Friday, 20 August 2010 5:53 PM
On Tuesday 17 August 2010, Justice Pagone of the Supreme Court of Victoria ruled that South Melbourne Football Club was denied procedural fairness and not afforded natural justice by the FFV Appeals Board during its Hearing on 5 May 2010 of an appeal by the Club against some of the decisions made by the FFV Tribunal on 21 April 2010.
The Supreme Court ordered the FFV to reconstitute the Appeals Board for the purposes of hearing and determining what penalty or sanction should be imposed upon the Club in relation to the incident which occurred at Bob Jane Stadium on 11 April in the 91st minute of the match between the Club and Heidelberg United Football Club. Broadly speaking, the incident involved approximately 20 to 40 of the Club’s supporters running onto the ground in the 91st minute, immediately after South Melbourne scored its equalising goal, which ultimately resulted in the match being abandoned by the referee.
The Appeals Board was quickly reconstituted, compromised of the same members as on 5th May 2010, on the same day the decision was delivered by the Supreme Court and the Club called such evidence and made such submissions as it could given the short period of time it had to prepare. The Club is extremely disappointed in the decision of the Appeals Board to deduct six championship points as penalty for the incident.
South Melbourne Football Club maintains, as it submitted to the Appeals Board, that the penalty is inappropriate and excessive. The Club also has serious concerns about the way in which the FFV Tribunal and Appeals Board conducted the three hearings. The Club will be taking up these concerns with the FFV directly and will say more on this topic in due course.
It does not appear that the FFV has fully grasped the problems with the operations of its disciplinary system including the Rules of Competition, the GDT By-Law, the FFV Tribunal and the Appeals Board. This is evident from the disappointing article which appeared on the FFV website under the heading “Independent Appeals Board Deducts Six Points from South Melbourne FC”. The Club wishes to make the following comments in response to that article:
- The FFV refers to the Appeals Board as the “Independent Appeals Board”. It is called the Appeals Board and we do not see what the FFV is trying to achieve by seeking to style this body as the Independent Appeals Board.
- The Club is unaware if the FFV is seeking to use the word ‘Independent’ to allay any concerns which may be held by the FFV due to the fact that the Chairman of the Appeals Board (in the present case) has also previously represented the FFV such as in the 2009 Supreme Court case between the Whittlesea Juventus Intl. Football Club Inc vs Football Federation Victoria Inc.
- The Club felt that the conduct of the Appeals Board Hearing on 5 May 2010 (not 17 May 2010 as referred to in the FFV article) was unfair to the Club. As a result, before taking Court action, the Club engaged in extensive discussions with both the FFV and FFA to try and have its matters resolved internally, within the football environment. Unfortunately, its efforts fell on deaf ears. As late as 30 July 2010, the Club wrote to the FFV offering to resolve its grievance by the FFV reconstituting the Appeals Board and the matter proceeding on the basis that the Club was guilty of an MFP9 offence and the Club being afforded the opportunity to properly address the Appeals Board on penalty in relation to that offence. The FFV declined the Club’s offer.
- The Club then reluctantly commenced Court action having exhausted its options. It was entirely successful in its bid to have the Appeals Board decision made on 18 May 2010 set aside. The outcome of the Supreme Court Case was exactly as offered by the Club in its proposal to the FFV on 30 July 2010.
- The Club is therefore surprised to read that FFV is disappointed the matter was taken so far. It was within FFV’s power to agree to the Club’s reasonable proposal to have the matter resolved without going to Court. It chose not to accept the Club’s proposal and the Court’s orders were consistent with the Club’s proposal.
- In its article, the FFV claims that the Supreme Court did not criticize the FFV’s GDT By-Law or the various processes embodied in it. That wasn’t the main subject of the case. The Club argued, successfully, that it was denied procedural fairness and natural justice by the FFV Appeals Board. In its reasons for decision, the Court said, in part, that:
“This, in my view, is a breach of procedural fairness in failing to provide the Club with an opportunity to make submissions on penalty or sanction. Natural justice requires that a person know the substance of the case to be met”.
The Court went on to say that:
“What was denied to the Club, and what the Appeals Board denied to itself, was submissions about what penalties or sanctions were appropriate upon findings on those terms”.
In essence, the Court found that the Club was not informed of which facts constituted the charge of which it was found guilty at a time at which it could meaningfully make submissions about penalty and sanction in relation to those facts.
- The Club was a victim of this failure by the FFV Appeals Board to afford it procedural fairness and natural justice. As a result, the Club has suffered in a number of ways. The Club does not propose to detail all the effects upon it now, but points out that it has been required to spend considerable time and resources in rectifying this failure by the FFV Appeals Board and has had to do so during the course of the season whilst its players and coaching staff have laboured under the resulting uncertainty. It has had to apply its limited financial and voluntary manpower resources to redress this wrong.
- The FFV seeks to make much of the fact that the Court did not interfere with the Appeals Board decision and its findings in favour of the Club were limited to the questions of procedural fairness and natural justice. The Club contends that the major points to come out of the Court’s decision was that the Court has jurisdiction to hear such matters in circumstances in which the FFV has failed to comply with its contractual obligation to the Clubs (such as in this case) and secondly, that the Club was not afforded procedural fairness and natural justice. The Club did not seek to agitate all the rights and wrongs of the Appeals Board decision before the Court.
- The Supreme Court of Victoria ordered the FFV to pay the Club’s legal costs.
