By Aron Solomon
The eyes of the world have been on Melbourne over the past few days. With over one billion fans, tennis is one of the most watched sports in the world. But, as the Financial Times reported, tennis accounts for less than two percent of sports media rights, with almost all of those dollars flowing from the four Grand Slam events, among them, this month’s Australian Open.
So it was big news when the number one men’s player in the world, Novak Djokovic, arrived in Melbourne late last week and was denied entry. A notable anti-vaccination as well as tennis celebrity, Mr. Djokovic set off on a 24-hour journey to Australia advised by his team that his visa and supporting paperwork were in perfect order. They were not, so Mr. Djokovic was refused entry and set to leave the country on the next flight out to a destination of choice of a man who has earned close to $500 million over his career in prize money, endorsements, and other income.
Instead of leaving, Mr. Djokovic chose to stay in immigration detention in Australia and fight, in Australian federal court, the government’s entry refusal, setting off an international opinion storm. From the airport, Mr. Djokovic was transferred to the Park Hotel, which serves as a government detention hotel. It is the same hotel that is housing close to 40 asylum seekers who were transferred to Australia from the nation’s offshore detention system for medical treatment a few years ago. The men have been held in Australia’s immigration detention system for around nine years and several COVID-19 outbreaks have spread through the hotel.
As The Age reported on Sunday, the exemption to play at the Australian Open was granted by Tennis Australia and the state government of Victoria. Yet upon his arrival, Mr. Djokovic was denied entry by federal officials “on the basis that a COVID-19 infection in the past six months was not grounds for him to enter Australia as an unvaccinated person.”
The filing from Novak Djokovic’s Australian legal counsel is at times hyperbolic and lacking the kind of firm grounding a court will need to grab on to in order to reverse the order that would force Djokovic to leave Australia. Specifically, Mr. Djokovic claims that he held a visa “unqualified by any relevant condition,” counter to the claim of the state when he was denied entry.
Adriana González, a South Florida lawyer with deep experience in immigration law issues, suggests that the foundation of fair immigration law in any nation lies in its application:
“Whether the applicant to enter a given country is poor or rich, a normal person like most of us or the best professional athlete in the world in their sport, immigration laws need to be applied equally to every person for them to be fair and just.”
This was exactly the subject matter of a superb piece on Sunday in the Sydney Morning Herald, which highlights the complexities and often the unfairness to actually migrants to Australia of a 1000+ page government act.
It has been crystal clear from the time Mr. Djokovic decided to participate in the first Grand Slam of 2022 that he completely failed to understand the magnitude of the situation in Australia.
On Saturday, there were 115,507 new COVID-19 cases in Australia, which, in one day, represents one-seventh of the cases Australia has had since the virus began in early 2020. Some of these people will recover quickly, while others will become very sick, require hospitalization, and die.
Novak Djokovic’s profound tone-deafness and inability to “read the room” is shocking and indicates that he needs to do a full audit of his team and make some foundational changes – ideally ones that infuse even a drop of empathy into his team’s ethos. Further, if Mr. Djokovic’s positive COVID-19 result is proven to be a fake, as there was some evidence on Monday that it might be, this could be a public relations disaster from which no one involved will ever recover.
The government’s responsive filing, released to the public on Sunday, asserts that they treated Mr. Djokovic fairly yet gave him no preferential treatment. The government argues that Mr. Djokovic’s claimed prior COVID-19 infection isn’t in itself grounds for an exemption. The government’s response makes it crystal clear that Mr. Djokovic was never guaranteed entry at the border and that he never presented a valid reason for a medical exemption. The most interesting part of the government filing, and some superb dramatic foreshadowing, was that they left the door open to cancel Mr. Djokovic’s subsequent visas if the court overturned their initial visa cancellation.
From the moment of his arrival, Mr. Djokovic has been a truly abysmal guest. He and his team, including his parents, have used his quarantine at the Park Hotel to foment division around the tournament, spawning social media hashtags such as #WhereIsNovakDjokovic, which was intended to mock the tragic #WhereIsPengShuai.
