Mal Michael & Essendon

[GoSarge]

So they talked to him before Ackland signed? So?

How far back do you think Essendon knew ? Before he 'retired' ? And if in fact their intentions were noble, they probably would have made them public a long time ago.

 

[Crow-mo]

Michael should be deregistered for the year.

it's arguable if Essendon have done anything wrong, but Brisbane have certainly been wronged.

The player should not be allowed to benefit from his underhanded conduct.

common sense dictates that this should not be allowed to happen.

 

[Mego Red]

AFL could refuse to accept Michael's player registration for 2007 season.

Unless they can demonstrate evidence that this was organized between Michael and Essendon before being given his release by Brisbane, they have no grounds. BUT it will stop anything like this happening in the future. Expect a "Michael Rule" in all new player contracts.

 

[Mego Red]

Michael should be deregistered for the year.

it's arguable if Essendon have done anything wrong, but Brisbane have certainly been wronged.

The player should not be allowed to benefit from his underhanded conduct.

common sense dictates that this should not be allowed to happen.

He obviously signed something on his release. If Brisbane didn't put anything in the release that clearly stated the grounds upon which the contract was being terminated, then I think they've been very slack. Obviously, you move ahead in good faith and take people on their word - but there is a reason we HAVE contracts.

Of course, if I was a Brisbane supporter, I would be ROPABLE.

 

[CaptainDangerfield]

Unless they can demonstrate evidence that this was organized between Michael and Essendon before being given his release by Brisbane, they have no grounds. BUT it will stop anything like this happening in the future. Expect a "Michael Rule" in all new player contracts.

If the AFL don't bring in a Michael rule the whole integrity of this competition has been compromised. Scrap the pre-season draft for starters, I don't see the point of it anyway.
I must admit i'm fast losing respect for Sheedy. All this Ambassador for football is BS. This incident shows, past the gates at Windy Hill, he doesn't give a rats about the interests and integrity of Aussie rules.

 

[feenix67]

Scenario 1: AFL approve deal. Brisbane take the matter to the court system, only to be told that in Australia, you can retire one day and get a new job the next. Court reminds Brisbane the AFL draft rules are not Australian law.

Outcome - all clubs fearful of the situation repeating itself, and lobby the AFL for a rule change, requiring the retiring player to sit out at least 12 mths before re-nominating. AFLPA challenge this rule citing restraint of trade, which is upheld under Australian common law.

Scenario 2: AFL refuse to register Michael for 2007.

Outcome - Michael, backed by Essendon, challenge the ruling under Australian Law regarding restraint of trade, which is upheld.

Ramifications for either scenario seem to spell the end of the draft system, or at least changes to bring it into line with Australian common law. The reason I believe is because, whilst AFL contracts include stipulations that players and clubs will abide by the AFL laws, Michael IS NOT UNDER CONTRACT, which means that the AFL has no means to enforce.

This issue is going to be huge IMHO.

 

[feenix67]

I must admit i'm fast losing respect for Sheedy. All this Ambassador for football is BS. This incident shows, past the gates at Windy Hill, he doesn't give a rats about the interests and integrity of Aussie rules.

SC, I seem to recall Sheedy saying mid year that he was going to be ruthless in enticing players from other clubs to join Essendon. Have been trying to find the article with no joy so far but will keep looking. Seems rather prophetic now tho hey?

 

[CaptainDangerfield]

SC, I seem to recall Sheedy saying mid year that he was going to be ruthless in enticing players from other clubs to join Essendon. Have been trying to find the article with no joy so far but will keep looking. Seems rather prophetic now tho hey?

You're 100% correct. Maybe Brisbane should email a copy of the article to AFL house with their formal complaint. Anyone that thinks Essendon and Sheedy have acted in good faith are either incredibly stupid or incredibly naive.

Could you imagine the outcry from the AFL and Demetriou if Brisbane did this to Essendon. It would make Demtrious unfair and outragous 2004 grand finals scheduling payback at Brisbane ( John Brown tribunal fiasco )look small fry.

 

[CaptainDangerfield]

Scenario 1: AFL approve deal. Brisbane take the matter to the court system, only to be told that in Australia, you can retire one day and get a new job the next. Court reminds Brisbane the AFL draft rules are not Australian law.

Outcome - all clubs fearful of the situation repeating itself, and lobby the AFL for a rule change, requiring the retiring player to sit out at least 12 mths before re-nominating. AFLPA challenge this rule citing restraint of trade, which is upheld under Australian common law.

Scenario 2: AFL refuse to register Michael for 2007.

