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Devlyn, Amelia --- "Labour Market Controls In The Australian Football League (Afl) And The Common Law Restraint Of Trade Doctrine" [2019] WAStuLawRw 2; (2019) 3 Western Australian Student Law Review 13


LABOUR MARKET CONTROLS IN THE AUSTRALIAN FOOTBALL LEAGUE (AFL) AND THE COMMON LAW RESTRAINT OF TRADE DOCTRINE

AMELIA DEVLYN[*]

Sports Law—Restraint of Trade Doctrine—Nordenfelt Test—Labour Market Controls—Australian Football League (‘AFL’)—Draft System—Salary Cap

Football is Australia’s favourite sporting pastime. Every year young Australian men vie to be drafted by an elite Australian Football League ('AFL') team. The labour market controls implemented by the AFL present interesting questions about the common law restraint of trade doctrine. This article explores whether the salary cap and the draft system used by the AFL are legally sound in light of the Nordenfelt test. It concludes that while the draft system represents a reasonable restraint of trade, the salary cap imposed by the AFL does not. The labour structure of Australia’s most loved sport needs reform to protect the interests of players in the AFL.

I INTRODUCTION

The Australian Football League (‘AFL’) has implemented two forms of labour market controls: the salary cap and the draft system. The salary cap is ‘an artificial labour market control that limits the total sum an individual club may spend on payments to its players’.[1] The draft system consists of both an external and internal draft; controlling the entry of players into the competition and the movement between clubs of existing players, respectively.[2] Whether or not such market controls are legally sound can be determined with reference to the common law doctrine of restraint of trade, and the application of the Nordenfelt test, developed by the House of Lords in Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd (‘Nordenfelt’).[3] As the salary cap and draft system limits players’ mobility and earning capacity, they are restraints of trade and prima facie void.[4] However, such restraints will be deemed legal if it can be established that they are reasonable.[5]

This article will examine these two labour market controls as implemented by the AFL and consider whether they amount to an unreasonable restraint of trade. Part II will review the doctrine of restraint of trade, followed by a review of the unique context of sporting competitions in Part III. Part IV will explore the draft system and salary cap as implemented by the AFL, before applying the doctrine of restraint of trade to these two controls in Part V. Part VI will then discuss some alternatives to the two controls and their viability in the AFL competition. As will be seen, while the draft system used by the AFL amounts to a reasonable restraint of trade, the salary cap does not, and goes beyond what is reasonably necessary for the protection of the AFL and its members’ interests.

II DOCTRINE OF RESTRAINT OF TRADE

In Adamson v New South Wales Rugby League (‘Adamson’), Wilcox J observed that there is a ‘common law principle that people should be able to freely select where they wish to work, who they wish to work for and with whom they wish to work with’.[6] In Nordenfelt, Lord Macnaghten held that:

It is a sufficient justification, and indeed it is the only justification, if the restraint is reasonable—reasonable, that is, in reference to the interests of the parties concerned and reasonable in reference to the interests of the public, so framed and so guarded as to afford adequate protection to the party in whose favour it is imposed, while at the same time it is in no way injurious to the public.[7]

Thus, a restraint of trade will only be deemed reasonable if it: is reasonably necessary to protect the legitimate interests of the person in whose favour it is imposed; is not unreasonable to the person restrained; and is not against the public interest. Further, any restraints which are broader than necessary to achieve legitimate goals will be deemed void at common law.[8] Courts must then determine whether the particular restraint imposes a greater restraint than is necessary for the adequate protection of the employer and the public.[9]

III THE UNIQUE CONTEXT OF SPORTING COMPETITIONS

In Buckley v Tutty, the Court recognised that professional sports display ‘special economic characteristics which confer[10] for the purpose of the restraint of trade doctrine, a legitimate interest in seeking to promote equal on-field competition’.[11] Sports require competition and uncertainty in order to be successful, and thus, there is a ‘mutual interdependence’ between the teams in a professional league as they must cooperate in order to create a game.[12] If there is inequality between the teams, the sporting contests will be less competitive and more predictable, spectator interest will decrease, and the league will eventually suffer financial losses.[13] Labour market controls like the salary cap and draft system have been justified on the basis of ensuring an even and equal competition, maintaining team rivalry, ensuring spectator interest in the game, and creating a financially successful league.[14] The AFL must therefore ensure that a balance exists between the desire to create an even competition and player freedom when implementing labour market controls.

