Until Tuesday afternoon, my perspective on Nick Kyrgios was bemusement. His capacity for making people’s heads explode seemed close to a perfect illustration of Australia’s contradictory relationship with its sporting heroes. What if he wins Wimbledon, while continuing to behave like an entitled dickhead? How are we to feel about that?
But the game changed with the breaking news that Kyrgios is facing a criminal allegation of common assault, summoned to appear in the ACT Magistrates Court over a so-far not particularised incident involving his former girlfriend. It is a serious charge, with a maximum two-year prison sentence.
According to Kyrgios’ lawyers, the technically correct position is that he has not at this stage been “charged”; that won’t happen until he faces the court and it “formally accepts the prosecution will be proceeding with the charge”. It’s important that the media gets this right in its reporting, although the substantive position remains that the allegation has been formally made and Kyrgios stands accused of an act of violence against a woman.
The organisers of Wimbledon, the world’s premier professional tennis tournament in which Kyrgios had reached the quarter-finals when the news broke, issued a statement:
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We have been made aware of legal proceedings involving Nick Kyrgios in Australia, and as they are ongoing, we are not in a position to offer a comment. We are in touch with Nick’s team and he remains scheduled to play his quarter-final match.
That was their answer to a question they haven’t been directly asked: why is Kyrgios still playing?
It’s an issue that professional sports everywhere are by necessity slowly coming to terms with: what should they do when one of their stars has been accused of doing something that society would, if it were proved true, condemn?
Historically, most sports have retreated behind the presumption of innocence and refused to take any action in the absence of a criminal conviction. Most still do.
It’s been a big question locally, with the peak bodies for our two biggest sports at odds. The National Rugby League broke ranks in 2019 after a spate of rape allegations against NRL players brought intolerable pressure on the game’s reputation, instituting a “no-fault stand down policy” that mandates that a player charged with a serious criminal offence (carrying a maximum prison term of 11 years or more) must be stood down and prevented from playing until the case is resolved.
The AFL has so far declined to follow suit, maintaining that it is more appropriate to deal with each alleged atrocity on a case-by-case basis. Globally, the NRL’s approach is still a stand-out.
The principles that ought to be guiding professional codes are far more straightforward than the public debate would suggest. There is no overwhelming complexity in the attempt to balance the rights and interests of players with those of their sports, clubs and communities. It just requires some dispassionate consideration and the application of a consistent and transparent approach.
The thing that always gets in the way is the presumption of innocence, a concept constantly abused by misuse. It is a creature of the criminal law, where it plays a critical role because it is the foundational principle of the whole system. Proof of guilt beyond reasonable doubt, following an inquiry in which the entire burden of that proof falls on the prosecution, is an incredibly high bar by design, because it is intended to ensure that only the definitively guilty person is ever subjected to the punishment and opprobrium that follow conviction.
That equation was not created for, and is inapplicable to, contexts outside criminal justice. In the workplace, for example, we have come to accept that there is behaviour that falls well short of being criminal but which is absolutely unacceptable. Sexual harassment, bullying and discrimination are examples, any of which could suspend or terminate a perpetrator’s career.
A school, if one of its teachers has been credibly accused of committing an act of violence or violation, must act ahead of any criminal prosecution to protect its students. That’s beyond questioning.
A sport has different considerations: its own integrity, its social licence, the interests of the community and the status of its players as role models. If a tennis player has been charged with assault, allowing them to continue playing is unlikely to present a physical risk, but it raises different concerns that the organising body should address.
If Kyrgios was a company director, senior public servant, trustee of a charity or government minister, the question would be framed in terms of whether he is “fit and proper” to continue in that capacity while the allegation hangs over his head. Is it acceptable, all things considered, or must his interests (the presumption of his innocence and his commercial/career interest in being allowed to play on) become subsidiary to matters of higher concern?
There is no correct answer to that question. Under the NRL’s policy, Kyrgios would not be automatically stood down, but he might be on a discretionary basis in line with the game’s stated position on gendered violence.
I’m just surprised, without proposing an answer because that’s not for me to do, that the question isn’t even being asked. It should be.