Collective Bargaining in Australian
Professional Team Sports
Brendan Schwab 1
Chief Executive, Australian Soccer Players’ Association Inc.
... (F)ew fans resent a boxer earning $2 million for a single fight (now $20 million or
even $30 million), and they don’t mind actors or rock singers raking in gigantic
sums for a few weeks (or a few hours) of work. They do, however, resent a baseball
player being paid, say, $700 000 over a period of seven months ... Many fans think
that it’s only an accident that they are not out on the field playing ball; after all, most
people (or at least most men) have played some form of ball ... in their lifetimes.
There’s an identification, beginning in childhood, that doesn’t have a counterpart
in music or film.2
It is often noted that the 1990s have seen Australian sport complete the transformation from
past time to business. What is less commonly remarked upon is that the same dynamic
decade has seen the elite athlete complete a similar transformation; from sportsperson to
entertainer. And with that, of course, is coming an increasing realisation by players and
management that their relationship will, inevitably, undergo fundamental change.
While we are seeing an increasing capacity for Australian sports, particularly professional
team sports, to negotiate collective agreements with often embryonic player associations,
the real lessons for Australian sport lie in the overseas experiences of elite sport and the
domestic experiences of Australia’s highly unionised industries. This is simply because as
Australia continues to adopt the practices of sport internationally, we are seeing Australia’s
elite athletes achieve high rates of unionization. 3
In this context, it is helpful for those responsible for managing Australian sport or
representing our elite athletes, either collectively or individually, to have a detailed
understanding of the industrial relations aspects of their sports. This article will consider the
process of collective bargaining and, in so doing, what constitutes a good collective bargaining
agreement and, most vitally, the need for a sport to be able to achieve alignment between its
collective bargaining agreements and its key strategies. 4 Given the highly emotional and
inherently adversarial nature of collective bargaining, this last aspect can be particularly
difficult to achieve. The consequences of failing to do so can damage players and management
alike.
The Process of Collective Bargaining
‘The principal objective of this Act is to provide the framework for cooperative workplace
relations which promotes the economic prosperity and welfare of the people of Australia ...‘ 5
The collective bargaining process can, and should, be an extremely beneficial process for
professional sport. If done properly, it can see everyone involved in the game commit
unequivocally to its growth and development for mutual benefit, and provide the basis for a
strong relationship that can negotiate the challenge of change and the tough times that sport
inevitably experiences.
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ASSH Bulletin No.29 • December 1998
To successfully complete any collective bargaining process, the parties to the negotiations
must share three broad objectives: first, to build genuine trust between them and those they
represent; second, to fully understand both the ‘Management Issue’ (what makes the sport
economically viable) and the ‘Player Issue’ (what constitutes a rewarding and fulfilling
playing career path); and finally to deal with the challenge of change, which is now a
constant for professional sport.
The process is, inevitably, dynamic and often affected by external factors as much as the
negotiation tactics pursued by the parties to the bargaining process. These factors need to be
fully appreciated if discussions are to be successful. Successfully addressing them will result
in a collective bargaining agreement which will greatly assist a sport in implementing its key
strategies.
The Building of Trust
‘This is a dispute between masters and servants.‘ 6
The building of trust fundamentally requires all parties to respect the legitimacy of the
others’ rights to be at the bargaining table, and to participate in the decision making
processes of their sport.
Almost without exception, the starting point will be the philosophical position of the
parties on the role of the players’ association. This issue has, in itself, been the subject of
serious confrontation in Australian sport, which is still coming to terms with the existence of
highly organized and effective player unions.7
The good news is that, even in Australia, strong player relations have been built from
tough times.
In 1993, the Australian Soccer Players’ Association Inc was formed with the objectives of
bringing about not only dramatic improvements to the terms and conditions of employment
of Australia’s professional soccer players, but generally the quality of the game’s
administration. Soccer’s transfer and compensation system 8 quickly emerged as a key
bargaining issue, with the Players’ Association maintaining that it fundamentally violated
the legal and moral rights of the players. In contrast, the sport viewed the device as a key to
not only the game’s economic viability, but its very existence. As such it was a matter for
Soccer Australia, the sport’s governing body, and not a matter to be impacted by the players.
