Disrepute Clauses in Sport: Mechanisms to Improve Predictability and Certainty in Decision-Making

Introduction

The importance of wide disrepute clauses in protecting sports bodies from misconduct that may threaten their image or reputation is unquestionable. Given the difficulty of comprehensively and objectively defining all conduct that may constitute disrepute, such clauses cannot be replaced by clear, specific, and prescriptive rules.  Accordingly, their application is often criticised for being uncertain and unpredictable.

Even the clearest definitions cannot capture every instance in which disrepute may arise. In Waterhouse v Racing Appeals Tribunal (2022), the Court defined disrepute as requiring public knowledge, a tendency to prejudice the sport as distinct from the individual, and blameworthiness.[1] While this provides a framework for assessment, modelling rules on these requirements would not substantially reduce uncertainty.

Given these shortcomings, this essay outlines three mechanisms to promote consistency in disrepute cases by drawing on several examples from Australia and abroad. It is recommended that sports bodies adopt these techniques to uphold fundamental legal principles while retaining the necessary protection afforded by disrepute clauses. Particular attention will be given to the Australian Football League (“AFL”), and why implementation of these mechanisms would assist greatly in ensuring consistency and transparency to not only reduce intense media scrutiny, but to also deter behaviours which damages the AFL’s reputation.

Mechanisms to Improve Certainty

This analysis evaluates three mechanisms – broader offence regimes, publication of reasons, and clear sanctioning guidelines – that can reconcile the need for disrepute clauses with the legal principles of predictability and certainty.

(i) Broader Offence Regimes

The first and perhaps most direct mechanism utilised by some sports bodies is the integration of a broad disrepute clause within a broader regime which specifies certain behaviours that will constitute misconduct. By doing this, the sports bodies provide a clearer picture of the types of misconduct that will attract sanctions, without entirely replacing disrepute clauses.

A clear example of this is found in Clause 2 of Football Australia’s National Code of Conduct and Ethics.[2] Clause 2 deals with a range of types of misconduct, with Clause 2.2(g) prohibiting conduct which “brings, or may bring, FA, any of its sponsors, a Football Administrator or Football generally into disrepute or which is otherwise prejudicial to the interests of FA or Football generally”.[3] Even though this is a wide disrepute clause which may potentially undermine certainty and predictability, it appears that cases of misconduct which invoke Clause 2.2(g) also invoke other, clearer grounds within Clause 2. When Western Sydney Wanderers head coach Marko Rudan was sanctioned after an explosive press conference following a loss, Football Australia found that he had not only contravened Clause 2.2(g), but also 2.2(a) (offensive behaviour), 2.2(d) (intimidating another person), 2.6(a) (comments to public that are disparaging or derogative of an official) and 5(a)(i) (behaviour failed to promote high standards).[4] Similarly, when Teresa Morrissey committed and pleaded guilty to an array of driving offences, the Disciplinary and Ethics Committee could dismiss her appeal and uphold Football Australia’s sanction under both Clause 2.14 (Criminal Offences) and Clause 5 (Professional Players, Representative Players and Officials), as well as Clause 2.2(g).[5] This is similar to the Committee’s decision under the previous Code of Conduct relating to the misconduct of Timothy Payne and Oliver Sail.[6] Overall, Football Australia’s tendency to impose sanctions for misconduct on specific grounds alongside the broader disrepute clause helps mitigate the issues inherent in disrepute clauses. Given the extensive definition of ‘misconduct’, it appears unlikely that a person would face a sanction for a breach of Clause 2.2(g) alone, and instead, Clause 2.2(g) serves as a backup for unprecedented circumstances.

Implementation of a more specific offence regime like this would assist in sports such as the AFL, where the current disrepute rule is broad and provides little clarification as to what conduct may attract sanction. Rule 2.3 of the AFL Rulesprohibits “conduct which is unbecoming or likely to prejudice the interests or reputation of the AFL or to bring the game of football into disrepute”.[7] Aside from a reasonable person standard and specific provisions relating only to Notifiable Conduct, there are no qualifications on this rule.[8] Even though prohibitions on certain forms of conduct exist elsewhere in the rules, Rule 2.3 is incredibly broad, and its precise application appears uncertain and unpredictable.[9] This unpredictability was perhaps most pertinent in the AFL’s decision not to stand down Noah Balta prior to sentencing for an assault in 2025. This received heavy criticism, including from Victorian Premier Jacinta Allan.[10] Even though Balta’s behaviour was Notifiable Conduct that would have likely breached Rule 2.3, the lack of official sanction from the AFL (as opposed to his club) was surprising.[11] While this is an example of the ultimate ability for sports bodies to determine matters of disrepute as they see fit, more structured misconduct rules may have assisted the AFL in coming to a decision that better protected their interests.

