Illustration: Jim PavlidisFINAL WORD
THE Tom Hawkins ”goal” that clipped the post in the 2009 grand final was such a blatantly wrong decision that it precipitated the introduction of goal-line video technology. At the final siren, the margin between the Cats and St Kilda was six points. The Saints never contemplated a challenge to the legitimacy of the result.
David Trodden might wonder why not. He is a solicitor, and chairman of the Balmain Tigers Rugby League football club. The next year, the Wests Tigers lost a preliminary final to St George Illawarra in controversial circumstances.
The scores were tied at 12-12 with less than 10 minutes to play when St George’s Jeremy Smith kneed the Tigers’ Lote Tuqiri in the back as he fell to the ground in a tackle. The site of the incident was within the range of the Tigers’ kicker, Benji Marshall. But the video referee decided against a penalty. Soon afterwards, a field goal decided the match in favour of the Dragons (who went on to win the grand final).
The next day, the NRL charged Smith with dangerous contact, to which he pleaded guilty, all salt to the Tigers’ wounds. Trodden maintains that there was a fundamental miscarriage of justice because the referee mistakenly held that Smith’s action had to be intentional to constitute a breach of the rule.
In this year’s Australian and New Zealand Sports Law Journal, published this week, Trodden methodically argues the theoretical case for a legal challenge to the result of that match. Condensed from 40 pages to less than one, it might read as merely a reheating of the age-old and always unfulfilled threat: ”We’ll sue!” It is far more elaborate than that.
Trodden says the principle that the man in white is always right (with its implication that he is sometimes wrong) was acceptable when the only consequence of his occasional mistake was to imperil someone’s victory. Now, unarguably, sport is vast business, and poor officiating stands to cost participants millions of dollars. It did the Tigers.
Trodden says that other professionals – doctors, accountants, lawyers – are legally liable for their mistakes, so why not sports officials and their employers? Refining his argument, he agrees that it would be too harsh to hold on-field officials responsible in law for real-time, on-the-spot decisions. But he says there should be no mitigation for video referees.
Trodden explores two possible avenues of recourse for a wronged player or club, breach of contract and negligence. He studies international parallels, and exhaustively traces precedents akin to cases in Australia, as far back as 1880, when an owner sued Wyndham racing club in Victoria because stewards ordered a race won by his horse, Lilydale, be run again. He lost the case.
Trodden notes that the Court of Arbitration for Sport historically is loath to review on-field decisions, except where there is evidence of prejudice or corruption, fearing the opening of floodgates. He tells of a high school football game in the United States that a court ordered to be replayed because of a referee’s error, only for that decision to be overturned by a higher court, which ruled that it was not a legal matter.
Another US court remarked: ”Heaven knows what uncharted morass a court would find itself in if it were to hold that an athletic official subjects himself to liability every time he might make a questionable call.”
Trodden recounts the 1991 Dutch Cup final, which a referee declared finished with eight minutes remaining because of crowd trouble. The loser, BVV Den Bosch, fought the matter in three courts, won the right to a replay, then lost it because it was ruled that the referee was the sole authority.
Trodden acknowledges that most case studies and other guidelines mitigate against the likely success of an action by Wests Tigers. But, quoting an expert, he says the reluctance of courts to intervene was because of ”social convenience rather than rigorous legal reasoning”. He said this was changing as society changed, especially as state paternalism grew.
He says that, although Australian courts rarely overturn the decisions of expert arbitrators, they make exceptions where they believe there are errors in law rather than misjudgments. This, he says, is the crucial point for Wests Tigers: It was not that the video referee made a bad judgment; he misapplied the law.
As for a charge of negligence, Trodden demonstrates that no court had or would put a limit on what constituted negligence. He notes that rugby referees in England have been held liable for players’ injuries.
If Wests Tigers had acted in 2010, Trodden concludes, ”it is not far-fetched to suggest that they may have succeeded both in contract and in negligence”. ”One day soon,” he says, ”there will be someone who is sufficiently aggrieved by a refereeing decision and sufficiently well-resourced to go to court about it.”
He asked if Nathan Tinkler, for instance, who has so heavily invested in the Newcastle Knights, would content himself with muttering: ”Bloody referee.”
In Melbourne, Collingwood folk are still waiting for the leaden-footed law to catch up with the boundary umpire in the 1979 grand final.
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