It should have been an olive branch, the first tentative step towards reconciliation between Football Federation Australia and the great football clubs of the past. Instead, the first iteration of the FFA Cup has resulted in the most serious challenge yet to the exiled ethnic-backed clubs of Australian football. It’s time to lawyer up.
What started as a relatively minor stoush over sponsorship has ended in representatives from the Melbourne Knights and their would-be sponsor, the Melbourne Croatia Soccer Club, lodging complaints against FFA to the Australian Human Rights Commission (AHRC).
The complaints relate to FFA’s recently announced National Club Identity Policy (NCIP), which ensures that that any new or revised club names, logos and emblems do not carry any ethnic, national, political, racial or religious connotations.
As the policy is not applied retrospectively to existing club names, logos and emblems, it was not anticipated to cause much of a stir. However, when Knights nominated a shirt-sponsor with Croatian affiliation, the FFA was forced to make a decision. At this point, the Knights claim, the governing body changed the rules. According to a club statement:
After communication between the Club and the FFA, the club demonstrated that FFA Cup major sponsor Melbourne Croatia Soccer Club Inc. is acceptable under The National Club Identity Policy (NCIP). The federation then released a memo on Thursday 24th July (five days before the match) stating that they would “only approve a Club’s Playing Strip as it appeared in their Member Federation 2014 league or cup competition, at the time of qualification to the Westfield FFA Cup 2014.
It was this alleged chain of events which lead to the human rights complaints.
Professor Simon Rice is one of Australia’s pre-eminent human rights lawyers. He is Director of Law Reform and Social Justice at the Australian National University, Editor of the Australian Law Journal’s Human Rights section, and former President of Australian Lawyers for Human Rights.
Rice believes that this could be shaping up as one of the most complex human rights cases ever seen in Australia. Without being privy to the details of the complaints made to the AHRC, he notes a number of complicating factors.
Firstly, Rice notes that the complaints were not lodged by the clubs themselves, but by representatives. This is an important distinction as under Australian law, entities cannot make complaints.
“My first question would be ‘who has been affected?’” said Rice. “One of the stumbling blocks of the complaint might be that you actually have to be a person who has been subject to discrimination.
“You can make a complaint on behalf of other people, but they have to be people that have been subject to that discriminatory conduct.”
In short, only humans have human rights and the NCIP does not apply to people, it applies to clubs.
The second complication is that Australia’s discrimination laws are very narrow, and the legislation only applies to defined activities such as employment or the provision of goods and services.
“It’s not obvious to me that the FFA is engaged in an activity that is covered under the act,” he said.
However, according to Rice, Section 9 of The Federal Racial Discrimination ACT 1975 “prohibits discrimination at large,” and is “not tied to any activity. It’s a complaint that because of your race you have had your human rights limited.”
This raises the third complication. Which human right has been limited? Rice says it could either be ‘freedom of expression’ or ‘freedom of association.’
“Does freedom of expression extend conceptually to cover sponsorship and branding?” asked Rice. “I don’t know the answer to that. Is your ability to choose who your sponsors are covered by freedom of association? In both questions you could take a narrow or broad view.”
Despite all these complications, Professor Rice believes FFA do have a case to answer. “I can see there is a real complaint here, because it could be argued that the FFA has limited these people right to freedom of expression on the basis of race.”
The AHRC will facilitate the conciliation between Melbourne Knights and FFA. Described by the AHRC as an “informal and flexible approach to resolving complaints”, conciliation brings both parties together with the goal of finding an agreed compromise.
“It could be that they come to a resolution,” Rice explained. “Anything is possible, nothing’s off the table. They’d sit around a table and hammer it out with a conciliator trying to reach a deal.”
The public may never know what that agreed resolution is, but both parties will walk away with the matter considered closed. However, if a middle ground cannot be found, the complaints then become eligible to be brought before a judge, and the Knights have already flagged their intention to take their case to the Federal Circuit Court if necessary. This is where it could get really interesting.
“If a court decision is made that there has been a breach of Section 9, it would then be unlawful to maintain the policy,” Rice said.
The Head of the A-League, Damien de Bohun, recently admitted that expansion will be on the agenda after the current broadcasting deal expires in 2017. If Knights are successful and FFA are considered to have acted unlawfully, the Federation could find itself in the remarkable situation of having to consider strong bids from clubs that have been outcast for more than ten years.
Rice won’t be drawn into speculating on any likely court outcomes should the complaints get that far, but he does believe there is enough of a case to make it interesting.
“I’d say there’s something in it. Because the policy is racially based, and appears to limit people’s enjoyment of their right to freedom of expression and freedoms of association. That’s enough to run a case on.”
Everybody loves a David and Goliath battle, but for Australia’s inaugural FFA Cup, it looks like the biggest one will be fought off the pitch.
FFA has been granted a final extension by the AHRC, until Monday 22nd September, to reply to the official complaints lodged by Melbourne Knights and Melbourne Croatia Soccer Club.