Outcome - Michael, backed by Essendon, challenge the ruling under Australian Law regarding restraint of trade, which is upheld.

Ramifications for either scenario seem to spell the end of the draft system, or at least changes to bring it into line with Australian common law. The reason I believe is because, whilst AFL contracts include stipulations that players and clubs will abide by the AFL laws, Michael IS NOT UNDER CONTRACT, which means that the AFL has no means to enforce.

This issue is going to be huge IMHO.

It SHOULD be but i'm willing to bet Stiffy's inverted 3rd testicle that it won't be.

 

[Crow-mo]

He obviously signed something on his release. If Brisbane didn't put anything in the release that clearly stated the grounds upon which the contract was being terminated, then I think they've been very slack. Obviously, you move ahead in good faith and take people on their word - but there is a reason we HAVE contracts.

Of course, if I was a Brisbane supporter, I would be ROPABLE.

It's the same as the Carlos Boozer situation which damaged the credibility and integrity of the game. that and this, should not be allowed to happen.

 

[Crow-mo]

What if it were Mcleod?

 

[just maybe]

The important thing to remember here is that Mal Michael was under contract to Brisbane and still had another year to serve of it.

Brisbane only revoked his contract and delisted him because he said he'd had enough and wanted to retire.

To me there is only one clear cut solution as the rules currently are. The AFL must rule that if Mal Michael is going to play on in 2007, then that is a change of mind and as Brisbane revoked the contract in good faith, the contract should become valid again and Mal Michael must play with Brisbane in 2007 as he is a contracted player The logic to this is that the contract was only terminated CONDITIONAL on Michael retiring. Alternatively his registration should not be accepted for 2007.

To avoid a repetition of this type of fiasco occurring again, the AFL should introduce a rule that if a player retires while under contract, he cannot enter the draft or PSD in the same year.

Alternatively if a player retires out of contract, then he should be limited only to nomination for the PSD, a right all players out of contract currently have. I think he should be excluded from the national draft because as he has denied his club an opportunity to arrange a trade, so should he be limited in his alternatives.

If Michael is allowed to play for Essendon and/or no legislation is passed to ensure that it can't hapen again, the integrity of the whole competition is threatened.

Contract law doesn't work like that.

There is no way to prove Michael wanted out of the contract in bad faith.

Therefore the contract was validly terminated to the satisfaction of both parties, and Michael can do whatever he wants afterwards.

It's not tasteful, but it is perfectly valid.

 

[GoSarge]

Contract law doesn't work like that.

There is no way to prove Michael wanted out of the contract in bad faith.

Therefore the contract was validly terminated to the satisfaction of both parties, and Michael can do whatever he wants afterwards.

It's not tasteful, but it is perfectly valid.

Agreed, and that is why it will stand.

 

[Mego Red]

It's the same as the Carlos Boozer situation which damaged the credibility and integrity of the game. that and this, should not be allowed to happen.

Though, I think it mostly damaged the credibility of Carlos Boozer, who I'm sure regretted it afterwards and only now is returning from two years of being a pariah.

Of course, if it was McLeod, I WOULD be ropable - at him, and at the Crows for allowing it to happen.

 

[Tas]

Michael should be deregistered for the year.

it's arguable if Essendon have done anything wrong, but Brisbane have certainly been wronged.

The player should not be allowed to benefit from his underhanded conduct.

common sense dictates that this should not be allowed to happen.

The only way to de-register him was to have evidence of Essendon's involvement. AFL wouldn't take him to court just because Brisbane were too stupid to get any kind of agreement from Mal that he would not play AFL again at least until the end of 2007, when his contract would expire.

I agree it is not moral or ethical, but Brisbane could have easily avoided it. It wont happen again because clubs will learn from this and ensure there is an agreement of non-participation when future contracts are cancelled due to retirement. I believe Port got this kind of an agreement with Dew before they cancelled his contract.

 

[Crow-mo]

isn't it funny - how when players are treated as men, and expected to behave honourably, we then blame the clubs for their stupidity in doing so.

 

[Vader]

There is no way to prove Michael wanted out of the contract in bad faith.

It has been widely reported that he changed his mind upon watching the Grand Final, which was played on September 31st.

He was delisted on October 4th.

There's a 4 day window there when he should have advised the club that he intended to continue his AFL career. During that window he was still contractually obliged to continue playing for Brisbane.

It's thin, but it is an argument which might be pursued to prove that he acted in bad faith.

 

[Mad Dog]

As many of said - there is nothing technically wrong with what has happened - and hence action won't be taken.

It just leaves a bad taste and reminds us that rules are made to be bent.

