Sports Law Archives - PH Solicitor

SportsLawyer proud partners with the VAFA

jen — Fri, 14 Apr 2023 01:39:48 +0000

On behalf of our SportsLawyer brand, we are pleased to announce a three year partnership with the VAFA to provide essential legal resources to safeguard the interest of the VAFA and stakeholders.

With more than twenty years experience in the sporting industry, together with our expertise in employment law, we are well suited to support the VAFA organisation in the ongoing changing landscape of community sport.

We welcome you to read further details via the announcement by the VAFA:

https://www.vafa.com.au/news/2023/03/31/vafa-partners-with-sports-lawyer/

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Israel Folau launches Legal Proceedings in the Fair Work Commission

admin — Sat, 08 Jun 2019 11:32:16 +0000

Israel Folau has decided to launch legal proceedings in the Fair Work Commission under the general protections provisions of the Fair Work Act. Clearly his legal advice was that this was the strongest legal avenue for him to pursue, as opposed to Supreme Court proceedings for breach of contract and either an unlawful process conducted by Rugby Australia (RA) or a breach of their rules in the manner in which the disciplinary proceedings occurred.

In essence Mr Folau is to argue that his termination was for unlawful discriminatory reasons related to his religious practice.

Section 772 of the Fair Work Act states that:

An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:

(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

The argument must be that Mr Folau was terminated because of his religious beliefs, or for practising his religion, in simple terms. If the practice of his religion was not any part of the reason or motivation for his termination, then his case fails.

The RA response is that Mr Folau was not terminated because of his religious beliefs, but rather because firstly he breached the RA Code of Conduct, and second he failed to obey the lawful and reasonable directives of RA, which they are entitled to give as his employer and he is obliged to obey as employee. Those directives were that he must act in an inclusive manner in relation to all other employees of RA and in relation to his public communications. A year before his most recent breach in about March, 2019, he committed a very similar breach. He was told in clear terms that he must not repeat the behaviour. However, it was not included as a specific clause in his contract, but the argument is it did not need to be.

When he repeated his offending social media posting in March this year saying amongst other things that gay people will go to hell, he was not acting inclusively as his employment terms and conditions require. He is allowed to practice his religion, and hold any religious view he chooses. That is his freedom of religious practice. The issue arises by his public expression of those religious views.

It does not matter at all that he held his religious beliefs genuinely and was motivated to make the community a better place, based on his religious world view. To take an analogy, some terrorists (including those that killed 3000 in the September 2011 World Trade Centre attacks) would say they are acting on strongly held religious convictions with a view to making the world a better place, but that does not justify their murderous acts. I do not suggest that Mr Folau is likely to take any adverse actions – I believe he is a good person and exceptionally talented athlete with not a harmful intent whatsoever in his mind. The point is that the public expression of religious views can have devastating consequences.

However, as Ian Roberts, gay former NRL player said in an interview, this is about social media tweets that have serious adverse impacts on gay and LGBTIQ members of the community. This group suffers from mental health, depression and isolation due to amongst other things marginalisation caused by strongly expressed views such as Mr Folau’s. He is a public figure, with some 38,000 Twitter followers. His tweet can indirectly contribute to a suicide epidemic amongst young gay persons, according to Mr Roberts.

The issue is not the views held by Mr Folau. The issue is disobedience of a directive given to him by his employer not to express his controversial religious views. The issue is his breach of the RA Code of Conduct. The issue is him expressing his views publicly. He was terminated for taking the positive step of promoting anti-inclusive and arguable hate speech sentiments. If he did not make social media posts on the issues he chose to, his personally held religious beliefs would be completely acceptable.

The issue in this case was his breach of social media policy. An employer is entitled to regulate out of hours conduct of an employee when it has a relevant connection to the employment. Here, the connection is that anti-inclusive sentiments are unacceptable (and a breach of contract) in large parts of the workplace in Australia, including at RA. Further, the employee may bring the sport into disrepute and cause a breach of a sponsorship agreement by tweeting as Mr Folau did. He is not above the law.

The only lingering argument he may have was the arguable pre-determination to terminate his contract suggested by RA, which was then tempered to a possibility of termination following a disciplinary hearing. The initial public statement of what appeared to be an intention to terminate the contract seemed to be a breach of procedural fairness. How could Mr Folau expect a fair and open hearing after he was effectively told “we want to terminate your contract”?

That is not to say the panel that decided his case was in any way prejudiced by any media comment or other directives prior to the hearing. The panel was supremely talented, fair minded and eminently qualified to come to the conclusion it did.

The Fair Work Commission will conduct a conciliation (mediation) conference and if the case does not settle, the matter will be referred to the Federal Court for hearing. The reason that jurisdiction was chosen rather than the NSW Supreme Court was in this authors view because it has more flexibility in regard to community trends and public mores, as opposed to a strict black letter application of the laws. The Federal Court has more expertise in employment law matters generally, and probably more openness to extending the law to accommodate a religious discrimination allegation where it is open on the facts. However, in this case, it is not open on the facts.

