Who real­ly brings the game into disrepute?”

In Brief

A pub­lic spat. A drunk­en fall. A scathing com­ment. Pro­fes­sion­al ath­letes, like many of us, occa­sion­al­ly do care­less and reck­less things. 

Unlike many of us, how­ev­er, pro­fes­sion­al ath­letes are often fined exceed­ing­ly large amounts of mon­ey, sus­pend­ed or ter­mi­nat­ed from their employ­ment for doing these things. And you can almost be cer­tain that some­where with­in the gov­ern­ing body’s charge sheet relat­ing to the con­duct, there will be an alle­ga­tion that the ath­lete has brought either him or her­self or the game into disrepute.

But what does this charge mean? And who real­ly brings the game into disrepute? 

More often than not, when an ath­lete is charged by a gov­ern­ing sport­ing body, one of the alle­ga­tions will be that the ath­lete brought the game into dis­re­pute. Although less com­mon, ath­letes can also be charged with bring­ing them­selves into disrepute.

Both the ath­lete’s con­tract and the par­tic­u­lar code of con­duct or by-laws of the sport will usu­al­ly con­tain claus­es which state, in effect, that the ath­lete must refrain from doing any­thing which adverse­ly affects or dis­cred­its the game of that par­tic­u­lar sport or team or which brings the ath­lete or the ath­lete’s sport into disrepute. 

If an ath­lete mis­be­haves in any way, and in so doing falls foul of oth­er spe­cif­ic claus­es of his or her play­ing con­tract or the code of con­duct, it is like­ly that they will also be charged with either bring­ing them­selves or the game into dis­re­pute too. The charge is almost always lev­elled at an ath­lete who steps out of line.

How­ev­er, both ath­letes and gov­ern­ing bod­ies need to be aware that in order to estab­lish a breach of these com­mon pro­vi­sions, the gov­ern­ing body must estab­lish that pub­lic opin­ion of the sport has been dimin­ished as a result of the con­duct in ques­tion, and not as a result of some periph­er­al sideshow (i.e. spec­u­la­tive media arti­cles) which may have since over­tak­en the con­duct in ques­tion. Any­thing less may not suf­fice and a tri­bunal may not be pre­pared to make a find­ing that the ath­lete is the cause of bring­ing them­selves or the game into dis­re­pute.

Con­duct that brings an ath­lete into disrepute
In the case of D’Ar­cy v AOC [2008] CAS 2008/A/1539, which con­cerned the Aus­tralian swim­mer Nicholas D’Ar­cy’s alter­ca­tion with fel­low swim­mer Simon Cow­ley, the Court of Arbi­tra­tion for Sport con­sid­ered a clause of Mr D’Ar­cy’s mem­ber­ship agree­ment” of the Olympic swim­ming team which stat­ed that Mr D’Ar­cy could not engage in con­duct which, if pub­licly known, would be like­ly to bring him into disrepute. 

The Court held that 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”. The same descrip­tion is gen­er­al­ly applic­a­ble to bring­ing a game into disrepute. 

The Court deter­mined that Mr D’Ar­cy’s con­duct, in that he has been out at a pub­lic bar in the ear­ly hours of the morn­ing, intox­i­cat­ed and had become involved in a fra­cas with anoth­er for­mer ath­lete, which led to that per­son being very seri­ous­ly injured and tak­en to hos­pi­tal” was suf­fi­cient to bring Mr D’Ar­cy per­son­al­ly into disrepute.

On appeal, Mr D’Ar­cy’s legal team sub­mit­ted that the fact the pan­el at first instance had not found that the sport of swim­ming (or the Olympic Team or AOC for that mat­ter) had been brought into dis­re­pute was a sig­nif­i­cant fac­tor that should have been tak­en into account. How­ev­er, the Court found that the fact that Mr D’Ar­cy’s con­duct had brought him into dis­re­pute was suf­fi­cient for the AOC to ter­mi­nate Mr D’Ar­cy’s agreement.

This case shows that there is cer­tain­ly a low­er thresh­old to estab­lish that an ath­lete has brought him or her­self into dis­re­pute.

Con­duct that brings a sport into disrepute
Patrick George in his paper Sport in Dis­re­pute’ Aus­tralian and New Zealand Sports Law Jour­nal (2009) 4(1) 24, dis­cuss­es the case of Zubkov v FINA [2007] CAS 2007/A/1291, where a Ukrain­ian swim­ming coach, Mykhay­lo Zubkov, was charged by FINA (the inter­na­tion­al gov­ern­ing body of swim­ming) with bring­ing the sport of swim­ming into dis­re­pute after footage was broad­cast of Mr Zubkov hav­ing a phys­i­cal alter­ca­tion with his daugh­ter dur­ing a swim­ming meet in Mel­bourne in March 2007. Mr Zubkov was orig­i­nal­ly expelled from his posi­tion as coach and barred from reap­ply­ing for admis­sion for six years.