Clearly, to ensure certainty and predictability of outcomes under disrepute clauses, sporting bodies should endeavour to bolster guidelines with targeted offences for specific types of behaviour which constitutes disrepute.

(ii) Publication of Reasons

The second mechanism available to sporting bodies to promote consistency and clarity in decision-making is the publication of reasons of disciplinary tribunals. By increasing transparency of the processes and considerations taken in disrepute proceedings, predictability and certainty are improved for two key reasons. Firstly, making decisions public assists in determining exactly how an instance of misconduct has been categorised and seeks to minimise media speculation. Secondly, even though sporting bodies are rarely bound by precedent, where past decisions have been published, persons facing disciplinary proceedings can rely on similar cases to seek guidance as to their potential sanction.

In Victoria, the Racing Act 1958 (Vic) provides that the Victorian Racing Tribunal must provide a written statement that sets out the reasons for decisions and findings of fact, when requested by a party to the proceeding.[12] Compared to other sports, additional concerns around animal abuse and gambling arise in racing, which indicate the need for a wide disrepute framework. Although there are specific provisions dealing with animal and gambling-related offences, the broad disrepute provision contained in Rule 228 of the Australian Rules of Racing assists where conduct may not violate these specific rules but is nevertheless detrimental to the interests of racing.[13] This was the case in the 2023 decision involving problematic horsemanship by Jack Morgan-Byrnes, where original charges of animal abuse were dropped, but a sanction was imposed under the broader misconduct provision.[14] Even though Racing Victoria was still able to protect their reputation by providing a sanction, Morgan-Byrnes was able to shut down media reports that he was guilty of animal abuse.[15] Here, the publication of reasons clarified the categorisation of the sanction and reduced media speculation.

Beyond Australia’s borders, England’s Football Association is another example of a sporting body that publishes reasons effectively. Under the Association’s Disciplinary Regulations, decisions of Independent Regulatory Commissions must be published if requested.[16] Even though the Association’s Rule E3 dealing with disrepute is phrased widely, the obligation to publish reasons greatly increases the transparency of the decision-making process.[17] This approach has led to the creation of an online database, which clearly sets out key details of each disciplinary action and provides seamless access to written reasons.[18] This provides an important opportunity for individuals facing charges to develop their case in line with previous decisions and understand the range of potential sanctions which may be imposed. As the panels are not obliged to follow strict rules of evidence, individuals or clubs facing disciplinary action can also rely on past decisions to supplement their submissions.[19] Notwithstanding the observation in Wilfried Zaha v The FA (2019) that the Commission’s role is not “to ask where within the range of previous cases this case ‘slotted in’”, the ability to draw the Commission’s attention to cases of a similar nature is an undoubtedly powerful tool for increasing consistency across decisions.[20] In the absence of a strict doctrine of precedent, the Association’s decision-reporting regime greatly promotes transparency in decision-making. Accordingly, in disrepute cases, these mechanisms play a crucial role in enhancing predictability and certainty.

In the AFL’s case, extremely limited reasons for decisions made by the AFL Integrity Unit are published, which leaves many asking questions about the process of determining sanctions for disrepute. For instance, speculation about the role of upcoming finals and medical reasons in determining Izak Rankine’s sanction for use of a homophobic slur featured prominently in the media.[21] If the relevance of these details had been made clearer by publishing comprehensive reasoning, media speculation could have been avoided.

Overall, to improve consistency across matters of disrepute, reasons for decisions must be made publicly available.

(iii) Clear Sanctioning Guidelines

The third mechanism involves the implementation of clear sanctioning guidelines for specific types of conduct which violate disrepute clauses. Even though the circumstances in which disrepute may arise cannot be exhaustively defined, sanctioning guidelines can nevertheless ensure consistent treatment in equivalent cases. This provides predictability and certainty in the process of determining an appropriate sanction in each case.