The players, of course, had very different views. They could not understand how they
could be forced to endure the hardships of the system, particularly in the absence of any
demonstrated benefit to the game. The players were also increasingly exposed by the
Players’ Association to the international experiences of a number of sports, including their
own, where player market devices were all the subject of collective bargaining. English
soccer’s transfer system was conditional upon it continuing to enjoy the support of the
Professional Footballers’ Association, as were the player drafts operated by the National
Football League and the National Basketball Association in the United States, among others. 9
Interestingly, all three sports had launched landmark legal action to be able to address the
devices as all were, like Australian soccer, held dear by management. 10
ln 1994, the Players’ Association filed in the Australian Industrial Relations Commission
an application for an interim award to abolish the transfer and compensation system. The
players’ arguments primarily centered upon the legal and moral rights of the players, and
Schwab • Collective Bargaining in Australia
21
the damage the system was causing the game. In addition, the players argued that the refusal
of management to bargain on the system violated the players’ rights to work, organise and
bargain collectively.11
At the request of the players, the application was referred to a Full Bench of the Commission
in the public interest. The application was heard over ten days in early to mid- 1995. The
game’s leading players and administrators gave testimony against each other, each giving
their own views as to the merits of the system and the impact of its possible abolition.
On 9 June 1995, the Full Bench rejected the players’ application but held, vitally, that the
system would be abolished by the end of 1996 unless Soccer Australia, the national league
clubs and the Players’ Association could reach agreement not only on the matter of regulation
of the player market, but the terms and conditions of employment of players in the national
league.12 A key aspect of the Full Bench’s decision was that the transfer system was a matter
‘pertaining to the relationship between employers and employees´ 13 and, accordingly, the
players’ application fell within the Commission’s jurisdiction.14 Following the decision, the
game simply had to be prepared to bargain the system if it was to keep the system in any
form, although the Commission, ‘having regard to the attitudes of the parties’, did not think
it was likely that agreement could be reached on modifications to the system to remove its
unsatisfactory features.15
The Commission also drew a number of conclusions about the merit of the system,
holding that it:
1 operated in many instances unfairly towards players;
2 while being justified by Soccer Australia and the national league clubs as
compensating a club for the training and development of a player had in fact
little, if anything, to do with the training and development of a player;
3 treated players as if they were the property of their club;
4 if abolished, may lead to an increase in the remuneration of some professional
soccer players;
5 may not overall operate to the advantage of the soccer clubs;
6 may constitute an unreasonable (and, hence, unlawful) restraint of trade;
7 does not conflict with the principle of the right to organize and bargain collectively.
8 Indeed, the Commission remarked upon the strength and influence of the Players’
Association; and
9. impinges upon the freedom to choose one’s employer. 16
The decision of the Commission provided the foundation for the Players’ Association, the
national league clubs and Soccer Australia to reach agreement on the first major collective
bargaining agreement for the sport, the ‘Ericsson Cup Collective Agreement 1996-1999’
dated 1 June 1996. The collective agreement retained the transfer and compensation fee
system in a substantially modified form 17 (a major concession by the players), and
comprehensively set out the terms and conditions of employment of players in the national
league, including providing a share of key revenue streams to the Players’ Association to be
applied to player education and benevolence programs (a major concession by management).
Interestingly, the agreement recognises the Players’ Association as the exclusive collective
22
ASSH Bulletin No. 29 • December 1998
bargaining agent of the players.18
The decision of the Commission provided the basis for the parties to engage in broad
dialogue on many issues. In turn, trust was engendered which encouraged a spirit of mutual
purpose and compromise previously fatally absent from discussions.
Understanding the Management Issue
‘(It) is claimed as evidence that those who know best consider (the transfer system) to be in
the general interest of the game. I do not accept this line of argument. The system is an
employer’s system, set up in an industry where the employers have succeeded in establishing
a united monolithic front all over the world, and where it is clear that for the purpose of
negotiation the employers are vastly more strongly organised than the employees. No doubt
the employers all over the world consider the system a good system, but this does not
prevent a court from considering whether it goes further than is reasonably necessary to
protect their legitimate interests.‘19
‘In forming the view that the compensation fee system should be abolished by the end of
1996, we are not to be taken as criticising its objectives; e.g. to enhance the competition of
soccer and to contribute to the training and development of players. Indeed, as we understand
the evidence, these objectives are shared by the players.‘ 20
It is, of course, trite to observe that the well being of the game is a precondition to the well
being of its players.