IV THE AFL’S LABOUR MARKET CONTROLS

A Salary Cap

Salary caps restrict player payments by limiting the overall amount an individual club can spend on the salary payments of its players, and allowing the clubs to decide how to distribute the salary cap amongst their players.[15] Even salary caps place the same limit on all clubs in a league, while uneven salary caps differ amongst clubs depending on financial factors outside of the competition. The AFL salary cap in 2016 was set at $10.37 million per club by a decision made by the League as part of the AFL’s Competitive Balance Policy to achieve equalisation.[16] This was increased to $12.45 million per club in 2017, with a 1.2 per cent increase in 2018, 1.3 per cent increase in 2019 and a 2 per cent increase in each of 2020, 2021 and 2022.[17]

As part of the AFL’s equalisation measures, the AFL also abolished the cost of living allowance (‘COLA’), which was allocated to clubs in Sydney to compensate for the higher cost of living, and effectively made the salary cap an uneven one.[18] The AFL’s movement towards a more even salary cap may have been sparked by the deal between the Sydney Swans and Lance Franklin in 2013, which saw Franklin being offered a contract valued at $10 million for nine years. Other teams in the competition, particularly in Victoria, argued that Sydney used their COLA to make such a high offer to Franklin and that the allowance was no longer necessary.[19] The AFL had also previously introduced a veteran’s allowance, which granted a salary cap allowance to clubs with players who have completed 10 or more years at the club.[20] However, the AFL announced that the veterans allowance would be abolished from the 2017 season alongside the COLA.[21]

B Draft System

The AFL draft comprises an external and internal draft and aims to distribute player talent across the League evenly.[22] The external draft regulates the entry of players into the competition, while the internal draft manages the movement of players already within the league. The external draft operates by ranking all potential new players, who are then drafted by clubs based on the club’s performance in the previous season.[23] On entry into the League, players are unable to choose what club they wish to become a part of and cannot negotiate with prospective clubs, as they are employed on the basis of draft selection.[24] However, after the initial two-year period, players can ask to trade clubs to their preferred team. If the first club accepts the player’s request, they can receive players or draft picks in return. If the first club does not wish to trade the player, the player can leave the club by entering the internal draft, and the first club does not receive any additional players or draft picks.[25]

Following criticism of the AFL’s player movement scheme, the AFL negotiated with the AFL Player’s Association (‘AFLPA’) for the introduction of free agency. Nichol defines free agency as ‘simply the right of a player who has completed a designated service period to choose his or her employer and negotiate a market salary’.[26] In 2012, restricted and unrestricted free agency arrangements were put in place. Players are deemed to be restrictive free agents if they are out of contract after eight years of service at one club and are amongst the ten highest-paid players at the club.[27] Unrestricted free agents are players who: have been delisted by their club; have played at a club for eight years but are not amongst the 10 highest players; or are a top 10 highest player who has served 10 years at the club.[28] Restricted free agents can transfer clubs once their contract has expired, provided that their original club has not matched any offers made by other clubs. If their original club matches a competing offer, the restricted free agent will have to enter into the internal draft.[29] As of 2017, players no longer need to be restricted free agents before becoming unrestricted.[30]

V APPLICATION OF THE NORDENFELT TEST

A Interests of the League

Under the Nordenfelt test, the party imposing the restraint must establish that the restraint is reasonably necessary to protect their legitimate interests. The High Court in Buckley v Tutty recognised that:

[I]t is a legitimate object of the [New South Wales Rugby Football League (‘NSWRFL’)] and of the district clubs to ensure that the teams fielded in the competitions are as strong and well matched as possible, for in that way the support of the public will be attracted and maintained, and players will be afforded the best opportunity of developing and displaying their skill.[31]

Such interests are likely to be similarly held by the AFL. In light of the Nordenfelt test, the AFL must establish that the salary cap and draft are reasonably necessary measures to protect the interests of the competition. Given the unique sporting context, the main interest the AFL seeks to protect by using the salary cap and draft is an even competition.

According to Davies, the AFL’s use of labour market controls has created a more even competition, based on his analysis of data regarding the number of teams winning premierships in each decade, and the number of teams making the finals in each decade.[32] In the 1990s, seven clubs won premierships, compared to a combined total of five clubs during the 1970s and 1980s. Further, all teams made the finals at least once in the 1990s, with the exception of Fremantle, who joined the AFL in 1995. In the 2000s, eight different teams won premierships, and all teams had made the finals at least once by 2006.

