Over the past month, a lot has been said and written in relation to the introduction of a draft in the NRL. Many have stated that due to the 1991 findings of the courts in Adamson versus New South Wales Rugby League, the introduction of a draft is impossible.
This case was decided in 1991, over twenty years ago. Since that time, rugby league and professional sport in Australia have undergone considerable changes.
Also, the financial state of individual clubs and of the competition today is drastically different to that in 1991.
Restraint of trade cases generally take the view that a contract to restrain an individual’s liberty of action in carrying on his or her trade, business, occupation or profession and all restraints of trade of themselves are contrary to public policy and therefore void, unless the restraint is:
(i) reasonably necessary to protect the interests of the person in whose favour it is imposed;
(ii) not unreasonable as regards the person restrained; and
(iii) not unreasonably injurious to the public.
In 1991, one hundred and fifty four rugby league players commenced an action arguing that the `internal draft’ system which regulated the movement of players between clubs where they were not under contract was an unreasonable restraint of trade.
The NSWRL argued, among other things, that the internal draft system had the objectives of ensuring an even competition, financial viability for the clubs, and to limit the mid-season “plundering” of the weaker clubs of their good players.
Initially, the court held that the restraint imposed by the internal draft was reasonable, considering the legitimate interests of NSWRL, the clubs and the players.
On appeal, the Federal Court found for the players. The Court declared the internal draft system was void as an unreasonable restraint of trade because the NSWRL could not show that the restraint was reasonably related to the objects of the League or the clubs, and afforded no more than adequate protection to the interests of the League and the clubs.
The Court said that, in trying to secure an internal draft, the NSWRL was trying to ensure its financial viability by maintaining a strong and well matched competition.
Unlike other industries, professional sport requires evenly matched teams because one-sided events are less attractive commercially.
The rationale of the initial decision was, as the teams did not have equal salary caps (due to the financial position of some of the clubs at the time), the need for an internal draft was necessary to maintain the financial viability of the clubs.
It has been argued that the salary cap is a restraint of trade. When first implemented for the 1990 season, it was uneven ranging from $1,500,000 to $800,000, as determined by the league’s analysis of each club’s financial situation.
Currently the NRL salary cap is set at $4,400,000 for the 25 highest paid players at each club.
This initial judgement seems to be remarkably prescient considering the fall out following Super League, and the clubs’ weakened position due to the deregulation of Poker Machine licences.
As previously mentioned, the restraint of trade doctrine places the onus on the party imposing the restriction – the club – to show that it is no more than what is necessary to protect their interests.
In order to maximise interest the NRL has to maintain an attractive competition whereby there is a high degree of uncertainty about the result of any competition, the economic power of certain clubs to acquire the best players must be limited.
Since 1991, professional sportsmen playing rugby league have opportunities to ply their trade elsewhere. Rugby union has become a professional sport, players have the opportunity to play AFL or play overseas. This supports a claim that an internal draft is not an unreasonable restraint of their trade.
The third and final component of the test for unfair restraint of trade is whether the restraint acts against the interests of the public.
It would be difficult for those against an internal draft to argue that a competition where weaker teams will get increasingly weaker due to the poaching of players by more successful teams is in the interests of the public.
It could be argued that the public is best served by a robust competition.
If the NRL was to reintroduce an internal draft in combination with the salary cap it could legitimately argue that it was reasonable to do so in order to protect the game and therefore the player’s interests as well as those of the public.
Therefore, there is no legal barrier to the reintroduction of a draft in the NRL.
LT80
Roar Pro
Most football supporters don't want a draft, because they want to see local juniors come up through the ranks and eventually represent their local club. Look at the rosters of clubs like North Queensland, Brisbane or New Zealand - many or most of their players are from their region. Would the people of Brisbane be as supportive of the Broncos if there were hardly any Queenslanders in the squad? Maybe not, it would be a shame if that happened.
Titus
Guest
Its probably worth pointing out that the average attendances in the EPL is pretty much bang on with the stadium capacities, taking into account Ians chart. The people of Swansea City aren't less interested in their team because Manchester United will win the league, they are just a small club with a small stadium, having a salary cap that made the quality worse but more even isn't going to create bigger crowds and more interest.
ItsCalled AussieRules
Roar Rookie
TC stop twisting the argument around to suit your AFL bias. The AFL will never rate alongside the EPL - the vast majority of world sports fans haven't even heard of it. AFL is a suburban Victorian phenomenon. Are you a paid spokesman of the AFL?
