DICKILEAKS – AFL CONDONE ILLEGAL BEHAVIOUR; THE ST KILDA DEFENCE

As reported by SportsNewsLive Jason Blake has publicly pledged to the community that he won’t allow the AFL scandal tear the Saints apart.

The fans seem to find it  refreshing  to know that everyone at the club are all acting in a warm and fuzzy manner now and the players all supportive of one another in a spirit of camaraderie.

Blake spoke of   “the St Kilda’s ‘bubble’  a recurring theme, raised as one of the forces behind the club’s victories in two grand finals.  Blake claims the bubble is also being used to attempt to keep out the never ending  scandalous headlines.

“…..One of the benefits of coming out of last year was that we had to endure a number of incidents last year – and we talk about a bubble….it’s a reminder to  focus on our football, our preparation, our commitment to each other. …these off-field incidents are frustrating and annoying for the group, and it is disappointing because we know how great a culture we have at the group

Blake spoke proudly  of making up for scandals on the footy field.  Blake may be a very passionate football player but doesn’t he have it backwards?

The community doesn’t really care about what happens on the field.  It also begs the question of how you make up for the scandals on the footy field to borrow from Blake’s expression.

Unless I have been laboring under a misconception, the game of  football is played on the field.   Off the field, in the community, in schools, those “off field incidents” are being trivialised by Blake as mere “distractions.  It is  what happens off the field which is real life, in theory at least.

The community lives “off the Field” Jason Blake.  It isn’t just a football  game when these antics  damage people’s lives.

Understandably  Blake  is focused on St Kilda doing better at their sport in 2011, a well worn theme which the media and fans are seizing upon to sweep this under the carpet when they repeat the Saints motto and rallying cry ‘strength through loyalty and numbers’.

Whose loyalty are we talking about?

It certainly isn’t  loyalty to the spirit and letter of the AFL Code of Conduct and club contractual obligations regarding  inappropriate sex. Nor is it loyalty adhering to community standards.

As the article suggests Gilbert is remorseful and the team is healing.  However there is some cleansing that needs to be done before healing can take place.  Before licking their wounds, there is a minor issue that remains unaddressed in terms of the AFL Code of Conduct and contractual stipulations precluding age inappropriate sex.

Ron Barrassi, in his response to Blake’s words,  clearly has a  concept of what honour really is.   He is just the kind of role model that AFL needs more than ever now.

I have a strong feeling he would probably take the players out himself if he were in charge of the ship rather than Demetriou.   Indeed, if I recall correctly,  he was wounded in action (WIA’d) in taking on louts attacking a woman and put himself on the line physically.   This reflexive kind of behaviour speaks of an attitude that it is plainly unacceptable behaviour to devalue women.

With regard to the players’ remorse, it is clearly remorse about the violation of trust between team mates .   St Kilda announcing that Gilbert is “remorseful” and “important to us” as  “on and off the field a champion” doesn’t console me.

Blakes’s ‘back tobusiness as usual‘ attitude may give a  fanatical football club fan  confidence and solace that the boys have ‘ moved on’.    However it smacks of an attitude of  we wouldn’t have done anything differently if we had to do it all again, with the exception of not betraying our Captain and being aware of the dangers of social media.   We have all  kissed and made up.

The problem is that there is no indication of any sign of change.  Looking ahead, moving on and focusing on the season is the way a team of footballers would be expected to behave as athletes.  However sports is not just about being winners and grand final contenders.

Off-field antics aren’t a game.  They occur in the real world. They hurt innocent people who have put their trust in players and more broadly the AFL and football clubs. Statements like these leave the club vulnerable to leaving a  trail of destruction behind them and create the conditions for them acting with impunity in the future if it goes unchecked.

AFL legend Ron Barrassi  poses the obvious question “so the sex scandal doesn’t affect anything because of the bubble?” Barrassi’s sentiment is well communicated.

It appears the to Blake attitude is that the ends justifies the means, echoing the sentiment “its more than a game”. Why worry about a little collateral damage along the way involving the degradation of women if we can play better footy and bond in 2011?

The critical  question for the public is, whether on balance, it is worth the cost? Is the entertainment that fans derive from the game offset by the precipitation of an ongoing decline in the behavioural standards of players. I doubt very much whether the AFL have considered the legal and other repercussions of their inaction.

As Barrassi notes the AFL is turning a blind eye to the AFL’s Code of Conduct violation and club contractual obligations in respect of age inappropriate sex.

The AFL has simply turned a wilful blind eye to the violation of these obligations which players were asked to sign on to and more importantly adhere to.

If the AFL and clubs don’t ensure they are adhered to, once on notice, the AFL expose themselves as an organisation to condonement.   The AFL are vicariously liable for the behaviour of other players, officials, servants and clubs.

