour on sporting fields just as it does elsewhere. Although referees and judiciary bodies typically handle rule violations through suspensions, criminal prosecution remains possible for serious offences.
Key Case: Leigh Matthews (1985)
During a professional Australian Rules match in 1985, Hawthorn captain Leigh Matthews struck an opponent in the face, breaking his jaw.
Legal outcome: Matthews was subsequently arrested, charged and convicted of assault, receiving a $1000 fine. Although his conviction was later overturned on appeal, this case established that criminal law is not excluded from the sporting arena.
Gambling and match fixing
The rise of online betting has created new opportunities for corrupt behaviour in sport. Match fixing involves predetermining the result of a sporting event to guarantee betting outcomes and financial gain.
Key Case: Ryan Tandy (2010)
In 2010, NRL player Ryan Tandy bet several thousand dollars through his manager and friends on a specific aspect of a match in which he was playing. Tandy deliberately caused a penalty early in the match to create a situation that could have resulted in significant betting payouts.
Legal outcome: He was found guilty of match fixing and sentenced to community service. This case highlighted gaps in existing criminal law, which did not consistently address all forms of match-fixing behaviour.
Since Tandy did not personally place the bet, his defence argued he had not violated existing legislation. This led to the Crimes Amendment (Cheating at Gambling) Act 2012 (NSW) being passed to address these legislative gaps. Tragically, Tandy took his own life in 2014.
Civil law: breach of contract
Professional athletes sign contracts legally binding their playing services to clubs and competitions. When these contracts are breached, civil litigation (court action brought to remedy a wrong or breach of contract) may result.
Key Case: Sonny Bill Williams (2008)
In 2008, Canterbury Bulldogs player Sonny Bill Williams was earning $450,000 per year in the NRL. Without informing his club or teammates, Williams broke his contract by leaving Australia to play rugby union in France for a substantially higher salary. His contract contained no 'get-out' clause allowing early release.
Actions taken: The NRL called on the International Rugby Board to prevent Williams from switching codes, but the board claimed no jurisdiction over individual club contracts. The Bulldogs and NRL obtained a temporary injunction preventing Williams from playing for French club Toulon and initiated NSW Supreme Court proceedings.
Settlement: The case eventually settled with Williams paying $750,000 to the Bulldogs and agreeing not to play in the NRL before 2013. Williams returned to the NRL in 2013 and 2014 for a different club.
Breaking the injunction could have resulted in contempt of court (words or actions showing disregard for court authority or interfering with its powers) proceedings or asset seizure. No similar contract breaches have occurred since this case, demonstrating the deterrent effect of this legal precedent.
Civil law: harm suffered in sport
Rules governing sports differ from laws, though sporting bodies create codes of conduct that all players must follow. In contact sports, these rules include safety provisions. Clubs, leagues and other organisations owe a duty of care to participants.
Express consent and indictable offences
When participating in sport, amateur and professional players give express consent (consent given directly, either orally or in writing) to acts that would otherwise constitute assault – an indictable offence (a serious criminal offence requiring a formal written charge, preliminary hearing, and typically tried before a judge and jury with greater penalties than non-indictable offences) in non-sporting contexts.
Players accept the risk of harm occurring within the rules of the game. In contact sports such as rugby league, rugby union and Australian Rules football, players can suffer broken bones, unconsciousness and, in extreme cases, quadriplegia. However, players do not give express consent to behaviour prohibited by the rules.
Key Case: McCracken v Melbourne Storm Rugby League Football Club Limited [2007] NSWCA 353
Jarred McCracken successfully sued two Melbourne Storm players after an illegal tackle deemed 'a gross infringement of the laws of the game' injured his neck and ended his career.
Outcome: McCracken received compensatory damages of $97,000; however, his claims for loss of future earnings were rejected.
Key Case: Alex McKinnon (2014)
In 2014, NRL player Alex McKinnon suffered severe injuries when multiple defenders lifted him and he landed on his neck, causing him to become wheelchair-bound.
Legal principle: While players consent to tackles within the rules, they do not consent to prohibited behaviour. McKinnon may seek compensation through legal channels by suing the opposition club and the sports governing body.