The Cattery
Roar Guru
Itscalled don't be so hard on the EPL, its a competition with a great tradition and history and one I have a good deal of respect for. It has clubs that are almost as old as the oldest AFL clubs. It's certainly a competition that I would rate alongside the AFL on so many levels.
ItsCalled AussieRules
Roar Rookie
How can you even think about comparing the EPL to a suburban draft system like the AFL. The EPL is the most international competition in the world and players come from everywhere around the globe to play for who they like. Lionel Messi drafted to a suburban Buenos Aires team and plugs away there for the rest of his life. You must be joking. The AFL draft system works well because its a closed market made up of suburban back yard young hopefuls who will never go anywhere and no young kids from overseas are going to come to Victoria to play AFL. Its a closed shop under the control of the Central Bank of AFL. And despite all that, there are still only a handful of teams every year who have any chance of winning the egg ball cup and they are usually from Melbourne, because the high crowd pulling teams from Melbourne get to play most of their games at home at the MCG to maximise the Central Bank of AFL's revenue.
Ian Whitchurch
Guest
NF, Short term stuff - everyone sits down with Canterbury for a chat about what they are doing right. 2010 was a crud year for them on the field - they finish 13th. They still average a home crowd of 20 000. 2011 wasnt a lot better for them, finishing 9th. They still average a home crowd of 19 500. They are doing something right, and the other Sydney clubs need to find out what it is and copy it. http://stats.rleague.com/rl/crowds/canterbury.html Next, Gold Coast Titans get a rescue package, contingent on the Independant Commission getting board seats and oversight - basically, a conservatorship, which is kinda sort of like a pre-bankruptcy, where you leave the existing management there, but have an external body able to tell them 'No'. This rescue package includes help with sponsors and ticket subsidies, as well as NRL cap concessions and marketing money. The time of rugby league actively trying to kill clubs, or passively letting them die, is over. We hang together, or we hang seperately. If we need to do the same thing at some point with Canberra or Cronulla, thats fine. Next, clubs are told that there is no major rise in the salary cap until the NRL has it's war chest back to pre-Super League levels. Once the war chest is refilled, there will be a rise in the cap, but also a Grounds Fund, to buy the NRL equity in the grounds on which it plays. Next, the grass roots are watered by the return of the Amco Cup, where country teams play off for the right to play the NRL teams in a knockout comp run during the bye weeks, with the final during the NRL finals. Next, clubs are thrown a bone with Broken Time for players damaged in rep games. If a player is damaged in a rep game and misses regular season matches, the club concerned is able to temporarily promote a off-list player to replace him, and gets a credit of the broken players salary against the cap in either this year or next year. Finally, international development is assisted by each NRL club being allocated one country to develop. Two players from that country have the first $100k of their salary cap-free, and the club can earn up to $250k of cap room by dedicating that much money to developing rugby league in that country. In the long term, the plan F.ck Foxtel goes into action - NRL TV, delivered on subscription directly, without Fox as an intermediary. This will require war with News Corp and probably Telstra, but thats fine - its why we refilled the war chest first.
NF
Guest
So Ian since you seem to know along about RL what are you ideas to help move the game forward in the right direction?
Ian Whitchurch
Guest
Paul, The NRL has lost a team in Perth, a team in Adelaide, two teams in south east Queensland and has a third looking fragile. They have lost a team in Sydney, and are timesharing in Woolongong and Campbelltown. Cronulla and Canberra probably cant keep up with the existing salary cap without a major sponsor, which neither of them appear to have. The corporate owner of Melbourne would like to get out, if someone will cover the likely losses. But yeah, you can claim the great game of rugby league doesnt have anything to worry about.
Matt F
Roar Guru
Personally I don't have a major issue with a draft, I've just been pointing out what people in the legal profession have told me about a draft. That is that it only takes one player to lodge legal action and it will almost certainly be scrapped just like in 1991. I can certainly see the benefits of a draft when expanding to "foreign" areas. In fact as a Swans fan I'm well aware that we would struggle to attract young talent if there was no draft as most kids would prefer to stay where they are and Sydney isn't exactly a hot zone for elite AFL talent. I've just been pointing out that the RLPA is highly unlikely to accept a draft as the current system is clearly skewed towards their interests and, without the RLPA support, a draft has no chance in hell of ever happening.