On appeal, how­ev­er, the Court of Arbi­tra­tion for Sport found that while Mr Zubkov’s con­duct had been aggres­sive and vio­lent, there was no evi­dence to prove that his actions brought the sport of swim­ming into dis­re­pute. For the sport to be brought into dis­re­pute, the con­duct need­ed to adverse­ly affect the pro­mo­tion and encour­age­ment of the devel­op­ment of swim­ming. As a result, Mr Zubkov’s ban was reduced to an eight month suspension.

Inter­est­ing­ly, it was argued that the broad­cast­er and FINA con­tributed to any offence of bring­ing the sport into dis­re­pute by show­ing the footage of the alter­ca­tion on inter­na­tion­al tele­vi­sion.

Our recent experience
Swaab Attor­neys recent­ly act­ed for an Aus­tralian pro­fes­sion­al ath­lete in a code of con­duct tri­bunal hear­ing. The gov­ern­ing body of that sport sought that the ath­lete’s con­tract be ter­mi­nat­ed on var­i­ous grounds. One of the charges was that the ath­lete had brought the game into dis­re­pute. Cru­cial­ly, the charges were brought against the ath­lete many months after the con­duct occurred. Dur­ing these months, the ath­lete had con­tin­ued to rep­re­sent the sport, had per­formed well both on and off the field and had upheld all of the ath­lete’s oblig­a­tions under the play­ing con­tract and code of conduct.

At the hear­ing it was sub­mit­ted by the gov­ern­ing body that the ath­lete’s con­duct and the pub­lic­i­ty as a result of that con­duct, reflect­ed adverse­ly on the game. 

We sub­mit­ted, on behalf of the ath­lete, that the con­duct reflect­ed only on the ath­lete and oth­ers direct­ly involved in the inci­dent and that any sub­se­quent poor reflec­tion of the game was brought about not by the ath­lete’s actu­al con­duct, but the ensu­ing media atten­tion (cit­ing Zubkov v FINA), much of which con­tained spec­u­la­tion, as well as the gov­ern­ing body’s gen­er­al han­dling of the matter. 

We also sub­mit­ted that there was an issue with the tim­ing of the con­duct and the charge from the gov­ern­ing body, giv­en it could not be alleged that the game had been brought into dis­re­pute at the time of the play­er’s con­duct but only after the gov­ern­ing body itself went pub­lic with the charges. A num­ber of media arti­cles were ten­dered at the hear­ing evi­denc­ing the healthy and pos­i­tive state of the sport between the time of the con­duct and time at which the charges were brought.

The ath­lete admit­ted that the con­duct was a minor con­tra­ven­tion of a dif­fer­ent clause of the code of con­duct by-laws. 

There­fore, the tri­bunal found that it was unnec­es­sary to deter­mine whether the ath­lete was in breach of any oth­er pro­vi­sions, includ­ing that the ath­lete brought the game into disrepute.

How­ev­er, in say­ing that, the tri­bunal not­ed that there were dif­fi­cul­ties in char­ac­ter­is­ing the ath­lete’s con­duct as hav­ing brought the game into dis­re­pute. The tri­bunal not­ed that this was because the con­duct itself only became pub­licly known, and there­fore capa­ble of adverse­ly reflect­ing on or dis­cred­it­ing the game, as a result of the tri­bunal process itself. Pri­or to that, the ath­lete had con­tin­ued to play and rep­re­sent the sport and the sport was in good health.

Lessons for athletes 
First­ly, it is clear­ly much eas­i­er for a sport­ing body to estab­lish that an ath­lete has brought his or her­self, rather than the sport, into dis­re­pute. There­fore, it is impor­tant that ath­letes and their man­age­ment con­sid­er whether there are any pro­vi­sions in their con­tracts that pre­clude them from bring­ing them­selves into dis­re­pute. These claus­es are nat­u­ral­ly more preva­lent in indi­vid­ual sports, such as swim­ming and ath­let­ics. If an ath­lete is sub­ject to this type of clause, then, in the event of being charged with some form of mis­con­duct, the gov­ern­ing body will like­ly rely more heav­i­ly on a breach of this clause than oth­er more spe­cif­ic clauses.

Sec­ond­ly, for ath­letes charged with bring­ing their respec­tive sport into dis­re­pute, their gov­ern­ing body must estab­lish that the ath­lete’s con­duct, and not some periph­er­al or con­se­quen­tial effect (includ­ing the body’s sub­se­quent man­age­ment of the mat­ter), is the act which brings the sport into dis­re­pute. In those cir­cum­stances, it is impor­tant that ath­letes clear­ly iden­ti­fy that there is a dif­fer­ence between their con­duct and oth­er fac­tors, such as media atten­tion, which are sim­ply not with­in the ath­lete’s control.