There have been two significant decisions in recent times in relation to off-field behaviour of footballers and their employment. The first was the well-publicised decision of Rugby Australia to terminate the contract of Israel Folau. The second was the significant decision by the Federal Court of Australia regarding Rugby League player, Jack de Belin.
De Belin has been prevented from playing Rugby League because of new rules introduced that players who are charged with a serious criminal offence are subject to a “no fault stand-down condition”. This condition means that they receive full pay, they train and have access to welfare and education support, but may not play in the NRL competition.
Mr de Belin was the first player affected by the new rule. The primary challenge was that the new rule was an unlawful restraint of trade. The Federal Court dismissed that claim. The following is an extract from the summary provided by the Federal Court of Australia:
“The Court found that the respondents had established a clear and present danger to their legitimate interests given among other things:
- the seriousness of the charge against Mr de Belin and the unprecedented extent of negative reporting which it attracted;
- the fact that the reputation of the NRL Competition was already tarnished by the allegations and charges against Mr de Belin and other players during the off-season described in media reports as the “Summer from Hell”;
- the significant escalation in concerns raised by broadcasters and sponsors following Mr de Belin’s court appearance on 12 February 2019 where detailed allegations of the charge were revealed and extensively reported in the media; and
- the evidence of financial damage having been sustained by the NRL and clubs as a result even before the start of the 2019 season.”
Interestingly, the Court found that if the criminal proceedings were not finalised “there would be a real danger of contempt of court if the NRL were to investigate whether the Code of Conduct had been breached and make a determination on whether the conduct also the subject of the criminal charge had been established.”
There were also claims made by de Belin that this rule interfered with his playing contract, that the NRL had acted unconscionably and that the NRL had made misleading and deceptive statements. All of these claims were dismissed by the Court.
This is a significant decision in that it confirms the authority of, in this case, the competition owner to act to protect their legitimate interests. I suspect we will see other football codes and sports adopt similar policies in the future on the strength of this decision. There has been no indication that de Belin will appeal this decision, but perhaps he may.
As for Israel Folau, well we will just have to wait and see what his next move is, but I am sure that we haven’t heard the end of his dispute with Rugby Australia.
How many of us really care what Israel Folau thinks or says about anything?
The question is whether he should be entitled to maintain his employment if he continues to make such statements – should he be entitled to say whatever he likes?
Folau’s contract appears to give his employer the right to terminate him subject to due process.
You may question whether an employer should have such rights to terminate an employee but ultimately if the broadly publicised statements of an employee affects the employer, its reputation and its business you probably have to accept that an employer must have that right.