Nathan of Perth
Guest
More than 5% of rosters enter and leave as stands as part of normal recruiting/resigning churn. As I said, the loss is compensated by players coming the other direction. For another perspective, this also develops knowledge and allows experimentation with other system which provides net benefits to the system. Solid players going, solid players coming. I don't think players like Billy Slater will be heading there any time soon, for that matter.
Ian Whitchurch
Guest
No, the reason Stupid. Argument. Is. Stupid. is we have twenty years and more of young Australian Rules players just dealing - and some of the time their first contract runs out and they go home, and most of the time they dont. We can either say 'right, rugby league is going national, and moving away from its traditional areas and growing' and tell some kids to harden the [deleted] up, and tell some clubs to do a better job supporting them ... or we can be weak and soft and useless and refuse to go outside the areas the code is already strong. Your call.
Matt F
Roar Guru
It would depend on which 5% it is. If it was the best 5% then the AFL may have a problem, if it were the worst 5% of players then not so much. The ex-NRL players that are in England appear to be either good to very good players who are now at retirement age or average to poor players who couldn't make it (or barely made it for not that much money) in the NRL. The vast majority of them are no real loss.
Paul
Guest
What would happen to any other code lets say AFL if they lost 5% of their playing roster,
Matt F
Roar Guru
I was under the impression that there are now less players going to the ESL then before. Something to do with the poor economy in the UK and it being more difficult to get Visa's, especially if a player has had legal troubles (which would apply to a fair few NRL players!) Regardless there are generally very few NRL superstars playing over there, or at least very few superstars who aren't 30+
Nathan of Perth
Guest
Well, A) that's only like 5% of your top-tier player numbers and not necessarily the big stars. Subtract from that the players you're extracting from the English player base and the loss is even less. B) for the sake of international League I'd hope you didn't try and cut off players bolstering the ESL...
Paul
Guest
Nathan, while i dont know exact numbers there are prob 30 players playing in the English super league at present. So much so they now have a SOO equivilant called the Expats or something. Look at some of the Players that have just returned, Mat KIng, Willie Masion, There is an argument that we should stop players going over sees before we expand the game.
Nathan of Perth
Guest
I dunno, Oikee, how much does the international aspect actually negatively affect the league itself? Yes, you lose a couple weekends, there are a handful more injuries to big names from the additional but the NRL aren't exactly losing scores of players to the ESL or anything.
Paul
Guest
Ian the NRL has been doing fine for over 100 years, it aint going to stop now regardless of what you think. The AFL cant grow internationally so there is really nowhere else for them to go, SYd and Brisb have had teams for a long time and as such they are at thier peak with only one way to go, and that is DOWN. Hence their 23 million dollar loss/gamble on GWS which aint going to good from what i hear, Do you watch the back page and what the AFL expert said last night about his experiance when he went to blacktown? I am not running the NRL and im pretty sure there are more qualified and smarter people than us making the decisions. The truth is the Storm are in the best position of all teams in all codes to capitalise on thier potential. All they need is FTA television and watch them go!!
Matt F
Roar Guru
Given that none of those places have an NRL team you've just made a completely irrelevant point. It's even less relevant given that, if a player did decide to stay and play park football in Mt Isa instead of playing NRL in Penrith, then he can do so. Of course some players will choose to move and play football elsewhere, but the key word is "choose." Is it reasonable to force someone to move to another city/state to take a job when they are offered the exact same job in their current location, and want to take that job? Of course it's not. It wouldn't be acceptable in any other industry so why is it acceptable in sport? Irrelevant. Point. Is. Irrelevant.
Matt F
Roar Guru
I agree that, in general, equalisation is important to maimising interest, I just don't believe that a draft is as intricate to this as others believe. As I said before the NRL has had 9 winners in the past 11 seasons which becomes 8 from 9 if the 2 Storm titles are removed. That's exceptionally even and all done without a draft. That's not to say that leagues with drafts aren't even, the AFL is also exceptionally even. I would contend that the salary cap, if enforced fairly well, is far more important to creating a competition then a draft. Obviously this is something that the EPL also lacks. Also, when talking about EPL crowds, you need to take into account promotion and relegation. When Newcastle were relegated a few years ago they still had one of the highest average crowds in England despite being in the Championship. For example there are 13 clubs currently in the Championship with higher average crowds then QPR. West Ham are averaging 30k this season.