Again, England’s Football Association is a sound example due to its clearly structured sanctioning guidelines for disciplinary actions involving disrepute. On its face, the Association’s Disciplinary Regulations provide extensive discretion to Regulatory Commissions to impose a range of different penalties ranging in severity from warnings to expulsion from membership.[22] However, this discretion is limited greatly by standard sanctions and mitigating and/or aggravating factors which must be applied.[23] For an Aggravated Breach of Rule E3.1, an immediate suspension between six and twelve matches applies.[24] Even though the Regulatory Commission may impose a range of other penalties and can impose a suspension greater than twelve matches in exceptional circumstances, all relevant aggravating and mitigating factors must be considered in the sanctioning process.[25]

In The FA v Chris Donnell (2025), the Commission imposed a suspension of six matches, a financial penalty, and an education order for an aggravated breach of Rule E3.1.[26] In coming to that determination, the Commission considered aggravating factors including Donnell’s role as captain of his side, and mitigating factors including co-operation with the FA and his admission.[27] In contrast, in The FA v Sam Finley (2025), the Regulatory Commission’s sanction included a thirteen-match suspension for using a homophobic slur after analysing a range of different circumstances, including Finley’s history of multiple similar aggravated breaches of the code.[28] The reasoning in this case highlights the methodical and detailed process required when imposing a sanction falling outside of the standard range. Even though a departure from the standard sanction is possible where the circumstances require it, such a departure is reserved only for the most severe circumstances.[29] Combined with the transparent reporting process, the Association’s sanctioning guidelines help to create a highly open and consistent disciplinary process.  Even though the Association still uses an overarching disrepute clause, these mechanisms effectively increase predictability and certainty.

On the other hand, where no publicly available sanctioning guidelines exist, standardised benchmarks may nevertheless appear through identical sanctions being ordered for similar conduct. The AFL Integrity Unit’s decisions in cases of illicit drug use and homophobia are one instance of this. Despite having no decisions or clear sanctioning guidelines available, the Integrity Unit’s decisions here have highlighted an attempt to ensure consistency in the sanctioning process.

For example, in several instances where illicit drug use by players has been made public, two-match bans for breaches of Rule 2.3 have been awarded.[30] While the AFL’s Illicit Drug Policy imposes a specific regime for penalties, it does not provide guidance for cases of drug use which become public and constitute a breach of Rule 2.3.[31] Even though several two-match bans have been handed down in similar circumstances, there is no publicly available set sanctioning guide that the Integrity Unit relies upon.[32] Even though this evidence may suggest consistency can nevertheless occur without set sanctioning guidelines, issues of predictability may nevertheless still arise. Recently, the fragility of the AFL’s approach was exposed by the sanctioning process for Izak Rankine’s use of a homophobic slur.[33] With only recent suspensions for similar offences providing any guidance,  a media frenzy ensued around the precise sanction Rankine would receive and exactly what factors would be taken into account.[34] Alongside this, the confusion and criticism surrounding Rankine’s eligibility for the 2025 Brownlow Medal is another consequence of a failure to produce clear, accessible sanctioning guidelines.[35] In this case, if the AFL were bound by clear sanctioning guidelines for specific behaviours that constitute breaches of Rule 2.3, the decision would have been far easier and less controversial. Even though consistency can be improved without set sanctioning mechanisms, it appears preferable that a sports governing body has clear sanctioning guidelines to ensure consistency.

For these reasons, the introduction of clear, structured sanctioning guidelines by sports governing bodies will greatly assist in improving predictability in disrepute decisions.

How Can the AFL Protect Itself?

