News I Always Said We'd Know...

[JustaBattler]

Nothing short of what we copped would be fair or reasonable and that includes Tippett - those AFL BOZOS buried us for a decade - the precedent has been set - otherwise it is on for all and sundry.

 

[Monkey King]

Ehrlich is correct - Kurt Tippett can technically take legal action against the AFL due to the de-registration as it infringing on his freedom to conduct business (via restraint of trade).

He can ply his trade in any football organisation in the land, in any city or state; just not the one whose rules and regulations he's contravened. I'd love to see this tested in a court of law.

 

[Buzz/Sticks/bryce]

Nothing short of what we copped would be fair or reasonable and that includes Tippett - those AFL BOZOS buried us for a decade - the precedent has been set - otherwise it is on for all and sundry.

I think Crows fans would be ok with copping what we did-= rds 1 &2 and $1 mil. The difference is circumstance. The Storm and Bulldogs in NRL are a better example, as they were at the top of the tree at the time.

Not bitter, just want consistency league wide

 

[Dramoth]

Nothing short of what we copped would be fair or reasonable and that includes Tippett - those AFL BOZOS buried us for a decade - the precedent has been set - otherwise it is on for all and sundry.

If the AFL doesnt use the precedent set in dealing with our salary cap infringements (and Melbourne and Essendons) and beat the absolute crap out of the crows then we have a possible course of action to have at least our 2002 priority pick returned to us.

Also, if Tippett takes the AFL to court if he gets deregistered for his part in this and wins, I reckon Greg Williams would be able to take the AFL to court and get those 6 weeks overturned and they would have to pay him compensation for the period he was deregistered for as well as interest for the last 20 years.

There is precedent in both cases and neither the Crows or Tippett can really fight it in court even though they think that they could win.

 

[The_Wookie]

Tippett legal threat
http://www.afl.com.au/news/newsarticle/tabid/208/newsid/150388/default.aspx

[qoute:AFL chief executive Andrew Demetriou was quoted on Saturday saying the code’s player rules were 'legally sound'.quote]

Ehrlich, however, says there is a view the salary cap could be crushed by the courts.

If this report is true then this could open a lot of can of worms for players and the salary cap will end up out the door and AFL on its backside.

While some believe there is a case against the AFL, many others believe that the AFL would be able to withstand the legal challenges. I had some spare time - as i always do - and so i went looking for modern legal opinion and did this writeup for my footybusiness blog - its also in the commission section of this forum -

Every so often the question of the ability of the AFL to withstand restraint of trade cases in court pops up for discussion, most recently with regards to the possible - if unlikely - deregistration of Kurt Tippett at Adelaide. To date, the most commonly cited example of restraint of trade applies to the a case featuring the NSWRL and a player which the NSWRL lost. The AFL draft and cap systems have not been challenged since being introduced in 1986.

The VFL/AFL has been subject to a number of restraint of trade actions.

In 1982, the VFL zone laws were challenged when Peter Hall was refused clearance by Collingwood to play for South Melbourne. In this instance the Victorian Supreme Court found the zoning rules of the VFL consituted excessive restraint of trade. The Court believed that it was up to the VFL to prove it was necessary to protect its interests and it failed to do so.

In 1983, the zone laws were challenged again when Silvio Foschini took the league to court when his clearance from Sydney to St Kilda was refused.
In 1987, Gary Buckenara sought court action under the TPA believing that Hawthorns refusal to clear him to play for West Coast constituted restraint of trade. However, the Court found that in this instance Hawthorn were not in breach as Buckenara was still under contract, and dismissed the case.
To properly understand the subject, we must first go back to where it began.

The default position of the Australian court system is defined in the precedent set forward in 1874 (Nordenfelt v Maximum - Nordenfelt Guns and Ammunition Co Limited) where restraints were found to be illegal unless reasonable and in the public interest.

Nordenfeldt is important as it was specifically cited in the case of Adamson v New South Wales Rugby League where the NSWRL draft was found to be a restraint of trade. The Full Federal Court found that the leagues internal draft was a far greater restraint than was necessary to protect the clubs and players of the NSWRL.

