29 August 2023

In the 1960’s comedy Get Smart, agent Maxwell Smart generated a number of catch-phrases still used in conversation some 60 years later, including the classic “missed it by that much”.

With competition for a place in the finals of the Australian Football League (AFL) and the National Rugby League (NRL) exceptionally close in 2023, on-field decisions could inadvertently and ultimately affect the make-up of the top eight teams. This was evident in the recent Adelaide Crows v Sydney Swans AFL game, where the goal umpire incorrectly decided that the ball had touched the goal post. Crows fans would have preferred that Maxwell Smart was the goal umpire at the time, since replays showed the ball had “missed it by that much”.

The impact of this goal umpire error means the Adelaide Crows will not be playing finals football in 2023. Questions have since been raised by fans and parts of the media as to whether the result should stand, or even if the Crows should be entitled to compensation from the AFL as a result of an umpire error effectively ending their season.

The ABC reported that Crows chairman John Olsen slammed what he described as an "appalling, inexcusable injustice", and said the club was now in discussions with the AFL about compensation. "It's unfair, it's a loss not only on the field but off the field as well"[1].

Overturning on field decisions

Sporting competitions are generally governed by rules and regulations which are specific to that sport. For example, the AFL Rules, AFL Regulations and AFL Laws provide a governing framework for a range of matters relating to the sport, the conduct of competitions and discipline of players.

The AFL Regulations deal with matters such as structure of the AFL season, use of the AFL logo, timekeeping at games, reportable offences, reporting procedures, suspension and disqualifications, umpires and scoring, plus the operation of the AFL tribunal. The AFL Regulations provide for an appeals process based on decisions of the tribunal.

The AFL Rules deal with matters such as player drafts, registration of players, arbitrations relating to player drafts and registrations, plus sports integrity matters such as gambling and disciplinary matters, including operation of a discipline tribunal. The AFL’s Laws regulate how games are played and scored.

Relevant to the recent Crows v Swans game, AFL Regulation 15.3(b) provides that “the Official Scorer(s) may record the score in accordance with the Laws provided they may at their discretion disregard any error in the procedure for signalling a score set out in Law 16.3”.

AFL Law 16 relates to the scoring of games. Law 16.3 relates specifically to the signalling of a goal or behind. Law 16.3.1 relates to signalling of a goal. Law 16.3.2 relates to signalling of a behind. Law 16.3.3 sets out how and when a goal umpire may change their decision about the scoring of a goal or a behind. Here, the goal umpire must notify the field umpire before the football is brought back into play.       

AFL Regulation 15.3(b) enables the Official Scorers to disregard “any error in procedure” set out in Law 16.3. It does not, however, grant the Official Scorers the discretion to disregard any “error in assessment” by the goal umpire as to whether a goal or behind should be recorded.  

Although the AFL Regulations appoint a Match Review Official and allow for appeals to a Tribunal, none of these matters relate to reviews or appeals arising from errors made by a goal umpire or field umpire once play in a game has been allowed to continue. Presumably that is because the AFL considers that once a goal umpire or field umpire have made a decision in accordance with Law 16.3, that decision stands and the game progresses without further interruption.

Sports law cases are often heard by the Court of Arbitration of Sport (CAS). Many sports and participants agree through their relevant rules and regulations to be bound by the jurisdiction of the faster and less expensive CAS, rather than taking action through the regular Court and judicial system.  One of the defining principles of sports law for cases conducted within CAS jurisdiction (or as sports law jurisprudence is often called lex sportiva) is the immunity enjoyed by officials for their good faith ‘field of play decisions’, known as lex ludica. As noted in cases below, CAS generally defers to the authority of officials as being the final arbiter of fact based on their on-field decisions.

In Segura v International Amateur Athletic Federation (IAAF). Segura sought a declaration that he was wrongfully disqualified from the 20km race walk event at the Sydney 2000 Olympic Games and should be declared the winner. The CAS panel held that:

CAS arbitrators do not review the determinations made on the playing field by judges, referees, umpires, or other officials who are charged with applying what are sometimes called ‘rules of the game’…[T]hey are not, unlike on-field judges, selected for their expertise in officiating the particular sport.

Confirming the general authority of officials in field of play decisions, the CAS provided in Horse Sport Ireland (HSI) & Cian O’Connor v. Fédération Equestre Internationale (FEI), that a field of play decision can only on be reviewed on the basis that a:

 …decision is tainted by fraud, bad faith, bias, arbitrariness, or corruption.[2]

In the Moulis Legal article on a controversial decision in the 2019 NRL Grand Final, Six again – when the rub of the green doesn’t go your way,[3] we compared an on field decision to the legal principle of estoppel, and considered what the outcome would be if similar facts occurred in a commercial transaction. Although estoppel has been successfully argued in some CAS cases (such as New Zealand Olympic Committee v Salt Lake Organising Committee & Federation International de Ski & International Olympic Committee)[4] it would be difficult to establish required estoppel elements, including reliance on promises, for on field decision dispute. 

