Powered by
MOMENTUM
MEDIA
When rule compliance isn’t enough: Even where a specific rule has not been broken, sporting bodies should still consider broader governance issues to ensure the sport’s reputation and integrity are not compromised, writes Tiana Bray.
Recent reporting concerning National Rugby League (NRL) referee Ashley Klein has reignited debate about integrity and public confidence in professional sport. Klein admitted recently to losing more than $400,000 on horse and greyhound racing but has denied gambling on rugby league. NRL referees are prohibited from gambling on rugby league but may gamble on other sports. Public reports indicate that the NRL was aware of Klein’s gambling problem as early as 2019, and launched an inquiry regarding any possible breaches of NRL rules and policies. The NRL concluded that Klein had not breached the NRL ‘Sports Betting’ integrity framework, because his gambling did not involve Rugby League.
The public debate has largely focused on whether Klein should continue refereeing. The better question may be whether the absence of a rule breach should have been the end of the NRL’s inquiry.
When the rules run out
In addition to prohibiting gambling on rugby league, the NRL Code of Conduct states that match officials are expected to “accept that the integrity of the sport is of paramount importance” and “avoid any situation which may lead to a conflict of interest, both on and off the field”.
As organisations increasingly grapple with risk management and public confidence, the Klein matter raises a broader issue for consideration: when a sporting organisation becomes aware of a potential integrity or reputational risk, is strict compliance with rules and policies enough, or should broader governance and public confidence considerations come into play?
The role of good governance
The Australian Sports Commission’s “Sport Governance Principles” (Principles) include the requirements to “proactively protect the organisation”, ensure “the organisation has and maintains robust and systematic processes for managing risk”, and have “measures and protocols to ensure [the] integrity of the sport”. Though these Principles are not legally binding, recognition and adherence of them are prerequisites to government funding, which the NRL is a recipient of.
Under these Principles, sporting organisations are encouraged to ask questions, including how much risk they are willing to accept in pursuit of their vision and purpose and whether early identification of risks is in place through risk management and integrity frameworks.
With that in mind, one might question whether the NRL properly considered these governance principles when it was deciding what to do upon being made aware of one of its top referees’ gambling problems in 2019. Further, when this problem escalated to the point where Klein placed himself on BetStop (the national self-exclusion register) in 2023, was the NRL proactively managing the potential for reputational risk and taking appropriate steps to protect the sport’s integrity?
The importance of public confidence and lessons from Zucal v Harper
The wording of the rules and policies of a sporting body, as well as contracts of employment and other contractually binding terms and conditions, are central in determining the standards to which a member of a sport (including a referee) is expected to conduct themselves off-field. Whether off-field behaviour falls below such standards, therefore, requires case-by-case consideration. The cases of Zucal v Harper [2005] WASCA 76 and Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR do, however, provide useful commentary regarding off-field conduct towards the “integrity” and public perception of a sport.
In interpreting codes of conduct and policies concerning off-field behaviour pertaining to other sports, Australian courts have held that the need to maintain public confidence may justify holding sporting personnel accountable for their off-field conduct.
The West Australian case of Zucal v Harper considered whether a racehorse trainer accused of seriously assaulting a former employee at his property could be disciplined by stewards for conduct unrelated to horse racing for being “detrimental to” the harness racing industry. The court’s decision found, in construing the context, nature and purpose of r 243, that there existed “a need for those administering the sport to maintain public confidence in its integrity and standards”, particularly where that sport involves public participation through betting.
In his reasons for the decision, Justice Steytler observed at paragraph 50:
“If a person who is prominent in the harness racing industry engages in conduct which has the potential for being made public and which, if made public, will cause people to lose confidence in his or her integrity or standards (even if the conduct is unconnected with the racing industry), then it may very well be the case that the conduct will … have a flow-on effect as regards the manner in which the harness racing industry itself is perceived …”
Yet another example is found within Chappell v TCN Channel Nine Pty Ltd. Hunt J considered that under the Australian Cricket Board’s Code of Behaviour, players “must not indulge in conduct detrimental to the game”, where that conduct will be injurious to the sport, by being known to the public.
When the Zucal and Chappell cases are considered together with the Australian Sports Commission’s corporate governance standards – sporting bodies are increasingly being asked to consider not only “has the referee broken an express rule?” but also “might this conduct cause people to lose confidence in the integrity of the referee and/or the sporting industry itself, and what should be done about it?”
What sporting bodies need to be aware of
The recent Ashley Klein debacle serves as a poignant reminder to sporting bodies of the increasing public expectation that the off-field conduct of their personnel be considered in addition to whether a rule was broken. The fact that the NRL referee had not gambled on NRL specifically did little to assuage public concern and scepticism as to the integrity of Klein, particularly ahead of the sport’s highly anticipated representative “State of Origin” matches.
This is unsurprising, given that sporting officials must be held to a high standard, responsible for both making, and being seen to make, impartial and fair decisions.
Conclusion
In the present case, should the NRL have thought twice about the fact that one of their referees was not only gambling on other sports, but was suffering from an ongoing gambling addiction? If they did, should they now take steps to outline to the public what steps were taken to ensure there is public confidence in the integrity of the game?
Decisions regarding sporting officials’ conduct must be considered comprehensively – ensuring that the ramifications of this conduct, particularly if made public, will not call into question the integrity of the sport as a whole.
Tiana Bray is a law graduate at RedeMont.
