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When do courts get involved?

Usually its because the AFL Tribunal (or now the Appeal Board) has not followed its own rules, or it has not acted fairly. Sometimes a player claims that the Tribunal has made a decision it did not have the power to make. Lawyers call this "ultra vires", a Latin term that means the Tribunal has exceeded its power.

If you want to appeal a decision of a domestic Tribunal, you make this type of claim in the Supreme Court.

Can the AFL exclude the courts?

Is there anything to stop players taking the AFL to court if they are unhappy with a verdict of the Appeal Board? Certainly the AFL is hoping that this will be the result of the new Board, and no doubt this is largely true. But usually in the law, where there has been a disciplinary hearing at a domestic tribunal, the rules of natural justice apply unless they have been excluded by agreement i.e. they are inconsistent with the terms of the contract.

Players' contracts include the Rules of the AFL – and as we have seen, the Rules exclude natural justice in some circumstances (e.g. a hearing can be held at short notice, even if it limits the player's ability to prepare his defence). Does this mean a player cannot complain to the courts about these breaches of natural justice if the Appeal Board otherwise made a decision that "a reasonable body could arrive at"? Is it any wonder people are driven crazy by the law? Let’s explore this point further using our fantasy game.

Cybergame (part 10)

The role of the Court

The task of the Supreme Court is not the same as the Appeal Board. For one thing, in these sorts of cases people do give "oral evidence", that is, the evidence is not given in person. Instead it is given by "affidavit", which is a written statement by a person who swears or affirms that what they have written is the truth.

Also, the judge has a transcript of the Appeal Board hearing so they've got a good idea about what the issues are before anyone walks in the door.

To get to the Supreme Court you must issue a "writ", which is a document that gets the ball rolling.

The Supreme Court does not conduct a rehearing of the original charge against the player in the way that the Appeal Board rehears the original Tribunal case. Their roles are different – the Appeal Board's job is to listen to the facts and rehear charges made against a player; the Supreme Court isn't so fussed about the facts, it's job is to make sure the Board has made a lawful decision..

For instance, the Appeal Board goes about its business on the assumption that it has the powers it exercises; the Supreme Court can decide whether the Appeal Board does in fact, according to the law, have the power to make a particular decision.

The Court will not put in place its own penalty – if the charge is proven, the Tribunal and Board are in a better position to decide an appropriate penalty. But the Court can permanently stop the AFL from enforcing the penalty against the player.

What does it consider?

It is the Court’s job to decide the following types of issues:

  • Can the Supreme Court review the performance of the Appeal Board in the first place, or can the Appeal Board do what it likes?

  • What is the nature of the contract between the player and the Australian Football League?

  • Was the evidence at the Appeal Board capable of sustaining the charge, and is that any business of the Court in the first place?

  • What (if any) rules of natural justice apply, and did the Appeal Board apply them properly?

 

Do you want to read about the Supreme Court hearing?