However, Buti argues that the salary cap is unlikely to make a sporting competition more even, as players will always continue to desire to play for richer, more successful teams.[33] Despite the existence of the salary cap, there are still richer and poorer clubs in the League.[34] Further, the financial viability of a club is not solely determined by player expenses;[35] club-based revenue also plays a factor in determining a club’s financial viability. In 2017, the four wealthiest AFL clubs based on revenue were Collingwood ($77.7 million), Hawthorn ($70.7 million), Essendon ($65.165 million) and Richmond ($65.164 million).[36] In contrast, the four poorest AFL clubs based on revenue were St Kilda ($47.9 million), Greater Western Sydney ($42.6 million), North Melbourne ($39.7 million) and Gold Coast ($39.656 million). Although Buti argues players may want to play for richer teams, being a financially successful club does not necessarily guarantee success on the playing field.[37] Of the poorer clubs based on revenue, Greater Western Sydney has appeared in the finals in 2016, 2017 and 2018. On the other hand, Collingwood was in the grand final in 2018 but had not appeared in the finals since 2013.

Based on the evidence provided by Davies, the AFL does appear to have created a more even competition since the introduction of the salary cap and the draft system. Despite there being some disparity between the clubs in terms of their wealth from revenue, the salary cap remains even across the clubs of the AFL. Although some clubs may be richer than others, a club’s wealth does not impact on how much money it has available under the salary cap. Thus, with respect to the interests of the competition, such labour market controls are reasonable restraints. However, as discussed further below, there is an alternative to the salary cap in the form of revenue pooling which could see a more even distribution of wealth between AFL clubs.

B Interests of the Players

In 2017, the salary cap was increased by the AFL to $12.45 million per club. However, much of the increase was absorbed by the competition’s elite, with the number of players earning over $800,000 having doubled.[38] Further, despite the increased salary cap, more than half of the AFL's players continue to earn between $200,000 and $500,000.[39] The salary cap places economic burdens on players by restricting their ability to negotiate an appropriate salary package, as players are limited to what their club can afford under the cap and the salaries of other players in the club. However, according to Davies, if the amount cut from a players’ salary is reasonable, then the salary cap remains a reasonable restraint.[40] Davies opines that the reasonableness of the salary cap and the players’ interests is further justified in that players who take cuts to their salary and choose to stay at a club are often offered the best chance of on-field success, which for some athletes in the sporting industry is considered more beneficial than a pecuniary payment.[41]

While Buti contends that players will usually ‘prefer to play for the rich, successful teams rather than unfashionable and unsuccessful teams, even if the latter is offering a slightly more attractive financial package’,[42] there are various examples of quality players choosing to leave successful clubs for a greater remuneration package. The Gold Coast Suns (who joined the AFL competition in 2011) signed on Gary Ablett, the 2009 Brownlow medallist, to the club under a five-year, $9.5 million contract despite Ablett having previously played for the Geelong Cats, who won the premiership in 2007 and 2009. Although there may be reasons aside from salary incentives that determine a player’s choice of club, players are entitled, like every employee, to be paid an appropriate salary for their skills. The salary cap places an economic burden on players, as how much a player will be paid is determined relative to what other players in the club are earning. This, in turn, can place non-economic burdens on players who may not be able to go to the club of their choice.

The salary cap also places a non-economic burden on players, as it restricts player movement between clubs and can potentially affect a player’s choice and location of employment.[43] Hill J commented in the primary court decision of Adamson v New South Wales Rugby League Ltd[44] that there were other factors besides salary that influenced a player’s club selection:

The reasons a player may wish to go to a club of his choice are obviously related to the reasons he may wish to leave an existing club. He may be attracted, apart from salary, by the coach or staff of the club, by the quality of other players in that club, by the proximity of that club to his home, by accommodation that may be offered to him, by the opening up of new business prospects with the new club, by quality of life, by the potential of the new club to win competitions and in turn enhance representative selection, by the attitude of his wife or girlfriend, by the position that he may be able to play in a new club or by the advantage a new club may give him in playing first grade and by other factors.[45]

