Recently, Valentine Holmes, a rugby league player for the North Queensland Cowboys, was suspended for one match and fined by the National Rugby League for bringing the game and his club into disrepute. This decision came after Holmes posted a picture of himself holding a white bag of powder on social media, claiming it was a joke gone wrong. In addition to the suspension and fine, he was required to attend educational training mandated by the NRL. The Cowboys also imposed a heavy monetary penalty on Holmes (which was partially suspended). Holmes expressed remorse, apologising for his actions and pledging to regain the trust of the club and its fans.

This story prompts an often-asked question – what do you need to establish in order to successfully argue that a sport has been brought into disrepute?

This question was considered by the Court of Arbitration for Sport in the matter of Mikhaylo Zubkov v. Fédération Internationale de Natation (FINA) (CAS 2007/A/1291) in 2007.

In that case, the appellant, Mr Zubkov, was the father and swimming coach of his daughter, Kateryna, who was a member of the 2004 Ukrainian Olympic Team in Athens. After completing a training session, the Appellant and his daughter had a heated argument about her choice of boyfriends. The disagreement escalated, leading to physical altercation involving pushing and shoving. Unbeknownst to them, the incident was recorded on a remote video camera nearby and it was subsequently published around the world.

In response to this, FINA held the appropriate hearings and the Appellant was found by the FINA Disciplinary Panel to have, among other things, breached the FINA Constitution by bringing the sport of swimming into disrepute. The Panel subsequently expelled the Appellant from any future activities under the jurisdiction of FINA and Member Federations for six years. The Appellant appealed the decision, and the decision was reviewed by the Court of Arbitration for Sport de novo (as if the matter was being heard for the first time).

The relevant section of the FINA Constitution allowed a person to be sanctioned for ‘bringing the sport into disrepute’. In light of this, the CAS determined that:

1. actual disrepute was required to be established, not potential disrepute;
2. an individual bringing themselves into disrepute is not sufficient to establish that the sport was brought into disrepute; and

The CAS stated that it was therefore required to be established that public opinion of the sport of swimming was diminished as a result of the conduct in question. In the Zubkov case, FINA was unable to adduce any evidence to establish this. Consequently, Mr Zubkov was found not to have breached the relevant section of the FINA Constitution.

From this case, it is clear that engaging in conduct that brings a person into disrepute does not automatically cause the sport or team that the person is associated with to also be brought into disrepute. This was also recognised by the CAS in the Nick D’Arcy case, where the presiding Panel opted not to address whether the act of being involved in a fracas with a former teammate caused the sport of swimming to be brought into disrepute, noting that it was ‘a more difficult issue that we do not need to address for present purposes’. Accordingly, to be successful in arguing that their sport had been brought into disrepute, governing bodies would need to adduce evidence of, for example, social media comments and other publications where the person’s misconduct is conflated with the good standing of the governing body.

It is worth noting that it is open to governing bodies to include in their governing documents a non-exhaustive list of events which cause, or have the potential to cause, a governing body to be brought into disrepute. This would improve certainty for all parties as to what conduct may permit disciplinary action being taken and reduce the risk of sanctions being appealed.