The well being of the game is an issue which emotionally impacts upon collective
bargaining, and one which is often put forward in opposition to player demands or, more
fundamentally, player associations, especially those like the Australian Soccer Players’
Association which believe they have an important role to play in the decision making
process of their membership’s sport.
To reap the potential benefits of the bargaining process, both parties need to possess a
strong command of the Management Issue. Indeed, in seeking to abolish the transfer and
compensation system, it is not unfair to say that the players demonstrated a much greater
command of the Management Issue than the game itself. Like the many legal challenges by
players over the years against the many forms of restraints imposed upon them, the decision
is a good example of the legitimate differences of opinion that may arise between players
and management about what is, in fact, for the good of their game.
Whilst it is often easy for negotiators to agree that an even and economically viable
competition is in the interests of the sport and, hence, the players, agreement on the means
by which those objectives are achieved and sustained is often difficult. This is particularly so
where the pain and sacrifice of any medicine is not to be equally borne by players and
management.
The most poignant example of this is the perennial debate between the respective roles of
revenue equalisation and restraints on the player market. In particular, many Australian
professional team sports, most notably Australian football and soccer, have stringently
opposed free agency. The AFL has succeeded in implementing what is unquestionably the
most restrictive player market in world sports, largely with the support of the APL Players’
Association, Soccer, in contrast, has been forced to review its regulations at the behest of the
Players’ Association. Despite this, there is relatively little Australian material available of an
Schwab • Collective Bargaining in Australia
23
objective nature which empirically measures the effect of the various equalization strategies
upon the attainment of their objectives.
Internationally, the situation is different. Most respected (independent!) commentators
have concluded that ‘it is relatively uncontroversial that labour market controls have not
given equality of performance’.2l The hypothesis that free agency adversely affects league
balance has been rejected in Major League Baseball, which had free agency unexpectedly
thrust upon it by the MLBPA in the mid-1970s.22
During the life of the current collective agreement, the Australian Soccer Players’
Association has been monitoring the operation of the compromise transfer and compensation
system by reference to its objectives. That research will be pivotal to the negotiations over the
new agreement as to whether the system is retained in any form.
The AFL is, no doubt, able to show an improvement to the game’s well being, especially in
terms of competitive balance and financial viability, since the introduction of the player draft
and salary cap in the mid 1980s. The AFL will find showing a causal connection is more
problematic. What needs to be looked at, of course, is factors such as the vastly improved
management of the competition, and the positive impacts which would have followed any
decision by the AFL to abolish the systems earlier in place. These featured a combination of
the reserve, zoning and transfer systems, all of which have been subsequently discredited as
running counter to the very objectives which lead to their establishment.
Given the seriousness of the restraints which the AFLs rules arguably impose upon the
legal and moral rights of the players, 23 it would be interesting to learn to what extent such an
analysis encouraged the AFLPA to agree to actually hardening the restraints in the recent
round of collective bargaining.24 It would also be interesting to learn whether any hardening
of the AFLs revenue equalization policy was considered. The importance of revenue
equalisation is acknowledged by the AFL, and nearly all professional sports, although the
AFL maintains that its equalization strategy ‘starts with’ player strength. 25 Major League
Baseball introduced greater revenue equalization measures as part of its response to the
inability to reach agreement with the MLBPA on the introduction of a salary cap.
Similarly, the European Court of Justice recommended revenue sharing measures to
European soccer in the famous Bosman decision,26 which brought transfer fees for out of
contract players to an end within the European community. Advocate General Lenz, upon
whose findings the final decision of the Court was largely based in accordance with Europe’s
inquisitorial system, suggested that ‘part of the income obtained by a club from the sale of
tickets for its home matches (be) distributed to other clubs. Similarly . . . income received from
awarding television (rights) . . . could be divided . . . between . . . clubs.’ The Advocate General
pointed to the material interdependence that existed between competing teams. ‘Each club’,
he suggested, needs the other . . . in order to be successful. For that reason each club has an
interest in the health of the other clubs If the league is dominated by one overmighty club,
experience shows that lack of interest will spread.‘ 27
The revenue equalisation/player restraint debate illustrates the importance of the need
for a sport’s collective bargaining agreement to be aligned with the strategic direction of the
sport. This priority, of course, does not simply apply to equalisation, but to the development
and feeder structures which underpin the sport, the sport’s marketing, and so on.