However, despite such factors, a player may not be able to join their preferred club if the player cannot be afforded under the relevant club’s salary cap.[46] Players may also be delisted from a club for no other reason than the fact that their club cannot afford to keep them. Alternatively, players may be forced to accept pay cuts resulting in salaries that do not reflect their skill level.[47] There are a number of examples within the AFL relating to the unreasonableness of the salary cap on the players. In 2002, Essendon was forced to drop three premiership players in order to remain below the salary cap.[48] In the same year, twelve senior players in Brisbane accepted pay cuts in order to allow the club to retain its premiership-winning team, valued at $380,000.[49] In 2015, the Gold Coast Suns faced a salary cap dilemma with three key players: Rory Thompson; Charlie Dixon; and Aaron Hall, all coming out of contract and expecting pay rises.[50] Charlie Dixon went on to be recruited by Port Adelaide, as Gold Coast were unable to negotiate a better salary package for him due to the salary cap.[51] Although there may be other factors aside from salary which influence a player’s selection of a club, whether that be the successfulness of the club or its location, the salary cap still impacts upon a player’s ability to negotiate an appropriate remuneration package. The salary cap places both economic and non-economic restraints on players and, in conjunction with the draft, can further limit players’ choice of employer if their desired club cannot afford them. It also places limitations on a player’ ability to negotiate his employment and salary, as it is limited by what the club can afford and how much the club has spent on other players.

The AFL draft does restrain players entering the competition and their choice of employment, as players cannot choose what team they play for or where they relocate to. Players are aware of the risks of relocation as a result of the draft, but at the same time, the draft gives potential players the opportunity to develop their career in the AFL through the possibility of selection by a club and the chance to play in the league.[52] However, after their initial two-year contract, players do obtain some bargaining power, and have the option to: remain with their current club; ask to be traded; or enter into the internal pre-season draft.[53] As such, the AFL’s current drafting system may be considered a reasonable restraint, in contrast to the NSWRL’s internal draft considered in Adamson.

In Adamson, the NSWRL’s internal draft was held to be an unreasonable restraint of trade as, despite there being two drafts in the competition, current players could only change clubs by means of the internal draft.[54] The two draft systems were independent of one another, giving players within the competition ‘little to no bargaining power in relationship to what club would... select them’.[55] Further, the Court held that the two draft systems were too broad and affected all players equally regardless of their skill or salary.[56] In the AFL competition, however, there is interaction between the external and internal drafts, as players can request to be traded to their preferred club, or nominate to enter the internal draft. Further, the internal draft system used by the NSWRL was complicated by means of numerous ‘draft meetings’, whereby each month the League would conduct a meeting where a representative of each club would be entitled to attend and ‘make selections of players from the internal draft list until the total number of players with whom the club has contracted reaches fifty-seven’.[57] Wilcox J held that ‘the [NSWRL] season may be well advanced before [a player] finds employment, whereas, if he had been free to negotiate at will he may have reached agreement, and have been in employment, at a much earlier date’.[58] As such, the internal draft rules were held to do little to protect the interests of the players and infringed their freedom to negotiate and choose their employer. In contrast, the AFL draft consists solely of one external and one internal draft as discussed above. The complex interaction of rules in the NSWRL and the internal draft meetings were found to be an unreasonable restraint of trade in Adamson in that they imposed a significant restraint on the employment opportunities of players.[59] However, the AFL’s draft system has a clearer distinction between the external and internal drafts and, after two years, allows players to ask to be traded to their preferred club via free agency.

The introduction of free agency has also allowed for greater player mobility and self-determination within the AFL while ensuring a competitive balance. Free agency also rewards players who have remained in one club’s service for a long period of time. Although the highest-paid players in the AFL are more likely to be restrained in their employment as restricted free agents, it is suggested that the significant financial rewards received by such players improve the reasonableness of free agency.[60] Unrestricted free agency also allows eligible players to be traded to any club of their choice. While the draft system implemented by the AFL restrains players upon their entry into the competition via the external draft, it does give players the opportunity to change clubs after their initial contract by means of the internal draft. The introduction of free agency has also further distinguished the AFL draft from the NSWRL draft in Adamson.[61] The AFL draft system allows its players greater freedom of movement between clubs and the ability to negotiate their employment.

