The Wrap: Giteau’s Law must survive, but with a twist

The crude extrication of Izack Rodda, Harry Hockings and Isaac Lucas from Queensland and Australian rugby has, among other things, renewed calls from the rugby community to scrap the Giteau’s Law regulations, which restrict players contracted to overseas clubs being available for the Wallabies.

It’s a popular call, but that doesn’t make it right.

Player manager Anthony Picone, in facilitating the departure of the three players – Hockings to Suntory, Lucas to Ricoh and Rodda to a destination yet to be confirmed – took an opportunity on Friday to target Giteau’s Law.

“South Africa have jumped the gun on us in this space and they won the World Cup with a unified squad selected from all around the world,” he said.

If the decision of the three players to exit the Reds was based on assurances from Picone that this would be the straw to break the back of Giteau’s Law, and that they will soon be enjoying the benefits of fat Japanese contracts and a Wallabies jumper, I wouldn’t be breaking out the Miami Coolers just yet.

There are myriad factors peculiar to South African rugby that render direct comparison to Australia meaningless. Further, the fundamental reasons why the law was introduced in the first place haven’t changed, and don’t alter just because of brinkmanship on the part of a manager, who in the past has demonstrably pursued his own and his clients’ interests, not the interests of the game.

Interestingly, Picone slammed the Queensland Rugby Union (QRU) for going public over the matter – never mind that with the Super Rugby franchises back in training, the absence of three high-profile players would immediately have triggered questions.

Picone might care to reflect instead on how the QRU and Rugby Australia elected not to reveal publicly, details around his handling of Samu Kerevi’s departure to Japan last year.

(Photo by Lee Warren/Gallo Images/Getty Images)

If they were to do so, his reputation would not be enhanced.

So what is it that is driving these players to forgo what is becoming an eagerly awaited domestic rugby season, and the potential opportunity to play for the Wallabies?

As has been well publicised, their union RUPA agreed to a COVID-19-related reduction in salary of 60 per cent until the end of September. By not signing the amended pay deal, the three players effectively remained on full pay – an untenable situation for the Reds, with the balance of their squad on reduced pay.

All player contracts contain an adverse events clause, which enables either party to render the contract void, should there be a material change in circumstances. There can be no question that a 60 per cent pay cut triggers this clause, and that the players are entitled to terminate their contracts. This was acknowledged by interim Rugby Australia CEO Rob Clarke on Saturday.

What is less clear is that with no rugby being played in Japan and – in a country more deeply impacted by COVID-19 than Australia – no indication of when it might resume, what do the players stand to gain right now?

Potentially, they may seek to recover the unpaid salary for the period until the end of September, but the risk, and likely cost of legal action, would seem out of step with the contract amounts in question.

The players have already lost the battle in the court of public opinion. Ex-Queensland and Wallabies fullback Greg Martin spoke for many, claiming that the three players had “dogged their teammates” by breaking ranks in not accepting the pay cut.

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If Australian rugby was the Titanic – for many that’s an easily understood metaphor – Rodda, Hockings and Lucas have unhitched the first lifeboat and paddled away from danger, while their crew mates remain hard at work stoking the engines, on reduced rations, keeping the ship afloat.

Their defenders point to the short shelf life of a professional rugby player and the reasonable view that individuals are entitled to make their own choices about how they best set themselves up for the future.

An alternative view is that in a team sport such as rugby, there are countless individuals every day who abide by the ethic of serving team before self.

What is at the heart of the matter is Picone positioning his players ahead of the curve with respect to growing fears that, come the end of September, rugby in Australia will not be in a position to afford the reinstatement of player contracts to their pre-COVID levels.

As a result, there are players today being shopped around in all directions – to Japan and France, also to rugby league. This all occurs under the shadow of people with vested interests – agents like Picone – painting the bleakest possible picture for Australian rugby.

It is here that the role of media commentators – some with undisclosed conflicts of interest – must be called into question. The relentless bashing of the game, the administration of the game, and the future prospects of the game must eventually take its toll.

When issues in and around rugby are never discussed with context or nuance, but merely bundled into a ‘this game is dead’ narrative, that message becomes a classic self-fulfilling prophecy. For example, if everyone repeats that rugby is dead because fans won’t watch sides play at 3:00am in the morning, then that’s the truth of it – no matter that Australian franchise fixtures are no longer scheduled this way.

As a result, there are Super Rugby coaches and franchise CEOs who are now having to work overtime to reassure players to keep them in the program. This is more frustration for men who would much prefer to be focusing on on-field matters.

Consider again how Australian franchises compete against New Zealand and South African operations with long histories of success, and where there is a more entrenched rugby culture.

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How these franchises achieve success is by getting players to believe – to buy in to the organisation, the coach and coaching staff, the culture, and their teammates. For organisations like the Crusaders, Leinster, the Melbourne Storm, the New England Patriots and others, it becomes relatively easy – they have become destinations of choice, and new players arrive on day one already believing.

For each of Australia’s four Super Rugby coaches – and for Dave Rennie when he arrives – it is a matter of them individually selling their vision to the organisation, trying to align everyone around it, and putting in place players with ability, who they believe will buy in, and ultimately deliver on the field.

It’s a challenging task to begin with, made considerably tougher when those coaches now have to get insecure players to not only believe unreservedly in their program, but also have them block out the doom merchants and believe in something as basic as professional rugby in Australia still being a thing.

