Of Life, Sport & the Law
June 2000 |
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We've
been thinking
Doctors know their profession deals with health; plumbers tend to maintain their focus
on S-bends and leaky seals; pilots keep their eyes on the skies. Not so the legal
profession. We like to philosophise on the "law", that exalted and
all-encompassing concept that, as we constantly remind everyone within earshot, is the
pillar on which our glorious society resides.
And what a load of arrogant rubbish that is! Law is more
often about contractual obligations between warring parties than the contract with
society. But just occasionally we happen upon a story or two that draws that long bow -
two recent sporting stories got us thinking about the relevance of law to our everyday
pursuits.
In
Winter our dreams turn to...
The footy, of course. No, don't hit the DELETE button, because we're going to show what
you've been missing during those long, long afternoons and evenings at the opera, ballet
and the theatre.
First, there is the saga of the President of the Melbourne
Football Club, Mr Joseph Gutnick, who interestingly happens to be a practising orthodox
Jew. This is only relevant because he recently found himself embroiled in a controversy
that centred around his alleged edict that his club not recruit a player of Jewish
origins. According to the various reports, this would have caused embarrassment to Gutnick
as a leader in the Jewish community because that recruit would necessarily play on the
Jewish Sabbath. Let us make our position clear - we question the veracity of this
allegation. Why? Because every club official associated with the recruitment of players
denied the implication of the allegation that Gutnick had placed pressure on the club NOT
to recruit a Jewish player. All asserted that whatever the consequences, they would
recruit the best player available, despite his racial origins or the personal consequences
to Gutnick, which the President made clear was his own business and should not enter into
their deliberations.
The second story concerns the decision of the AFL to enforce a 50
metre penalty each time a player allegedly commits a reportable offence. Let's take a
recent example: Hawthorn veteran Paul Salmon was reported for allegedly striking a Geelong
player. As the rule decrees, Salmon was duly punished with a 50 metre penalty - in other
words, from the point on the ground where the infringement took place, the
"victim" was brought 50 metres further in the direction his team was kicking.
Let's say the reportable offence takes place closer than 50 metres to goal, or brings the
player within a few metres of the big sticks. The result is an automatic goal.
You might very well ask what the connection is between these two
stories, and where do we find the intrusion of the long arm of the law? The answer - in
the legal concept of the presumption of innocence.
The
presumption of innocence
The presumption of innocence tells all of us that no government, no
authority, and no court shall have the power to impose a penalty on us without having to
first prove their case. But on the footy field? Let's look at this hypothetical - it's the
last minute of the Grand Final and a 50 metre penalty, automatically imposed when a player
is reported, results in a goal that wins the Premiership. Later that evening the umpire
views the video and withdraws the charge. Besides the fact that the umpire will be forced
to move to another country, parents will have to explain to their distraught children that
in this sport you're guilty as charged and bad luck if that was a mistake.
And in the media? Well, need we elaborate! Print and be damned, they say, and so it is.
How often have you heard a story in the media and questioned its veracity? How often have
you wondered whether a journalist is voicing an opinion or a verifiable fact? How often
have you questioned the credibility of a so-called source ("sources close to the
Prime Minister suggest…") on which a journalist lays the foundation of a hot
story?
Whether it's the allegation against Joseph Gutnick or the 50 metre penalty, it reminds
us of a basic precept in the law - the burden of proof.
The burden of
proof
Let's put the umpire and the media in the witness box.
In the second of our sporting stories, the umpire did in fact later withdraw the
charge against Salmon. That means the player was not forced to front a quasi-judicial
forum known as the AFL Tribunal, and so was not subject to a possible suspension or other
penalty. All well and good, except that he had already been penalised with the automatic
50 metre penalty against his side. In the AFL it appears a legal maxim has been turned on
its head - it's guilty until proven innocent. And that's a problem when at least nine
reports have been withdrawn thus far in the AFL season.
And what of the Gutnick story? There are innuendoes, implications and some supposition.
But when it comes to the hard questions in the witness box, no jury would convict the
Melbourne President of the alleged offence. Why? Because the allegation would not survive
the burden of proof - likewise the decision of the umpire to award a 50 metre penalty
prior to a proper hearing of the alleged offence.
The burden of proof tells us that the person making the allegation has the burden to
prove it. And in criminal cases that burden is steep, "beyond a reasonable
doubt". Thus we don't throw people in jail on the say-so of an accuser, whether that
is an eye-witness or the police. We leave that determination to a jury of our peers, or a
judge, who must first be convinced on the evidence before them.
What's the point?
Ah, you say, but the sporting journalists and the umpire are not in a court of law.
Further, you argue, the burden in criminal courts is steep because the consequences of a
conviction is a State imposed penalty, perhaps a fine or a stretch in jail. Yes, you're
right, but just how low does that journalist's or umpire's burden of proof go? If not the
criminal burden of proof, how about the civil burden - on the balance of probabilities?
Still too high? How about an educated guess - the umpire thinks the offence will
sustain a hearing at the Tribunal. The journalist thinks the allegation against
Gutnick might be true. Still too high? What about the consensus at the water cooler on
Monday morning? Or the opinion of the majority of callers to a shock-jock's radio talkback
program?
Perhaps it might be wise to consider this venerable legal concept the next time you
hear an allegation in the media or the umpire reports a player and imposes an immediate
penalty. Ask yourself: "what is the burden of proof that must be sustained for me to
accept this assertion of guilt?" How low do you want to go?
Read
this: The legal information contained above is intended to be general information
about the law. It is not a substitute for legal and other professional advice. Lawscape
Communications P/L does not accept responsibility for loss to any person, who either acts
or does not act because of this information.
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