As the NRL thinks about the draft, remember 1991: is the risk worth the reward?

The CEO of the NRL has announced today his intention to introduce a player draft in the hope of “equalization” of the competition.  The lawyer in me is scratching his head: the NRL have been here before and had a draft process thrown out by the Full Court of the Federal Court of Australia.  This happened in 1991 and to me not much has changed.

For those who missed it: in Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242 it was held that the then NSWRL internal draft system was contrary to the common law position that parties should be free to trade as they wish.  As Justice Willcox put it in his judgment:

“How, in a free society, can anyone justify a regime which requires a player to submit … intensely personal decisions to determination by others?”

Of course I am aware that the AFL has a player draft and it plays under the same laws as those to which the NRL are bound.  It must be noted that in the AFL there is a collective bargaining agreement that binds the players which has been agreed between the AFL and the AFL Players Association which allows for the draft.  Effectively: the players have contracted out of their right to trade freely.  to be frank: on my reading of the law, if an AFL player was to challenge the draft in Court I would be astonished if it was not set aside.

Section 45 of the Competition and Consumer Act 2010 also deals with contracts, arrangements and understandings that restrict dealings or affect competition.  Absent the agreement of all parties involved to NOT trigger a claim under this provision I fail to see how a draft, which is effectively an arrangement that restrains a player from exercising his own choice as to whom he wishes to play for, does not fall foul of that provision.

A draft, to me, is contrary to the law of the land.  Given than the agreement of the stakeholder to amend the collective Bargaining Agreement and, in essence, agree not to challenge the draft would be necessary for the draft to be effective there would need to be very very good reasons for bring a draft in.

equalization of the competition is the reason given however could it ever be said that a draft program does definitely and measurably bring an equalization to a competition in which the draft is in place?

Consider this: the NFL, NBA and MLB all have draft programs.  Each of these competitions have been, and continue to be, dominated by the teams with the biggest wallet to spend on players. If the drafts in those competitions, which have been around for a very long, truly equalised the competition then, for example, there would not be 8 teams (of 30) in the MLB that have never won a World Series whilst one team, the New York Yankees, have won 40.  Similarly, in the NBA we have seen the Miami Heat buy a team to win and dominate the competition.  In the NFL: when was the last time a surprise team made the playoff?  There are 32 teams in the competition and yet the same teams every year seem to make the finals.

There is so much that can happen from the time a player is first contract until the time said player makes it to the top grade.  A draft of junior players will do nothing to change the fact in the NRL that clubs can negotiate with players at any time during the season and players can seemingly break contracts at will.  There is much to be fixed to assist in equalising the NRL competition but to me instituting a draft is not one of them.  Legally it is the wrong move and it will not, on the evidence of the other codes that have a draft, change the fact that some teams will dominate whilst others will struggle.

All of this, to me, makes it one big waste of money to even be considering this process: money that could be better spent on the development of the game elsewhere.

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