Stamping out Homophobia in the AFL: Why the League Must Reform Its Disciplinary Process
Just over 12 months ago, I wrote about the concerning increase in homophobic slurs used in AFL matches, noting the lack of enforcement mechanisms and measures stringent enough to fully deter this behaviour. Now, at the conclusion of the AFL home-and-away season and on the brink of September, the AFL finds itself marred by an ugly incident – this time surrounding Izak Rankine. Not the first occurrence of homophobia this season, Izak Rankine was handed a four-match suspension and mandatory attendance at an AFL-approved education program. In a decision that has split the AFL world, it’s important to understand how exactly this decision came about.
Blowing the Whistle: What is the AFL’s Reporting Process?
During a football match, if an umpire overhears racist, sexist or discriminatory language being used, they will usually report it to the Match Review Officer (“MRO”), creating a Notice of Report. Under AFL Rule 16.12(b)(i), the MRO can then decide whether this matter warrants further investigation by the AFL Integrity and Security Department and, if so, refer the matter to it. Upon the conclusion of this investigation, the MRO will obtain the result, as well as any additional documentation or relevant information, and then make a determination to charge the player or not. Through AFL Rule 16.12(g)(i)(A), the MRO is empowered to complete a Notice of Charge, officially charging the player with the conduct they have determined.
Alternatively, there are the instances of self-reporting or club-reporting. Self-reporting is when a player admits and volunteers the information of what have they said. This was seen recently with Jack Graham of the West Coast Eagles.[1] What occurred with Izak Rankine was an instance of the club reporting it itself once it became aware of the situation. The Collingwood player who was the victim of the slur made it known to the relevant leaders of his club, who notified the Head of Football at the Adelaide Crows as to what had occurred. Under AFL Rule 24(b), an AFL Club “must immediately” notify the AFL General Counsel with any and all information they have regarding such a matter or face severe consequences. Accordingly, the Adelaide Crows notified the AFL who had the matter investigated by the Integrity and Security Department.
Upon its findings, Izak Rankine was charged with breach of AFL Rule 2.3(a), which states that “a Person must not engage in conduct which is unbecoming or likely to prejudice the interests or reputation of the AFL or to bring the game of football into disrepute”. This rule is broad and covers a wide range of offences, including the use of on-field slurs and the use of illicit substances by players off the field.[2]
Players who are charged under AFL Rule 2.3(a) are usually given an initial sanction, which the player or their club can internally appeal to the AFL General Counsel. Both the Club and the AFL can then provide submissions on what they believe the sanction should be.[3] Here, the Adelaide Crows advocated for a three-match suspension, whereas the AFL sought to uphold a five-match ban.
Izak Rankine ultimately received a four-match suspension – an outcome that falls short of the AFL’s hardened deterrence stance in stamping out homophobia.
No Man on the Mark: The Absence of Binding Precedent
There are two key issues in the proceedings leading to Rankine’s suspension – the absence of any binding precedent and the lack of transparency.
The AFL Rules and Regulations have created the decision-making bodies of the AFL, such as the Tribunal and Appeals Board, to mimic that of the judicial court system. AFL Rules 41.5 and 41.6, and AFL Regulations 19.4 and 19.5, establish the “Standard of Proof” and the “Onus of Proof’ – two key pillars of the judicial process. AFL Rule 41.4 and AFL Regulation 19.3(a) even note an obligation towards “natural justice”. This all demonstrates a general willingness to share important features of their decision-making process with that of the courts.
However, what the AFL’s decision-making process is missing that is critical to the court system, is the doctrine of precedent. The court system follows this very strictly – inferior courts are bound by the decisions of superior courts where the fact scenarios are analogous. The courts uses precedent both to determine the outcome of the case and also as a measuring stick for sentencing. Contrastingly, the AFL notes that their decision-making bodies are “not bound by the rules of evidence or by practices and procedures applicable to Courts of record, but may inform itself as to any matter in such manner as it thinks fit”.[4] This makes clear that the AFL can consider previous decisions and instances, but is not bound by decisions it has previously made. While this provides greater flexibility and an opportunity to steer itself as it chooses, the Rankine decision goes against the direction of travel it was heading in. The AFL had set itself an apparent precedent with the increasingly harsh sentences it was handing out to players in the past 18 months for offences of homophobic language. Jeremy Finlayson received a three-match ban, followed by a five-match ban for Will Powell, and then a six-match ban for Lance Collard. Jack Graham received a four-match ban this year, mitigated by his action of self-reporting – which was absent in Rankine’s case.
While the AFL uses previous incidents to inform its judgement, it may be time for it to consider adopting a system of precedent which has a formally binding element. Without this, decisions can feel arbitrary and perplexing.
Out of Bounds: What are the Reasons for the Decisions Made?
The other key flaw of the AFL decision-making process is the lack of transparency. Whereas the judicial system is built upon judgments containing reasonings for every decision made, AFL Rule 41.9 explicitly states that there is no obligation to “give reasons for any decision made”. Interestingly, in Rankine’s case, the key mitigating factor to reduce what should have been at least a five-match sanction based on recent decisions, was “compelling medical submissions”.[5] This was referred to in both the AFL statement and press conferences by the AFL CEO, Andrew Dillon. Notwithstanding, there is a cloud of mystery surrounding exactly why Izak Rankine may still play in a Grand Final this year.
While it is important to respect Rankine’s privacy around what these medical submissions may be, much of the furore over the decision could likely be alleviated if the public knew how and why the Commission came to the decision they did. Without this, the public is left trying to fill in the gaps. Did the AFL mitigate the sanction because of the decision to have Snoop Dogg, who has a history of homophobic remarks, as the AFL Grand Final entertainment? Did Rankine receive a reduced sanction because finals matches are apparently worth more than matches during the home and away season? Did the possibility of Rankine being able to play in a Grand Final sway the decision-making? While it is common for sporting codes to not publish reasonings for decisions, this incident showcases how it may be time for change. With a host of uncommon rules already (like the father-son rule), this may be the opportunity for the AFL to become a leader in the sporting codes and do something different. If reasonings were published following decisions, it would provide greater transparency to the decision-making process and allow the public to better understand how exactly the AFL arrived at this outcome.
Conclusion
The Rankine incident exposes critical flaws in the AFL’s disciplinary system. If the AFL learns anything from the subsequent polarised reactions, it is that there needs to be greater transparency for the decisions it makes. Without providing reasonings or following set precedent, penalties appear arbitrary and inconsistent, inviting speculation and controversy. The AFL has a significant responsibility to the Australian community to ensure that the sporting environment is inclusive and welcoming to everyone. That means sticking to their deterrence stance against homophobia – especially when the stakes are high.
References:
[1] https://www.westcoasteagles.com.au/news/1829402/club-statement-jack-graham
[2] https://www.afl.com.au/news/780849/afl-statement-on-bailey-smiths-sanction
[3] AFL Rule 2.3(h)
[4] AFL Regulations 19.2(c) and 20.15(b), AFL Rules 43.13(b)
[5] https://www.afl.com.au/news/1397409/afl-statement-izak-rankine