Are AFL footballers above the law?

Just Cases is a podcast that explores the backstory to some of the biggest court cases that have shaped our lives. It's hosted by Melissa Castan, Deputy Director of the Castan Centre for Human Rights Law, and produced by the Monash Law School.

In this latest episode of the series, the spotlight is turned on the AFL, and the recent and notorious on-field incident involving players Andrew Gaff and Andrew Brayshaw.

This has exposed inconsistencies in how our legal system treats different perpetrators of acts of violence, according to Monash law expert Dr Eric Windholz.

“A fundamental underpinning of our society is that we're all equal before the law and [that] the law treats us equally,” Dr Windholz tells Just Cases.

“When you see instances of violence go unpunished by the criminal law, but you see others being punished, then we have to ask … are AFL footballers above the law?”

The West Coast Eagles' Gaff was suspended by the AFL Tribunal for eight matches for punching Fremantle 18-year-old Brayshaw behind play during the round 20 clash.

Brayshaw underwent surgery on a broken jaw and will require further treatment for three broken teeth. The incident brought the teenager's first AFL season to an abrupt and violent end.

Public outcry

The hit prompted calls for all sorts of initiatives – from a red card system in the AFL, to criminal charges and even jail time.

Dr Windholz says the prospect of criminal sanctions shouldn't be seen as far-fetched.

“We've had other assaults on Victorian streets, and streets in Sydney and Perth, where people go to jail and lose their liberty for similar offences,” he says.

Just Cases: Each day, law courts make decisions that change the lives of those in the courtroom. Some decisions change society.

Only a few weeks earlier, Victoria Police charged a country footballer with assault after an off-the-ball incident in which a teenager suffered a broken jaw and fractured cheekbone.

Dr Windholz says members of the public in southwest Victoria where the local football match was being played are rightfully questioning whether the rule of law is being applied to everyone equally in our society.

“[They’re] asking, ‘Why are we subject to criminal sanctions and police intervention, and the professional footballers who are being paid a squillion aren’t?’”

Changing attitudes to violence

Dr Windholz says the Gaff incident has come at a time when community attitudes to violence are changing, including recent public campaigns against one-punch assaults and family violence.

He says the public reaction to Gaff’s punch “was no longer a discussion about just sporting violence; this was a discussion about violence generally.”

Parallels with Leigh Matthews' case

Dr Windholz says “there are very strong parallels” between the incident and a notorious case from 1985 involving Hawthorn player Leigh Matthews, a giant of Australian rules football regarded by many to be the greatest footballer to have ever played the game.

When Matthews struck Geelong player Neville Bruns with a “roundhouse right to the face” off the ball, the Victorian Football League responded to national outrage by deregistering Matthews from the VFL for four weeks.

“The reason why this case is so extraordinary is the [AFL/VFL] has being going on now for about 110 years and this is the only incident … where the Victorian police have intervened to lay charges for an on-field assault at the professional level,” he says.

Matthews was charged by police with assault. He pleaded guilty and was convicted and ordered to pay a $1000 fine. He appealed the conviction successfully, but the guilty verdict stood and Matthews was placed on a good-behaviour bond.

Should police charge Gaff with assault?

As the ‘gatekeepers’ of the criminal justice system, the police don’t prosecute every case of assault they see. Instead, they have wide discretion to choose whether to charge or not.

Additionally, there are certain acts of assault to which people can consent. This includes assaults that occur during contact sports such as football.

“When players run onto the field, they cross the white line, they do consent to contact in the course of the game, to contact within the rules, and [also to] common breaches of the rules,” says Dr Windholz. “[But] I think it’s a fair stretch to say that you consent to being hit 20, 30, 40 metres away from the contest.’”

“We've had other assaults on Victorian streets, and streets in Sydney and Perth, where people go to jail and lose their liberty for similar offences.”

Dr Windholz doesn’t think charging Gaff with assault is the ultimate solution.

Instead, he wants to see the incident trigger broader public debate, one in which the police play an important role.

“Personally, I think we need to have the conversation. I think the conversation is more valuable than necessarily Gaff being charged. I would like the police to come out and say what is the process they go through in looking at this matter, what are the criteria they apply and how they’ve applied them. And at least then we can have an element of transparency and an element of knowledge.”

Response not reflective

Dr Windholz says the AFL’s response should also be subjected to public scrutiny.

“The question for us as a society is: Is the AFL’s disciplinary process reflective of community standards? Has the punishment fit the crime?” he says.

“[Thirty-seven] Essendon footballers were put out of the game for a year for unknowingly taking a substance which their club directed them to take, and society has said that a 12-month suspension is adequate,” he says. “Breaking someone’s jaw, displacing several teeth [leads to Gaff being suspended for] eight weeks.”