Conduct detrimental to the game?

Robert Corr has a couple of interesting posts about the current furore over federal Liberal MP Trish Draper’s apparently dodgy claim for travel allowance for an overseas trip with her “spouse”, and an injunction she obtained to preent screening of a TV story about the controversy. Rob’s posts are here and here.

I mention them partly because they’re worth reading and raise some legal issues that may interest some TA readers, and partly because Rob mentions the 1988 defamation case Chappell v TCN Channel Nine, where former Australian cricket captain Greg Chappell (of underarm bowling fame) obtained an injunction preventing A Current Affair:

from publishing imputations of and concerning the plaintiff that he had committed adultery by having sexual intercourse with one Samantha Hickey or that he had engaged in sexual activities of an unusual nature.

As Rob mentioned, the Chappell case represented a partial relaxation of the usual principle that an injunction won’t be granted to restrain a threatened defamation unless the plaintiff proves that the defamatory nature of the matter is so clear that a jury’s verdict to the contrary would be set aside as unreasonable (and that there is no even vaguely sustainable possible defence available e.g. justification; qualified privilege; fair comment).

That principle in turn attempts to balance the public interest in freedom of speech against the equal public interest in protecting the personal privacy of even public figures in relation to their purely private affairs.

However, my interest in the Chappell case arises from a much more contemporary issue. This afternoon’s media reports that Dragons rugby league player Mark Gasnier (nephew of legendary centre Reg Gasnier) had been sent home from the State of Origin squad for engaging in “phone sex”:

Carr said Gasnier had been identified as the caller after the team management received a recording of the call from the woman. He had then admitted making the call.

The woman had complained to the Sydney Roosters of receiving a message from a player’s phone at 3.41am yesterday saying, in part, “(Woman’s name), where the f… are you? There’s four toey humans in the cab…and you’re in bed. F… me fire up”.

Now, I’m no suggesting that it would necessarily be terribly pleasant to receive a call like that in the middle of the night (depending on the woman’s relationship with Gasnier), but it’s light years away from the conduct alleged against assorted Bulldogs and St Kilda players (i.e. rape). On the face of it, this is purely private conduct (if possibly distasteful) that doesn’t constitute a serious criminal offence. Why then does it merit sacking from a representative football squad, unless it contravenes a specific rule of conduct?

I wouldn’t think that a general “conduct detrimental to the game” rule would be sufficient to permit disciplinary action against a player for this sort of private, lawful conduct. Footballers aren’t saints … well, Gasnier actually IS a Saint, but you know what I mean. The Greg Chappell case deals in part with player Rules of Conduct, and specifically rules prohibiting “conduct detrimental to the game”. The factual and legal context is somewhat different from the Gasnier case, but Justice Hunt’s remarks (especially those that I’ve emphasised below in bold) strike me as relevant:

The defendant’s third submission was that the plaintiff’s alleged private sexual misconduct is also related to the performance of his public activities as the Australian Cricket Board’s Commissioner to hear appeals from decisions relating to breaches by players of the Board’s Code of Behaviour. This was the justification that the “chief muck-raker” of “Australia’s sleaziest news- paper” put forward for making the plaintiff “fair game”. It may also have been what Miss Hickey was hinting at when she said that: “… you cannot expect someone to be something if you are not prepared to do it yourself.” The defendant submitted that the plaintiff’s performance of his duties controlling and disciplining the behaviour of cricketers in private (including in their bedrooms) was affected by his own private misbehaviour in that respect.

That submission is destroyed by a reference to the “Rules and Playing Conditions” issued by the Australian Cricket Board, which were tendered by the plaintiff. The Code of Behaviour with which the plaintiff is concerned has nothing to do with the behaviour of cricketers in private or in their bedrooms.
It relates to their public behaviour – both on and off the field. After prohibiting assaulting umpires, spectators and each other, abusing or disputing umpire’s decisions, the use of crude or abusive language or hand signals on the field and “public acts of misconduct, or unruly public behaviour, whilst representing Australia or their State”, the Code obliges the players to wear approved clothing on the field and to abide by the conditions of their contracts. The only paragraph which is not expressly limited to public behaviour in that sense is that lettered (e): “Players must not indulge in conduct detrimental to the game.” That obligation, however, is clearly limited by its general context to conduct which is of that quality because it causes injury to the game by being known to the public. Once the defendant had seen this document, I did not understand such an interpretation to be disputed. A player does not have to refrain from something which he does in private because someone like Miss Hickey is going to go (or be persuaded by some malicious enemy to go) to the Truth newspaper to have their relationship “turned into a smut circus”.