Experience shows that even where management and players agree on the objectives, the
ASSH Bulletin No. 29 • December 1998
24
means by which they are attained — the Management Issue — can still be the cause of
considerable anguish for the parties to collective bargaining. The only conclusion that can be
drawn at this stage is that collective bargaining will become increasingly complex, and each
party’s position increasingly well researched.
The Player Issue
’ . . . And above all, be proud of your profession. It’s a great profession.‘ 28
Australian sport is now beginning to fully appreciate what being a full-time athlete is all
about. The issues it raises, the pressures it places upon young people, the sacrifice, and the
corresponding rights and obligations.
More importantly, Australian sport is now beginning to understand the symbiotic nature
of the relationship between the well being of the athlete and that of the sport. By providing
players with the resources and facilities to develop their professional skills and expertise to
elite levels, Australian sports are providing themselves with the wonderful opportunity to
showcase their sport.
Accordingly, Soccer Australia, the national league clubs and the Players’ Association
have agreed that the game must become fully professional within five years in order to
realize its potential. Of course, the move towards full-time professionalism carries with it a
whole series of obligations for management, players and their representatives. Addressing
them requires a total command of the Player Issue in the collective bargaining process.
Not unlike the Management Issue, the means of attaining the objectives of the Player Issue
can as much be the subject of disagreement as the objectives themselves. One important
difference is that the Player Issue tends to be more the product of the implementation of a
collective agreement, than its negotiation.29
Sport is spurning a massive new player welfare industry, and within sports a new
competition is emerging — the competition for the hearts and minds of the players. That
competition is, in the main, being fought by clubs anxious to develop a competitive edge in
the player market, and player associations anxious to effectively manage their core business
of player welfare.
The principles which underpin any player welfare strategy, particularly one as bold as the
introduction of full-time professionalism into Australian soccer, need to be sound. Player
welfare programs simply cannot be left to the vagaries of the highly competitive club market
for the services of players. By leaving player welfare to that market, a sport is effectively
conceding that those players, who are not good enough, do not deserve the benefits of the
welfare programs.
The parties to collective bargaining in Australian soccer have adopted a number of
principles to underpin their decision making approach to the key strategy of full-time
professionalism. They are:
1 the playing of soccer at the highest level in the Ericsson Cup is a profession and a
career, not a recreation or hobby;
2 the Ericsson Cup Clubs must themselves be fully professional for full-time
professionalism to be possible and for the benefits to be realised;
3 whilst Soccer Australia, the Ericsson Cup Clubs and the Players’ Association
must equally share responsibility for the well being of players during their
Schwab • Collective Bargaining in Australia
25
playing careers, the primary responsibility for the well being of players in
retirement rests with the Players’ Association;
4 in order to realise its potential, Australian soccer must develop and retain the
highest possible calibre of players; and
5 a holistic approach to full-time professionalism is essential.
A holistic approach to full-time professionalism is seen as being one which encourages the
full development of the playing, secular employment, family and personal aspects of the
lives of players and which prepares players financially, educationally, physically,
psychologically and socially for life beyond soccer. 30
The implications of these principles explain the importance of the sport allocating funding
to the Players’ Association, which it does under the Collective Agreement through a share of
what can be broadly described as ‘player images’ revenue (including television rights) and 5
per cent of international and domestic transfer and compensation fees. 31
Interestingly, these provisions, which were initially negotiated in a spirit of compromise
and in consideration of the retention of the transfer system in a compromised form, are now
self justifying.
The Challenge of Change
‘The philosophers have only interpreted the world in various ways; the point is to change
it.‘32
The 1980s saw a dramatic change in the industrial relations system and debate in
Australia, as Australian industry and unions began to come to terms with fundamental
structural change to the Australian economy.
The innovation of enterprise or workplace bargaining is now an everyday feature of the
lives of many Australian businesses, which require flexible agreements suited to their
particular needs in order to be profitable and commensurately reward their workforce.
The challenge of change is equally apparent in professional sports. Arguably, no sport has
experienced as much tumultuous change as Australian soccer. In the five years of the
Players’ Association’s existence, the Ericsson Cup has experienced an acceleration in the
exodus of talent,33 and dramatic structural change, culminating in the admission of eight
teams,34 and the relegation or failure of a further seven. 35 Another three have been privatised,
two of which involved the negotiated assignment of playing contracts to newly established
entities.36 All, of course, involved complex player issues, although the Collective Agreement
largely provided a straightforward basis for their quick resolution.