C Interests of the Public

Another limb to the Nordenfelt test that must be considered is whether the restraint is unreasonable with respect to the public interest,[62] as ‘the public have an interest in every person carrying out their trade freely’.[63] In Buckley v Tutty, the Court held that unreasonable restraints are unenforceable as:

[I]t is contrary to the public welfare that a man should unreasonably be prevented from earning his living in whatever lawful way he chooses and that the public should unreasonably be deprived of the services of a man prepared to engage in employment.[64]

A case recognising the public interest in the reasonableness of the restraint is Hughes v Western Australian Cricket Association Inc, where the Court held that the barring of the applicant from playing district and club cricket was unreasonable and void because it went ‘beyond a restraint reasonably related to the objects of the Cricket Council and those who comprise its membership. That consideration [was] reinforced by reference to the public interest ... in having every opportunity to see first class cricketers in action’.[65] In the 2015 competition, 836,136 Australians were members of the AFL’s 18 different teams,[66] and 2.64 million Australians watched the 2015 AFL Grand Final.[67] In the 2018 competition, these figures rose, with 1,008,494 Australians being members of an AFL club,[68] and an average of 3.38 million Australians watched the 2018 AFL Grand Final.[69] These numbers suggest that is important for the AFL to protect the public’s interests, as it is spectator support for the game that ensures the survival of the League and all the clubs within it.[70]

According to Davies, the public has gained a number of benefits since the introduction of the draft system and salary cap rules, such as: a faster game; a more even and interesting competition; and the ‘near certainty that within a 10-year period a team will enjoy some finals representation’.[71] A more even competition is likely to increase spectator appeal and public support for the game, which in turn will boost the financial viability of the clubs. However, as argued by Buti, ‘it is not in the public interest to have a competition where the weaker clubs are propped up by a system which places a restraint on the economic rewards able to be obtained by the players’.[72] Nor can it be in the public interest for a professional athlete, like any employee to be ‘deliberately underpaid’.[73]

Another important interest of the public that labour market controls seek to protect is the culture of the game and the idea of club loyalty.[74] Without any form of draft regulation, there would be a ‘mass migration’ of footballers between teams, potentially destroying any team loyalty in the competition.[75] All fans of the AFL competition are affiliated to different teams and support different players. The tradition and culture of the game would be damaged if players, especially the stars of game, were not confined to some degree, as the notion of a ‘team’ would disappear.[76] The draft system and salary cap implemented by the AFL are beneficial to the public interest, as they have assisted in the creation of an even competition, an intense game and strong club culture. However, it cannot be in the public interest for Australians to support a competition where players cannot properly negotiate their salary or be limited in their choice of employer through the existence of the salary cap. On the other hand, the draft system has ensured that there has been a distribution of quality players across the various clubs of the competition and prevented the mass movement of players to different clubs.

VI ALTERNATIVES

A number of alternatives have been suggested in place of the current labour market controls used by the AFL. Dabscheck proposes a revenue pooling scheme, where the competition pools the revenue from ticket sales, television rights, and merchandise sales; evenly distributing the revenue amongst the clubs.[77] Dabscheck’s argument in support of revenue pooling is that ‘[i]f clubs were equal in terms of financial strength, the market mechanism would evenly distribute playing talent between teams and this would increase spectator interest, gate receipts, and group profits’.[78] It should, according to Buti, also reduce financial disparity between clubs,[79] and ensure that players ‘have the same freedom as other labourers employed in conventional labour markets’.[80]

However, as discussed above, this may not necessarily occur as there are many factors, both economic and non-economic, that influence a player’s choice of club.[81] Revenue pooling has been put into effect to some extent by way of the 2017 bargaining agreement, which saw an increase in each club’s salary cap as discussed above. As a result of the agreement, players are now entitled to a 28 per cent cut of the revenue generated by the AFL.[82] However, this is not a significant percentage when compared to other international sporting leagues like the National Basketball Association (‘NBA’), where players get about 50 per cent of basketball earnings, or in the National Football League (‘NFL’), where players get 47 per cent.[83]

Buti has also suggested a reverse salary cap, where the worst performing clubs have higher limits than the more successful clubs.[84] This is similar to the idea put forward by Ross; that while the top teams should be prevented from adding more prestigious talent by expanding the club’s payroll, it is unfair to limit the ability of an inferior team to invest in player talent.[85] This could slow down the movement of players from less successful to the more successful clubs. However, it would be necessary for the AFL to financially subsidise the less successful and poorer clubs so as to ensure they can afford the higher salary cap system. Buti suggests this could be done by distributing a greater proportion of revenue obtained from television rights, merchandise sales, AFL sponsorships, and gate receipts to the poorer and less successful performing clubs.[86] Davies notes however that this would result in treating some clubs differently to others.[87] Further, it is questioned how long the higher salary cap would be allocated. Davies suggests that if the increased cap is given to a team for only one season, then a team at the bottom of the competition could face difficulties in re-signing players that it secured under the higher salary cap.[88]

It is also suggested that a combination of coaching problems and major injuries to some key players could give a particular club a League-backed advantage and enable it to dominate the competition for some years.[89] This could be seen by some clubs as subverting the AFL’s ideal of an even competition and seems to be an impractical solution to the current salary cap system.