For further information on Fair Work Commission matters and to obtain specialised employment legal advice, please email admin@phsolicitor.com.au or contact our firm on (03) 9642 0435.

Disclaimer: This article contains information of a general nature and should not be relied upon or taken to be legal advice. You should speak with a lawyer about your situation before applying any of this information.

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Israel Folau Requests Rugby Australia Code of Conduct Hearing

admin — Thu, 18 Apr 2019 04:45:47 +0000

Arguably Australia’s best rugby union player has today elected to proceed to a Code of Conduct hearing put together by Rugby Australia, after having been served with a breach notice in relation to a post on his social media platforms last week. He was given 48 hours to accept a sanction or have the matter referred to a Code of Conduct hearing. He is alleged to have breached the Code of Conduct applicable to him as a professional rugby player for Australia by tweeting and posting on Instagram that (amongst other things) homosexual people will go to hell. He has made similar social media posts in the past. If his hearing is successful, he returns to the Wallabies squad and will be clear to play in the World Cup. If he fails, his $4 million contract is terminated.

There are said to be a number of legal issues, including freedom of expression of religious views, and conversely expressly breaching an inclusiveness policy and a social media policy of his employer. Are the actions of Folau in tweeting and posting homophobic statements on Instagram serious enough to warrant termination of his substantial contract, or is it a breach that warrants a lesser penalty, such as a warning, fine, or suspension? Further muddying the waters are reports that Folau’s contract with Rugby Australia failed to include a clause containing social media restraints and that he refused to have such a clause retrospectively inserted into his contract.

Complicating the legal questions is the fact that the national coach Michael Cheika has said he will not select Folau in a team at the moment, and a number of players have expressed that they do not agree with his views, and may not want to play alongside him.

If he is cleared by the Code of Conduct hearing to return to work and take his place in the Wallabies side for the World Cup later in the year, does this then create an unsafe workplace, where teammates may not play as tenaciously with him, and create a risk of safety to themselves and others?

It is also reported that homosexual staff at Rugby Australia may have grounds under anti-discrimination legislation to lodge complaints that their workplace did not take necessary measures to protect them if Folau returns to play for the Wallabies.

So how badly does Australia need probably its best player – and one of the world’s best players – in a World Cup year? Not at the expense of team culture, an issue that played out in Australian cricket 12 months ago. We will soon find out. There is a lot of devil in the detail of this case, for social inclusion policies, safe workplaces, freedom of expression and employment law.

There is no date set for the hearing as yet, however Rugby Australia released a statement today noting that “[a]fter the date of the hearing is confirmed, Rugby Australia and the NSW Rugby Union will make no further comment on the matter until the Code of Conduct process has concluded.” The hearing will take place before a panel comprising of a Rugby Australia representative, a Rugby Union Players’ Association (RUPA) representative and an independent third person appointed with the approval of both Rugby Australia and RUPA.

For further information on code of conduct hearings and to obtain specialised employment legal advice, please email admin@phsolicitor.com.au or contact our firm on (03) 9642 0435.

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Hayden Opie receives Australia Day Honor 2018

admin — Thu, 19 Apr 2018 04:31:37 +0000

Thank you Hayden Opie for inviting Paul Horvath to be part of your special day.

These photos were taken this morning at Government House, Melbourne where Hayden Opie was presented with his Australia Day Honours. Hayden was awarded the honour for significant service to education as an academic specialising in sports law and through roles with integrity anti-doping and appeals tribunal.

Well deserved Hayden Opie, AM.

Hayden was the founder of the internationally recognised Melbourne University Sports Law Program.

Hayden’s full profile can be found on the Melbourne University Website at

http://law.unimelb.edu.au/about/staff/hayden-opie

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Niche Players

admin — Sun, 01 Oct 2017 03:44:42 +0000

Niche Players To be a jack of all trades or a master of one? Becoming an expert in a niche area has paid off for these lawyers.

Paul Horvath — sports law There are plenty of generalist lawyers who can deal with individual sports cases, says Paul Horvath, but far fewer who know the sports industry well enough to grasp the politics surrounding a case, as well as the law. “It’s not like employment law,” Mr Horvath says. “The sports industry is relatively small and individual sports are even smaller, so you have to be careful how you go about a legal issue – this is about people’s careers and you can’t just go charging in saying ‘this is what the law says’.

You can win the battle and lose the war.” A former criminal lawyer with Maurice Blackburn, Mr Horvath says he was looking for a new direction when he came across a sports law course at the University of Melbourne. With zero connections in the sports industry he decided to write each of his six 10,000-word papers on topics that would assist sporting organisations, including one on best governance practices for sporting organisations, and one for the AFL Players Association on the AFL anti-doping code.

FULL ARTICLE

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