Never mind that cashed-up clubs in France and Japan, with the added benefit of favourable exchange rates and no regard for the primacy of international rugby and traditional structures of the game, want to take Australia’s best players.

This is just another example of the many ways in which Australian rugby shoots itself in the foot. The enemy comes not from competing nations, but from negativity within.

It is of course true that Australian rugby’s parlous financial state is no figment of the imagination. A downwards adjustment in player salaries is almost certain, given the damage done by COVID-19 by way of disruption to this year’s schedule and the ongoing broadcast rights negotiation.

But players might be wise to seek counsel from a deeper pool than a manager with an eye for deal-making. Is the best short-term financial outcome – contract A is worth more money than contract B – necessarily the best outcome for a player overall?

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Last week, ex-All Black Colin Slade became the latest in a long line of players to describe, in unflattering terms, the 48-week long grind that is the French club season. Slade and other Top 14 imports may be well paid, but every last ounce of flesh is extracted in return, and for many, their enjoyment of rugby is leached out in the process.

England is almost certain to settle on or near a 35 per cent reduction in the salary cap for its Premiership clubs, and while Japanese contracts are being honoured for now, there is a sense that the true impact of COVID-19 on Japanese rugby has yet to play out.

Aside from the obvious question around the purpose of negotiating a deal with Rugby Australia for players to simply ignore it, RUPA’s position on the matter is an interesting one.

Collective bargaining through organised labour unions works when employees, by nature of banding together, can achieve outcomes greater than what they might be able to achieve as individuals. This usually occurs in situations where employees perform the same tasks (or definable levels of tasks), where they all essentially receive the same pay for doing the same work.

In rugby, some players are more important and more valuable than others. Players are already represented by agents who can – and do – negotiate on their behalf. Aside from bundling insurances, and negotiating some general welfare conditions that apply equally to all players, players might now be wondering what benefit RUPA actually provides them?

As an old head mentor and advocate for Australian players, would chairman Justin Harrison have been better served putting an arm around Hockings to tell him how the thrill of wearing his first Test jersey will stay with him forever, and to encourage him to move heaven and earth to earn one of his own?

Or do the players encourage advocacy of the nature of Harrison, not only dealing himself into the recent attack on Rugby Australia, but actually penning the follow-up ex-captains letter?

How exactly do they benefit from Harrison heading the charge against city hall, in the process intensifying negative sentiment around the game, in turn stripping millions of dollars from the value of rugby in Australia, and spooking players like Hockings, Lucas and Rodda into leaving Australian rugby behind?

(Photo by Amilcar Orfali/Getty Images)

In my 2017 book A World in Conflict: The Global Battle for Rugby Supremacy, I pondered the likelihood, even the inevitability, that Australian rugby, by definition of its small commercial market relative to other global rugby markets, would one day succumb to having its best players play in richer overseas leagues.

The fact that this day now seems closer than ever should not be confused with declaring this outcome in any way desirable, or that it shouldn’t be resisted for as long as practicable.

Proponents of the abolition of Giteau’s Law seem oblivious to the contradiction in them also advocating for an improved professional competition to take the place of Super Rugby, the NRC or both.

What purpose is there to Rugby Australia on one hand working like trojans to plan a professional competition for 2021 and beyond – be it in partnership with any of SANZAAR, New Zealand, Japan and Global Rapid Rugby – if on the other hand they encourage their elite players to leave?

For this reason alone, Giteau’s Law is not going anywhere. And despite its apparent unpopularity, and for all of the creaking at its edges, for the most part, there is little hard evidence to show that it isn’t working.

“The role of the Australian selectors is to pick the best Australian side, no matter where they reside,” thundered Alan Jones in The Australian on Friday.

Remind me again, which Australian players, ineligible for selection because of Giteau’s Law, would have improved Australia’s result at last year’s World Cup?

(Photo by Dan Mullan/Getty Images,)

If the answer to that question is Scott Fardy, would he have been selected, even if available?

The World Cup, however, does provide a clue to the future. Recall how halfback Nic White was allowed to sign a contract committing to return from Exeter to Australian rugby in 2021, and be made available to the Wallabies for the 2019 World Cup.

It verged on making a mockery of the regulation, but it also showed a refreshing creativity on the part of Rugby Australia to walk the fine line between keeping talent in their home competition, and not disadvantaging the Wallabies.

Make no mistake, if the stable doors are flung open, the horses will bolt. Any remaining financial value attached to broadcasting home competitions will be destroyed, players who remain will be forced back to the days of playing part-time for boot money, and the job of the Wallabies coach – competing against fully professional programs around the world – will be made nigh on impossible.

A sensible compromise is to keep the law in place, but – offering no guarantees to any particular player – allow the Wallabies coach to select two marquee players outside of the criteria, who he feels will strengthen his team.

Two places are not enough to afford any player certainty of a Test jumper and prompt mass exodus. But it would allow Australian rugby to benefit from two elite players whose salaries would be met by an overseas club.

If those clubs were to seek compensation, that would in no way scare Australia, given the overwhelming flow of player talent in the other direction. In the absence of equalisation of salaries, anything that hastens a world accord on transfer fees, will be welcomed.

If Australian rugby eventually succumbs and is unable to sustain a viable professional footprint, at least let it go down swinging, learning from Fiji’s plight, by obtaining a commercial return for its development of players.

That’s surely a better outcome than three players running for the hills, or meekly giving up the ghost on Giteau’s Law just because times have got tough.