There is something out of the ordinary with Justice Burchett’s handling of the ARL-Super League dispute.
It seems he has taken on the role of determining the fate of rugby league in Australia rather than ruling on a series of contracts and trade practices claims. It seems he is determined to crush super league and give the ARL a clear run, as if he were Minister for Sport, rather than a judge in a commercial dispute.
In the original court case, the judge found that News Limited and Superleague using dishonest tactics had enticed clubs to breach their contracts with the ARL. They had done that by signing up individual players direct with Superleague. He found that individual clubs had breached contracts with the ARL. The players do not have contracts directly with the ARL. Those findings are quite supportable on the evidence.
The question is what should flow from them. Enticement to breach a contract is a tort and the remedy is damages.
It is difficult to justify some of the other orders beyond damages. The effect of some of those orders are far too sweeping and they shore up the monopoly position of the ARL. The most objectionable ones are those that deal with the players. The effect of them is to bind the players to the ARL.
This is contrary to the usual legal remedies. The general principle is that you cannot get orders that require specific performance of personal services. You can get an order that forces someone, for example, to complete a contract to sell a house, but you cannot get an order forcing someone to sing in an opera. The remedy is damages.
The reason the law is thus is because the law will not engage in personal conscription and nor will it make orders which require incessant supervision.
Another set of orders relies on a finding of a joint venture between the clubs and the league which then gives rise to a finding of joint property rights in a range of things like names, logos and team outfits … virtually the whole game of rugby league. Indeed, that was the effect of Burchett’s orders … that the ARL and its clubs together own league in Australia. He found, therefore, that the rebel clubs had misappropriated this property and it must be given back.
It is an extraordinary legal artifice upon which the judge’s virtual grants monopoly rights to the ARL rests.
It is as if the judge is determined that Superleague will not go ahead and that the ARL will continue as the monopoly provider of rugby league, rather than the granting of a remedy … damages … for a legal wrong.
In my view he has gone far beyond what is necessary for commercial law. His judgment has the moral flavour of saying to News Limited: “”You will not get away with this.”
In going so far, however, the judge has interfered with liberty of action. In commerce, people have a right to breach contracts and pay the consequent monetary damages. Commercial law should not be about forcing people to do or not do certain things, provided they face the monetary consequences of their liberty of action.
Even now, News Limited and the rebel clubs should be allowed to pay their damages (News Limited for the tort of inducing a breach of contract and the clubs for actually breaching contract), and start a new league.
Granting the ARL immunity from News Limited competition for four years smacks of punishment and reward, not commercial law. This is the case however underhand and morally reprehensible News Limited may have been in inducing the breach of contract.
I’m not saying any side has been a devil or a saint. Clearly, there has been folly and malice by both sides and injury to the ARL. But the remedy should not be some artificially constructed legal shield which allows the ARL and its top office holders to continue as a monopoly over the game of rugby league.
To the extent the judges orders do that suggests a stitching-up job, and they will be vulnerable to appeal.
And bear in mind, the judge’s extraordinarily wide definition of “”market” which enabled him to exonerate the ARL from the assertion that it had an illegal monopoly, because, he said, the ARL was a competitor in the market for putting out sporting spectacles in general, not a monopolist in the market for rugby league. I suggest that ruling won’t survive appeal either.