Employee Can be Suspended Pending Outcome of Serious Criminal Charges

St George Rugby League player Jack de Belin has lost his bid for reinstatement to the NRL pending the outcome of the sexual assault claims against him.

Judge Melissa Perry of the Federal Court recently handed down a judgment in favour of the NRL and ordered Mr de Belin to pay the company’s costs.

NRL Policy

Earlier this year, the NRL instituted a ‘no fault stand down’ policy, which facilitates the automatic suspension of players accused of criminal offences that carry a term of imprisonment of 11 years or more.

Under the policy, affected players are entitled to full pay and are permitted to train with until their cases are heard, and the amount of their pay is not counted towards their club’s salary cap.

Jack de Belin was charged with the aggravated sexual assault of a 19-year-old woman in December 2018.

He has vehemently denied the allegations, which could take another 18 months to finalise – meaning that under the decision, he could be exiled from the game for two years.

Federal Court challenge

De Belin’s lawyers submitted to the court that the rules are fundamentally unfair, calling them e“unprecedented” and explaining that they are harsher than rules imposed by any other sporting code in Australia.

“In our submission it’s a harsh rule, it’s an unfair rule, it’s a draconian rule,” de Belin’s lawyer Martin Einfeld QC told the Federal Court.

He submitted that the retrospective operation of the rules denies his client to a procedural fairness.

It was pointed out that the Rugby League Players’ Association (RLPA) opposed the policy before its introduction, saying it undermines a player’s right to be presumed innocent until and unless he is proven to be guilty in a court of law.

The legal basis of Mr de Belin’s was that the policy amounts to an “unlawful restraint of trade” and/or “unlawful interference in his contract”.

The judgment

Justice Perry ultimately found that the policy is lawful as its objective is to protect the legitimate interests of the Australian Rugby League Commission (ARLC) and NRL, and this outweighs the impact upon players.

Her Honour accepted the NRL’s submission that the rule made no judgment about guilt or innocence of the employee, but was solely to protect the brand and reputation of the game.

Justice Perry took into account that the policy made allowances for the financial and emotional impact on players, by paying them, allowing them to train and providing them with access to mental health support.

Her Honour remarked, “No other interest was able to be identified by Mr de Belin which might need to be taken into account, let alone another consideration which would be so compelling as might outweigh the real and substantial danger in permitting a person in Mr de Belin’s position to play.”

The Court accepted NRL submissions that only a rule precluding players from playing could address the reputational damage caused by serious criminal charges being brought against players.

She noted the “significant escalation” in concerns raised by sponsors following de Belin’s first court appearance, and accepted that a number of NRL partnership agreements were under threat due to complaints against players.

Further challenge

Players’ association chief executive Ian Prendergast said the union would consider challenging the NRL under the collective bargaining agreement, on the basis that the “no-fault” provisions were not agreed during negotiations in 2017.

“We’re disappointed in the court’s decision today,” Mr Prendergast remarked. “We maintain our opposition to the policy throughout based on our belief that it goes outside of what we’ve agreed to under the collective bargaining agreement in terms of the process followed by the NRL and the penalties it effectively imposes.”

Aggravated sexual assault charges

Aggravated sexual assault is an offence under section 61J of the Crimes Act 1900 (NSW) (‘the Act’) which carries a maximum penalty of 20 years’ imprisonment.

It is where a person has “sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse”.

Sexual intercourse is defined by section 61H of the Act as:

• sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
• any part of the body of another person, or
• any object manipulated by another person, or
• sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
• cunnilingus, or
• the continuation of any of the above conduct.

‘Circumstances of aggravation’ are where:

• at the time of, or immediately before or after, the commission of the offence, the defendant intentionally or recklessly inflicts actual bodily harm on the complainant or any other person who is present or nearby, or
• at the time of, or immediately before or after, the commission of the offence, the defendant threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument, or
• the defendant is in the company of another person/s, or
• the complainant is under the age of 16 years, or
• the complainant is (whether generally or at the time of the commission of the offence) under the authority of the offender, or
• the complainant has a serious physical disability, or
• the complainant has a cognitive impairment, or
• the complainant breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
• the complainant deprives the complainant of his or her liberty for a period before or after the commission of the offence.

Aggravated sexual assault carries what’s known as a ‘standard non-parole period’ (SNPP), which in this case is 10 years imprisonment. An SNPP is a reference point or guidepost for a sentencing judge when deciding the minimum term (or non-parole period) that a person must spend behind bars before becoming eligible for release from custody on parole.

Mr de Belin is currently in the early stages of proceedings in Wollongong Local Court.