With Australian soccer close to completing an agonizing strategic planning process,
further change is envisaged. The challenge for everyone involved in Australian soccer is to
develop the national mix of the Ericsson Cup to ensure it is highly competitive in the
demanding sports and entertainment industry
With players being both the Ericsson Cup’s biggest expense and most valuable asset, it is
essential that the game’s relationship with the players is able to deal with the change process.
Simply because of the rate of change, the players were reluctant to commit to anything
other than a short term agreement when negotiating the collective agreement in 1995 and
1996. However, given the demanding and expensive nature of the negotiations, it was
agreed that the game needed the security and commitment of a medium term agreement.
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ASSH Bulletin No. 29 • December 1998
The innovation of the Australian Soccer Players Commission, a joint negotiating and
consultative committee established under the Collective Agreement, enabled a three- year
agreement to be reached.37 Based upon the successful model utilized in English soccer, the
Players Commission has become a formal point of reference between the players and
management, addressing not only contentious issues but, more importantly, providing the
framework the strategic and cooperative introduction of full-time professionalism.
More than anything else, the Players Commission has helped build the necessary levels of
trust to enable the change process to not simply be confronted, but dealt with proactively
and strategically.
The importance of change is further strengthened by provisions in the document which
specifically deal with the introduction of change ,38 the assignment of the business of clubs, 39
the expansion of the competition 40 and, indeed, the transmission of the business of the
Ericsson Cup by Soccer Australia.41 It is interesting to note that these provisions are not
uncommonly being included in collective bargaining agreements, consistent with the exciting
yet volatile times of contemporary professional sport.
External Factors and Negotiating Tactics
‘(F)ederal labor policy favors neither party to the collective bargaining process, but instead
stocks the arsenals of both unions and employers with economic weapons of roughly equal
power and leaves each side to its own devices.‘ 42
Increasingly, factors beyond the control of the negotiating parties and those they represent
are influencing the collective bargaining process in sport. These include the rise of influential
player agents, the commercial objectives of the many people that have a commercial interest
in professional sports (for instance, governments, sponsors, stadia proprietors and television
companies), as well as the legal rules which govern bargaining.
In the case of an international sport, developments in the game outside of Australia will
impact domestic bargaining in Australian soccer. For instance, the Bosman ruling is
pertinent to the current round of bargaining, and impacts upon the issues of the transfer
system, equalization policies, feeder structures which underpin the national league and
junior development.
One particularly interesting aspect which will emerge will be the increasingly formal
nature of bargaining. Presently, the vast majority of collective bargaining agreements in
professional team sports have been reduced to common law collective agreements. 43 The
Australian Cricket Board (ACB) vigorously opposed the moves by the Australian Cricketers’
Association to negotiate Australian Workplace Agreements on behalf of its membership in
accordance with the Workplace Relations Act, and instead entered into a common law
‘memorandum of understanding’. Soccer Australia, the National Basketball League and the
AFL have shared the approach of the ACB, which has not been vigorously contested by the
players.
While the legal difficulties connected with the enforcement of common law collective
agreements are not insignificant, they can be overcome by effective legal drafting 44 The far
reaching nature of the agreements being negotiated, including their detailed prescription of
revenue sharing, the payment of amounts to (unregistered) player associations and their
duration (commonly not less than three years), make them suited to being documented in
the form of a simple contract.
Schwab • Collective Bargaining in Australia
27
As the stakes become higher, it will be interesting to observe whether sport will be able to
continue to handle collective bargaining outside the formality of the Workplace Relations Act,
and whether player associations will be able to continue to resist the temptation to become
registered as trade unions under that Act. The Workplace Relations Act encourages bargaining
and does so in traditional industrial terms, primarily by protecting industrial action by
employers and employees from legal attack if engaged in for the purpose of negotiating an
enterprise agreement within the meaning of the Act.
Industrial action is, of course, merely one collective bargaining tactic. The subject of the
various tactics adopted by management and players would warrant a paper in its own right.
