Alternative Law Journal
GRAEME ORR[*] examines the South Sydney litigation.
One of the most famous lines written about sport belongs to Caribbean marxist, CLR James:
What do they know of cricket, who only cricket know?
James was emphasising that a practice as significant yet banal as sport could not be understood in isolation from the societies in which it is played. Someone who only knows cricket from the inside -its rules, its records, its physical demands-may get a guernsey on Channel 9, but will not be an insightful commentator.
The same philosophy underlies the realist and critical legal studies movements. To be a formalist, a master of law's black-letter rules yet ignorant of its context, is to be peculiarly blinkered. The legal equivalent ofJames' motto is Justice Frankfurter's letter to a barely pubescent boy who wrote, seeking advice on how to prepare for his dream of becoming a lawyer. The judge counselled him to explore the world and read about everything but law.
Law and sport are both fundamental aspects of cultural, indeed economic life. Moreover, they are both curious mixtures of rule bound competition and creative possibility. Unsurprisingly then, they are interlinked and mutually revealing at many more interesting levels than the 'sports law' that has grown up to service the business of professional sport. This brief gives an example of these links, in describing the tumultuous litigation between South Sydney District Rugby League Football Club (Souths), and News Ltd and the National Rugby League (NRL).
Souths, a foundation club of Australian rugby league, is also its most honoured, with 20 premierships between 1908 and 1971. With headquarters in Redfern, Sydney, Souths epitomised rugby league's working class roots, whilst attaining the sort of success that mirrored Sydney's centripetal pull.
League faced a host of challenges in the 1980s and 1990s: commercialisation, increased competition from other codes and a mobile and fickle population. A national competition was created, reaching 20 teams in 1995-96. As this happened, Murdoch's News Ltd, hungry for cheap cable television content, fostered resentment and geldlust, especially amongst clubs outside Sydney. News established a rival 'Superleague', splitting the sport and generating unsustainable financial pressures. The split could not last, and the rival leagues merged to form the NRL. In doing so, they agreed to reduce the number of teams to just 14 for 2000. Incentives were offered to traditional Sydney clubs to form joint ventures, in a process similar to union amalgamation.
Souths, which prided itself on living within its means, had had a frugal decade both on and off the field. It refused to seriously consider losing its identity in a merger. But the playing field was never level. Superleague clubs benefited from enormous infusions of News' money and non-Sydney clubs were protected against the criteria for exclusion. Souths was cut from the NRL competition. The club seemed set to die.
It did not. Loyal fans re-emerged from the woodwork, joined by hosts of supporters of other traditional clubs, resentful of Murdoch's takeover of the code. The most visible signs of this were two massive demonstrations in Sydney: one, involving over 80,000 marchers, the largest since the Vietnam moratorium.
The less visible, but ultimately more effective battle occurred in the Federal Court. Relying on the Trade Practices Act 1974 (TPA), Souths argued that the merger of the rival competitions, subject to a strict limitation on the number of teams, breached the prohibition against 'exclusionary provisions' ins 45(2). It lost at first instance, but succeeded 2-1 on appeal:  FCA 862. That the majority judges disagreed on the legal reasons, creating a case without a ratio, did not seem to matter. The NRL, under a new CEO, immediately invited Souths back into the league, rendering the case moot except as to damages. But News and the NRL successfully appealed to the High Court:  HCA 35.
A majority of four agreed with the trial judge that Souths was not a 'particular person or [part of a particular] class of persons' as required by s 4D. The merger had not, in a legal sense, targeted identifiable clubs. The majority believed it would be unfair to legally hamstring merger partners when a truce had been necessary to save the code, and limiting the number of teams in a sporting competition was inevitable. Only Kirby J preferred an expansive reading of restrictive trade practices law.
Souths did not rely on the more obvious weapon, the provisions against abuse of market power. Presumably that claim was not pursued because it assumes a substantial degree of market power. The NRL owns the sole elite competition, but the 'market' would be read as football generally, rather than league alone.
The campaign to save Souths highlighted larger wounds. In treating league as an 'entertainment product', to be grown hydroponically in a marketing bowl, league's management almost killed its roots. Indeed professional sport generally has come to embody the contradictions sustaining hyper-capitalism. Everything can be bought and sold. Clubs seek to abstract themselves from their communities, becoming placeless brands (Cronulla-Sutherland became 'The Sharks') or franchises capable of re-locating to the highest bidder. Sport is now mediated as a television spectacle, dependent on broadcast and merchandising royalties rather than attendances. Yet lasting interest in a code is only sustained through desires born out of fleshy realities such as loyalty.
Football is notoriously tribal. A child may adopt a team for arbitrary reasons, like its colours, but over time, those colours come to suffuse her blood. So league's marketers have sought a return to its grassroots, symbolised in their paying the Hoodoo Guru's to rework their hit 'What's my Scene' into 'That's my Game' and 'That's my Team', as the code's latest jingle.
And what of 'my team', the Souths 'Rabbitohs'? So named after the players who sold rabbits door-to-door to survive, the emblem survives - although the twee alternative 'Bunnies' is increasingly popular to juvenile minds. Yet survival meant starting anew. The club lost all its players during its hiatus and has rarely been competitive since. Success breeds success in sport: 1989 was the last time Souths topped the league. And organisationally, the club lurches from crisis to crisis, despite attracting profiled supporters as diverse as Nick Greiner, Alan Jones and Anthony Albanese, and Russell Crowe, Ray Martin and Andrew Denton.
The most famous league club in the world, Souths has loyal fan clubs across Australia. But sentiment and history cannot forever conquer the tectonics of demographics. Outside its Indigenous community - which sport everywhere disproportionately relies on - inner-south Sydney is no longer natural league territory. There was a 'Pink Rabbitohs' group, but gay districts like Newtown eschew contact sports. (The Newtown 'Jets', the first league team in Australia, and so named for being under a conspicuous flight path, lost its elite team amidst financial problems in 1983, although a second-string team was revived in 1991). Lebanese and Greek communities have produced brilliant players and passionate supporters, but Asianised suburbs like Marrickville are less fruitful. Most of all, inner-city gentrification and aspirational consumerism have seen sport's natural constituency, 'mainstream' families, head for the outer suburbs and beachside provinces.
Is it ironic that a working-class club found refuge in the TPA, legislation designed to grease the wheels of capitalism? Niceties of statutory interpretation meant nothing to Souths supporters. But News is nothing if not a monopolist, so wielding the TPA against it was not odd.
The judgments themselves are dense testaments to the black-arts of legal interpretation. Ultimately, the High Court held that the effect of the merger provisions was not evidence of their purpose, even though the effect, the demise of traditional teams such as Balmain, St George, North and Western Sydney and, almost, Souths, was desired from the start. The TPA is now narrower than it might have been. Yet the case is unusual in that rarely is a sport divided into rival competitions. Not being in competition with itself, if the NRL chose to shrink in the future, clubs like Souths would not even reach first base on an 'exclusionary provision' argument. But in the meantime, the Full Federal Court, at least to Souths' fans, has assumed the mythical status of the High Court in 'The Castle', as a dispenser of justice-as fairness.
[*] Graeme Orr is a legal academic at Griffith University, Brisbane and a Rabbitohs' convert.
© 2003 Graeme Orr