Other labour market controls which seek to restrict player movement include zoning and retain and transfer systems. Zoning and residential qualifications require that players must reside in a club’s local area in order to be able to play for them. Zoning was previously used in the Victorian Football League competition but following the decisions of Hall v Victorian Football League[90] and Foshchini v Victorian Football League,[91] the concept was abandoned as it was held to be an unreasonable restraint of trade.

Retain and transfer systems are currently employed by European and world soccer leagues, and were used for a period of time in the Australian Rugby League. This control operates by placing players on retain and transfer lists, from which they cannot be employed by other clubs. This rule was challenged in Buckley v Tutty and was also held to be an unreasonable restraint of trade through its application to prevent players seeking new employment.[92] Given these two alternatives have been subject to judicial scrutiny and found to be unreasonable restraints of trade, they are not viable alternatives for the AFL. In light of the above, it seems the current draft system implemented by the AFL is the most reasonable labour market control to restrict player movement.

VII CONCLUSION

Some restraints are needed in sporting competitions like the AFL to ensure that there is an even and uncertain competition which will attract spectators and maintain financial viability. The draft and salary cap rules in the AFL can be deemed reasonable restraints with regard to the legitimate interests of the AFL in having an even competition and in creating a spectacle for the public. However, the issue of reasonableness rests on their effect on the players’ interests. While the draft does take away the players’ choice of employer upon first entering the competition, after two years, players are able to negotiate contracts with their preferred club and if they continue to play with the same club, they are eligible for free agency. This suggests that the draft rules are a reasonable restraint on the players’ interests. However, the salary cap restricts how much a player can earn for their skills and presents a number of non-economic issues such as players having to be delisted if their club cannot afford them. It is unfair and unreasonable for players to be delisted and underpaid, not because of their skill, but because they cannot be reasonably remunerated for their skills under the salary cap. Further, the number of more reasonable alternatives put forward to the salary cap suggests that the salary cap is an unreasonable restraint. Revenue pooling, in particular, is a viable alternative. Although the AFL is claiming to be moving towards equalisation through the introduction of free agency and changes to the salary cap, the AFL should further examine the impact of the salary cap on the players’ interests.

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[*] LLB (Dist), Murdoch University.

[1] Antonio Buti, ‘Salary Caps in Professional Team Sports: An Unreasonable Restraint of Trade’ (1999) 14 Journal of Contract Law 130, 130.

[2] Chris Davies, ‘Draft Systems in Professional Team Sports and the Restraint of Trade Doctrine: Is the AFL Draft Distinguishable from the NSWRL Draft?’ (2006) 1(1) Australian and New Zealand Sports Law Journal 80, 81.

[3] [1894] AC 535.

[4] Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535, 565.

[5] Ibid, cited in Buckley v Tutty [1971] HCA 71; (1971) 125 CLR 353, 376.

[6] [1991] FCA 425; (1991) 103 ALR 319, 355, quoted in Buti, above n 1, 135.

[7] [1894] AC 535, 565.

[8] Adamson v New South Wales Rugby League [1991] FCA 425; (1991) 103 ALR 319, 364, quoted in Stephen Ross, ‘Anti-Competitive Aspects of Sports’ (1999) 7 Competition and Consumer Law Journal 125, 127.

[9] Hughes v Western Australian Cricket Association Inc [1986] FCA 357; (1986) 69 ALR 660, 703; Adamson v New South Wales Rugby League [1991] FCA 425; (1991) 103 ALR 319, 372, referring to Buckley v Tutty [1971] HCA 71; (1971) 125 CLR 353, 337–8 and Eastham v Newcastle United Football Club Ltd [1964] Ch 413, 438.

[10] [1971] HCA 71; (1971) 125 CLR 353.

[11] Braham Dabscheck and Hayden Opie, ‘Legal Regulation of Sporting Labour Markets’ (2003) 16 Australian Journal of Labour Law 259, 267.

