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The basics

Shorts and guernseys give way to wigs and gowns. Judges don’t wear white, though they’re every bit as powerful as an umpire on the footy field – even moreso, because they can send you to jail!

In footy, when the players take the field they agree to observe certain rules of behaviour – it’s no different in the Supreme Court. There are rules of evidence that lawyers must follow, for instance, they usually cannot ask their own witness a question that suggests an answer (e.g. "do you believe Ned Kelly was the person who stole your purse?").

Like umpires who blow the whistle, judges regularly have to intervene to settle a dispute between the lawyers. But be warned, if you disagree, you can’t tell the judge where to go or you might find yourself spending the night at one of Her Majesty’s hotels (better known as jail).

Cybergame (part 11)

The process

No, the ball is not bounced, instead the participants are called together by the judge’s assistant and told to give their attention to the judge and the Court.

The judge firstly settles any problems that have arisen in the preliminaries – for instance, one of the sides might believe they have not been given a document they are entitled to receive. Then the judge will want to hear each lawyer’s arguments – remember, in the Supreme Court, in a case like this, the judge will not hear directly from witnesses, though they will want to look at all the affidavits, videos, and the transcript of the original Tribunal hearing. We can’t   canvass all the possibilities, because the issues will change with every case, but it might go something like this…

Cybergame (part 12)

The case

It is up to the football club (and their player) to make a case against the AFL, which in turn has control over the Appeal Board.

They have to convince the judge, on the balance of probabilities, that she should issue a permanent injunction against the AFL, which means she should permanently stop the AFL from going ahead with the suspension of the player.

There are other possibilities: for instance, the player could also ask for "damages", which would be compensation for any losses that the player had suffered as a result of the Tribunal’s decision.

Cybergame (part 13)

There are two sides to every football game as there are to every court case.The AFL are the "respondents", which means exactly what it suggests: they respond to the allegations made by the player and his club. It is similar to the term "defendant".

Cybergame (part 14)

Making decisions

How do judges make decisions? First, they listen to both sides of the argument. Then they look to see what laws apply to the situation.

For instance, if you are charged with murder, a jury will consider the evidence to decide whether you are guilty or not (you hope not). The role of the judge is to make decisions about legal aspects of the case, for instance is certain evidence admissible? The judge also decides what the penalty should be, if you are found guilty.

It’s different in a fight against a decision of the AFL Appeal Board. First, there's no jury and second there's no statute (like the Crimes Act) that sets out penalties.

The judge has to consider the evidence, and listen to the lawyers’ version of the relevant law – in these cases that law is found in the decisions of judges in past cases. This is called the "common law", which means it is judge-made law as opposed to laws made by Parliament.

It’s not possible to say what a judge will do in each situation, but it might go like this…

Cybergame (part 15)

The Greg Williams case

In 1997 the Supreme Court of Victoria was asked to look at a decision of the AFL Tribunal.

Carlton’s Greg Williams, a two times Brownlow medallist earning a substantial living from football, was reported by the AFL (not the umpires). It was alleged that after the siren had sounded in a game against Essendon, Williams pushed away umpire Andrew Coates, who did not report him. The incident was caught on video, and was brought before the Tribunal by the AFL. Williams was found guilty of "undue interference with an umpire" and suspended for nine weeks.

Williams and Carlton appealed to the Supreme Court – the judge decided that:

  • the Supreme Court had the right to review the decision of the Tribunal;

  • the evidence against Williams was not capable of sustaining the charge; and

  • Williams was not accorded natural justice.

It is very important to remember that this case occurred before the introduction of the Appeal Board in 1998.

What the Court of Appeal said

The AFL appealed the decision of the Supreme Court to the Court of Appeal, which is where you go to appeal the decision of a single judge in the Supreme Court. The three judges did not agree with the decision in the Supreme Court – two of the three judges (which is enough because decisions are by majority) decided that:

  • a player could go to the courts to clear up the meaning of a law of football which is part of the player’s contract;

  • it is the task of the Tribunal, not the court, to make findings about the facts of the case;

  • the courts have no right to review the decision of a domestic tribunal like the AFL Tribunal to decide if they were right or not;

  • the courts can only change the Tribunal’s decision if it is irrational and dishonest.

What we think

It's going to be a lot harder to sustain an appeal in the courts now that an Appeal Board has been established.

Players are entitled to be treated fairly by the Tribunal, especially because footy is now a full-time occupation for many of them. In our opinion they are entitled to receive natural justice when their cases go before the AFL Tribunal or Appeal Board, but not to the extent that makes it impossible for the Tribunal to hear cases quickly – nevertheless, they should be heard fairly, especially when their pay packets and reputations with sponsors are at stake.

It’s short-sighted for supporters to think that players and their lawyers will just sit back and not pursue their rights – to think otherwise is to put our heads in the sand.

In 1983 Silvio Foshini had a go at the player transfer rules in the court; in 1996 Andrew Dunkley got an injunction to stop the AFL going ahead with a hearing just before the Grand Final; Footscray went to court following a suspension to four players on the eve of the 1994 finals. And now with the Williams case, there’s probably no going back to the days when most disputes were settled on the field. It’s interesting to note that the 1998 Chris Grant case was heard quickly by the Appeal Board, and the Western Bulldogs chose not to take the matter further. Would they have done so if there had been no Appeal Board available? Who knows, and perhaps we should not read too much into that case because Grant’s penalty (unlike the Williams dispute) was not relatively large in the first place.

The real solution lies with the AFL, and to a large extent it has fixed the most obvious problems. The Rules now acknowledge the need for the Tribunal and Appeal Board to accord natural justice, and so long as the decisions are reached fairly and honestly, there should be little recourse to the courts. This is particularly so now that players are allowed to have their cases reheard, as long as they come up with the cash up front.

But let's not get too complacent -–no doubt a team will take the Appeal Board to the courts at some stage, perhaps where there are difficult legal issues, the player is a star sorely needed for a few more games, and a hearing has been held at very short notice.

But here at Footy Law, we want to keep footy away from courts and where it belongs – on the footy field!

Cybergame (part 16)