The prior analysis demonstrates that the AFL’s current framework for dealing with disrepute is inadequate and requires improvement.  The widespread and often scathing media criticism that matters of disrepute attract is a clear indication that reform is required.[36] The vagueness of the AFL’s Rule 2.3 should be complemented by more specific guidelines, and its operation would become more consistent and predictable if decisions were publicly available and structured sanctioning guidelines were introduced. Even though it is arguable that the AFL has consistent sanctions for cases involving illicit drugs, it is unclear whether these are prescribed penalties or rather simply based on one another in a form of quasi-precedent. Despite this, the sanctioning process remains extremely fragile, as highlighted in recent cases involving Noah Balta and Izak Rankine.[37]

Each of the examples from other sporting bodies mentioned above should be seriously considered by the AFL to provide further certainty and predictability in disrepute cases. More in-depth and explanatory guidelines and reporting regimes like those found in the Football Associations of Australia and England would greatly assist the AFL in this sense. For example, if Rule 2.3 was expanded to include specific offences and penalties for players that discriminate against another’s sexuality, race, or gender, or unambiguous guidelines for players who are caught using illicit drugs publicly in the off-season, the AFL would have little difficulty in categorising and sanctioning this conduct, and media criticism would diminish.

In addition to reducing uncertainty and increasing the transparency of decisions and sanctions for disrepute, implementation of these mechanisms will also help provide a strong deterrent for AFL players and officials. If the AFL were to publish decisions and details of conduct that attracted sanction, players would become increasingly reluctant to engage in these behaviours, given that details would become publicly available. However, given the AFL’s tendency to maintain player confidentiality, as exhibited in its Illicit Drugs Policy, a change to publicly naming and shaming players whose behaviour has attracted sanction is unlikely.[38] Nevertheless, if the AFL threatened players with clear sentences and the reputational damage which stems from behaviour being publicly reported, consistency would be greatly improved.

Concluding Remarks

Disrepute clauses are a fundamental element of sporting agreements as they protect the integrity and reputation of sporting bodies from all possible threats which may arise. The flexibility of these clauses means that calls for their removal or complete redesign due to concerns about uncertainty are both impractical and unrealistic.

Despite this, the analysis above outlines that there is a range of mechanisms available to sports bodies to ensure that transparency and consistency are maximised. This approach balances the flexibility required to protect sporting integrity with the legal principles of predictability and certainty. To achieve this, sports bodies should seek to implement structured offence and sanction frameworks, as well as publishing reasons for decisions.

References:

[1] Waterhouse v Racing Appeals Tribunal [2022] NSWSC 1143, [58] (Young CJ).

[2] Football Australia, National Code of Conduct and Ethics (Football Australia Limited 2021) 4.

[3] Ibid 4 (Clause 2.2(g)).

[4] James Dodd, ‘Football Australia announces sanctions against Wanderers boss Marko Rudan’ (A-Leagues, 16 February 2024) <https://aleagues.com.au/news/marko-rudan-sanctions-announced-football-australia-what-he-said-video/> accessed 13 September 2025.

[5] Teresa Morrissey (2025) (Disciplinary & Ethics Committee of Football Australia Determination) <https://footballaustralia.com.au/sites/ffa/files/2025-09/Morrissey%20-%20Disciplinary%20Ethics%20Committee%20Written%20Determination%20Final.pdf> accessed 13 September 2025.

[6] Payne and Sail (2020) (Disciplinary & Ethics Committee of Football Australia) <https://footballaustralia.com.au/sites/ffa/files/2020-07/20-0616%20D&EC%20Determination%20-%20Payne%20and%20Sail.pdf> accessed 13 September 2025.

[7] Australian Football League, Rules (AFL 2025) 32.

[8] Ibid.

[9] Ibid.

[10] Chris De Silva, ‘Noah Balta court verdict suggests AFL must take off-field matters as seriously as those on it’ (ABC News, 23 April 2024) <https://www.abc.net.au/news/2025-04-23/afl-noah-balta-richmond-court-verdict-analysis/105205412> accessed 20 September 2025.

[11] Rohan Connolly, ‘AFL, Richmond’s failure to properly defuse Noah Balta situation was embarrassing’ (ESPN, 11 April 2025) <https://www.espn.com.au/afl/story/_/id/44510251/afl-richmond-noah-balta-suspension-assult-embarrassing-response> accessed 20 September 2025.

[12] Racing Act 1958 (Vic) s 50ZF.

[13] Racing Australia, Australian Rules of Racing (Racing Australia 2025) 99.

[14] Racing Victoria v Jack Morgan-Byrnes (2023) (Victoria Racing Tribunal Decision) <https://www.vic.gov.au/decisions-and-reasons> accessed 15 September 2025.