[12] Ibid 259–60; Justin Cook and Chris Davies, ‘Free Agency and the Australian Football League’ (2012) 24(2) Bond Law Review 64, 66.

[13] Dabscheck and Opie, above n 11, 260.

[14] Chris Davies, ‘The AFL’s Holy Grail: The Quest for an Even Competition’ (2005) 12 James Cook University Law Review 65, 65.

[15] Chris Davies, ‘The Use of Salary Caps in Professional Sports and the Restraint of Trade Doctrine’ (2006) 22 Journal of Contract Law 246, 249.

[16] Adam McNicol, $10 Million Salary Cap Confirmed as Players Earn Safeguards (5 June 2014) AFL <http://www.afl.com.au/news/2014-06-05/salary-cap-safeguards-for-players-confirmed> AFL, AFL Statement: Competitive Balance Policy (4 June 2014) <http://www.afl.com.au/news/2014-06-04/afl-statement-competitive-balance-policy> .

[17] Ben Waterworth, ‘AFL and Players’ Association finally strike six-year pay deal’, Fox Sports (online), 26 June 2017 <https://www.foxsports.com.au/afl/afl-and-players-association-finally-strike-sixyear-pay-deal/news-story/b4feb2a084080b0cd28ea7d2e376f038>; Stephanie Chalkley-Rhoden, ‘AFL players agree to $1.84b six-year pay deal’, ABC News (online), 20 June 2017 <https://www.abc.net.au/news/2017-06-20/afl-players-score-big-in-1.84-billion-dollar-pay-deal/8635046>.

[18] AFL, AFL Statement on Cost of Living Allowance (21 January 2015) AFL Players <http://www.aflplayers.com.au/article/afl-statement-on-cost-of-living-allowance/> .

[19] Jon Ralph, ‘Extra Salary Cap Cash Set to Come Under Fire after Sydney to Grab Lance Franklin’, Herald Sun (online), 1 October 2013 <http://www.heraldsun.com.au/sport/afl/extra-salary-cap-cash-set-to-come-under-fire-after-sydney-to-grab-lance-franklin/story-fni5f8ge-1226730809879> .

[20] AFL, Veteran Players <http://www.afl.com.au/afl-hq/the-afl-explained/veteran-players> .

[21] AFL, above n 18.

[22] Cook and Davies, above n 12, 71.

[23] Dabscheck and Opie, above n 11, 261.

[24] Davies, above n 14, 68.

[25] David Thorpe et al, Sports Law (Oxford University Press, 2nd ed, 2013) 420.

[26] Matt Nichol, ‘The Commodification of Labour in the Australian Football League: What is the Impact of Free Agency’ (2018) 31 Australian Journal of Labour Law 73, 74.

[27] Cook and Davies above n 12, 89.

[28] Ibid 90.

[29] Ibid 89–90.

[30] Chalkley-Rhoden, above n 17.

[31] [1971] HCA 71; (1971) 125 CLR 353, 377.

[32] Davies, above n 14, 79–80; Davies, above n 15, 254.

[33] Buti, above n 1, 138.

[34] See, eg, Grant Baker, ‘The spending gap between the AFLS's rich and poor has ballooned to $5.6 million’, Herald Sun (online), 27 January 2014 <https://www.heraldsun.com.au/sport/afl/the-spending-gap-between-the-afls-rich-and-poor-has-ballooned-to-56-million/news-story/a42e442a52b03497c1c1c56e47b3fcb5; John Stensholt, ‘West Coast Eagles - the most profitable sports club in Australia’, Financial Review (online), 11 March 2018 https://www.afr.com/business/sport/west-coast-eagles--the-most-profitable-sports-club-in-australia-20180309-h0x997>.

[35] Buti, above n 1, 140.

[36] Footy Industry, 2017 AFL & Club Annual Reports <http://www.footyindustry.com/?page_id=4121> .

[37] Buti, above n 1, 145.

[38] Nick Bowen and Callum Twomey, Player payments revealed: Millionaires on the up (22 February 2018) AFL <http://www.afl.com.au/news/2018-02-22/player-payments-revealed-millionaires-on-the-up> .

[39] Ibid.

[40] Davies, above n 15, 261.

[41] Ibid.

[42] Buti, above n 1, 145–146, quoting R Stewart, ‘The Economic Development of the Victorian Football League 1960-1984’ (1984) 2 Sporting Traditions 2, 87.