Further precedent can be found as far back as 1972 in Buckley v Tutty, with the Australian High Court citing from a UK case, Eastham v Newcastle United Football Club. The UK Court found that the league had a special and legitimate interest in maintaining the quality and eveness of a competition, and measures taken to ensure that were permitted.

The immediate question at hand is whether the draft and cap are together in breach of the Trade Practices Act 1974.
The court must examine each of the following:

• Is there a legitimate interest in need of protection?
• Is the restrain reasonable in that circumstance?
• Is the restraint against the public interest.

The AFLs legitimate interests are likely to be:

• Onfield eveness in the AFL competition
• the popularity of the AFL as a spectator sport
• the promotion of Australian Football as a sport
• funding

Differences between the NSWRL draft, and the VFL/AFL Draft

The NSWRL draft was an internal draft that involved players already under contract to clubs. It should be noted that the court did not say that draft systems were wrong - only the NSWRL one before it, and the court itself suggested that changing the rules would make it a reasonable restraint. It should be noted that the NSWRL case concluded that much of the problem was because the players in question were no longer under contract. To compound the problem, this was the only way for players to change clubs at the time, hence the restraint.

The AFL system allows drafting for a 2 year period, before allowing players to change clubs via trade, preseason or national drafts. In 2012 it enters a new phase where a limited form of free agency is permitted - and some would say it has been something of a success with 17 players traded during this period.

The AFL draft has never been challenged in all the years since the NSWRL case primarily since the players and player association all signed on. Its thought that when combined with the salary cap that the AFL could quite easily prove that it achieves its aims of a more even and competitive league.

Applying the Nordenfeldt case to the AFL.

Protecting the Interests of the League

There is considerable evidence that the league is more even than ever. In the 90s for instance, every club made the finals at least once, with the exception of Fremantle, something which had not happened since the 1920s.

As a result of the strength of the competition, the leagues financial viablity has never been stronger.

Protecting the interests of the Public

It can be argued that the draft and cap have enabled more clubs to make more finals more often. A more even and more competitve league is in the interest of supporters. Theres some thought that the draft and cap system has kept some clubs viable a lot longer than may otherwise have been expected.

Protecting the Interests of the Players

While initially players have little choice in their employer, after 2 years it would appear that they have a number of avenues that begin to open up, with more opening up after 7 years and total free agency after 10 years.

Players have a strong and somewhat militant association behind them and lobbying on their behalf, and they have considerable bargaining power as a result of the NSWRL case.

The only real sticking point now is that players may still be traded while under contract, to another club. This is in essence a breach of the TPA and if any area was going to succeed under challenge it would be a player traded against his will. European Courts have ruled against this in soccer under the Bosman ruling where transfers may not be made without player consent.

Legality of the Salary Cap

There has not been any challenges to a salary cap system, although there have at times been systems that limited individual players, these were either lost in court (UK) or scrapped due to poor administration (Aus).

It is believed that the Salary cap would survive the relevant legal tests as its part of what has made the league and its clubs somewhat more financially stable. Where it could fall down is that it may not be in the interests of all players, particularly those forced to relocate to another club in order to recieve satisfactory remuneration.

Conclusion

The AFL system has never seriously been threatened by court action, but prevailing theory seems to be that the league would meet the tests applied under the Nordenfeldt precedent.

Its important to note that the courts have not ruled draft systems illegal, either here in in a 1968 case against the NFL, but have indicated that some simple rule changes would have enabled the drafts to continue. In the NFL case, they made some changes and move on, the NSWRL abandoned the draft altogether.
Player consent is the potential battlefield of the future, with precedent set ii Europe already.

References:

• Restraint of Trade in Australian Sport - Sam Chadwick, 2010
• The AFL contract and common law of trade - Sam Cusanamo, 1994
• Draft Systems and Salary Caps in Australian Sport - Dr. Chris Davies, 2012
• Draft Systems in Professional Sport - Dr Chris Davies, 2011
• AFL confident cap and draft solid, The Age, 2008
• Tippet could face sanctions, Foxsports, Oct 26, 2012
• Could going back to zoning bring back the fans, Dr David Nadel, March 2012
• Restraint of Trade in Sport, Sportlawyer
• The use of Salary caps in professional sport - Dr Chris Davies, 2006
• History of Player Recruitment, Transfer and Payment Rules - Ross Booth, 1997

 

[Sharks On A Plane]

If the AFL doesnt use the precedent set in dealing with our salary cap infringements (and Melbourne and Essendons) and beat the absolute crap out of the crows then we have a possible course of action to have at least our 2002 priority pick returned to us.