Civil versus criminal remedies
Professional athletes generally prefer civil remedies over criminal prosecution for several reasons:
Why Athletes Choose Civil Remedies:
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Standard of proof: Criminal cases require proof 'beyond reasonable doubt', whilst civil cases need only prove liability 'on the balance of probabilities' (more probable than not)
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Compensation amounts: Criminal compensation schemes typically offer much lower amounts than civil damages. The maximum compensation for violent crime victims in NSW is $50,000, inadequate for professional athletes earning hundreds of thousands annually
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Material loss: Civil law allows claims for loss of wages, medical expenses, and pain and suffering
The concept of trespass to the person
Trespass to the person is a tort involving direct contact with a person's body without consent. Players typically sue other players or clubs for damages and loss of wages through the civil law system.
Amateur sport and duty of care
Material loss considerations apply even in amateur sport. In 1997, Darren Kennedy's jaw was broken by a high tackle in an amateur rugby league game in NSW. Kennedy sued both the opposing player Gary Pender and the Narooma Rugby League Football Club for $40,000 in medical bills.
The club's lawyers argued that volunteer players meant the club could not be responsible for their conduct. However, the NSW District Court held that although players were unpaid, the benefits they derived from the relationship were significant enough to form an employment relationship. Pender was doing what the club expected. Both cases set strong precedent for future legal battles involving player injuries.
Long-term health concerns
In 2013, the National Football League (NFL) in the United States settled for $765 million to support 4500 players suing for damages. The players claimed the NFL knew of long-term dangers from head collisions but concealed this information.
By 2015, the NRL introduced new rules requiring doctors to assess players who receive head knocks, often preventing them from continuing the match. This recognizes the issue of long-term brain damage from repeated head traumas.
Equal opportunity in sport
Key Case: Taylor v Moorabbin Saints Junior Football League and FootballVictoria Ltd [2004] VCAT 158
In 2003, a junior Australian Rules football league in Victoria banned a 13-year-old girl, Helen Taylor, from playing because of her sex. Taylor and two other girls (aged 14 and 15) challenged this ban in the Victorian Civil and Administrative Tribunal.
Legal framework: Despite anti-discrimination legislation at state and federal levels, all Australian jurisdictions contain exceptions allowing sex-based exclusions where strength, stamina or size are relevant. The Equal Opportunity Act 1995 (Vic) permits such exclusions if these factors are relevant.
Decision: The judge determined that differences between boys and girls are not sufficiently great in the under-14 age group to justify exclusion, but they are for under-15s. Therefore, excluding Helen Taylor was unlawful, though excluding the older girls was not. The judge recommended that Football Victoria give girls the choice of whether to participate rather than excluding them entirely.
Legislative variations between jurisdictions
New South Wales legislation is less specific than Victoria's. Section 38 of the Anti-Discrimination Act 1977 (NSW) states:
"Nothing in this Part renders unlawful the exclusion of persons of the one sex from participation in any sporting activity not being the coaching of persons engaged in any sporting activity, the administration of any sporting activity or any prescribed sporting activity."
This allows female (or male) players to be excluded in any circumstances, creating inconsistency across Australian jurisdictions. This inconsistency can lead to different outcomes for similar cases in different states.
Key Case: Gardner v AANA Ltd [2003] FMCA 81
In 2001, the All Australia Netball Association (AANA) banned pregnant women from playing in the national competition, including Adelaide Ravens captain Trudy Gardner, who was 15 weeks pregnant. Gardner lodged a complaint with the Human Rights and Equal Opportunity Commission (now Australian Human Rights Commission), claiming discrimination under the Sex Discrimination Act 1984 (Cth).
Legal proceedings: When conciliation failed, Gardner took AANA to court, seeking an injunction to continue playing. She missed three games and lost match payments and sponsorship. The Federal Magistrates Court granted the interim injunction and Gardner successfully sued in 2003, seeking damages for distress, pain and suffering, plus financial losses.
Outcome: The court found the prohibition breached sections 7 and 22 of the Sex Discrimination Act.
