The NRL and off-field misconduct: The challenges continue

By Tim Fuller|22 September 2019

The first hint of spring and the month of September signal the start of the business end of the footy season. The whole year goes on the line now as teams throw everything at the chance to be on stage at the big dance in a few weeks’ time, writes Tim Fuller.

The off-season that follows should be a time of rest, relaxation and rehabilitation. Unfortunately for the NRL this has proven to not be the case time and time again.

Earlier this year, the NRL experienced the off-season from hell when several players were charged with serious sexual assault offences. The game had reached a breaking point and the Australian Rugby League Commission (ARLC) took affirmative action. A new policy was introduced where, players charged with a criminal offence which carries a maximum jail sentence of 11 years or more, are able to be stood down until the matter has been dealt with by the courts.

Recently the NRL took a step further with the drafting of a new penalties and punishment system that has been dubbed the “punishment matrix”. In a similar vein to their current on-field prosecution system, players are charged with a series of defined charges and each offence is rated according to severity.

New sanctions designate each particular incident as low scale or high scale. For example, players may be charged with offences such as low scale private property damage, low scale indecent assault or high scale sexual assault.

Players can be punished if the NRL is satisfied, after the investigative process, that the player is in breach of the NRL Code of Conduct and other contractual obligations – without any outside involvement from law enforcement authorities. The punishment matrix raises an interesting question as to what will be the standard of proof that the NRL Tribunal adopts with the new matrix. Currently, matters before the Tribunal are decided on the balance of probabilities.

However, sport is notorious for having an each-way bet. In various sporting jurisdictions, the standard of proof adopted is comfortable satisfaction which is defined as lying between the criminal beyond a reasonable doubt and the civil balance of probabilities.

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On occasion, the Briginshaw test is applied to sporting matters. The test requires that the more serious the allegation and its consequences, the higher the level of proof required for the matter to be validated.

The standard is not beyond a reasonable doubt, but the more serious the allegation, the more robust and persuasive the proof must be.

This presents problems for the new punishment matrix. While jurisdictions such as the Court of Arbitration for Sport have regulated the comfortable satisfaction standard of proof, there is nothing to suggest at this stage what the NRL is intending to do.

What will the NRL Tribunal do on criminal matters that are only designated high scale (e.g. commercial drug supply) in comparison to other lesser criminal matters (e.g. property damage) that can be designated either low scale or high scale? Does the NRL attempt to enshrine the standard of proof into the laws of the game or will the Tribunal hearings be decided in the current subjective manner that causes such angst for players and supporters alike?

The underlying problem is that most of the stated offences in the punishment matrix are of a criminal nature – and yet little thought has gone into how such offences will be considered from a standard of proof perspective at the NRL Judiciary.

The NRL is to be commended for taking affirmative action against the off-field player misconduct – the conduct of certain players in relation to domestic violence and sexual assault has been abhorrent.

However, it is the author’s opinion that further consideration will be required with the punishment matrix to prevent aggrieved players commencing legal action against sanctions handed down by the Tribunal.

It is suggested that regulating the standard of proof through agreement with the Rugby League Players Association will help deliver the outcomes that rugby league badly needs for player misconduct.

Tim Fuller is a commercial sports lawyer with Gadens, Brisbane and a former NRL player.

The NRL and off-field misconduct: The challenges continue
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