The AFL Appeal Board’s six match sanction on Toby Greene for intentional contact with an umpire

In the third quarter of the elimination final between Greater Western Sydney and Sydney in August 2021, GWS player Toby Greene made contact with an umpire. Under rule 22.2.2(d) of the Laws of Australian Football (2021), intentionally making contact with an umpire is a “Reportable Offence”. In a match outside of the AFL competition, rule 23.2(b) provides that such conduct results in the player being ordered off for the remainder of the match.  Under clause 4.3.F.1 of the AFL Tribunal Guidelines (2021), intentional contact with an umpire that is “aggressive, forceful, demonstrative or disrespectful” results in the player being directly referred to the AFL Tribunal, rather than having the option of an early plea.

At the AFL Tribunal hearing, the umpire gave evidence to the Tribunal that Greene’s contact was “minor” and that he did not feel threatened by the contact.[1] Nonetheless the Tribunal found that Greene made contact with the umpire, that the contact was aggressive (as he walked straight into the umpire and based on the manner of approach), that it was demonstrative as Greene was seeking to demonstrate to the umpire his feelings and displeasure, and that it was disrespectful.

The Tribunal determined a sanction of three matches, which the AFL appealed. On appeal, the AFL Appeal Board found that the three-week suspension was “not only inadequate but demonstrably and manifestly so”, taking into account:

• the findings of the Tribunal that Greene’s conduct was aggressive, demonstrative and disrespectful;
• that respect for umpires is at the heart of the integrity of the game;
• that there was a need to deter other players at all levels of AFL and send a strong message that similarly aggressive, forceful, demonstrative or disrespectful contact with an umpire will not be tolerated;
• that the image, integrity and reputation of AFL must be protected, which can only happen if players at all levels honour their obligations to umpires at all levels; and
• that umpires at all levels have to know this is the position, so that they can carry out their vital function with confidence.

The Appeal Board modified the suspension to be one of six weeks (which had been sought by the AFL), observing this to be the “minimum appropriate sanction”.

Sports references are sometimes drawn on, by both lawyers and judges, for use by analogy in legal proceedings.[2] In this instance, analogies can be drawn between the Appeal Board’s finding and sanction against Greene, and the punishment of contempt of court.  There are several categories of contempt of court (including both civil and criminal). While by no means a perfect analogy, aggressive, demonstrative and/or disrespectful contact with an umpire may best be framed as similar to “contempt in the face of the court” (conduct by a person in a courtroom or in the precinct of the court which interferes with, or tends to interfere with, the course of justice[3]) or “scandalising the court” (being conduct which is calculated to, inter alia, lower the authority of the judge).[4] The “cardinal feature of the power to punish for contempt” has been described as to “protect the due administration of justice”,[5] with contempt proceedings viewed as “essential in facilitating courts being able to function properly… [including] being, and being seen to be, effectual in adjudicating upon and resolving disputes, and in particular making orders that will be ordinarily obeyed”.[6] As a result, the importance of an individual contempt cases “transcend[s]” beyond that instance “by supporting and enhancing the integrity of judicial proceedings… more generally”.[7]

AFL competition is a heavily rule-dependent game. The smooth running of a match requires the involvement of nine umpires to observe and apply the Laws of the Game to the play by the 44 players throughout the course of the match. Applying the principles from contempt cases in this context, intentional contact with an umpire that is “aggressive, forceful, demonstrative or disrespectful” can be viewed as conduct interfering with, or tending to interfere with, the administration of the Laws of the Game, or as conduct intended to undermine the authority of the umpire (the arbiter of the Laws). Penalising such contact can be viewed as essential to protecting the smooth and fair running of the match, and to ensuring that the umpire’s calls are observed. The Appeal Board’s sanction of six matches, and the reasons they gave for imposing such a sanction, also indicated (similar to contempt cases) an intention to “transcend” the individual case, to require a penalty that supports and enhances the integrity of the game and its laws more generally.

[1] Daniel Cherny, ‘Toby Greene verdict as it happened’, The Age, 31 August 2021.

[2] An example is given in footnote 3 below. See also, in the US context, Douglas E Abrams, ‘Sports in the Courts: the Role of Sports References in Judicial Opinions’ (2010) 17 Villanova Sports and Entertainment Law journal 1.

[3] See, for example: Lewis v Odgen (1984) 153 CLR 682 which considered comments used by a barrister in his address to the jury, where the role of the judge was contrasted with the role of an umpire in the middle of the grand final “coming out in a Collingwood jumper and [starting to] give decisions one way”.

See, also: Mahaffy v Mahaffy [2018] NSWCA 42 at [171] (Simpson JA). See also the description of categories of contempt of court in the article by Justice Emilios Kyrou, ‘The independent, low profile third arm of government’, Law Institute Journal, 1 December 2017.

[4] Re Colina; ex parte Torney (1999) 200 CLR 386 at [112] (Hayne J).

[5] Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90 at [97] (Besanko, Wigney and Bromwich JJ).

[6] Ibid.

[7] Lewis v Odgen.