It is a good thing Victorian barrister Ben Ihle KC loves sport because it’s become a huge part of his career and often interrupts his weekends.
Ben is recognised internationally as a leading sports lawyer, representing athletes and sporting associations, domestically and internationally, in a variety of tribunals (including the AFL Tribunal and Appeals Board and the Court of Arbitration for Sport).
He regularly receives calls from clubs on weekends as issues on the field arise.
He was admitted in 2004, called to the bar the following year and made silk in 2020.
Ben is a member of both the Australian and New Zealand Sports Law Association (ANZSLA) and the Sports Lawyers’ Association (of America) (SLA).
He’s cultivated a broad practice with a particular focus on tort, criminal, administrative and sports law and appears at both trial and appellate levels.
Ben talked about the colourful world of sports law on the latest The Callover podcast.
So why did you study law?
“So I’m the first lawyer in my family. I’m from a family of scientists, doctors and nurses. I was always interested through school in science and I was always interested in what I really considered to be sort of the human aspect of law. I’m not a great lover of the law, per se, but I’m a big advocate and very enamoured with the way the law can be used to help people through pretty difficult times.
“So for a long time, I was tossing up law, science, law, science, really law medicine. And I’d settled in my mid-teens on the idea of perhaps forensic pathology being a good marrying of those two interests. And then I realised after a while that meant spending a lot of time with dead bodies. And I think I’m a bit more of a people person than that.
“And it coincided with my dad, who’s a doctor, being sued. And so during my year 10 school holidays, I went to watch a bit of that case and I was fascinated. There was a number of doctors, a number of hospitals all being sued. The end of it was there were ultimately found not liable. So it’s a good story.
“But I was fascinated by all of these very smart doctors and scientists and experts in the room and all of these very smart lawyers being the judges, the silks and the solicitors and barristers in the room. But I felt like they were each speaking a different language to one another. And that seemed to me to be a stronger calling than forensic pathology.
“So I decided at about the age of 16 that I would study law with a focus to doing medical law.”
What do you think are the biggest similarities and differences between the legal and scientific education and perhaps the different languages that the doctors and the lawyers speak?
“Well, that was the whole idea about doing science and law as a study. I did most of my science first. I never actually graduated science just because of the way things worked out. But when I was studying science at Monash, I did subjects like genetics, anatomy. It was very much biological science, human biological sciences. And the purpose for that was to be able to learn the language so that I could be that link between the two ships in the night, if you like.
“Scientific thinking and scientific writing could not be more different from legal thinking and legal writing. Try to think of something pithy to say about it. I think science is about truth when the practice of law is about proof.
“And it’s a sort of a it’s a subtle difference and perhaps a difficult difference for people who are foreign to the practice of law to accept the courts and not actually a place where there’s a search for truth. It’s a question about whether burdens have been discharged based on evidence that is proof. And so you’ll often see experts in court being frustrated when lawyers such as me are saying, well, you can’t exclude the possibility of X and most responsible scientists will end up saying, well, I can’t exclude every possibility 100 per cent, because there’s a whole lot of things that we as scientists still don’t know.
“So that I think is really the fundamental difference. It then manifest in a whole lot of different ways. So we as lawyers and I say this now having practised for 20 years, we as lawyers are always trying to take that square peg of science and not the edges of it, because we want to we want a round peg to put in the round legal hole and it’s really not possible.
“So there’s been a whole lot of study done in this space. There’s been reports both here and overseas about how do we bridge that gap, especially when it comes to judges and juries being assisted by experts. But I sort of digressed from the question that they couldn’t be more different. I thought that as a teenager, I think that even more strongly now as a someone in their mid-forties.”
So can you give me a snapshot of what sports law covers?
“So this is a discussion that sports lawyers often have with one another. Is there such a thing as sports law or is it just a fiction that we bandy around to capture what we do? And I think it’s probably the latter. I think it probably is a fiction. It’s no more complicated than the law as related to sport.
“And I was talking earlier about being a generalist and having a broad practice if you’re going to practice in sport. So I think it’s actually a necessity because individual sports law cases, I’ll use that term, even though it’s not a real term individual cases that arise in the setting of an athlete, a sporting organization, a national or international federation can involve all types of areas of law.
“It can be contract based, it can be public or administrative law based on some of the statutes that exist in this country. It can be sort of quasi criminal. It can be a regulatory, if I put it that way. So familiarity with all of those concepts is important and the ability to navigate those concepts, but see how they interact and interrelate.
“If you look at the law is really one body. And this goes back to me bucking the current trend on this super specialty. The law is one body of rules that applies to all of us. The law applies to all aspects of our life. It’s a bit like saying health law. What’s health law? Well, it’s all the things that relate to people and their health as far as the law impacts them.
“So there’s privacy, there’s the disciplinary procedures that might relate to doctors. There’s contractual relationships, there’s tort law. It’s all of those things at the same time. So sports law is no different.”
And how did you find your way into practising in sports law?