[15] Racenet, ‘Stablehand to face cruelty charges’ (Racenet.com, 14 June 2023) <https://www.racenet.com.au/news/racing-victoria-stewards-lay-five-cruelty-charges-against-nick-ryans-stablehand-20230614> accessed 15 September 2025.

[16] The Football Association, The FA Handbook: Disciplinary Regulations (The FA 2025) 179.

[17] The Football Association, The FA Handbook: Rules of the Association (The FA 2025) 141.

[18] The FA, ‘Discipline, Written Reasons’ (The FA, September 2025) <https://www.thefa.com/football-rules-governance/discipline/written-reasons> accessed 18 September 2025.

[19] The Football Association (n 16) 172.

[20] Wilfried Zaha v The FA (2019) (Independent Regulatory Commission Reasons) <https://www.thefa.com/football-rules-governance/discipline/written-reasons> accessed 21 September 2025; The FA v Matheus Cunha (2024) (Independent Regulatory Commission Reasons) <https://www.thefa.com/football-rules-governance/discipline/written-reasons> accessed 21 September 2025.

[21] Fox Footy, ‘AFL won’t explain ‘medical’ issue behind reduced slur ban as Izak Rankine could play in Grand Final’ (Fox Sports, 21 August 2025) <https://www.foxsports.com.au/afl/afl-2025-izak-rankine-to-be-investigated-for-alleged-homophobic-slur-adelaide-crows-win-over-collingwood-magpies-how-many-games-will-he-miss-latest-news/news-story/b54d4930cc838c9c5d97a9d0fafc9591> accessed 24 September 2025.

[22] The Football Association (n 16) 176 – 177.

[23] Ibid 177.

[24] Ibid 180.

[25] Ibid 180 – 182.

[26] The FA v Chris Donnell (2025) (Independent Regulatory Commission Reasons) <https://www.thefa.com/football-rules-governance/discipline/written-reasons> accessed 18 September 2025.

[27] Ibid.

[28] The FA v Sam Finley (2025) (Independent Regulatory Commission Reasons) <https://www.thefa.com/football-rules-governance/discipline/written-reasons> accessed 18 September 2025.

[29] Ibid.

[30] Australian Football Leage, ‘AFL statement on Bailey Smith’s sanction’ (AFL, 16 June 2022) <http://afl.com.au/news/780849/afl-statement-on-bailey-smiths-sanction> accessed 22 September 2025; Martin Smith, ‘AFL bans new Blue for illicit drugs policy breach’ (AFL, 16 November 2023) <https://www.afl.com.au/news/1064667/afl-bans-new-carlton-blues-recruit-elijah-hollands-for-illicit-drugs-policy-breach> accessed 22 September 2025; Michael Rogers, ‘Pies forward Ginnivan banned after illicit drug use’ (AFL, 18 February 2023) <https://www.afl.com.au/news/876044/collingwood-magpies-forward-jack-ginnivan-banned-after-illicit-drug-use> accessed 22 September 2025.

[31] Australian Football League (n 7).

[32] See n 30.

[33] Fox Footy (n 21). See also Marnie Vinall ‘Izak Rankine’s AFL ban pales in comparison to widespread impact of homophobia on community’ (ABC News, 21 August 2025) <https://www.abc.net.au/news/2025-08-21/izak-rankines-ban-pales-in-comparison-to-impact-of-homophobia/105672298> accessed 24 September 2025; Robert Boucaut and Alexander H. Beare, ‘AFL faces monumental stress test in its efforts to tackle homophobia’ (The Guardian, 20 August 2025) accessed 22 September 2025.

[34] Ibid.

[35] SEN, ‘AFL rule “loophole” that left Rankine eligible for Brownlow’ (SEN, 24 September 2025) <https://www.sen.com.au/news/2025/09/23/izak-rankine-brownlow-medal-afl-rules-for-homophobic-slur-ban> accessed 25 September 2025.

[36] See, for example, n 10, 11, 21, 30, 33.

[37] See n 10, 11, 21, 33.

[38] Australian Football League, ‘Some facts on the AFL illicit drugs policy’ (AFL, 24 June 2024) < https://www.afl.com.au/news/1157798/some-facts-on-the-afl-illicit-drugs-policy> accessed 16 October 2025.

[39] Cover Photo: Katrin Bolovstova on Pexels