They are many and varied, and depend upon factors such as whether the sport is a
professional sports league or the sole employer of players.45 The most effective is a negotiation
that adopts the process of mutual success and working towards the development of the
sport. Australian sport has seen the use of the media, the unilateral imposition of conditions,
arbitration and legal action as other negotiation tactics, all of which have a tendency to
attract far greater public attention than the agreement itself! All are widely used
internationally.
Industrial action by employers and employees is part and parcel of the negotiation of
collective bargaining agreements in professional sports in the United States. Those negotiations
and agreements attract a range of legal protections not yet available to Australian sports,
most notably a non-statutory labor exemption from liability under the Sherman Act. 46 This
has, for example, exempted restraints on the player market included within collective
bargaining agreements from attack on the basis they constitute an unreasonable restraint of
trade.
It will be interesting to see whether the Australian common law doctrine of restraint of
trade has the flexibility to develop a similar exemption. It is indeed arguable that the
negotiation of a collective bargaining agreement with a truly representative player body
would seem to be a legitimate interest of a professional sport, and relevant to the question of
whether a particular restraint is, in fact, reasonable.
Depending upon the bargaining will of the parties, this may well be yet another dynamic
area of sports law.
Conclusions
By achieving alignment between a collective bargaining agreement and the strategic direction
of a sport, the management and players of Australia’s sports can use the challenge of
collective bargaining as a major positive force in their growth and development.
With players today being important stakeholders in their sport, great benefits will follow
sports which ask their players to share management’s commitment to the success and
showcasing of their sport for the benefit of everyone involved, especially the fans.
But don’t be fooled. It is often a tough process.
Notes
1
2
Brendan Schwab is also Senior Associate and Coordinator of Workplace Relations, Gadens
Lawyers. This paper was presented at Australian Sports Commission Executive Directors
Conference, Sydney, 11 Nov. 1998.
M Miller, A Whole Different Ball Game: The Sport and Business of Baseball, Birch Lane Press,
New York, 1991, pp. 307-8.
28
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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ASSH Bulletin No.29 • December 1998
B Dabscheck, ‘Playing the Team Game: Unions in Australian Professional Team Sports’, Journal of
Industrial Relations, Dec. 1996, p. 613.
By making particular reference to the author’s own experiences in Australian soccer, and his
studies of the domestic and international experiences of other professional team sports.
Workplace Relations Act 1996 (Cth), Section 3.
C E Sutcliffe, English Football Association Council member on attempts by English professional
footballers to form a players union in 1908. quoted in E Dunphy, A Strange Kind of Glory: Sir Matt
Busby and Manchester United, William Heinemann Limited, London, 1991, p. 27.
In 1993, the Australian Football League Players’ Association Inc, as agent for a number of AFL
players, referred a dispute over a number of matters, including recognition of the AFLPA as the
collective bargaining agent of those players, to the Australian Industrial Relations Commission.
The Australian Football League Umpires’ Association Inc did likewise in 1996 and 1997.
The key feature of the transfer and compensation system as then in force was the entitlement of a
player’s former club to ‘compensation’ (inevitably a substantial amount of money) upon the player
entering into a contract to play for a new club.
Upon being incorporated within a sport’s Collective Bargaining Agreement in the United States, the
player drafts are immune from legal challenge on the ground they constitute an unreasonable
restraint of trade. This is because of both statutory and non-statutory labor exemptions from
Iiability under federal labor and anti-trust laws. Both exemptions are considered in detail by the
United States Court of Appeal in Brown and Ors v Pro Football Inc., United States Court of
Appeals, 21 Mar. 1995.
Refer, for example, Smith v Pro Football Inc. 593F. 2d 1173, (1976); Kapp v National Football
League 390F. Supp 73 (1978).
The arguments were based upon the Preamble, Parts II and Ill of the United Nations lnternational
Covenant on Economic, Social and Cultural Rights and relevant conventions of the International
Labour Organization concerning freedom of association and protection of the right to organize. Tim
Pallas, an Assistant Secretary to the ACTU, articulated the arguments. The ACTU intervened in
support of the players’ application.
Media, Entertainment and Arts Alliance v Marconi Fairfield Soccer Club and ors [and] Australian
Soccer Federation, Australian Industrial Relations Commission, Dec 1285/95 Print M2565, Sydney,
9 June 1995.
Workplace Relations Act 1996 (Cth), Section 4(1), definition of ‘industrial dispute’.