“I worked at the Office of Public Prosecutions early on. I did my articles there and I was a solicitor there for just under a year. And we were obliged not to do any professional work outside of that because of conflicts. So when I came to the bar being sole employee, I found a whole lot of freedom in that respect, including doing the Innocence Project with Melbourne Uni, which I could never have done as being a prosecutor.
“At the same time as working on cases of innocence. So I’m a sports nut. I always played sports growing up. I watch sports on TV. I go to sporting events. I think sport is an intrinsic good in people’s lives and in the community and the ability to take what I do professionally and marry it with that interest and love in my life.
“Then I thought, great. The timing was really fortuitous. I, shortly after coming to the bar in 2005 in Victoria, we had a Commonwealth Games in Melbourne and two years later we had a world swimming championships in Melbourne and the Victorian bar had a sports law section, which it still has. And for both of those organizations they called for volunteers that would provide pro-bono assistance to athletes should issues emerge.
“And that’s where it started. And then just before the Commonwealth Games, I was briefed on my first anti-doping case for a weightlifter out of Tasmania who was the Australian champion female weightlifter in her division. And that was my first case in the Court of Arbitration for Sport. And from there it’s just gone on.”
You regularly represent athletes and sporting associations domestically and internationally in a variety of the tribunals as well as the AFL tribunal and the NRL tribunal. I imagine when matters come before these types of bodies, they come on with some urgency. For example, when a decision has to be made whether a player will be suspended or an athlete will be able to compete in a sort of upcoming competition. Practically speaking, what’s involved in preparing for a matter like that?
“It depends on the matter. They do come super quickly. More often than not, I’ll speak to the AFL experience because that’s the one that I’ve got the most experience in. There’s a number of clubs that I represent and it’s usually a Sunday night or early on a Monday morning that it comes to my attention that there’s an issue.
“Sometimes it will come to my attention earlier because I’m watching the game either live or on the TV and I know that I’m going to have a busy week because I’ve just seen something that’s happened. So I usually get a call on Sunday night. My arrangement with all the clubs is I don’t want to know what the charges are.
“If you think there’s an issue, just send me the footage and let me look at it. Cold. And so I look at it cold. Not knowing what the player has been charged with. I don’t read any of the media about it because there’ll be a whole lot of people with a whole lot of views, and they may or may not be reasonable.
“But ultimately I try and lend an objective eye to what I see and I tell the club what I think the charge should be if there should be a charge at all. And only then they come back and say, well, this is what, for example, the AFL has charged our player with. And if there’s a difference between the two, we have a discussion.
“So I’ll get the call maybe Sunday and let’s call it Sunday night for Saturday game. Occasionally it’ll be Sunday afternoon for a Friday night game. If there’s a Thursday game, it might be even earlier, which is ideal. Most of the hearings occur on a Tuesday night, so there’s a very short turnaround and I don’t think you can do it if you’re otherwise going to be in court on the Monday and Tuesday.
“So one of the people who’s gone ahead of me in doing this type of work, who’s now a reserve justice of appeal, Terry Forrest in Victoria, he gave a presentation on these things before I was doing it. I felt tribunal. He said precisely the same thing and I thought, I think that’s right. They’re important cases as far as the football fans are concerned.
“They’re important cases as far as the clubs are concerned, and they’re important cases as far as the code is concerned. You have to do them properly. And if you can’t lend the time to them, that they require, then you need to be saying you’ve got to go to someone else. So it’s quick. It’s 48 hours turnaround. Sometimes it’s, you know, three or four hours with the preparation and one or two hours with a hearing.
“Sometimes it’s those full two days, especially if you’re getting experts involved and you have to understand what they’re going to say. And all those types of things.”
Yes. In the case of an AFL club, when a player is facing a charge, is it the athlete or the club that’s your client. You mentioned clubs before, but how does that work?
“I think legally and ethically that the player is my client. That’s always been my view that they’re the person who’s facing the charge. It’s not the club. In that instance, if we’re talking about a Tuesday night tribunal cases to a heater or a tackle or whatever, that’s happened on the field. That said, it’s very much the club that engages me probably in a similar way to the club doctor.
“Their patient is the player, although they might be engaged by the club to provide the services to the player.”
One issue that has come up a lot recently is concussion. There’ve been a couple of recent examples of players like Angus Brayshaw and Nathan Murphy who’ve been hurt or who’ve retired because of it. Why is there such a big focus on the issue at the moment, do you think?
“I think it’s probably two fold from and it’s that science legal thing from a scientific perspective. I think we’re learning more about long term effects of repeated head knocks that we didn’t previously appreciate. And the there are World Symposium of the two regularly held consensus statements are put out about what is the current state of accepted knowledge. And of course, science like more reasonable minds different is certainly at the periphery of those things.
“But as a society, as an educated, intelligent society, I think we’re understanding more than what we previously did. So that’s the first point. The second point is, and it’s connected to the science. We saw the class action brought by the NFL players in the US, a and the NFL’s response to that. So in that regard, in a litigation sense, probably unsurprisingly, the US has led the way and the rest of us a sort of now looking at that and saying what lessons have been learned from that experience, both from a scientific and a player welfare experience, but also from a legal perspective.”