Do you actually believe this?

 

[Dramoth]

While some believe there is a case against the AFL, many others believe that the AFL would be able to withstand the legal challenges. I had some spare time - as i always do - and so i went looking for modern legal opinion and did this writeup for my footybusiness blog - its also in the commission section of this forum -

Interesting stuff mate... but I think that the bit about trading contracted players against their will would also fail because we all know that if a club is going to trade a contracted player to another club, then they will be doing everything they can to ensure that the player agrees to the trade. And if the player doesnt agree to the trade, then they will find some other avenue to do a deal.

The only case where we, thats Carlton, has recently traded a player against his will was Fevola, but that was after he had managed to make his own position untenable because of his behavior at the Brownlow medal count on live TV. While we dont know the full story, we do know that the club basically sacked the guy and told him that he was being traded because of his behavior. Our first deal for Bradshaw and Rischitelli fell through because Rischitelli declined to be traded to us and Brisbane offered us Hendo for Fev.

Prior to that, in the Judd trade when we had to give them either our priority pick (#1 in the draft) for Judd, we offered them Kennedy. We had, a couple of months earlier I think, re-signed Kennedy to a new 2 year contract and we had to convince him to agree to be a part of the trade. If he had said no, we would have had to work out some other way to make the trade work (possibly trading Fev for Judd might have worked and would have saved us some grief a couple of years later).

I think that overall, the Tippett deal might look as if it is a restriction of trade case but I think that when you get down to the nitty gritty of it all, he would have had to agree in principle to the shady deals in the background worked out by his manager and the Crows or he would have walked 3 years ago. And by being in agreement with the deals, you automatically make yourself complicit to the crime being committed in your name by third parties.

If the AFL deregisters him for 6-12 weeks, they will have precedent to fall back on in the Williams case after all the shenanigans of his deal with the Swan came to light. In Tippetts case, like Williams, he is guilty by complicity rather than in actuality and should be dealt with in a similar manner to Williams.

The AFL can allow his move to the Swans, but like what happened with Williams, they can prevent him for playing for a number of weeks by deregistering him for his part in the whole deal.

 

[Dramoth]

Do you actually believe this?

Not really but it would be nice

 

[The_Wookie]

Interesting stuff mate... but I think that the bit about trading contracted players against their will would also fail because we all know that if a club is going to trade a contracted player to another club, then they will be doing everything they can to ensure that the player agrees to the trade. And if the player doesnt agree to the trade, then they will find some other avenue to do a deal.

The only case where we, thats Carlton, has recently traded a player against his will was Fevola, but that was after he had managed to make his own position untenable because of his behavior at the Brownlow medal count on live TV. While we dont know the full story, we do know that the club basically sacked the guy and told him that he was being traded because of his behavior. Our first deal for Bradshaw and Rischitelli fell through because Rischitelli declined to be traded to us and Brisbane offered us Hendo for Fev.

Prior to that, in the Judd trade when we had to give them either our priority pick (#1 in the draft) for Judd, we offered them Kennedy. We had, a couple of months earlier I think, re-signed Kennedy to a new 2 year contract and we had to convince him to agree to be a part of the trade. If he had said no, we would have had to work out some other way to make the trade work (possibly trading Fev for Judd might have worked and would have saved us some grief a couple of years later).

I think that overall, the Tippett deal might look as if it is a restriction of trade case but I think that when you get down to the nitty gritty of it all, he would have had to agree in principle to the shady deals in the background worked out by his manager and the Crows or he would have walked 3 years ago. And by being in agreement with the deals, you automatically make yourself complicit to the crime being committed in your name by third parties.

If the AFL deregisters him for 6-12 weeks, they will have precedent to fall back on in the Williams case after all the shenanigans of his deal with the Swan came to light. In Tippetts case, like Williams, he is guilty by complicity rather than in actuality and should be dealt with in a similar manner to Williams.