If  or perhaps when the AFL decide to eventually dismiss or sanction a player for inappropriate sexual behaviour,  it isn’t inconceivable that a player could allude to this incident as a precedent to defend their illegal actions in contravention of the Code.  They could invoke the ‘St Kilda Defence’.

In giving up the moral high ground, the AFL are paving the way for a player to invoke a legal defence to a code violation or a breach of the contract.

In other words a player  could legitimately contend that there was some collateral purpose for their dismissal or for the punishment meted out to them. It might provide an escape route for  clubs wanting to renege on their contractual obligations.   Ultimately they may even find themselves having to compensate a player for dismissal.

The AFL could find themselves sued by victims and players over the same incident.

Common sense, let alone code and contractual obligations, dictate that players should exercise caution when dealing with sexual relations which are age inappropriate.  The criminal  law proscribes such behaviour under a certain age and for a 16 year old  under certain circumstances.

To have  such a carefree attitude about this condonement is perilous.

I imagine the  contractual obligation and Code stipulations regarding  age inappropriate sex have  a sound basis.

Please correct me if I am wrong but the Code stipulations  probably foreshadow or envision the very problem which has just occurred. I am guessing that this is probably the reason why revisions were made which are enshrined in the Code.

The alternative explanation is that the rules were only really ever designed to pay lip service to the wrongs they are aimed at preventing.

Related posts:

  1. DICKILEAKS – AFLspace PODCAST & THE MALONE ‘SMELL TEST’
  2. DICKILEAKS – SAINTS GIRL WANTS AFL CODE OF CONDUCT ENFORCED
  3. Dikileaks St Kilda Photo Scandal – What is the joke Nick?
  4. AFL AMBASSADORS OF SHAME AND BLAME ACT WITH DIPLOMATIC IMMUNITY
  5. Dikileaks – Saints, Level Playing Fields & Other Phallusies
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5 Responses to DICKILEAKS – AFL CONDONE ILLEGAL BEHAVIOUR; THE ST KILDA DEFENCE

  1. Philip (in Williamstown) says:

    Thanks for your reply in the previous thread, which was far more comprehensive than my short comment merited – it was almost an entire blog post in its own right!

    Have Ron Barrassi’s comparably enlightened views been picked up by the mainstream media? I had a brief look at the major dailies and could find no indication they had emerged there, more’s the pity. Barrassi is as you say, a man of honour and since he isn’t beholden to toe the AFL line he may speak on what’s best for the game and its place within larger society… rather than being narrowly focussed on protecting the AFL and St Kilda “brand”, and having a convenient relationship with the Victoria Police to “assist” their investigations. Hmmph.

    Interesting comment about the “bubble”. You often used to hear the truism that “what happens on the field should stay on the field”. The AFL tribunal presumably would beg to differ! What is indisputable is that despite codes of conduct and player’s club contracts, the AFL does a hopeless job of dealing with “distractions” when these over-privileged young men go about in society the rest of the week when they’re not “on field”.

    IANAL, and you are, so perhaps you can clarify one point on the issue of consent. For children of the age of 16 and 17, the Victorian legal aid site says “A person who is caring for you or supervising you, like a teacher, youth worker or foster carer, can’t have sex with you or sexually touch you or perform a sexual act in front of you, even if you agree, unless they are married to you. However, it is not an offence if the person honestly believed you were 18 or older.”

    Obviously this explains the charges levelled against the police constable, as he can have had no defence of ignorance of the girl’s age, and the AFL is presumably turning a blind eye to the football players’ risible attempts to play dumb: are you suggesting the illegal behaviour in the post title is that by extension the AFL code of conduct treats players who conduct football clinics in high schools into an equivalent position of supervisor/carer?

  2. pacelegal says:

    PHILLIP

    Thanks for your post Phillip.

    1. BARRASSI – Yes, he is a man of honour and a great Ambassador for the sport. He sees sport as a way of assisting young people, developing character and building for the future. He is a speaker and a great inspiration. He isn’t beholden to the AFL and in his younger days he was one of the first ones. If I recall, in a book that I read a few years ago, who was prepared to assert his rights and in doing so improve the conditions for other players. (re: wages). It was controversial at the time. Looking back, you’d have to say that his position was right. History shows he was ahead of the curve with the right answer, which speaks well for his good judgement. You will notice Plugger and other players tried to de-rail him from the central question ‘namely is it a Code violation & lack of contractual compliance?’ to which his retorts were ‘READ THE CODE’ and ‘I CAN’T HELP YOU IF YOU CAN’T READ’.

    Barrassi’s comments havn’t been picked up anywhere in the mainstream media, which for someone of his stature is surprising.

