The initial backlash to the Nick D’Arcy and Kenrick Monk social media gun shop photo controversy was swift and the rebuke from the Australian Olympic Committee (AOC) was harsh.  After the AOC ordered that the two swimmers must return home to Australia immediately after competing in their events at the 2012 Olympic Games, the ‘backlash to the backlash’ was perhaps even more fierce, as a bevy of current and former athletes and commentators lined up to criticise the AOC’s decision.

Whichever side of the fence you sit on the issue – bad boys not setting the right example, or a legal exercise and harmless prank blown out of proportion – the handling of the matter by the AOC and its Chef De Mission Nick Green has highlighted the extraordinary power the AOC have over athletes who wish to compete in the Olympic Games.

As the International Olympic Committee (IOC) caravan gets set to roll into London, the host nation rolls out the legal red carpet and each nation’s Olympic committee marches behind in lockstep.  The requirements that the IOC imposes on a nation seeking to host an Olympics are extreme.  The IOC requires the chosen nation to pass a variety of laws to provide specific protection relating to the Games’ intellectual property rights. 

 The host nation is also subject to a number of stringent commercial requirements, including the provision of ‘clean’ stadiums and broadcasts (ie no advertising) in order for the IOC to maximise its own sponsorship value.  These rather draconian requirements of the IOC often trickle down through to requirements demanded by the host nation when contracting with third parties.  The numerous national Olympic committees, such as the AOC, also seek to maximise their rights and leverage in commercial agreements, to give themselves maximum flexibility in case they need to act to appease the IOC.

The recent controversy involving D’Arcy and Monk is governed by the AOC’s ‘Athlete Participation Agreement’ for the London 2012 Olympic Games – the contract the athletes are required to sign once their selection for the games has been endorsed by their sporting governing body (such as Swimming Australia) and the AOC. The Participation Agreement is far from a balanced document, providing the AOC with extremely broad discretion to direct the manner in which athletes are required to behave both in and out of competition.  The most controversial of these broad powers are the ‘conduct unbecoming’ provisions, whereby the AOC requires that an athlete must:

“not at any time engage in conduct …  which has brought, brings or would have the tendency to bring me or the sport into disrepute or censure, or which is or would have the tendency to be inconsistent with, contrary to or prejudicial to the best interests, image or values of the AOC or Team Sponsors … ;”

and

“not at any time …  be convicted of, or charged with, any serious offence involving violence, alcohol or drugs, or any sex offence, or any offence relating to any betting or gambling activities on sport …”

It is now commonplace for employment or participation agreements between a sporting governing body and its athletes to require the athlete to not bring the sport into disrepute.  (For example, the AFL’s standard player contract includes such provisions, as do those used in the major US professional sports).  The provisions in the AOC’s agreement, however, are broader than those used in many other competitions.  It specifically indicates the AOC will take into account the interests of its commercial sponsors, and that an athlete may be considered to have brought the sport into disrepute simply by being charged with particular offences – whether or not the usual due process of a court hearing has yet occurred.

The contract provides the AOC with sole discretion and almost unlimited scope in imposing discipline in the event it considers an athlete has breached these requirements. It specifically notes that discipline may include requiring the athlete to leave the Games and the Games accommodation, or even excluding them from competition.

If history serves to repeat, the chances of an athlete successfully fighting a ‘conduct unbecoming’ charge are slim.  While each case turns on its own facts, Australian courts have typically been reluctant to interfere with the disciplinary decisions of administrators to instead impose its own judgment. In fact, unless the sporting body has not followed its own rules (or procedures in the contract) in making its determination, the athlete would need to demonstrate that the sporting body’s determination was either biased, or “so aberrant that it cannot be classed as rational” – even if the result seems to fly in the face of the prevailing public opinion.  That’s a pretty tough standard to establish.

In addition to these ‘conduct unbecoming’ provisions, the AOC also holds the whip hand in issues relating to social media, as the 2012 version of the athlete participation agreement now contains specific provisions addressing how athletes may use these instant communication mediums. 

The AOC’s social media guidelines provide that the Chef de Mission acts as the spokesman for the team and is responsible for all official public statements in the media including social media statements, which it can delegate to other officials at various times.  That said, athletes are permitted to contribute to social media while at the games, provided those posts “do not criticise other team members or the AOC, any performances or coaching, or disclose any confidential information of the AOC.”   Any comments posted must be a factual account of the athlete’s own, personal experience. The AOC requires that the posts must not be offensive, inappropriate, defamatory, or misleading.

Get set for a barrage of bland “It’s awesome to be here, my team mates are the best and the atmosphere is great #2012” tweets.

A breach of these AOC social media guidelines – which in large part mirror the IOC’s own terms – can lead to a penalty as simple as the athlete issuing a corrective statement.  However, it is also considered breach of the Athlete Participation Agreement, so the AOC would have discretion to impose more serious sanctions, such as those used in this recent instance.

Whether athletes like it or not, they are held up by many within the community as role models. The ability of a sporting administrative body to discipline an athlete for, as it sees fit, falling short of a required standard, is a thorny issue and often divides opinion.  This is further complicated when governments choose to become involved through subsidisation of training and competition costs.  What is clear, however, is that the under the participation agreement, the AOC has extreme power and discretion over its athletes.  As the D’Arcy and Monk experience shows, the AOC is not afraid to use those powers.

This piece first appeared on the BackPageLead website.

Image:  Channel Seven News