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.

The Ashes: Johnson and Stokes charged after second test “fracas” … what does the Code say?

Mitchell Johnson and Ben Stokes have been charged with a breach of section 2.2.4 of the ICC’s code of player conduct following a clash of shoulders during the fourth day of the second test.

Section 2.2.4 of the Code provides that inappropriate and deliberate physical contact between players in the course of play during an international cricket match shall constitute a Level 2 offence under the Code. The explanatory notes that go with code provided that players will breach section 2.2.4 if they deliberately walk or run into or shoulder another player.

Section 7.3 deals with possible punishments that may be issued by the match referee, if he finds the player guilty, of an offence under the Code. Assuming it is a first offence for both players (I can not recall Johnson as having been charged before and it is Stokes’ first game), then the possible punishment could be the imposition of a fine of between 50-100% of the applicable match fee and / or update two suspension points.

Section 7.4 explains that a test match shall carry a weighting of 2 suspension points should that penalty be imposed as a result of an infraction.

Section 7.5 deals with the imposition of suspension points and, most helpfully provides in section 7.5.3, that the match referees shall apply the suspension points to the subsequent intentional matches in which the player is most likely to participate in on a chronological basis immediately following the announcement of the decision.

All in all, given the conduct complained of in the charge, it seems to me that there is a real risk that both players could be found guilty and could have a match suspension imposed. There is an appeal process but whether that process could be enlivened in time to allow the players to play in the third test starting on Thursday is questionable. In this regard it should be noted that an appeal from a guilty verdict does not, by virtue of section 8.2 of the Code, stay the decision and the punishment unless the person hearing the appeal grants such a stay.

It will be interesting to see how Jeff Crowe, the match referee, resolves this matter given the spot light that is on player behaviour at the moment. It seems to me that, if guilty, a match suspension would send the right message to the teams that conduct of this type is not on given that they seemed to have missed that message after Michael Clarke was fined in the aftermath of the first test.

What next in the Blake Ferguson saga: an explanation of the legal steps

I have long been bothered by the rampant disinformation about matters of law sprouted by the sports journalists of this country when a player gets into trouble. To make matters a bit clearer for fans I thought I would commit to writing what the process is from here, as I see it, for Blake Ferguson.

Let’s start, obviously, with the charge: Ferguson has been charged with, as far as I can glean, one count of indecent assault. I have no knowledge of the facts leading to the charge and make no comment about them. What follows is a generic explanation of the next steps based on my experience and a little confirming research.

Obviously, though rarely it seems reported in cases involving sportsmen, every defendant charged with a criminal offence in this country is considered to be innocent until proven guilty beyond reasonable doubt. This is a immutable right that every individual in Australia has and which is enshrined in the International Covenant on Civil and Political Rights which has been ratified by Australia.

Most reports make much about the fact that there is another Court date coming up for Ferguson in July. If you are a watcher of American legal dramas you may have cause to think that this will be when the trial occurs. Sadly, justice does not operate that quickly in Australia or, frankly, in an 1st world jurisdiction.

Assuming Ferguson pleads not guilty the process between now and a trial could take anywhere up to twelve months or more. This is because, in part, in Australia for offences such as that which Ferguson is charged with it is necessary for the parties to go through a committal hearing which is a hearing before the Local Court at which the prosecution must place before a magistrate its evidence to determine whether there is sufficient evidence upon which the defendant may be convicted at a trial.

The period between the charge and the committal hearing is punctuated with mentions of the matter before a magistrate that deals with matters such as the continuance of the defendants bail and the provision of the evidence upon which the prosecution wishes to rely at the committal and later at trial.

At the committal hearing the magistrate can decide whether the matter proceeds to a trial before, in the case of an indecent assault charge before a District Court judge or to dismiss the charges. If the matter proceeds to a trial that will be another delay for another series of mentions that will again go to the question of bail, the evidence that both sides want to put at trial and any legal questions the parties have. All of this takes time and thus a swift resolution to this matter should a not guilty plea be made is unlikely.

It is, of course possible for negotiations about charges to occur before a committal and before a trial. Following negotiations between the prosecution and defence, in some cases the accused may agree to plead guilty to a lesser charge e.g. assault occasioning actual bodily harm becomes assault, or to the same charge but with the facts changed in some respect.

All in all this is a long and drawn out process, in the case of a not guilty plea at least. A swift resolution could only come from negotiation between the parties, if the complainant withdrew her complaint or upon a guilty plea. I, for one, will be watching with interest the next steps the parties take.