No fault? Hardly. Why NRL needs to stand down contentious policy

The NRL has already had 11 magic rounds this season, but nothing can magic away another round of criminal charges against some of those who put on the show.

This week, the background noise of police business goes on. An unnamed Queensland player faces a rape accusation. A former Tigers and Bulldogs player, Brandon Wakeham, is charged with drug offences. The Sharks’ Braydon Trindall returns to play three weeks after being charged for driving while intoxicated with an expired licence. In almost every Magic Round match, you can point at a player guilty of an offence: sexual touching (Parramatta’s Dylan Brown), reckless assault (Manly’s Matt Lodge), taking anabolic steroids (Canterbury’s Bronson Xerri). Last month, the Roosters celebrated 300 games for Michael Jennings, who had been successfully sued in a civil court for sexually assaulting his wife. Based on that, Bruce Lehrmann could play in the NRL.

You can point at the press box and there’s someone charged with crimes of violence. You can point to a player (the Roosters’ Spencer Leniu) who served eight weeks’ suspension for racial abuse, or you can point at someone in the crowd who’s done it - only you can’t, because a spectator who does the same is rightly rubbed out for life.

It’s almost enough to make you turn to rugby union. OK, not yet. But as a fan, you sometimes feel you’re being taken for a mug and the private world of your favourite sport is laughing at you. You feel like the wife of George Burgess when he’s asking another woman to “be naughty with me”. (Burgess stood trial and, while admitting to that hard-to-resist comment, was acquitted of a criminal act. His wife left him in 2023.)

Of course the rotten apples are few, and don’t spoil the barrel. But rugby league, wonderful as it is, can never quite shake off the stigma. It’s a great shame. (Or, looked at another way, it saves league from too much middle-class tourism.) Either way, the louder the NRL says it will not tolerate or accept criminality, the more conspicuously it is forced to both tolerate and accept it.

The NRL has a controversial policy that, exactly five years since its introduction, has been neither an effective deterrent nor a fair punishment.

Former Bulldogs and Tigers player Brandon Wakeham was arrested on Wednesday and charged with drug supply offences.Credit: Police Media

Introduced after the ‘summer from hell’, the NRL’s ‘no-fault stand-down’ policy was meant to draw a firm line. The policy says players charged with a crime that carries a maximum sentence of 11 years or more cannot play until the criminal process runs its course. Several players have been stood down under the rule, but only the Dragons’ Jack de Belin (tried for aggravated sexual assault, acquitted but lost two and a half years of his career) and Manly’s Manase Fainu (jailed for wounding with intent to cause grievous bodily harm at a church dance) have seen it to its completion. Jarryd Hayne, in jail for sexual assault pending another appeal, didn’t get stood down because he wasn’t a contracted player at the time.

The policy, devised when Peter Beattie was chairman and Todd Greenberg was CEO, was a well-intentioned stop-gap when the code faced a rolling crisis of criminal charges. It was never perfect, Greenberg said, and in five years it hasn’t been. It wanted to draw a firm line of “serious” crimes, but it has outsourced judgment to the very wobbly line of an act of parliament.

In NSW, the policy defers to the Crimes Act. Here are some of the sex crimes an NRL player can be charged with, yet go on representing their club: sexual touching and other criminal sexual acts that fall short of assault, including such acts with children aged 10 to 16; incest and attempted incest; bigamy; attempted bestiality; indecent treatment of a corpse. Other crimes that fall short of the 11-year ‘seriousness’ line include assaulting an emergency services worker; possessing or making explosives with intent to injure; procuring a person for prostitution; affray (good news at last, Paul Kent!); possessing a knife, an unregistered firearm or explosives in a public place; membership of a criminal group; and many more. Penrith’s Tyrone May was sentenced to 300 hours of community service for filming and distributing an intimate image of someone without their consent; he played another two seasons in the NRL and now runs around for Hull Kingston Rovers.

When the 11-year maximum sentence was chosen, community attitudes to many crimes were about to undergo a shift. If a sport wants to preserve its reputation, what makes filming and distributing intimate images more acceptable than, say, robbery – other than that they sit on opposite sides of the 11-year line?

Last week, George Burgess was found not guilty by a magistrate of the charge of sexually touching another person without consent.Credit: Kate Geraghty

All forms of robbery carry maximum sentences of more than 11 years. Crimes against property, such as larceny, embezzlement, fraud, receiving stolen goods and sabotage, generally carry longer sentences than crimes against people. The Crimes Act enshrines property, but what do you think hurts the game more: a player who forges signatures or one who gropes a woman in a nightclub?

If a sport really wants to be sensitive to public attitudes, it won’t gear its disciplinary action to the Crimes Act. Parliaments do some weird things and their laws evolve slowly. Very often the maximum sentences they impose will lag decades behind public sensitivities.

When introducing the no-fault stand-down policy, Greenberg said the NRL was shoring up its income, with public and sponsor attitudes being so mercurial. Five years on, the sands of support shift ever more quickly.

In some ways, the no-fault stand-down law is too lenient, allowing players who should not be on the field to go on representing the sport. As a deterrent, there is no evidence that it works.

In other ways it is too harsh, catching innocent individuals in an imprecise net. In reviewing the policy, legal academic Ryan Waters has written that it denies players procedural fairness and is “overbearing on players and should be amended to closer resemble other sporting organisations” which reasonably investigate allegations instead of buck-passing a definition of “serious” acts to the Crimes Act.

This month, a police officer on the de Belin case, Shawn Adams, was charged with committing perjury in the footballer’s trial. The charge carries a maximum sentence of 14 years. If the policeman was an NRL player, he would have been automatically stood down.

For a sporting code that has become so keenly responsive to its community that it will change its rules from one week to the next for entertainment value, the no-fault stand-down policy uncharacteristically surrenders control of its public image. At first it was convenient for the NRL to say, “It’s not us, it’s what the criminal law says”. Now it’s looking less convenient, more expedient, and ineffective. By maintaining 11-year sentences as the dividing line between “serious” and “less serious”, the NRL has outsourced its discretion to an often antiquated and eccentric act of parliament. The rule has never been perfect or even fair; nor has it changed behaviour. It was a stop-gap reaction to an emergency. Five years on, its purpose has been served and it deserves retirement.

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