Collective Bargaining in Australian Professional Team Sports Brendan Schwab
Transcription
Collective Bargaining in Australian Professional Team Sports Brendan Schwab
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. 20 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. 26 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 28 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.