If a party like the Adelaide Crows was to challenge a field of play decision through the CAS, they would need to establish that the goal umpire’s decision was not merely a mistake or error, but that the “decision is tainted by fraud, bad faith, bias, arbitrariness or corruption”.[5]

The lex ludica field of play principle applies irrespective of whether the on-field decision is later identified as having been incorrect, as was the case in the recent Adelaide Crows v Sydney Swans AFL game.

As the CAS held in Yang Tae Young & Korean Olympic Committee (KOC) v International Gymnastics Federation (FIG):

An error identified in hindsight, whether admitted or not, cannot be a ground for reversing the result of a competition[6]

Bad faith, arbitrariness, or corruption

In Japan Triathlon Union v International Triathlon Union it was confirmed that a field of play decision may be reviewed where the following elements exist:

  1. The decision was made by an umpire, referee or other official.
  2. The effects of the decision are limited to the field of play.
  3. The decision was made in bad faith, arbitrariness or corruption.

Here, the CAS held that the onus lies with the appellant to prove the event officials’ decision was made in bad faith, corruption or arbitrariness. While the CAS recognised this creates significant hurdles for review, it was necessary to prevent the deterioration of the lex lucida principle.[7]

Similarly, in Yang Tae Young & Korean Olympic Committee (KOC) v International Skating Union[8] the CAS held that for a review of a field of play decision there must be evidence, which generally must be direct evidence of bad faith.

Claims for compensation

Sports law principles of lex ludica usually provide immunity for sports officials for their field of play decisions in the absence of bad faith in cases before CAS. If bad faith, arbitrariness or corruption can be established, then criminal consequences based on fraud or match fixing may arise. Such cases would generally be brought in regular Courts, rather than through CAS.

Notwithstanding lex ludica principles, for matters not prosecuted through CAS, an aggrieved party may seek compensation through the Courts for causes of action such as breach of contract or negligence by sporting officials (unless the rules to which the participants agree to be bound limit any appeals to the jurisdiction of CAS).

A sporting team or sportsperson is unlikely to succeed in a breach of contract claim directly against an official, since there is no contract between those parties. However, a sporting team or individual would generally have a contract directly with the event or competition organiser. A hurdle here is that any contract with an event or competition organiser may contain an express term that the decision of an official is final or may only be appealed to CAS. Alternatively, a contract with event or competition organisers may contain an exclusion of liability or limitation on liability provision.

An aggrieved party such as the Adelaide Crows, could attempt to bring an action in negligence against an official or the competition organiser (such as the AFL) for economic loss. To succeed, the aggrieved party may need establish that the official or competition organiser owed a duty of care that extended beyond making a good faith decision in the heat of the moment.

The Adelaide Crows Chairman and other commentators have suggested that the AFL consider rules changes to strengthen video review protocols.

Video review protocols may or may not be the final resolution to these issues, since technology is known to fail periodically or require human interpretation. Incorrect officiating decisions made after proper utilisation of technology could become the next battle ground between sports competition organisers and aggrieved parties. Here, there is a reasonable assumption that greater time and care has been taken in making the relevant decision or that reliance on accuracy could be assumed.  

In a scenario that even George Orwell in his novel 1984 may not have predicted, it may not be long until the artificial intelligence used to officiate sporting competitions is the subject of legal proceedings based on AI providing an incorrect adjudication.    

Moulis Legal is a progressive modern legal business handling commercial and international matters. Our experience and expertise in sports law covers professional football codes, Olympic sports and major sporting events. Our Partner Directors Daniel Moulis and Shaun Creighton have acted in a wide range of legal and governance matters relating to sport, events and sporting organisations. In addition to knowing the law, we know sport. Daniel was a Socceroo in the 1980s, and Shaun represented Australia in the 1996 and 2000 Olympic Games.

This memo presents an overview and commentary of the subject matter. It is not provided in the context of a solicitor-client relationship and no duty of care is assumed or accepted. It does not constitute legal advice.

© Moulis Legal 2023


[1] AFL urged to overhaul umpire goal review system after incorrect call costs Crows - ABC News

[2] CAS 2015/a/4208


[4] CAS OG Salt Lake City 02/2006

[5] CAS 2015/a/4208

[6] CAS 2004/a/704

[7] CAS 02/007

[8] CAS 02/007