The AFL can allow his move to the Swans, but like what happened with Williams, they can prevent him for playing for a number of weeks by deregistering him for his part in the whole deal.

Its thought that the reason the AFL can reasonably deregister a player for a short period, but it cant be permanent - its believed that this is why Cousins was allowed back after a season.

 

[JustaBattler]

Nice background Wookie.

The AFL doesn't have a problem with the Courts- its only problem is in showing consistency if the punishment doesn't follow precedent then their credibility is shot and as I said before..it will lead to "..it bring on for young and old" the incentive to cheat will outweigh the proven costs of being found out for too many Clubs...and then a Court challenge in the future may be based on inequitable treatment based on precedent the AFL set out....

Demetriou has no choice but to match Adelaide punishment to previous - especially I would think - ours.

 

[Dramoth]

Its thought that the reason the AFL can reasonably deregister a player for a short period, but it cant be permanent - its believed that this is why Cousins was allowed back after a season.

I have never said he should be deregistered permanently... the worst case he can cop is a similar penalty to Cousins for being complicit in the act of attempting to draft tamper and breach salary cap regulations.

At best he can expect a penalty of 6-12 weeks for the salary cap stuff and be allowed to enter the draft. But I think that to make the whole situation the better for the league the AFL needs to prevent Sydney for picking him up in the draft to make it fair now because I think that someone tipped off Sydney and they decided to play silly buggers with Adelaide over Tippett.

 

[FlowersByIrene]

I dont understand how restrait of trade is an issue, how have the Courts allowed this kind of precedent as evident in Wooks post.

If you want to play in the Australian Football League you play by the Australian football league rules or you **** off to the country leagues, it should all simply be done under contract law.

 

[Malifice]

I dont understand how restrait of trade is an issue, how have the Courts allowed this kind of precedent as evident in Wooks post.

If you want to play in the Australian Football League you play by the Australian football league rules or you **** off to the country leagues, it should all simply be done under contract law.

Sets a nasty precedent.

Your employers can simply arrange a regulatory body (basically what the AFL is) and set wage conditions accordingly.

Its akin to price fixing and cartels.

 

[Dramoth]

Sets a nasty precedent.

Your employers can simply arrange a regulatory body (basically what the AFL is) and set wage conditions accordingly.

Its akin to price fixing and cartels.

As a lawyer what do you feel would be a good result in the whole shebang with the blows, the Tippett family and his manager?

 

[Weiterbot23]

Not really but it would be nice

We tried this already didn't we?

Then the afl changed the priority system so that draw against port Adelaide cost us another priority.

So we could have goddard, wells, Sylvia or McLean aswell as someone from Gibbs draft... Selwood? Instead of grigg

 

[Malifice]

As a lawyer what do you feel would be a good result in the whole shebang with the blows, the Tippett family and his manager?

Most likely?

Manager + player deregistered, Tippett facing a five figure fine, and the club facing a solid six figure fine, Trigg given the chop from the AFC board. Finally the Crows will be excluded from the first two rounds of the next two years ND + next years PSD (and lose Tippett for nothing).

On a positive note for us, there will also now be around 10% less posters on these boards that can hang shit on us for rorting the cap 15 years ago, bring up under the table 'brown paper bag' deals and able to call us a bunch of cheats.

 

[Blue and Silver]

Most likely?

Manager + player deregistered, Tippett facing a five figure fine, and the club facing a solid six figure fine, Trigg given the chop from the AFC board. Finally the Crows will be excluded from the first two rounds of the next two years ND + next years PSD (and lose Tippett for nothing).

On a positive note for us, there will also now be around 10% less posters on these boards that can hang shit on us for rorting the cap 15 years ago, bring up under the table 'brown paper bag' deals and able to call us a bunch of cheats.

We might even have the joy of being second on that list when people bring it up.

 

[Malifice]

We might even have the joy of being second on that list when people bring it up.

Doubtful. Cheating is ingrained in the Carlton story by now.

Also, on a somewhat unrelated note, you hadve told me 15 years ago that Carlton would start the 21st century with 3 spoons, and Fitzroy would relocate to Brisbane and win 3 flags I would have told you you were crazy.

You never know what the future holds.

 

[Dramoth]

Most likely?

