“No fault”, no worries for the NRL?

Authors: Angus Jamieson and Matthew Fonti

The National Rugby League (NRL) is back for another season and round one has certainly come as a welcome distraction for the game’s governing body after one of the most controversial off-seasons in recent memory. Player and coach defections were not the only stories to capture the media’s attention, with several players being charged with serious criminal offences over the break.

Amongst ongoing public outrage, the divisive no fault rule (NFR) was rubber-stamped by the controlling body and administrator of the NRL, the Australian Rugby League Commission (ARLC) and brought into effect on March 11, 2019.

In this post, we take a look at the application of the NFR, a current legal challenge to its validity, and comment on how other sporting organisations and codes may respond to its implementation.

What is the NRL “no fault” rule?

Broadly, the NFR can be understood as two distinct powers:

Examples of criminal offences that carry a maximum penalty of 11 years or more:

• murder;
• manslaughter;
• aggravated sexual assault;
• aggravated sexual assault in company;
• supply of drugs causing death;
• grievous bodily harm with intent; and
• dangerous driving.

What does this mean for the players?

Where the automatic or discretionary power is engaged, the player will remain stood down from playing in the NRL until the relevant charges are dropped or the matter is resolved by the courts. Depending on the outcome, the player may be re-instated to normal playing duties or face further disciplinary action from their club and the NRL.

Importantly, the NRL has emphasized that a player’s suspension from playing duties does not mean the player cannot be around the team, be at training during the week or utilise the services of their club.

Upon its “incorporation” into the “NRL Rules”, NRL CEO Todd Greenberg announced that the NFR had the immediate effect of standing down three players:

1. Jack de Belin (St George Illawarra Dragons) – pleaded not guilty to an aggravated sexual assault charge;
2. Dylan Walker (Manly Warringah Sea Eagles) – pleaded not guilty to domestic violence assault charges; and
3. Tyrone May (Penrith Panthers) – charged with recording and disseminating images without consent, but will reportedly deny the charges.

While the NFR was marketed as a positive for the NRL’s reputation, it has polarized some of the game’s stakeholders. The CEO of the Rugby League Players Association, Ian Prendergast commented, “…the reality is that standing down a player indefinitely can impact on the fundamental principle of the presumption of innocence and may prejudice the legal process.”

To the surprise of some, the NRL’s response to an off-season of controversy has itself been met with legal controversy.

Challenging the NFR

A week prior to the NFR’s introduction, Jack de Belin lodged a statement of claim with the Federal Court of Australia, challenging the ARLC and NRL in respect of the NFR (Proceedings).

We understand de Belin claims that:

• the ARLC and NRL engaged in misleading or deceptive conduct by:
  • asserting that they had the power to suspend him prior to the NFR’s implementation; and
  • making public comments which implied they had formed a view about his guilt in respect to the aggravated sexual assault charge; and
• the NFR is an unreasonable restraint of trade and should be deemed void as against public policy.

Misleading or deceptive conduct

de Belin’s first cause of action is based on a provision of the Australian Consumer Law which prevents a person from, in trade or commerce, engaging in conduct that is misleading or deceptive or likely to mislead or deceive.

It may be puzzling how de Belin can invoke consumer protection legislation to his benefit in this situation, but the Australian courts generally give a wide ambit to the meaning of “in trade or commerce”. If successful, de Belin would be entitled to damages for any loss suffered as a result of the alleged misleading or deceptive conduct.

Restraint of trade

Typically, restraint of trade claims are brought in a post-employment context. However, de Belin’s case does not concern any restriction of his right to provide services outside of his employment contract, whether those services be provided post-termination or concurrently.

Instead, it seems de Belin will argue that by restricting his right to carry out playing duties, which he is employed to provide, the NFR should be deemed void as against public policy. This would be an unusual argument, as the object of public policy in this context is to promote an open and competitive market.

While the onus of proof lies with the ALRC and the NRL to show that the NFR is reasonable in the interests of the parties and with reference to the public interest, a successful outcome for de Belin will be a novel precedent.

Final thoughts

The NRL may have taken inspiration from Rugby Australia’s code of conduct which permits rugby clubs to stand down players, referees, coaches and other staff from any role or duty pending the outcome of proceedings relating to criminal charges.

However, we anticipate that any other sporting organisations or codes interested in unilaterally enacting similar powers to respond to player misbehavior will await the outcome of the Proceedings.

The Federal Court has set down a hearing date of 15 April 2019. In the interim, de Belin will remain stood down from playing in the NRL.