I still believe the AFL should abandon the PSD.

Where is the benefit.

• Only 8 clubs are participating - of which 2 have already named their man.
• The process leaves the door open for deals to be done and for clubs to be dudded ah la Stevens to Carlton.
• The process lets the situations like Hart and Skipworth linger when they could be getting on with other things.

Lose it I say !

 

[Vader]

As many of said - there is nothing technically wrong with what has happened - and hence action won't be taken.

It just leaves a bad taste and reminds us that rules are made to be bent.

I still believe the AFL should abandon the PSD.

Where is the benefit.

• Only 8 clubs are participating - of which 2 have already named their man.
• The process leaves the door open for deals to be done and for clubs to be dudded ah la Stevens to Carlton.
• The process lets the situations like Hart and Skipworth linger when they could be getting on with other things.

Lose it I say !

It's there to act as a safety valve, preventing players from taking the league to court over the lack of "Free Agency". If players were to challenge the current system in court, the whole thing would collapse because the draft is clearly in breach of "constraint of trade" legislation. As it is, it currently survives because both the AFL and the AFLPA are happy for it to do so.

I agree, the PSD should go, but there are strong legal reasons why the AFL won't allow this to happen.

 

[tinman]

The only way to de-register him was to have evidence of Essendon's involvement. AFL wouldn't take him to court just because Brisbane were too stupid to get any kind of agreement from Mal that he would not play AFL again at least until the end of 2007, when his contract would expire.

I agree it is not moral or ethical, but Brisbane could have easily avoided it. It wont happen again because clubs will learn from this and ensure there is an agreement of non-participation when future contracts are cancelled due to retirement. I believe Port got this kind of an agreement with Dew before they cancelled his contract.

That's not correct. You can't have a legally enforcable contract to perform an illegal act (ie. the old mafia 'contract' to hit someone).

These exclusivity clauses have crept into some employment contracts but they are all bluff - they are not enforceable. Brisbane are probably well aware of that, not stupid as you suggest. Stewart Dew, Mal Michael, you and I all have the common law right to sell our labour services to who we choose.

Of course the AFL through the draft and salary cap have their own system designed to even up the competition and provide for competitive, entertaining games.

In the event that a player can't reach agreement with their employer there must be some provision for them to then sell that labour to someone who is willing to meet their terms and conditions (ie to take their labour elsewhere). That's why the pre-season draft has to exist - you can't just scrap it.

The AFL doesn't want free agency for the reasons stated above. But all of us have the right to change jobs if we can't reach agreement with our current employer. Footballers shouldn't be any different.

Until much of this is tested in court (if ever) then none of us really know with certainty how the AFL's 'rules' will stack up. But as far as I know there is plenty of case law on exclusivity clauses in employment contracts and they don't!

 

[- PC -]

These exclusivity clauses have crept into some employment contracts but they are all bluff - they are not enforceable. Brisbane are probably well aware of that, not stupid as you suggest. Stewart Dew, Mal Michael, you and I all have the common law right to sell our labour services to who we choose.

The only thing I will add to this is that part of the ''exclusivity'' may involve financial benefits after the exclusivity is over

ie Dew may have signed an agreement to say he wont play for anyone else for 1 year and part of that is a payment at the end of that year if he honours it

 

[Vader]

That's not correct. You can't have a legally enforcable contract to perform an illegal act (ie. the old mafia 'contract' to hit someone).

These exclusivity clauses have crept into some employment contracts but they are all bluff - they are not enforceable. Brisbane are probably well aware of that, not stupid as you suggest. Stewart Dew, Mal Michael, you and I all have the common law right to sell our labour services to who we choose.

Of course the AFL through the draft and salary cap have their own system designed to even up the competition and provide for competitive, entertaining games.

In the event that a player can't reach agreement with their employer there must be some provision for them to then sell that labour to someone who is willing to meet their terms and conditions (ie to take their labour elsewhere). That's why the pre-season draft has to exist - you can't just scrap it.

The AFL doesn't want free agency for the reasons stated above. But all of us have the right to change jobs if we can't reach agreement with our current employer. Footballers shouldn't be any different.

Until much of this is tested in court (if ever) then none of us really know with certainty how the AFL's 'rules' will stack up. But as far as I know there is plenty of case law on exclusivity clauses in employment contracts and they don't!

Only problem with this is that he was contracted to play for them in 2007. Would be a very different story if he was out of contract.

If he was out of contract and couldn't come to terms with his employer then he would have had the right to walk at the end of the contract, finding a new home via the PSD. Examples of this abound - Ackland this year, Camporeale last year.