Print M2565, p. 78
Print M2565, p. 65
Print M2565, pp. 68-69.
‘Ericsson Cup Collective Agreement 1996-1999', Schedule B. The agreement introduced a number
of devices to protect players, and made all players 26 years of age or above or with six straight
seasons with their club free agents.
‘Ericsson Cup Collective Agreement 1996-1999’, Clause 7.
Eastham v Newcastle United Football Club [1963]3 All E.R. 139, 150 per Lord Wilberforce.
Print M2565, p. 69.
J Cairns, N Jennett and P J Sloane, ‘The Economics of Professional Team Sports: A Survey of
Theory and Evidence’, Journal of Economic Studies, 1986, p. 33.
G W Scully, The Business of Major League Baseball, University of Chicago Press, Chicago, 1989,
p. 95.
Refer, for example, Adamson and ors v New South Wales Rugby League Ltd and ors (1991) 103
ALR 319, particularly the judgment of J Wilcox.
The AFL and the AFLPA have announced an agreement to fix salaries payable to first time
draftees. Australian Football League Media Release 30 Sept. 1998.
Australian Football League, ‘Equalization and Salary Cap: A Policy Aimed at Greater Competition’,
1997 Australian Football League Annual Report.
Union Royale Beige des Societes de Football Association ASBL v Bosman, Case C-415/93, Court
of Justice of the European Communities, 15 Dec. 1995.
B Dabscheck, ‘Assaults on Soccer’s Compensation System: Europe and Australia Compared’,
Sporting Traditions. vol. 13, no. 1, Nov. 1996, pp. 91-2.
Legendary American football coach Vince Lombardi, speaking to the Green Bay Packers,
immediately before Superbowl I.
Schwab • Collective Bargaining in Australia
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
29
Emphasis added.
Resolution of the Australian Soccer Players Commission of 29 Jan. 1998.
‘Ericsson Cup Collective Agreement 1996-1999’, Clause 12 and sub-clause 4.8 of Schedule B.
Karl Marx.
Since 1 Oct. 1996, approximately A$4.6 million has been paid in consideration of the transfer of
Australian soccer players, mostly overseas.
Melbourne Soccer Club. Brisbane Strikers, Canberra Cosmos, Collingwood Warriors, Perth Glory,
Carlton Soccer Club and Northern Spirit. Newcastle Breakers was readmitted after not participating
in the 1994/1995 season.
Preston, Brisbane United, Melbourne Soccer Club, Heidelberg United, Parramatta Eagles,
Collingwood Warriors and Newcastle Breakers (for 1994/1995 season).
Adelaide Sharks, Sydney Olympic and Wollongong Wolves. The privatisation of Adelaide City is
pending.
‘Ericsson Cup Collective Agreement 1996-1999’, Schedule G. The Commission consists of two
nominees of the Players’ Association, one nominee of Soccer Australia, one nominee of the Player
Relations Committee (the club’s collective bargaining agent), an independent chair and a nonvoting secretary nominated by the Players’ Association. Under the agreement, Soccer Australia
each year allocates $65 000 to financing the Commission’s activities.
Ibid, Clause 15.
Ibid, Clause 16.1.
Ibid, Clause 17.
Ibid. Clause 16.2.
Brown and ors v Pro Football Inc, supra, p. 9 per Chief Judge Edwards, filing the Opinion of the
court.
The most notable exception is the Australian Rugby League Players Award 1997, between the
Media, Entertainment and Arts Alliance and the (then) Australian Rugby League aligned clubs.
Refer Re Hornfray Carpets Australia Pty Ltd and Hycraft Carpets Pty Ltd (1996) 14 ACLC 555.
The economic term for the situation where there is one employer is monopsony, the single buyer in
the market. In professional sports monopsonies wield all of the power of monopolies in trade and
commerce. Widely publicised examples include the Australian Cricket Board in relation to the Test
team, Soccer Australia in relation to the Socceroos, and the Australian Football League in relation
to the umpires.
The Sherman Act was enacted by the Congress of the United States in 1890. The Act proscribes
certain practices and agreements inimical to free trade as a means to promote the national interest
in a competitive economy. For a compelling analysis of the legal and Industrial policies that
underpin the exemption, refer to Brown and ors v Pro Football Inc. supra. The author strongly
prefers the analysis of the dissenting opinion filed by Circuit Judge Wald.