- The Club is also deeply troubled by a number of other factors arising out of this whole process which include:
- That the FFV Tribunal, chaired by an eminent senior barrister and comprising two other lawyers found that the appropriate penalty for this offence was $2,500 whilst, on essentially the same facts, the Appeals Board, which was similarly constituted and qualified, founded that it was appropriate to deduct the Club six championship points, a “substantially increased… penalty” as characterised by the Supreme Court. The Club could have had no basis for expecting such an increase in the penalty in these circumstances and was taken entirely by surprise. In the Club’s view, that is entirely unfair.
- The FFV did not appear to prosecute the case at the FFV Tribunal and it did not appeal the $2,500 fine imposed by the FFV Tribunal on the basis that it was too lenient. The FFV gave no notice that it would appear at the Hearing by the FFV Appeals Board of the Club’s appeal on 5 May 2010, until it actually appeared and then could not articulate with sufficient clarity (by its own admission) the meaning of MFP10, the offence with which the Club had been charge and which was then under appeal.
- The FFV did not arrange for any witnesses to be present at the FFV Appeals Board Hearing on 5 May 2010, yet the FFV Appeals Board indicated that it would receive evidence by telephone, if required by the Club, from Heidelberg players who were at training. The FFV and the FFV Appeals Board insisted this was a very serious matter and yet were prepared to take evidence by telephone from players who were at training and presumably did not have with them the relevant statements and statutory declarations which they had filed with the FFV.
- The Club was motivated to appeal the FFV Tribunal decision because two of its supporters had been given life bans (an excessive penalty which was accepted as such by the FFV Appeals Board) in their absence because they were not notified by the FFV that they were required to attend the FFV Tribunal, they had not been personally charged and were unaware they were facing the possibility of a penalty.
- Neither the FFV nor the FFV Appeals Board were aware, on the Hearing of this matter on 5 May 2010, that those supporters who had been given life bans by the FFV Tribunal had not been notified by the FFV that they could be penalised by the FFV Tribunal and that they could attend the Hearing, of which they had not been notified.
- Those supporters who were given life bans were not directly charged and were sanctioned pursuant to a charge (MFP10) brought against the Club.
- At their request, the Club lodged the appeal in relation to charge four (MFP10 offence), in respect of which the Club had been found guilty, had been fined $2,500 and the life bans were imposed.
- Because it lodged the appeal, the Club decided to also argue that it was not guilty of the MFP10 offence and that the substitution of a 3-0 result in favour of Heidelberg in place of the 1-1 score line at the conclusion of the match, was inappropriate. The Club did not seek to take issue with the fine of $2,500 imposed as a penalty for the incident which was the subject of the MFP10 offence.
- The FFV Appeals Board reinstated the result, reduced the life bans substantially and agreed with the Club that it was not guilty of the MFP10 offence. It then found a different offence was applicable for the incident in question and went on to impose a drastically more severe penalty of six championship points in place of the fine.
- In finding the Club guilty of the offence of ‘Other Misconduct’, the Appeals Board relied principally on the rule that Clubs are responsible for the behaviour of their spectators. Our Club takes the behaviour of its spectators seriously and in its efforts to comply with the zero tolerance and other crowd behaviour approaches recently adopted by the FFV, it is important that the Club builds and maintains strong relationships with its members and supporters so that it has their trust and support. In that context, it would have been remiss of the Club not to lodge an appeal on behalf of its two supporters who received life bans and who wish to appeal those life bans. By doing this and taking the opportunity at the same time, to rectify the fact that the Club had been charged under the wrong MFP offence, the Club was effectively punished because for the same conduct, it was deducted six championship points in place of a $2,500 fine. So, not only does the Club contend that the deduction of six points is a manifestly excessive penalty for the conduct in question, but just as importantly, that it was placed in a position where it exposed itself to the Appeals Board and its views because of the manner in which the FFV prosecuted the Club and its supporters.
- The Club considered the whole process resulting in the deduction of 6 points to have been wholly unfair.
- The Club maintains that the deduction of 6 points by the Appeals Board again in the early hours of 18 August is a manifestly excessive penalty.
- The Club is extremely concerned that the only action which the FFV has taken following this saga is to make it clear to its Tribunal and Appeals Board members that they must advise a party of the particulars of the conduct forming the basis of any given offence before offering it the opportunity to make submissions on the issue of penalty, prior to the determination of any penalty. In the Club’s view, that is the minimum the FFV should do, following the findings of the Supreme Court and it should not have needed the Supreme Court to point out this obvious matter.
- Finally, the Club notes the final sentence in the FFV article and says only that it agrees that there should not be any tolerance to inappropriate behaviour at FFV fixtures. The Club has been doing all it can to support that approach and has a very good record during its 50 years of competing at the top level of football. The issue, of course, in this case was not whether or not there should be zero tolerance to inappropriate behaviour but what ought be the penalty and the appropriate process in arriving at the penalty.
The Appeals Board indicated in the early hours of Wednesday 18 August 2010, when it determined this matter, that it would provide brief, verbal reasons for its decision and then publish the reasons the following day. The Club has not been provided with the Appeal Board’s written reasons for decision and to the best of its knowledge, they have not yet been published. It reserves all its rights pending the publication of those reasons and its consideration of them.
Despite its disappointment at the process and the outcome, the Club proposes to seek to work with Government, the FFV and with other Clubs to improve the Rules of Competition, the GDT By-Law and the processes adopted by the FFV Tribunal and the FFV Appeals Board.