They would be perfectly within their rights to have inserted a clause preventing the player from signing with another club for the duration of the original contract. Once the original contract period expires then the club would no longer have any hold on him and the situation would revert to the normal situation.

 

[Tas]

That's not correct. You can't have a legally enforcable contract to perform an illegal act (ie. the old mafia 'contract' to hit someone).

It is not an illegal act. We are talking contract law and you can sign away many of your rights. We are not talking about giving someone permission to kill you, we are talking about an agreement between two parties with conditions placed on it. Mal gets out of having to server another year and Brisbane get a guarantee he wont play anywhere else. This does not breach any laws.

These exclusivity clauses have crept into some employment contracts but they are all bluff - they are not enforceable. Brisbane are probably well aware of that, not stupid as you suggest. Stewart Dew, Mal Michael, you and I all have the common law right to sell our labour services to who we choose.

That is not correct at all, a client of mine receive a $10 million payout on the provision that he would not work in the export business for a period of 15 years. He has tried with the help of a QC to break that agreement but has failed to do so. Those kinds of agreements are VERY binding. These kinds of agreements are very common in the workplace. You can sign away some of your rights, you have to be very careful what you agree to do or not do.

Of course the AFL through the draft and salary cap have their own system designed to even up the competition and provide for competitive, entertaining games.

This has no relevance, at all. It is a contract law issue between Mal and the Lions. AFL are only involved if one of their rules were breached and there is no evidence to suggest let alone prove that.

In the event that a player can't reach agreement with their employer there must be some provision for them to then sell that labour to someone who is willing to meet their terms and conditions (ie to take their labour elsewhere). That's why the pre-season draft has to exist - you can't just scrap it.

Where did I mention scrapping the PSD?

The AFL doesn't want free agency for the reasons stated above. But all of us have the right to change jobs if we can't reach agreement with our current employer. Footballers shouldn't be any different.

Again, I am not arguing otherwise so not sure why you raising it. If you enter a contract with someone then you are bound to honour it, changing your mind is not good enough when it comes to making a binding agreement. AFL footballers are compensated significantly more because they have far more limitations on what they can and cannot do. They can't be made immune to contract law.

Until much of this is tested in court (if ever) then none of us really know with certainty how the AFL's 'rules' will stack up. But as far as I know there is plenty of case law on exclusivity clauses in employment contracts and they don't!

A player could take the AFL to court over restraint of trade, some think it will hold up, others do not. Rugby failed to hold up in court but AFL has the players association who has approved of the current rules and we have mechanisms such as the pre-season draft and the like which exist only to keep players happy.

I believe it would be difficult for a player to win a restraint of trade case, there are mechanisms in place to give players more control over where they play and the players have a large voice in how those rules and conditions are made up. I believe it is inevitable that Free Agency will exist in some form in the future, but it has nothing to do with honouring agreements. If Mal had agreed to not play AFL again until his contract with the Lions expired until the end of 2007 you would find it would be binding in a court of law.

 

[jc67]

There's nothing underhanded about this!
Mal wanted 2 days a week off, it was not negotiable with Brisbane. and the decision to retire was mutually made.
After that Essendon saw this as an opportunity and took it.
simple.
If Brisbane had been willing to negotiate, he would still be there.
It makes me wonder about Aka's Nazi comments? maybe it wasn't so one sided after all.

 

[feenix67]

The difference between contractual exclusivity clauses involving large payouts for future non participation, and exclusivity clauses not involving money, is the salary cap.

If any player is offered money in return for guaranteeing that they wont offer their services elsewhere, that money is part of TPP. Last time I looked, few (if any) clubs have room in their caps or the financial means to carry that kind of financial impost.

Tas, we are not dealing with a run of the mill employment case here. Most employment contracts in this country have to be drawn up in line with common law and industrial law. The test for any contract (which can, after all, say anything) is when they are scrutinised in court.

The reason AFL contracts have not, to this point, been scrutinised in court is because there is a mutual understanding between the AFL and the players (via the AFLPA) that it is everyone's best interests to go with the flow. There is, if you like, an uneasy truce. But I can categorically state that no Federal Court will uphold the legality of any system that denies an individual the right to choose where he or she is employed. That is the bottom line. So (with reference to my earlier post), unless there is some heavy duty behind the scenes brokering between the AFL, Brisbane and Mal Michael, then I think you will see this issue in court, which, Im almost certain, will bring about the end of the draft system as we know it.

My bet is that the AFL will compensate Brisbane for their loss (on the sly) and negotiate changes to the EBA with the AFLPA because after all, the draft is the cornerstone of their "even" competition strategy.