    2. I am not a practising lawyer at present so can’t give my legal opinion as would a lawyer who presently holds a practising certificate. My opinions shouldn’t be relied upon merely by virture of the fact I am a Solicitor by qualification.

    However in my opinion, IT HAS ALWAYS BEEN MY POSITION that even at common law, leaving aside the AFL Code of Conduct and s48 Crimes Act 1958, ‘they’ stand in loco parentis to her.

    By they I mean a variety of persons and/or bodies.

    The Education Department could potentially be sued or joined as parties in proceedings. The Education Department are subject to legal threats every day in respect of their legal obligations to students. I suspect that is probably partly why their legal department suggested that they take some positive action and refer the matter to police. They have potential legal liability. Nobody should be too surprised if the schools aren’t nearly as enthusiastic about these AFL activities the next time around.

    The thing that would chill players’ libido more than anything else is for them to have to do a ‘working with children’ check before their visits, much clearer than saying age inappropriate sex. At present the status quo is that they are given a clearance by the AFL. The AFL should make the players do that if not for any other reason but to to send a clear message.

    3. They are all in a position of trust, by virtue of a special relationship, whether by virtue of being in a supervision or carer. This does explain the charges levelled against the Police Constable, but his go much further than that. He is facing 14 charges and the charges are of a very serious nature.

    I believe the Department of Education, AFL, St Kilda Football Club and players in an individual capacity are all potentially legally liable for:

    * breaches of the Crimes Act s48
    * Common law duty of care
    * AFL code of conduct
    * negligence

    The AFL code of conduct and failure to enforce code and contractual obligations renders the AFL liable in terms of their negligence. Negligence renders a person or organisation liable for various positive acts and/or omissions which cause injury to persons. There are a number of criteria to establish it which I won’t go into.

    If I were her had all the money in the world, I’d sue them all and then let them sort it out between themselves in respect of their determining their respective contributions

    FAILURE TO ENFORCE CODE AND CONTRACTUAL OBLIGATIONS BY AFL

    With a wink and a nod, the players have escaped the AFL Code of Conduct sanctions simply because they won’t enforce it. They don’t want to enforce it but it is too politically unpalatable to remove it. Also there is the possibly that they want to use it to selectively. You can’t have it both ways. By their inaction they are in effect nullifying the efficacy of the Code in a way that has the potential to expose them to more legal uncertainty and risk.

    I am saying the AFL and ST Kilda Football clubs, could be held vicariously liable for either this incident and/or future conduct in terms of their inaction.

    Liability doesn’t just relate to the failure to enforce positive obligations. Liability arises in respect of both ACTS or OMISSIONS.

    1. vicarious liability for misdeeds of Players
    2. negligence – unwillingness to enforce Code of Conduct which created an environment which in this instance (or future incidence) causes damage or in this case, an exacerbation of pre-existing psychological condition of victim of which they were well aware. It could also result in a possible claim for liability in terms of a contribution the the wrongful death of unborn foetus, subject to evidentiary proof. A wrongful death claim can be pursued in cases where a foetus dies as a result of another party’s negligence or criminal wrongdoing, where it can be proven the fetus sustains injuries which lead to its death either in utero, or at the time of its delivery. She miscarried with respect to one of the unborn children and the other was stillborn.

    There could very well be a distinct claim for the wrongful death of the fetus, in addition to any separate claim involving injuries to her.

    3. vicariously liable for sexual harrassment by their own agents, death threats, victimisation etc and negligence for failing to prevent this by taking appropriate measures.

    The unwillingness to enforce the code or in the case of the clubs, the contractual obligations of the players which create equivalent liabilities, is not just a part of the of breach of the negligent act, but is of evidentiary significance, insofar as it tends to compound any existing liability and potential liability as organisations in the future.

    Once you are on notice or constructive notice of a situation, eg the girl has “issues”, and has suffered harm, you cannot deny the misbehaviour.

    THE PRECEDENT – ‘INVOKING THE ST KILDA INCIDENT DEFENCE’

    I believe that a precedent has been established.

    It has 2 potential impacts.

    It affects their ability to enforce the Code in the future. It also increases their vicarious liability in the future for similar actions by players.

    It puts them between a rock and a hard place. In other words they could get sued from both sides for the same incident.

    Example

    Player X has sex with young woman such as St Kilda FC girl (Y)at a footy camp or clinic. Y could sue player/s, club, AFL, Department of Education. The vicarious liability component would partly hinge on what steps the organisation concerned took to prevent the behaviour occurring and, secondly once on constructive notice of what steps they took to minimise harm. This could go both to the level of their vicarious liability and to the quantum of damages.

    On the other hand, Player X could sue AFL and/or his Club as they are being disciplined for ‘previously condoned’ behaviour.

