Novak Djokovic Loses When Facing a Different Type of Court

The 2022 Australian Open ended in dramatic fashion, with Spain’s Rafael Nadal overcoming a two-set deficit to defeat Russia’s Daniil Medvedev. The first Grand Slam tournament of the year, however, also started with drama: Australia denied entry to top-ranked men’s player Novak Djokovic, preventing him from attempting to win his fourth-straight Australian Open. The reason? Djokovic remains unvaccinated against COVID-19. This article summarizes the legal battle between Djokovic and the Australian government and examines future implications for athletes who continue to refuse the vaccine.

No-Vax Attitude Since Day One

Within the first few months of the global pandemic, in April 2020, Djokovic stated during a Facebook Live stream that he was opposed to taking the vaccine.¹[1]Howard Fendrich, Djokovic’s Failed Bid to Play in Australian Open, YahooNews (Jan. 16, 2022), https://news.yahoo.com/timeline-djokovics-failed-bid-play-084939476.html Two months later, Djokovic hosted an exhibition tennis tournament in his home country of Serbia, with no rules requiring masks or social distancing.²[2]Id. After eight days of play, the tournament was called off when several players, including Djokovic, and his wife tested positive for COVID.³[3]Id.

Flash forward to November 2021 when the Australian Open tournament director announced, per government edict, all members of the tournament must be vaccinated, with medical exemptions only for “acute medical condition[s],” not as a “loophole for privileged” players.⁴[4]Id.

On January 4, 2022, Djokovic posted on Instagram that he was “heading Down Under with an exemption permission.”⁵[5]Novak Djokovic, Instagram (Jan. 4, 2022), https://www.instagram.com/p/CYTe9fer_1K/. Tennis Australia released a statement that his medical exemption was “granted following a rigorous review process involving two separate independent panels of medical experts.”⁶[6]Djokovic’s Failed Bid to Play in Australian Open, YahooNews, supra note 1.

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Upon arriving to Australia, Djokovic was denied entry into the country and stayed four nights at an immigration hotel. Djokovic had his visa cancelled by the Minister for Home Affairs because his presence may be “a risk to the health, safety or good order of the Australian community.”⁷[7]Djokovic v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022], Federal Court of Australia, https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2022/2022fcafc0003. Australian Prime Minister Scott Morrison tweeted, “Rules are rules, especially when it comes to our border. No one is above these rules.”⁸[8]Scott Morrison, Twitter (Jan. 5, 2022, 4:56 pm), https://twitter.com/scottmorrisonmp/status/1478848008363991049?lang=en.

In response, Djokovic immediately filed a proceeding in a Federal Circuit court, aiming to “quash the decision” to cancel his visa by arguing the act was “legally unreasonable.”⁹[9]Id. Four days after arriving in Australia, Djokovic submitted an affidavit that he was not vaccinated, and Federal Circuit Court Judge Anthony Kelly reinstated his visa, reasoning Djokovic was not given sufficient time to speak to his lawyers before he was denied entry at the airport.¹⁰[10]Djokovic v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, supra note 7.

On January 14, Immigration Minister Alex Hawke revoked Djokovic’s visa for health and public interest reasons.¹¹[11]Id. The Minister accepted that there was a very low chance that Djokovic would transmit the virus.¹²[12]Id. Hawke’s main concern focused on how Djokovic’s anti-vaccination sentiment would be detrimental to the health of the Australian community.¹³[13]Id. Specifically, the Minister identified Djokovic as a “high profile unvaccinated individual,” and this exemption could lead to widespread anti-vaccination sentiment resulting in unvaccinated individuals continuing to refuse the vaccine, as well as a reduction in individuals getting the booster shot.¹⁴[14]Id. Additionally, the Minister introduced evidence that highlighted Djokovic’s past actions.¹⁵[15]Id. Specifically, in December, Djokovic attended a photoshoot and interview with French magazine L’Equipe after receiving a positive test result the day before.¹⁶[16]Id.

As part of their appeal, Djokovic’s lawyers argued that he posed no risk to public safety, did not try to contravene Australian law, and is a person of good standing known for his philanthropic efforts.¹⁷[17]Id. The attorneys went a step further, claiming that cancelling Djokovic’s visa would adversely affect Australia’s global reputation, jeopardize Australia hosting future Australian Opens, and “create the appearance of politically motivated decision-making.”¹⁸[18]Id.

In response, Minister Hawke accepted that Djokovic posed a low risk of transmission and is a person of good standing.¹⁹[19]Id. He rejected, however, that cancelling Novak’s visa would weaken Australia’s reputation or jeopardize hosting future tournaments.²⁰[20]Id. The Minister’s cost-benefit analysis demonstrated the negative effect Djokovic’s anti-vaccination stance would have on the public interest.²¹[21]Id. On January 16, after a virtual court hearing, Djokovic’s appeal was dismissed, largely citing to the Minister’s reasoning.²²[22]Id. After losing his appeal, Djokovic had no choice but to leave the country.²³[23]Reuters, Djokovic ‘extremely disappointed’ with cancellation of visa (Jan. 16, 2022. 3:12 a.m.), https://www.reuters.com/lifestyle/sports/djokovic-extremely-disappointed-with-cancellation-visa-2022-01-16/

Further Implications

The next major Grand Slam tournament is the French Open in May. France recently passed a vaccine law requiring proof of vaccination for all spectators and professional athletes participating in the French Open at Roland Garros.²⁴[24]Julien Pretot & Shrivathsa Sridhar, No vaccine, no French Open for Djokovic as rules tighten (Jan. 17, 2022, 11:38 AM), https://www.reuters.com/lifestyle/sports/no-vaccine-no-french-open-djokovic-says-french-sports-ministry-2022-01-17/. Going into this year’s Australian Open, Djokovic was tied with Federer and Nadal for 20 all-time Grand Slam titles. Nadal’s victory broke this three-way tie, and Djokovic’s attempt to catch Nadal’s lead could be delayed if the Serbian star remains unvaccinated. Specifically, Djokovic’s eligibility to participate in the French Open, Wimbledon, and US Open remains unlikely, unless the respective governments modify their rules surrounding the COVID-19 virus.

Athletes are getting vaccinated at a much higher rate than the general population, perhaps because they are threatened with loss of millions of dollars and loss of a limited time window to make use of their athletic talent.²⁵[25]Andrew Joe Potter, NBA has 97% vaccination rate, reportedly urging players to get booster, theScore, https://www.thescore.com/nba/news/2240119. Athletes have more to lose than the average individual, and more to gain from getting the vaccine.

For athletes who remain unvaccinated, the Djokovic events show that even the top athletes are not above COVID rules and regulations. Since most athletes are vaccinated, governments are not risking losing hosting rights, or fans, —because nearly all the top athletes are going to play as they are vaccinated. This sends the message that athletes either better get vaccinated or expect to sit on the sidelines.

Written by: Brendan Duggan and Anthony Damon
Brendan and Anthony are 2024 J.D. Candidates at Brooklyn Law School