From Russia’s ban from the Winter Olympics to the Australian cricket team’s ball tampering saga, 2018 has been an uncomfortable year for many sports bodies.
From Russia’s ban from the Winter Olympics to the Australian cricket team’s ball tampering saga, 2018 has been an uncomfortable year for many sports bodies. These events raised issues of legal concern on and off the field, and relate to questions about good governance of sport and the proper discharge of duty of care to participants.
MLS Sports Law Professor Jack Anderson examines some of the year’s biggest sport scandals.
Russia, doping and the Winter Olympics
Doping scandals dominated the build-up to the 2018 Pyeongchang Olympics.
Background to the saga
Allegations of a Russian state-sponsored doping conspiracy at the 2014 Sochi Olympics prompted the World Anti-Doping Agency (WADA) to commission an investigation by Canadian sports lawyer (and Senior Fellow of the MLS Sports Law program) Professor Richard McLaren. His report fed into the International Olympic Committee’s (IOC) investigation of the Sochi Olympics and its own disciplinary process.
This led to the IOC’s decision in December 2017 to immediately suspend the Russian Olympic Committee. Nevertheless, the IOC also decided it would still be open to inviting individual Russian athletes to compete in Pyeongchang, albeit under strict conditions that, if met, would only allow them to participate under a separate designation of ‘Olympic Athlete from Russia’.
An IOC panel reviewed applications submitted by 500 Russian athletes – 111 were refused almost immediately. Ultimately, 169 Russian athletes competed in Pyeongchang.
The IOC disciplined a separate tranche of 43 Russian athletes, who forfeited the medals won at Sochi and received life bans from future Olympics. But 39 of them appealed to the Court of Arbitration for Sport (CAS) and 28 were successful, with the court holding that there was insufficient evidence to prove anti-doping infractions.
Although the court’s mandate was to consider the individual appeals and not determine whether there was systemic doping at Sochi, its decision was a bad defeat for the IOC.
What lessons can be learned?
The International Paralympic Committee comprehensively banned Russia – a move CAS upheld. The IOC did not do this; it pursued individuals.
There are questions as to whether the IOC unnecessarily rushed that process (and its lawyers) and whether it had a contingency plan to respond to the worst-case scenario of losing at CAS.
More importantly, it must be asked whether the current anti-doping system, originated in response to the systemic doping of East German athletes and others in the 1980s, is designed to pursue and punish instances of institutional, collective or team-mandated doping.
Australia, cricket and ball tampering
The ball tampering antics of the Australian cricket team in its Test series against South Africa in March left sports coaches and parents around the country trying to explain, as best they could, why three Australian players, including captain Steve Smith, cheated, leading to lengthy bans for those involved.
Background to the saga
There are usually five key questions in sports integrity investigations of this kind – what was the plan or conspiracy to cheat; how was it achieved; why was it proposed; who was involved; and what is the appropriate sanction?
In the ball tampering incident, the answers to questions one and two were clear and eventually admitted by many of those involved: there was an attempt to grit the ball on one side to reverse swing the bowling.
The answer to the third or ‘why’ question also appeared clear. Faced with losing another Test match in the series, the three players (who are the answer to the fourth question above) concocted their ball tampering plan.
Finally, what about the proportionality of the sanction? In the end, the ‘catch all’ of bringing the sport into disrepute or conduct unbecoming to the game was used to underpin a 12 -month ban, which was accepted by the players.
What lessons can be learned?
Australian sport – recreationally, professionally and commercially– rightly holds itself to its own high standards of integrity. A comprehensive report released in August reinforced the fact that Australia is a global leader in sports integrity.
The previous ethos of the Australian senior men’s team shouldn’t be taken to reflect the ethos of the sport as a whole in Australia. The forceful, sometimes shrill, invective directed against the few (Steve Smith and others) in March showed that the fundamental desire for fair play in sport is still respected by the many in Australia.
Fair play on and off the field is the chief characteristic of sports law.
AFL, Andrew Gaff and that punch
Should criminal law be used more often to police serious incidents of on-field violence? Or should these matters be left to sports bodies and not waste precious police and public resources? One high-profile incident in the AFL this year prompted debate on the criminal law’s reach beyond the sideline.
Background to the saga
In August, during an AFL game in Perth between local rivals West Coast Eagles and Fremantle, Fremantle’s Andrew Brayshaw was caught full face by a swinging left fist from West Coast’s Andrew Gaff.
Brayshaw’s jaw was broken and several of his lower teeth displaced. Such was the damage caused that, on reaching the player, the physio ordered him not to take out his mouthguard.
Bizarrely (at least for us outsiders), Australian Rules does not have a red card rule. Gaff remained on the pitch for the rest of the game and, unsurprisingly, retribution swiftly followed.
Immediately after the game, Gaff’s club and team-mates rallied to his defence.
A familiar array of mitigating excuses was given: Gaff had acted completely out of character; the players were good mates off the field; Gaff meant to hit Brayshaw in the chest; Gaff was now extremely upset and remorseful; and, it was said, he would accept whatever punishment the AFL decided to impose.
The AFL quickly gave Gaff an eight-week ban, which ruled him out for the rest of the season (and his side’s subsequent premiership).
Gaff was, however, extremely fortunate not to face criminal charges.
The punch was disproportionate, off the ball and resulted in serious damage. All the elements of a criminal assault were made out.
In Western Australia, where the incident took place, the state’s criminal code even has a provision that an assault can be classified as aggravated, and thus attract a prison sentence, if it occurred in front of children. That aggravation would have been fulfilled given the presence of many thousands of children at the game.
The police in Perth decided, however, not to act. It appears this was because they felt the sports-specific ban given to Gaff was a sufficient deterrent and that, in any event, Brayshaw had not pressed charges and had even indicated publicly that he would forgive his opponent.
What lessons can be learned?
Was eight weeks adequate for Gaff?
In a purely sporting sense, the length of the ban contrasted badly with the AFL’s official and (rightly) cautious policy on the long-term effects of concussion and head injuries among its players.
Moreover, in the context of a team sport where there is a (misplaced) ethos of “what happens on the field stays on the field”, it seems disingenuous of the police to use Brayshaw’s reticence to approach them as an excuse not to pursue Gaff.
Regrettably, going to the police would have been going against the grain of Brayshaw’s sport (as it would be in many other codes).
It would also have been against the grain of Australian legal history.
Convictions for assault as a result of on-field violence are very rare in Australian sport and probably number less than a dozen in total.
The rarity of the above should not distract from the fact that crossing the boundary line does not put you beyond the criminal law’s reach.
Banner image credit: Marcus Wallis/Unsplash.
This article originally appeared in MLS News, Issue 20, November 2018