And AFL has always been a contact sport and players must accept. You’d think that there’s a risk of injury if you take the field. How do you think an appropriate balance can be struck from a legal perspective between player safety and maintaining the game that we all love, including the players?
“And it’s a tension and I’m not sure how easily it’s resolved. There are complex legal considerations about around voluntary assumption of risk that probably carries with it expectations as to information sharing and the like. But we’ve already seen that the game of AFL has undergone substantial rule changes over the not too distant past using the NFL experience as well.
“We saw that their rule changes were quite significant where previously players would use their helmet as the hardest part of their mass to tackle or to try and break through a tackle that’s now outlawed in the game. So I think it’s a complex piece between changing rules to ensure player safety is protected as best as it can be, but at the same time as all getting a better understanding of what it is that we’re dealing with.”
Do you think there’s an issue with codes and clubs buying into potentially divisive debates in circumstances where sport is generally a great unifier of people from all walks of life?
“Yeah, I think put a different way. I think that sports, given the profile that they have and the followings that they have, especially in Australia, which is sports mad, have a social responsibility to, if not actively, promote things that are a benefit to our society, if not that, to at the very least be conscious of not promoting things that are detrimental to our society.”
What advice would you give to young lawyers who are or law students who are interested in pursuing a career in sports law?
“Well, the first point is the advice I would give all young lawyers, and that is to keep your options as broad as they possibly can be and try and experience the practice of law in as many different areas as you can. I know that is contrary to what lots of young boys are being told these days, that you need to have a need sharing and that needs to be your specialty.
“But if you want to go into sports law, you need to understand a lot about a lot of different areas of law. The second thing is use what you have by way of your education and experience to contribute to sport. That means starting as you would as an athlete at a grassroots level, provide to sit on boards of local sporting clubs or local sporting organizations.
“Offer your services when it comes to disputes that arise in that setting, whether it be around bullying, whether it be around sexual harassment, discrimination, on-field matters, off-field matters. As far as disciplinary is concerned, you have a set of skills. You have to have a set. You have experience that you’re bringing to it that not all local community clubs will have.
“And I also think that a practice in sports law is like a career as an athlete, you have to start small. No one plays their first game on the MCG or on the Gabba or at Lang Park. People get there after many, many years of doing things that are not observed by the public. So I think it’s really those three things in combination.
“Keep it broad as far as your own practice is concerned because you need to know about lots of different areas and the way they intersect and interrelate. Relate to start offering your services maybe without fee and there’s nothing wrong with doing that. We’re contributing ultimately to something which we think is good because people’s participation in sport in a way that we understand to be fair and equitable, is an end unto itself.
“Use what you’ve got to contribute to that end. And then thirdly, realise that you’ve probably got to start at that grassroots level and build up from there. And that’s certainly my experience. Me, for 10 years, I sat on a tribunal, maybe not every Wednesday night, but maybe two or three times a month through the winter season, the Football Federation of Victoria Tribunal, and there was a whole lot of solicitors and barristers that offered their time to do that.
“And we did cases everything from under six years up until semi-professional, and that that experience was absolutely invaluable.”
You also regularly represent health professionals and lawyers in professional disciplinary matters. What are the most common ways you’ve seen that legal practitioners find themselves in trouble?
“I think more often than not, it’s cutting corners and I can understand how that happens in a busy practice and where there are pressures in relation to billing and filing deadlines and client demands and supervisors demands. But in my experience, it’s usually been people not dotting the Is, not crossing their Ts and then doing something which is not dishonest per se, but it’s dishonest by the standards that we all need to live by as lawyers.
“Because if we start cutting corners, the whole thing’s going to fall apart. So it really strikes at the administration of justice. And in essence, it’s just that it’s not providing the client with the advice that you need to provide. It’s not getting the instructions to do what you need to do. It’s silly things like, you know, fudging signatures because it’s going to take too long to get that person’s signature.
“They’re the types. And of course, there’s lawyers getting into trouble with the text. So it’s all of those types of things. It’s if you’re organised, if you know what your obligations are, just adhere to them as I suppose is the upshot of all of that.”
What is one piece of advice you would give to your younger self as he commenced his legal career?
“The one thing I would give myself, because it’s the one thing I didn’t do that I should have done, is probably to spend some time as a judge’s associate. I think the experience that most young practitioners get in that year or two when they become a judge’s associate is absolutely invaluable. And I look around at my peers that have done that and their insights as to how the decision making process is undertaken is huge, but also having a a view of what happens in court that’s similar to the judge’s view.
“So I think that’s something I if I had my time again, I would do it. But other than that, I think and I’m fortunate that this was in good design, this was just good luck on my behalf. Is is run your own race. Don’t compare yourself to those that are around you. They’ll always be someone else that’s got a case that from the outside looks better.
“But we’re incredibly fortunate to do what we do and it’s a great privilege for people. My view people come to us with problems and they want us to assist them with those problems. Just reflect on that. Don’t lose sight of that, I think is is an important part because as a career in the law can be incredibly, incredibly satisfying.
“And sometimes we do just lose the perspective that what we we’re really doing here is helping people get through really difficult situations.”
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