Agencies of law reform relating to sport
The Australian Human Rights Commission
The Australian Human Rights Commission is an independent statutory organisation established in 1986 (previously called the Human Rights and Equal Opportunity Commission until 2008). Its functions include:
- Investigating and reporting to Federal Parliament on human rights compliance
- Resolving discrimination complaints and human rights breaches
- Holding public inquiries
- Providing advice and submissions to parliament
- Conducting research into human rights and discrimination issues
The Commission addresses discrimination in various areas including provision of goods and services, education, employment and sport. It investigates complaints and assists in reaching agreements through conciliation (a form of alternative dispute resolution where a conciliator takes an active role, advising parties, suggesting alternatives and encouraging agreement without making decisions for them).
The NSW Law Reform Commission
The NSW Law Reform Commission responds to emerging legal issues requiring reform. In 2011, it examined match fixing, describing inadequacies in existing common law and statutory offences. For example, bets can now be placed on specific aspects of matches (such as whether the first score is a penalty goal or try), creating new opportunities for corruption not adequately covered by existing legislation.
The Commission's work led to the Crimes Amendment (Cheating at Gambling) Act 2012 (NSW), addressing behaviours inadequately covered by previous legislation.
The Australian Sports Commission
The Australian Sports Commission (ASC) is an Australian Government statutory authority established through the Australian Sports Commission Act 1989 (Cth). The ASC is involved in sport operation and development at all levels, providing advice to government and funding to national sporting organisations. The Australian Institute for Sport (AIS) is one of its divisions.
Following the netball ban case, the ASC hosted the National Forum on Pregnancy in Sport in August 2001. Participants from government, industry and non-government organisations developed guidelines for the Australian sporting industry on pregnancy in sport. These guidelines protect both pregnant athletes' rights and sporting clubs from negligence liability.
Mechanisms of law reform relating to sport
The courts
Courts interpret legislation and set precedents that clarify how law should be applied in future cases. Higher court decisions make statements about legislation or common law application to specific facts. Court consideration of situations and arguments can reveal unfairness or injustice in legislation itself.
The Federal Sex Discrimination Commissioner in 2003, Pru Goward, commented that Gardner's case demonstrated courts developing case law around the Sex Discrimination Act. The circumstances of pregnant women pursuing high-level sport constituted a new application of anti-discrimination legislation.
The Court of Arbitration for Sport
The Court of Arbitration for Sport (CAS) was established in 1984 as part of the International Olympic Committee. It is an international arbitration body settling sport-related disputes, based in Lausanne, Switzerland, with courts in New York City and Sydney, plus temporary courts in Olympic host cities.
The CAS settles disputes through arbitration where parties agree to its jurisdiction, and its decisions are binding. It hears two types of dispute:
- Commercial: Including contract disputes, sponsorship, television rights and civil liability claims such as athletes' accidental injuries
- Disciplinary: Including drug-related problems, on-field violence and referee abuse
Disciplinary cases are typically first handled by competent sports authorities (e.g. the Australian Olympic Committee), with appeals then going to the CAS.
Key Case: Essendon 34 (2013-2015)
In 2013, 34 current and past Essendon AFL players were accused of taking performance-enhancing drugs during an alleged systematic program. ASADA (Australian Sports Anti-Doping Authority) investigated and recommended player suspensions between six months and two years.
AFL response: The AFL rejected ASADA's evidence, ran its own investigation and concluded players were not guilty.
WADA appeal: In 2015, the World Anti-Doping Authority (WADA) appealed to the CAS, requesting new evidence standards and re-investigation of Essendon players. WADA rejected players' claims of being unaware they were receiving illegal substances, stating violation #1 as the basis for guilt.
Parliaments
When court decisions reflect new social patterns or attitudes, parliaments may enact, amend or repeal legislation to ensure statute law remains current and credible. This often follows extensive consultation with law reform commissions, human rights commissions or specialist bodies like the Australian Sports Commission.
Effectiveness of law reform relating to sport
Contract law
Breaches of contract in sport may differ in details from other business areas, but mechanisms and remedies are similar. The Sonny Bill Williams case illustrates sport's increasingly global nature and jurisdictional complexities (two countries, two rugby codes). However, significant law reform needs in this area are unclear.
