DUE PROCESS, PROCEDURAL FAIRNESS AND CONSISTENCY
A player with an NRL Playing Contract (Contract) is bound by not just that contract, but also many other rules and polices including, inter alia, the NRL Rules (Rules), NRL Code of Conduct (Code), NRL Anti-Doping Rules, and the NRL Playing Contract and Remuneration Rules. Players with an NRL contract are subject to many duties, which include;
- Not to engage in conduct which breached the NRL Rules,
- So far as is practicable, do all things reasonably necessary to ensure, and not do anything to subvert or detract from, the proper working of the NRL Rules,
- So far as practicable, do all things reasonably necessary to promote the bests interests, image and welfare of the NRL etc,
- Not to engage in conduct that is detrimental to or brings into disrepute the best interests of the NRL,
- To report any reasonably suspected breach of the NRL Rules to the NRL, and
- Not engage in conduct that might impair public confidence in the NRL etc.
Under a Contract, a player agrees to submit to the jurisdiction of, and comply with any decisions, determinations, directions or rulings made by the NRL Board, the Chief Executive Officer of the NRL (CEO), among many others. At present the CEO of the NRL is Mr Todd Greenberg.
Right to Silence in Australian Law
The right to silence (and modified versions of it) are entrenched in Australian law, both at federal and state level. Its origins can be traced back to Sir Edward Coke and his challenge to the English ecclesiastical courts in the 17th century. As a general concept the right to silence is an important common law right and preserves the privilege against self-incrimination. A person can refuse to answer questions put to them by the police (or other investigative bodies) during an investigation, and importantly, an accused at trial can maintain that right to silence. It is his or her right to do so.
The right to silence has been eroded in some circumstances. For example, a person may be compelled to give evidence at the Independent Commission Against Corruption (ICAC) and at the NSW Crime Commission. A failure to testify can mean a custodial sentence for those who refuse. However, there are built-in statutory safeguards, for example in the Crime Commission Act 2012 the evidence given by a person compelled to attend and give that evidence, cannot be used against that person in any civil, criminal or disciplinary proceedings.
Position under NRL Rules
The NRL, by virtue of the Contracts, Rules and Code, has taken away the player’s right to silence (save for the situation of criminal proceedings mentioned below). All players must cooperate fully with the NRL Integrity and Compliance Unit (ICU). Additionally, players must when requested to do so attend before the ICU and must answer questions and produce documents. The NRL has the power to take possession of a player’s computer, laptop and mobile phone, and may also take an image copy of information on those devises. Severe consequences apply for breaching the rules and non-compliance, which include monetary fines of up to $50,000 and the cancellation of the player’s Contract.
Notably, the Rules also allow the CEO to impose any other sanction, without limitation, that he, in his absolute discretion, considers appropriate.
These are powerful provisions, that should be exercised judicially and with careful consideration.
The Code provides that if a criminal investigation or proceedings have been commenced against a player, the NRL will not at the same time proceed against that player, unless the CEO considers it, in his absolute discretion, appropriate to do so. Very powerful indeed.
As mentioned above, a protection against self-incrimination is afforded to a player under the Code in that if a player is under criminal investigation or is defending criminal charges, he can exercise his right to the privilege against self-incrimination, during that criminal process.
Exercise of Powers
Recent events have raised an issue or two. Firstly, I am against violence upon women. I am also against violence perpetrated against anyone, no matter if it is against men, women or children. Anyone who perpetrates violence will likely find themselves charged and before the courts to answer those charges.
The CEO has over recent times publicly stated the NRL is against violence towards women. This is a fair position, and one it would be hard to argue against.
The CEO has recently used his powers to arbitrarily declare that registered player Ben Barber, who recently joined the North Queensland Cowboys, no longer has a place in the game. This decision was made by the CEO after the recent alleged domestic violence incident between Ben Barber and his partner. Todd Greenberg reportedly said; If you’re violent towards women you can expect to be removed from the game. That starts now.’ Notably, Ben Barber from all reports has not been charged by the police in relation to that incident.
From a legal point of view, it does not appear that procedural fairness has been followed. Should Ben Barber be scrubbed out by the stoke of the CEO’s pen, or should he be invited to make submissions/ show cause why the CEO should not take such action. Or should the NRL wait to see if the police lay charges against him, and the outcome of those charges? When a player’s career is about to be taken away, and other people will be affected, notably his partner and children, should Ben Barber be afforded due process and procedural fairness?
