As the Australian Football League 2016 pre-season approaches, there is a lot of talk in the media about “list management” by clubs. This generally involves retiring or trading “older” players – usually over the age of 28.

It is often assumed – rightly or wrongly – that football players lose their athletic edge around this age. But is it fair – or legal –  to use age as a blunt proxy for performance?  There are players (like Dustin Fletcher of Essendon fame) that perform brilliantly into their late 30s and beyond.

Last year, Graham Cornes (former Australian rules footballer and coach) wrote an interesting article  headlined: “AFL continues to drop the ball on the issue of ageism”.  Cornes argued that, while AFL footballers approaching the age of 30 are being “mentally conditioned to give the game away”, some of the best athletes in the world are over the age of 35. He added:

Fighting ageism is one thing the AFL could do better. One of the problems is that they are drafting players too young. Clubs don’t want to keep 30 year olds on their lists because they have to draft, and pre-draft, 17 and 18 years olds”.

 Consider the following hypothetical:

A 28-year old player and a 21-year old player are being considered to play in the 2016 season. They demonstrate similar fitness and skill levels although the older player has more on-field experience. Neither player has an injury. The coach selects the 21-year-old for the team on the assumption that the younger player has more longevity.

If a person with an “ordinary” job was treated less favourably by their employer because of their age or because of an age-related stereotype, this would likely involve unlawful discrimination. Is this also the case in sport?

In most Australian states and territories, there is an exemption from discrimination laws for sport. That is, certain conduct that discriminates on the basis of age is not regarded as unlawful if it occurs in a sporting context. The precise scope and nature of the exemptions varies. In Victoria, for example, it is lawful to restrict a competitive sporting activity to persons who can “effectively compete” or to persons of a specified age or age group.  This may justify, say, an “Under 18’s” competition but list management is arguably a different thing.

Age discrimination is also prohibited at the federal level by the Fair Work Act 2009(Cth) and the Age Discrimination Act 2004 (Cth) which provides an exception for discrimination where a person’s age means they cannot perform the “inherent requirements” of a job. The inherent requirements of a job would include the person’s ability to perform the job to the required level and / or to work safely. No doubt it is an “inherent requirement” of the job of a professional footballer to meet a very high standard of physical fitness. However, this is generally a matter to be determined on a case by case basis, having regard to individual capability.

Legal questions can arise in many situations as to whether a player not selected has been directly discriminated against; or indirectly discriminated against under a general list management policy which is not reasonable, and hence unlawful. Of course, the specific circumstances will always be important. There are legal defences available to a club that could be made out, depending on how the list management program is structured and the specific arrangements in place with a particular player.

The operation of fixed-term player contracts, the collective bargaining agreement and the AFL Rules will play into the arguments but are only part of the analysis.

We predict that it is only a matter of time before these issues are challenged in courts, particularly given the changing commercial landscape at AFL level. Free agency, increasingly lucrative TV rights deals, much higher player salaries and a powerful AFL Players’ Association are all developments that have put more power and money in the hands of the players.  While legal action by players against clubs has been rare in the past, there is reason to think that this will not be the case in the future.As the Australian Football League 2016 pre-season approaches, there is a lot of talk in the media about “list management” by clubs. This generally involves retiring or trading “older” players – usually over the age of 28.

It is often assumed – rightly or wrongly – that football players lose their athletic edge around this age. But is it fair – or legal –  to use age as a blunt proxy for performance?  There are players (like Dustin Fletcher of Essendon fame) that perform brilliantly into their late 30s and beyond.

Last year, Graham Cornes (former Australian rules footballer and coach) wrote an interesting article  headlined: “AFL continues to drop the ball on the issue of ageism”.  Cornes argued that, while AFL footballers approaching the age of 30 are being “mentally conditioned to give the game away”, some of the best athletes in the world are over the age of 35. He added:

Fighting ageism is one thing the AFL could do better. One of the problems is that they are drafting players too young. Clubs don’t want to keep 30 year olds on their lists because they have to draft, and pre-draft, 17 and 18 years olds”.

 Consider the following hypothetical:

A 28-year old player and a 21-year old player are being considered to play in the 2016 season. They demonstrate similar fitness and skill levels although the older player has more on-field experience. Neither player has an injury. The coach selects the 21-year-old for the team on the assumption that the younger player has more longevity.

If a person with an “ordinary” job was treated less favourably by their employer because of their age or because of an age-related stereotype, this would likely involve unlawful discrimination. Is this also the case in sport?

In most Australian states and territories, there is an exemption from discrimination laws for sport. That is, certain conduct that discriminates on the basis of age is not regarded as unlawful if it occurs in a sporting context. The precise scope and nature of the exemptions varies. In Victoria, for example, it is lawful to restrict a competitive sporting activity to persons who can “effectively compete” or to persons of a specified age or age group.  This may justify, say, an “Under 18’s” competition but list management is arguably a different thing.

Age discrimination is also prohibited at the federal level by the Fair Work Act 2009(Cth) and the Age Discrimination Act 2004 (Cth) which provides an exception for discrimination where a person’s age means they cannot perform the “inherent requirements” of a job. The inherent requirements of a job would include the person’s ability to perform the job to the required level and / or to work safely. No doubt it is an “inherent requirement” of the job of a professional footballer to meet a very high standard of physical fitness. However, this is generally a matter to be determined on a case by case basis, having regard to individual capability.

Legal questions can arise in many situations as to whether a player not selected has been directly discriminated against; or indirectly discriminated against under a general list management policy which is not reasonable, and hence unlawful. Of course, the specific circumstances will always be important. There are legal defences available to a club that could be made out, depending on how the list management program is structured and the specific arrangements in place with a particular player.

The operation of fixed-term player contracts, the collective bargaining agreement and the AFL Rules will play into the arguments but are only part of the analysis.

We predict that it is only a matter of time before these issues are challenged in courts, particularly given the changing commercial landscape at AFL level. Free agency, increasingly lucrative TV rights deals, much higher player salaries and a powerful AFL Players’ Association are all developments that have put more power and money in the hands of the players.  While legal action by players against clubs has been rare in the past, there is reason to think that this will not be the case in the future.