    Logically X is asserting that they are pretending to punish him for sexually inappropriate behaviour, but in reality it is not for this, but for some other misdeed/reason and the court shouldn’t allow them to get away with it. (called collateral purpose in administrative law terms)

    So in effect the AFL are hamstringing their ability to enforce the Code and the clubs their contractual obligations in the future.

    X could be enjoined from paying damages for suspending them or the player could seek re-instatement and consequential damages. (eg ‘they just punishing me because I did a few handstands on the field, or criticised the umpires, or was taking too much valium, whatever. My sponsorship deals have been jeopardised, i have direct financial loss from my dismissal, future loss, expenses, psychological damage etc‘)

    In other words their power to fire the player is eroded. Imagine the embarrassment if they fire a player for having sex with a 16 year old and the court says they can’t do that. The public asks “well why is that?”.

    The AFL has to tell them ‘well it’s because we failed to enforce it before, you know the thing we purposefully incorporated into our code to prevent this, we didn’t take any action in the previous incident’.

    How would it look if they had to admit that they would have punished the players in the previous incident if there had have been more of a public outrage or for whatever reason they advance?

    That would just multiply the outrage even more in the eyes of the public. These sorts of things happen! It would be a public relations disaster. They would rather pay the player off and get rid of them than have to face that.

    RESULT:

    They could easily end up being sued by and paying damages to both sides and I can’t imagine how the action would end up under the permissive and mandatory joinder rules.

    There is a clear breach of the AFL Code of Conduct.

    The problem is we, as a community can’t directly enforce it.

    We don’t have locus standi (standing).

    Only the AFL do.

    Which opens up another potential hazard for the AFL. If they say they were providing her with support for the conduct which had occurred and they weren’t in fact doing so, that could go to her damages, for she was being deprived of appropriate support and/or suitable treatment.

    I think the AFL is making it sound like a ‘favour’ to her rather than a legal duty that arises out of their code of conduct (revisions made regarding their respect and responsibility program)

    The other prong of negligence mentioned above, re: providing inadequate or deficient level of support that was legally required, she could allege that this led to a deterioration of her psychological state.

    There are also other consequences beyond what they did or didn’t do in terms of providing an appropriate level of support.

    The failure to also act to stop the sledging of her by players and club officials also contributed to an exacerbation a pre-existing condition, of which they were arguably made aware of depending on all of the facts and circumstances.

    As far as the public is conduct, their Code of Conduct is not satisfactory if not enforced. The whole issue has been sidestepped.

  3. Steve says:

    While your statements are no doubt accurate in terms of legalities & where people on positions of influence sit in regards to sex with 16 & 17 year olds “in their care”.

    You have either conveniently ignored the reported facts of Sam Gilbert’s relationship with the teenager or hopefully are just not aware of them.

    It has been reported in the press & verified by Victoria Police that;

    *the girl in question was not a participant in the school visit by the St Kilda players.
    *Vic Pol confirmed via phone records that there was no contact between the girl & players between the day if the school clinic & the round one match in Sydney that the exchange of phone numbers was made.
    *it was at a nightclub in Sydney that the girl met Gilbert & stated that she was 19 & attending the AIS in Canberra.

    If you accept that this is close to an accurate version of events (the girl involved has not offered a different version but certain media ‘personalities’ have chosen to ignore this to push their anti-AFL barrow) then talk of sexual misconduct is clearly inaccurate & offensive.

    There is little doubt that Sam Gilbert rejected this girl & she is very bitter about it. There is nothing extraordinary about this other than Sam is an AFL footballer & in the public eye.

    In an age where youths of 16 &17 commit viscious crimes & the public bemoans a lack of responsibility in our teenagers, it is amazing that so many have not questioned how this girl lied about her age, entered a sexual relationship & now scorned, has unleashed a vitriolic attack on not only her ex-boyfriend but his teammates.

    There is no one person at fault in this mess, unfortunately there are people that are using this girl to further their own career & agenda.

  4. admin says:

    1. I don’t accept the VPOL version.
    2. Even if the VPOL version were correct I don’t accept the AFL’s response which throws into doubt all of their findings in the AFL investigation.

    The AFL have ‘form’ in this area.

    The AFL still have a Code of Conduct and contractual obligations they are supposed to uphold even where there is no finding of criminal responsibility, but a preponderance of evidence of player misbehaviour.

    If this doesn’t meet their standard or any other catch all standard in the code relating to ‘unbecoming conduct’ or ‘bringing the game into disprepute’ (equally applicable) then I don’t think they have any credibility.

    Their commentary really says it all.

  5. Pingback: DICKILEAKS – DIFFERENT FOOTBALL CODES, DIFFERENT CODES OF CONDUCT? | Pace Legal Intellectual Property

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