David Pocock and the ARU. When do employers cross the line?

David Pocock is the latest example of a football player who has been sanctioned by their employer for what the code or employer consider undesirable behaviour outside of work.   But in this case it is not recreational drugs, drinking or sexual indiscretion, violence against women, or (most exotically) the bubbler…..  This time Pocock has been given a written warning for his involvement in a political protest.  Read Pocock’s official statement here.

Pocock was arrested, and his actions were allegedly in breach of the ARU and Brumbies code of conduct.  However sanctioning players for involvement in political protest steps dangerously close to sanctioning them for their political beliefs or activity.  Australian society elevates football players to the role of saints – and football codes face such fierce competition from each other that they will sanction players for anything which brings the codes into disrepute.  However we mustn’t forget that despite the public and code’s desire to see them as perfect, they are legally no more than parties to an employment contract, and the football leagues have no greater right to impose standards of conduct on their employees than any other employer.  Have they gone too far this time?  Personally, I believe it is reasonably within the employers’ rights to sanction employees that bring their game or brand into genuine disrepute.   This is beyond question when we are talking about violence, drunkeness or depravity.  But when the allegedly disreputable behaviour is a matter of political or environmental debate, the swiftness of the ARU’s actions seem knee jerk and poorly motivated.

During the same week, the St Louis Rams reacted quite differently to calls for an apology from police groups on behalf of players performing the “hands up don’t shoot” protest relating to the Michael Brown controversy immediately before a game.

Photo courtesy of USA Today

Photo courtesy of USA Today

In their official view, while any offence  caused to the police by the players’ actions was regrettable, it was part of the players’ free rights of expression protected by the First Amendment of the Constitution.  The fact that the employers had provided the platform on which the protest was public made little difference to the players’ fundamental rights.   The Michael Brown situation in the USA is highly charged both politically and emotionally – yet the Rams seem to have handled this public relations challenge without appearing to take sides, nor to encroach on their employees’ rights. We have heard much about the US Constitution’s First Ammendment restraining the Executive government from action in relation to a citizen’s exercise of free speech, but it is interesting to see this constitutional freedom trumping a contractual employment relationship as well.

I can understand the necessity for a strict code of conduct for professional sports players, but exactly how narrow should the scope of this conduct be?  And is this further indication that Australians need some fundamental rights to sit alongside the agreements we make from day to day?


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Helen Carter

Helen has practised exclusively in employment and industrial law for over ten years and founded PCC Lawyers in 2010, having previously a partner of a leading Australian specialist workplace relations firm. She is an accredited specialist in Employment Law by the Law Society of New South Wales. Helen is a working mother who is committed to equal opportunities at work. She is a passionate sports fan, particularly in relation to NRL. Both of these are strong themes of this blog. Contact her here.

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