The CEO has relied upon the powers in the Rules to take such arbitrary action, however arguably he has acted prematurely and has not afforded due process and procedural fairness to Ben Barber.
Okay, so the CEO should be taking the same hard line against every player who is violent towards women, I mean it is only fair that if such harsh powers are going to be used, that they be used in a consistent manner towards all players? right? wrong!
It appears the same standards are not being applied by the NRL in other cases where violence against women has been alleged to be perpetuated by players. For example, Jack de Belin and his co-accused Callan Sinclair have reportedly been charged by the police with one count each of aggravated sexual assault in company, which carries a maximum life term of imprisonment upon conviction. Both players have reportedly denied the charges and have entered pleas of not-guilty. The NRL have reportedly decided to take no action on the basis that de Belin should receive the presumption of innocence, which means that the NRL will wait until the matter is decided by the courts.
But hold on a moment, on that logic, why wasn’t Ben Barber afforded the same courtesy and allowed the presumption of innocence. For all we know the police are still investigating the Ben Barber incident.
In the circumstance where proof of a breach by the NRL is to the minimal balance of probabilities standard, while criminal charges must be proved to the highest standard – beyond reasonable doubt, is it not a reasonable position to take that de Belin’s conduct, while not proven (as yet) to the highest criminal standard, has brought the game into disrepute, and is therefore a breach of the Rules. Why was Todd Greenberg’s magic pen not wielded towards de Belin resulting in him being eradicated from the game? Arguably, there has been no consistency by the NRL.
The NRL must decide whether to afford players the right to have their day in court, before being breached, as opposed to breaching players early on, based upon bringing the game into disrepute. Either way, consistency should be shown by the NRL.
The major point here is that criminal proceedings are entirely different to breaching the NRL Rules and Code. Different standards of proof apply, one is criminal and one contractual. A player may be found not guilty by the courts in criminal proceedings, but still in breach of the Rules and Code. Different standards and processes apply.
The better option from a legal point of view, is to afford players due process, for example allowing the player to make submissions to the NRL, before the NRL decides whether that player has breached the Rules and only then should the NRL proceed to decide any penalty. Once due process has been followed, a decision on breach and penalty can be made, even if that is before the conclusion of any criminal proceedings.
Remember the Brett Stewart incident in 2009, when Brett was charged with sexual assault and in a trial that lasted about two weeks, he was found not guilty by the jury. In that case the NRL afforded Brett Stewart the presumption of innocence and he could keep playing pending the outcome of the criminal charges.
Jarryd Hayne has been charged over allegations of aggravated sexual assault, to which he has pleaded not-guilty. Jarryd Hayne has no current playing contract, but it does not appear that the NRL has de-registered him from the game.
In December 2018 Dylan Walker was charged with domestic related common assault and assault occasioning actual bodily harm, allegedly against his partner. Dylan Walker plays with the Manly Sea Eagles and for all accounts the NRL has allowed him to keep playing, pending the result of the court proceedings.
Could it not be argued that the above conduct is detrimental to and brings the game into disrepute?
Ben Barber gets rubbed out by the arbitrary stoke of the CEO’s pen, Henry the Eighth style. While de Belin, Hayne and Walker escaped, to date, such harsh punishment by the NRL. Consistency appears lacking in how the NRL is dealing with these incidents, especially considering the CEO’s comments that if you are violent against women you should be expected to be removed from the game.
In my view, de Belin, Hayne and Walker should be asked by the NRL to show cause why they are not in breach of the Rules, remember a lower standard of proof applies. If it is found that they have breached the Rules, then the NRL should then invite those players to make submissions on penalty, prior to deciding the penalty. This process may or may not occur simultaneously with criminal proceedings.
They players will have their respective days in court and may be found not guilty. But that is a different circumstance to bringing the game into disrepute.
The players are entitled to, and should receive, due process and procedural fairness. The players are also entitled to expect that the NRL will be consistent in its approach to these matters.
The Rules give much unfettered power to the CEO. Such power should be exercised judicially and carefully.
Tony Greenwood is a lawyer and legal director of law firm VoxLaw, Caringbah NSW.