[43] Buti, above n 1, 141.

[44] [1991] FCA 9; (1991) 100 ALR 479.

[45] Ibid 488, quoted in Buti, above n 1,146.

[46] Buti, above n 1,146

[47] Ibid.

[48] Davies, above n 15, 252.

[49] Ibid.

[50] Andrew Hamilton, ‘Gold Coast Suns Facing Salary Cap Issue with Three Key Players Out of Contract’ The Courier Mail (online), 24 August 2015 <https://www.couriermail.com.au/sport/afl/teams/gold-coast/gold-coast-suns-facing-salary-cap-issue-with-three-key-players-out-of-contract/news-story/98b694c69341f0b025a92c3ae559ae61>.

[51] Greg Denham, ‘Charlie Dixon Quits Gold Coast, Hopes to Join Port Adelaide’ The Australian (online), 7 September 2015 <http://www.theaustralian.com6tr.au/sport/afl/charlie-dixon-quits-gold-coast-hopes-to-join-port-adelaide/news-story/5198f7f4285b659312a02ca41f38d5a6> .

[52] Davies, above n 2, 102.

[53] Thorpe et al, above n 25, 422.

[54] [1991] FCA 425; (1991) 103 ALR 319, 352; Davies above n 2.

[55] Davies, above n 2, 90.

[56] Nichol, above n 26, 80, citing Adamson v New South Wales Rugby League Ltd [1991] FCA 425; (1991) 103 ALR 319, 342, 355–6.

[57] Adamson v New South Wales Rugby League Ltd [1991] FCA 425; (1991) 103 ALR 319, 328.

[58] Ibid 343.

[59] Ibid 356.

[60] Davies, above n 2, 96.

[61] [1991] FCA 425; (1991) 31 FCR 242; Cook and Davies, above n 12, 89.

[62] Buti, above n 1, 142.

[63] Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535, 565, quoted in Adamson v New South Wales Rugby League Ltd [1991] FCA 425; (1991) 103 ALR 319, 339–40.

[64] [1971] HCA 71; (1971) 125 CLR 353, 380.

[65] Hughes v Western Australian Cricket Association Inc [1986] FCA 357; (1986) 69 ALR 660, 703.

[66] Nathan Schmook, Swans’ Surge Drives New AFL Club Membership Record (26 August 2015) AFL <http://www.afl.com.au/news/2015-08-26/swans-surge-drives-new-afl-club-membership-record> .

[67] David Knox, 2.64m as AFL Grand Final Leads 2015 Ratings (4 October 2015) TV Tonight <http://www.tvtonight.com.au/2015/10/2-64m-as-afl-grand-final-leads-2015-ratings.html> .

[68] Travis King, Thanks a million: New membership benchmark (2 August 2018) AFL <http://www.afl.com.au/news/2018-08-02/thanks-a-million-new-membership-benchmark> .

[69] Broede Carmody, ‘TV ratings: Did the AFL or NRL grand final draw in a bigger audience?’, The Sydney Morning Herald (online), 1 October 2018 <https://www.smh.com.au/entertainment/tv-and-radio/tv-ratings-did-the-afl-or-nrl-grand-final-draw-in-a-bigger-audience-20181001-p50722.html>.

[70] Davies, above n 15, 256; Buti, above n 1, 153.

[71] Davies, above n 2, 92–93; Davies, above n 15, 256.

[72] Buti, above n 1, 153.

[73] Ibid, quoting Hebert Morris Ltd v Saxelby [1916] AC 688, 701.

[74] Cook and Davies, above n 12, 87

[75] Ibid 97.

[76] Ibid.

[77] Braham Dabscheck, ‘Sporting Equality: Labour Market vs Product Market Control’ (1975) 17(2) The Journal of Industrial Relations 174, 188.

[78] Ibid.

[79] Buti, above n 1, 147.

[80] Dabscheck, above n 77.

[81] Buti, above n 1, 147.

[82] Chalkley-Rhoden, above n 17.

[83] Ibid.

[84] Buti, above n 1, 139.

[85] Ross, above n 8, 126.

[86] Buti, above n 1, 146–147.

[87] Davies, above n 15, 264.

[88] Ibid.

[89] Ibid 265.

[90] [1982] VicRp 6; [1982] VR 64.

[91] (Unreported, Supreme Court of Victoria, 15 April 1983).

[92] [1971] HCA 71; (1971) 125 CLR 353.


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