A sample:
I contacted Mr. Pine to seek clarification on this tweet, to learn if there could be any possible explanation aside from remarkably bad timing and taste. Mr. Pine graciously and quickly replied, yet declined to be quoted for this piece.
Distasteful social media positions aside, it is important to be clear on one thing:
Notwithstanding all of the social media memes about Djokovic being “held prisoner” in Australia, he has been completely free to leave from the moment he landed. He simply chose not to do so in order to fight the government decision in court on Monday.
While Serbian Prime Minister, Ana Brnabić, went on Sky News to claim that Mr. Djokovic was being “persecuted” and local Melbourne officials, such as Svetlana Kovacevic of the Australian Serbian Chamber of Commerce, took to Australian TV to spin all of the ways in which Mr. Djokovic’s philanthropy shows he “loves Australia and its people,” the Australian people are clearly at the end of their patience with him. As New York Times tennis writer, Ben Rothenberg, noted in Slate on Friday:
“The only place most Australians want to see Djokovic right now, it’s clear, is on a flight home.”
Yet that won’t happen immediately, as it was clear from the moment the hearing began in front of Judge Anthony Kelly that he already had his mind made up. The judge was so well-aligned with Mr. Djokovic’s counsel that he often made their points faster and more eloquently than they could, leaving them to simply nod and agree.
Contrary to the high-priced, powerful law firm representing Mr. Djokovic, the government was represented in the hearing by two enthusiastic, skilled lawyers with only 13 years of practice between them. They had few persuasive arguments against Judge Kelly’s repeated assertion that Mr. Djokovic couldn’t have done any more than he did to prepare for arrival in Australia.
But of course Mr. Djokovic could have done more. He could have joined over 97% of his professional tennis peers and been vaccinated.
In the most poignant moment of absurdity in the hearing, the judge ordered the government to bring Mr. Djokovic somewhere he could watch the hearing. The logical place was his lawyers’ office but they have a vaccination policy that applies to anyone entering the building. This was of course waived to allow Mr. Djokovic to be present with his lawyers.
Finally, close to eight hours after the hearing began it ended, but, it seems, only temporarily.
Judge Kelly ruled that the government action to cancel Mr. Djokovic’s visa “was unreasonable,” and that he is to be released from immigration detention within 30 minutes. The visa cancellation decision will be quashed and the government will have to pay his costs.
Yet, in another dramatic twist, before the judge could end the court session, counsel for the government informed him that the Minister for Immigration reserves their personal power to remove Mr. Djokovic from Australia. This would mean that Mr. Djokovic’s visa could immediately be re-canceled upon his release and Djokovic would be again detained by the government.
“I am instructed that the Minister for Immigration…will consider whether to exercise a personal power of cancellation under §133(C)(3). Those are my instructions to inform the court, “ said Christopher Tran, counsel for the government.
And if that happens, we can expect counsel for Mr. Djokovic to immediately apply for another stay once that happens and we could be back in front of the same court.
The circus of events on Monday were foreshadowed the day before. On Sunday, in a heated TV interview, the head of Tennis Australia, Craig Tiley, refused to blame any of the parties involved for the current situation and did nothing to deflect the justifiable criticism for the role of Tennis Australia in this mess. His responses to an aggressive but fair line of questioning from Channel 9, including “How on Earth has this gone so wrong for Tennis Australia?,” were weak and ineffectual, a fitting prelude for what will surely be Mr. Tiley’s involuntary departure from his post once the dust settles in Melbourne.
Yet the most poignant irony of the past few days is that the number of male professional tennis players who spoke in support of the “imprisoned” Novak Djokovic dramatically eclipsed the number who ever spoke in support of Peng Shuai, who may actually be imprisoned.
This truly pathetic note is the perfect place to leave this story. Mr. Djokovic will now leave detention and either prepare to play in the year’s first Grand Slam on a tennis court or within days leave the country to his own personal shrine where he will surely pontificate, in the eyes of far too many, as some kind of holy martyr rather than a capricious, and misdirected man.