Harm suffered in sport
Two social factors contribute to players preferring civil remedies over criminal law: greater readiness to sue and sport professionalization. Whilst monetary sums in professional sport are relatively large, tort law (the body of law dealing with civil wrongs including negligence, defamation, trespass and nuisance) maintains its core purpose: compensating people for losses or damage from wrongs done to them.
Alex McKinnon may seek up to $10 million compensation covering lifetime physical and medical needs, plus potential income loss. In response, the NRL may need to demonstrate that tackles causing such injuries will be heavily sanctioned or eliminated from the game.
Consequences of widespread civil litigation:
- Fear of lawsuits may lead institutions (e.g. schools) to phase out contact sports
- Players seriously injured in situations where no one is at fault (tackles within rules) need financial assistance but insurance coverage may be inadequate
Equal opportunity in sport
Local, national and international interest in ensuring women's equality in all areas, including sport participation, has prompted state and federal legislation. Australia is a signatory to the UN Convention on the Elimination of All Forms of Discrimination Against Women, with domestic legislation implementing this treaty making sex-based discrimination unlawful.
Additional legislation including the Racial Discrimination Act 1975 (Cth) and Disability Discrimination Act 1992 (Cth) protects historically disadvantaged groups. Statutory bodies like the Australian Human Rights Commission are vital in addressing equal opportunity issues. Court cases such as Trudy Gardner's provide additional factors for parliaments to consider when drafting legislation, balancing negligence claim concerns against fairness needs.
Key legislation
Commonwealth legislation:
- Racial Discrimination Act 1975 (Cth)
- Sex Discrimination Act 1984 (Cth)
- Australian Sports Commission Act 1989 (Cth)
- Disability Discrimination Act 1992 (Cth)
New South Wales legislation:
- Crimes Act 1900 (NSW)
- Anti-Discrimination Act 1977 (NSW)
- Crimes Amendment (Cheating at Gambling) Act 2012 (NSW)
Significant cases
- Gardner v AANA Ltd [2003] FMCA 81 – Pregnancy discrimination in netball
- Taylor v Moorabbin Saints Junior Football League and FootballVictoria Ltd [2004] VCAT 158 – Girls' participation in junior football
- McCracken v Melbourne Storm Rugby League Football Club Limited [2007] NSWCA 353 – Illegal tackle causing career-ending injury
- Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28 – Match fixing case involving Ryan Tandy
- R v Packer (2014) NSWLC
Remember!
Key Points to Remember:
- Sport has become big business in Australia, creating new legal challenges including criminal behaviour, contract disputes, player injuries, discrimination and match fixing
- Criminal law applies to sporting fields – illegal acts like assault can be prosecuted (Leigh Matthews case)
- Professional athletes prefer civil remedies over criminal prosecution due to lower standards of proof and higher compensation amounts
- Players give express consent to acts within the rules but not to prohibited behaviour
- Anti-discrimination legislation protects equal opportunity in sport, though exceptions exist where strength, stamina or size are relevant
- Key agencies of law reform include the Australian Human Rights Commission, NSW Law Reform Commission and Australian Sports Commission
- Mechanisms of reform include courts, the Court of Arbitration for Sport and parliaments
Key Terms:
- Civil litigation: Court action to remedy a wrong or breach of contract
- Conciliation: Alternative dispute resolution where a conciliator advises parties and encourages agreement
- Contempt of court: Disregarding court authority or interfering with its powers
- Express consent: Consent given directly, orally or in writing
- Indictable offence: Serious criminal offence requiring formal charge and trial before judge and jury
- Sponsorship: Financial or product support of individuals, events or organisations
- Tort law: Law dealing with civil wrongs including negligence, defamation, trespass and nuisance
- Trespass to the person: Tort involving direct contact without consent
Critical Framework:
Sport law encompasses multiple legal areas: criminal law (off-field behaviour, match fixing), civil law (contracts, torts including negligence and trespass to the person), and discrimination law (equal opportunity).