What a lot of nonsense has been talked about the defection to French rugby of rugby league star Bobby Sue Billy Jo Sonny Bill Williams!
First, the NRL isn’t going to succeed in getting an injunction to restrain Sonny Bill’s defection, still less get a French court to enforce it. Injunctions generally aren’t granted to enforce contracts of personal service (employment contracts) nor where money damages would be an adequate remedy (as they certainly would be here).
Nor is Sonny Bill likely to be able to successfully challenge the NRL salary cap system. It’s just an empty threat. ((What is really in prospect, despite all the hot air, is a common law damages action for breach of contract by Sonny Bill. Canterbury Bulldogs will certainly win, but Sonny Bill presumably calculates that he stands to make much more in France even after subtracting the damages and costs Canterbury will certainly get awarded. Once everyone gets their legal advice to that effect, the dispute will probably settle before trial. ~ KP)) First, the Trade Practice Act isn’t available because its relevant competition/restrictive practices provisions don’t cover “contracts of service” or employment contracts (as opposed to “contracts for services” or independent contractor arrangements). Common law action seeking a declaration that the salary cap is an unreasonable restraint of trade is slightly more likely. Way back in 1971 Balmain player Dennis Tutty successfully challenged the then RL transfer fee system on that basis, while more recently Penrith player Phil Adamson successfully challenged the then internal draft system in 1991, and in other sports various courts have ruled that zoning and residential rules, and restrictions on transfers within a league and between leagues were all unreasonable restraints of trade.
However, not every contractual restraint of trade is unlawful at common law. Restraints in commercial contracts are very common and very commonly upheld as long as they don’t go too far. Lord Macnaghten explained the common law principle in Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co. Ltd way back in 1894:
It is a sufficient justification, and indeed it is the only justification, if the restriction 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.
Slightly more recently in 1922, in Heron v Port Huon Fruitgrowers’ Co-operative Association Ltd, the High Court further explained:
‘The real test’ whether a contract is reasonable between the parties ‘is’, in the language of Lord Birkenhead (McEllistrim v. Ballymacelligott Co-operative Agricultural and Dairy Society Limited (1919) AC, at p 563), ‘does the restriction exceed what is reasonably necessary for the protection of the covenantee?’ Do the articles ‘impose upon the appellant a greater degree of restraint than the reasonable protection of the respondents requires’?
The current salary cap rules are a fairly well designed system aimed at preserving a reasonably balanced and truly competitive competition where you don’t have a couple of very wealthy clubs dominating and causing boring, lopsided contests, while also preserving players’ rights to bargain freely with all comers within the broad constraint of a global salary cap for each club. Similar salary cap systems exist throughout the common law world and have mostly withstood challenge, even in litigious America. NRL boss David Gallop has obviously now received legal advice to similar effect judging by public statements yesterday.
Another furphy being touted is that Williams’ actions and the predation of cashed-up French and italian rugby clubs could spell the end of the NRL. This sort of hyperbole shouldn’t convince anyone. French predation hasn’t spelled the end of Australian rugby union even though it’s at least equally susceptible; after all, Australian rugby players have a much less steep learning curve because they’re not changing codes to one with significantly different rules and strategies. Nor was Australian rugby destroyed by the predation of rugby league back when rugby was still amateur. The NRL people are being more than a little precious and hypocritical. Let market forces rule!
Lastly, a prediction. Sonny Bill’s French adventure might well spell the end of French rugby’s seemingly uncritical enthusiasm for Australian rugby league players. Forwards’ skills are radically different between the two rugby codes, although All Black second rower Brad Thorn proves the differences can be overcome. But Sonny Bill is another kettle of fish. In NRL he’s a high impact show pony with a wildly fluctuating work rate, dubious loyalty and commitment, and very injury-prone. Rugby forwards’ primary role is securing and maintaining ball possession. Rugby league forwards have almost no such role in the modern game. Rugby tactics have certainly become a bit more league-like in some respects in recent times, with forwards wherever possible remaining in the defensive line and not committing themselves at the breakdown, and impact players like Sonny Bill being expected to chime into the backline out wide in attack. But forwards still need a consistently high work rate: in lineouts, scrums, and when the breakdown becomes a rolling maul or ‘pick and drive’ ruck situation. Whether Sonny Bill will be able or willing to do that hard yakka consistently is highly dubious, despite an early rugby background. He might well end up an overpriced French failure, which would be poetic justice.