Athletes need clarity on their rights and responsibilities

The question of how professional athletes and sporting organisations manage the uneasy but inevitable conflict between their personal lives and their employment obligations has recently been back in the spotlight thanks to Sam Kerr’s drunken night out in January 2023.

Since Kerr was cleared of criminal charges this week, the conversation has shifted to her suitability as a role model to the sport obsessed boys and girls of Australia, to whom she is widely regarded as a hero. The verdict of the court of public opinion has not yet been handed down. But perhaps of greater import is what sanctions she might face from her employer, Football Australia.

At stake is the broader issue of an athlete’s behaviour in a ‘private’ capacity away from the playing arena. From an employment law perspective, this depends on the specific terms of the athlete’s employment and the facts of any given case, including the nature of the conduct in question. In general terms, if an athlete acts off-field in a way to which their employer-club or sporting body objects, disciplinary action is difficult to avoid, particularly if the club/professional body can show reputational damage.

What is considered reputational damage is usually wrapped up in a complex ‘web’ of instruments, including enterprise bargaining agreements, the rules of the game and, increasingly, codes of conduct and social media policies that are often incorporated into the athlete’s employment contract.

This is why the Kerr case finds us once again visiting the difficult to navigate terrain of a sport’s code of conduct. While it might seem that Kerr’s unedifying behaviour on that night out is par for the course for any professional footballer, her case may differ in that she is expected to meet the highest standard, not only as the national captain but because of her very high profile as the poster girl for women’s soccer in Australia.

Kerr has received strong support from her UK Women's Super League club Chelsea, but it’s possible that, regardless of the not guilty verdict, Football Australia will take a different approach, considering whether she has breached a ‘morals cause’ likely included in her contract. Specifically, Kerr may have fallen foul of clause 2.14 of Football Australia’s National Code of Conduct and Ethics after being charged with a criminal offence, regardless of the outcome of the trial.

In the context of sport, balance can be achieved by recognising a reasonable expectation of privacy for athletes and providing more clear parameters on what kinds of off-field behaviour constitute disreputable conduct.

Associate Professor Giuseppe Carabetta

Other relevant clauses of the Code of Conduct and Ethics could also be applied if Football Australia wants to make an example of Kerr or sees public opinion swinging against her. To date, its comments have been non-committal, saying only that it ‘will reflect with Sam on learnings from this matter’.

We have seen in other recent examples that these codes can be applied with a sledgehammer or a feather. Israel Folau comes to mind, the Wallabies and Waratahs rugby star, who had his contract terminated after breaching the code of conduct over his controversial social media posts, or more recently Spencer Leniu, a rugby player for the Sydney Roosters, who was handed an eight-match ban for a racial slur against another player during a match.  Elsewhere, they have been used to police off-field conduct like recreational drug use, with questions being raised about whether these expectations are too high.

Certainly, the wide-reaching and open-ended nature of these clauses, coupled with the notion of athletes as ‘24/7 brand ambassadors’, means there are very few actions for which the athlete is not answerable. This is particularly so where the conduct risks negative impacts on sponsors or is inconsistent with the corporate ethos of an employer club or sporting body. The net result is that athletes’ ability to behave in ways that might cause reputational damage – even in private, non-sporting contexts – is severely restricted.

The Kerr case may well bring into the spotlight the perhaps unrealistic expectations these clauses place on athletes. Public debate may prompt sporting bodies ‒ and indeed employers more broadly ‒ to take a more balanced approach, supported by regulation. It’s not, in fact, impossible to recognise both the interests of an employer and respect the individual interests of employees. In the context of sport, balance can be achieved by recognising a reasonable expectation of privacy for athletes and providing more clear parameters on what kinds of off-field behaviour constitute disreputable conduct.

To find this balance much more comprehensive regulatory protections are needed. Greater clarity around their rights and responsibilities will help athletes navigate a world in which they can behave ‒ within reason ‒ just like everyone else on a night out.

Dr Giuseppe Carabetta is an Associate Professor of employment law with the UTS Business School.