The legal challenge by the Western Force to its exclusion from a trimmed-down Super Rugby competition was struck down by the NSW Supreme Court on Tuesday.

The original decision by the Australian Rugby Union to axe the Force, and not the Melbourne Rebels, has been met with much angst west of the Nullarbor.  Much of the public argument by the Force and its billionaire benefactor, Andrew “Twiggy” Forrest, has focused on the fairness and the merits of that decision, given what they say is rugby’s much stronger position in WA compared with that of Victoria.

The legal argument

However, the argument before Justice David Hammerschlag centred on one discrete and technical legal point concerning the interpretation of a term of an “Alliance Agreement” between the ARU and the WA Rugby Union.  That Alliance Agreement was entered into a little over 12 months ago, when the ARU bought the Force franchise from the WARU, and provided that the ARU would continue to operate the team for the life of the agreement.

The length of the Alliance Agreement was linked to Super Rugby’s broadcast deals, unsurprisingly since the ability of the ARU to run the competition is, like most professional sporting leagues these days, contingent upon TV dollars.  The Alliance Agreement provided that the agreement would end on the expiry of the current broadcast deals (which ran to the end of 2020) unless those deals were “terminated or renegotiated earlier”, in which case the Alliance Agreement would terminate on that date.

By mid-July, Super Rugby’s broadcast deals had all been renegotiated to reflect the fact that three teams (two from South Africa and one from Australia) would be cut from the competition from 2018 onwards.   The ARU argued that those renegotiations brought the Alliance Agreement to an end and, as a result, they owned the Force franchise unencumbered and were free to do as they wished with it.

The WARU argued that the words “terminated or renegotiated earlier” should be read as meaning “terminated or renegotiated to end earlier”, and as the renegotiated broadcast deals remain on foot until the end of 2020, their renegotiation did not bring the Alliance Agreement to an end.

The decision

That argument was originally made before an arbitrator, who dismissed it and held that the Alliance Agreement had been terminated.  Justice Hammerschlag agreed. He found that the words of the term did not fit the WARU interpretation, and that if the parties had intended to use that interpretation they could easily have done so using different words.

Where to now?

The WARU has indicated it will consider the merits of an appeal.  Forrest has also flagged his intention to create a new competition, Kerry Packer-style, to house the Force.

One avenue which the WARU did not go down was arguing, as the South Sydney Rabbitohs did earlier this century, that they had been unfairly excluded from the competition.  South Sydney were ultimately unsuccessful in that argument as the High Court held that the NRL was justified in reducing the size of the competition and their procedure for doing so did not discriminate against the Rabbitohs.  The WARU could potentially argue to a court, as they have done in the media, that the ARU did discriminate against the Force by axing them instead of the Rebels.  However, unfortunately for them they may not have standing to bring that case, as they no longer owned the Force at the time of the decision.

In any event, it now appears virtually certain that the Force will not be taking part in Super Rugby next year.

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Chris Dunnell is a lawyer and footy tragic with a particular interest in sports law