Manager + player deregistered, Tippett facing a five figure fine, and the club facing a solid six figure fine, Trigg given the chop from the AFC board. Finally the Crows will be excluded from the first two rounds of the next two years ND + next years PSD (and lose Tippett for nothing).

On a positive note for us, there will also now be around 10% less posters on these boards that can hang shit on us for rorting the cap 15 years ago, bring up under the table 'brown paper bag' deals and able to call us a bunch of cheats.

Ohh... forgot to ask about the draft tampering... Essendon is the precedent in this getting pinged in 96 (along with their salary cap rorts and tax evasion stuff).

 

[Dramoth]

Doubtful. Cheating is ingrained in the Carlton story by now.

Also, on a somewhat unrelated note, you hadve told me 15 years ago that Carlton would start the 21st century with 3 spoons, and Fitzroy would relocate to Brisbane and win 3 flags I would have told you you were crazy.

You never know what the future holds.

#17, #18, #19 and possibly #20...

 

[Malifice]

#17, #18, #19 and possibly #20...

Still a cultural thing with the club that we need to overcome first. Ratts tried and failed.

We've always been mercenary and unscrupulous. Which was OK when coupled with the arrogance of knowing we were the best.

Im still not 100% sure that we have the collective headspace right. Too much 'I' and not enough 'Us' when we play, The talent is certainly there, but I havent seen the machine really click yet.

But I digress.

 

[The_Wookie]

Just getting back to the likely punishment for the current situation. Ironically for us, the precedents for this situation were set in our dark 2001 and 2002 periods.

Theres going to be a fine, just a question of how much. It will not be as big as the Carlton, Essendon or Melbourne ones because even with the hidden payments the club is understood to have not exceeded the salary cap for the given period.

Now the most recent precedents for this if Tippet was paid his 200k and it wasnt disclosed is from 2001 and 2002.

• For the club: In 2001, Carlton were fined $125,150, forfeited their second and third round picks in the 2001 National Draft and were excluded from the 2002 pre-season draft after it was found that they had failed to disclose payments totaling $239,900 to captain Craig Bradley and incorrectly lodged an additional services agreement document during the 1998 and 1999 seasons.
• For the player: In 2002 ruckman Matthew Allan was suspended for five matches and fined $10,000 for accepting undisclosed payments from club officials

 

[Dramoth]

Just getting back to the likely punishment for the current situation. Ironically for us, the precedents for this situation were set in our dark 2001 and 2002 periods.

Theres going to be a fine, just a question of how much. It will not be as big as the Carlton, Essendon or Melbourne ones because even with the hidden payments the club is understood to have not exceeded the salary cap for the given period.

Now the most recent precedents for this if Tippet was paid his 200k and it wasnt disclosed is from 2001 and 2002.

• For the club: In 2001, Carlton were fined $125,150, forfeited their second and third round picks in the 2001 National Draft and were excluded from the 2002 pre-season draft after it was found that they had failed to disclose payments totaling $239,900 to captain Craig Bradley and incorrectly lodged an additional services agreement document during the 1998 and 1999 seasons.
• For the player: In 2002 ruckman Matthew Allan was suspended for five matches and fined $10,000 for accepting undisclosed payments from club officials

For the draft tampering Essendom were fined $112k in 1996. I think that will also be taken into consideration.

And Greg Williams was delisted after his transfer to Carlton for a period of 6 weeks. And there may have been a fine as well...

 

[Bluesince62]

If Tippett is deregistered I think that means he cannot play in ANY competition which the family may challenge. However, if the AFL chooses to not let him enter the PSD he can play anywhere other than the AFL and there is no restraint of trade case at all.

 

[Dramoth]

If Tippett is deregistered I think that means he cannot play in ANY competition which the family may challenge. However, if the AFL chooses to not let him enter the PSD he can play anywhere other than the AFL and there is no restraint of trade case at all.

If he is deregistered before the draft period, he cant register for any of the drafts. no restraint of trade.

However, I suspect that the AFL will allow him to enter the PSD and go to the Swans if he gets there and then as a punishment to both him and the Swannies, I suspect that the AFL will deregister him for a set number of weeks (I think that the going rate for accepting under the table payments is 6-10 weeks) and the Swans will have to keep paying him and not playing him

Similar to us and Diesel.