August 2018
Professional and elite athletes must behave in a manner which is appropriate and consistent with their profession and the environment in which they work, both on and off the sporting field. As public figures and role-models within the community, professional and elite athletes are held to higher standards of conduct. Notwithstanding this, they continue to make headlines for behaviour which is inconsistent with what is expected of them and consequently, their contractual obligations.
Sporting clubs and organisations should be conscious of putting safeguards in place so as to curb such behaviour in order to protect and preserve the image and reputation of stakeholders. This can be done by including morals clauses within player contracts and enforcing well-drafted policies (eg. social media policies) with which players are obligated to comply.
Morals Clauses
Morals clauses are widely adopted by administrative bodies, sporting clubs and commercial partners alike. They are a provision of a contract which curtails, restrains, or proscribes certain behaviours of individuals or party(s) to the contract. They are used primarily to protect the image and reputation of the sporting club, association, individual athlete and / or stakeholders.
An example morals clause is as follows:
“The Player must not engage in any activities which conflicts with either his [or her] duties under this contract or the best interests of the Club” … “the Player must comply with all lawful and reasonable requirements of the Club relating to…behaviour and dress…when carrying out [duties].”1
Commentators note that morals clauses in player contracts have become remarkably broad2. Consequently, sporting bodies, clubs or sponsors have wide discretion to interpret such clauses, which can often have severe consequences for the player. Players can be the subject of public scrutiny and media ambush and face potential loss of sponsors and disciplinary sanctions as a result of a breach.
Bringing the Sport / Game into Disrepute
Conduct which allegedly brings the sport or game into ‘disrepute’ is a common prohibition in morals clauses within sporting contracts. This extract from the Australian Olympic Committee (“AOC”) team agreement demonstrates this:
“All relevant persons must not at any time engage in conduct (whether publicly known or not), which has brought, brings or would have the tendency to bring the Relevant [Athlete] or the [Athlete’s] sport into disrepute or censure, or which is or would have the tendency to be inconsistent with, contrary to or prejudicial to the best interests, image or values of the AOC, Team Sponsors, the Team or Shadow Team.”3
The case of Zubkov v FINA4 articulated what brings a sport into disrepute. A Ukrainian swimming coach was charged by the international governing body of swimming, FINA, after he was caught on camera having a physical argument with his daughter during the 2007 World Swimming Championships in Melbourne. The Court of Arbitration for Sport (“CAS”) found, on appeal, that while Zubkov’s actions had been aggressive and violent, they were not such that they adversely affected the promotion and encouragement of the development of swimming. As a result, Zubkov's lifetime ban was reduced to an eight-month suspension.
The Zubkov case demonstrates that it must be established that the athlete's (or official’s) conduct, and not some outlying or resulting effect, is the act which actually brings the sport into disrepute. Disrepute, CAS said, can be demonstrated by evidence that parents were taking their children out of swimming. However, no such evidence had been produced.
Bringing the Individual Athlete into Disrepute
Sporting organisations and clubs can also include clauses which prohibit a player or athlete from bringing themselves into disrepute. In D'Arcy v AOC5, Australian swimmer, Nicholas D’Arcy, had an alcohol-fuelled altercation with a fellow swimmer, Simon Cowley. Here it was established that "bringing a person into disrepute is to lower the reputation of a person in the eyes of ordinary members of the public to a significant extent".
The Court found that Mr D'Arcy's conduct, including being out drunk in the early hours of the morning and being involved in an altercation resulting in Cowley being taken to hospital was sufficient to establish that he had brought himself into disrepute. It follows that the bar is markedly lower to establish that an athlete has brought themselves into disrepute, than it is to bring the sport as a whole into disrepute, as in Zubkov.
Policies & By-laws
Administrative bodies, clubs and sporting organisations typically have numerous policies and/or by-laws in place to regulate player behaviour, both on and off the field. These may be incorporated by reference in a standard player contract, or ‘signed off’ by the respective player at the commencement of their engagement. Policies and by-laws are effective tools used by sports to regulate player behaviour. Policies of this kind include (but are not limited to) codes of conduct, social media policies, member protection policies and drug and alcohol policies.
For instance, The Gymnastics Australia (“GA”) Member Protection Policy provides that: “it is a breach of this policy for any person or organisation to which this policy applies, to do anything contrary to this policy, including but not limited to… breaching the Codes of Behaviour, Bringing the sport and/or GA into disrepute, or acting in a manner likely to bring the sport and GA into disrepute.”6
Conclusion
Breaches of policies, by-laws or contractual morals clauses within sport can result in harsh penalties being imposed on athletes including fines, termination of employment or athletic scholarships, suspensions and loss of sponsorship. Community sporting organisations, associations and clubs have a right to discipline players for unacceptable behaviour under the various codes of conduct and other relevant policies as well as the respective playing contracts, as applicable.
While important that these safeguards are in place, community sporting bodies and clubs would be prudent to conduct educational seminars with athletes to ensure full understanding and appreciation of their policy obligations and contractual commitments, as applicable, so as to evade any potential breaches, and ensure preservation of the image of the sport, club, its commercial partners, stakeholders and the individual player.
1 Standard AFL Player Contract, cl 4.2
2 Australian and New Zealand Sports Law Journal, Associate Professor Paul Jonson, Associate Professor Daryl Adair and Associate Professor Sandra Lynch.
3 Australian Olympic Committee Team Membership Agreement, cl 3.4(1)
4 [2007] CAS 2007/A/1291
5 [2008] CAS 2008/A/1539
6 Gymnastics Australia Member Protection Policy, para 8.1-8.2
Paul Horvath
www.sportslawyer.com.au
