in Australia, apart from the isolated success of the rugby league players.^10 In
the European Union (EU), sports labour markets were revolutionized by a
successful legal case brought by the Belgian player, Marc Bosman, in 1995,
in which the EU courts ruled that retain-and-transfer rules were an illegal
restraint of trade; since then, with minor restrictions (e.g. for youths), players
signfixed-term contracts at the end of which they can move to any employer.
The EU outcome is a labour market much like that in other industries, and
with much higher wages for players (and their agents).
The workplace passivity of the Australian sports players is also reflected in
their reluctance to seek legal redress for grievous bodily harm or equipment
malfunction, and to ensure conformity with standard occupational health
and safety conditions. Rugby league players have successfully sued for dam-
ages, but the cases are few, and have few parallels in other sports.^11 Clubs try at
all costs to keep cases out of the civil courts or away from quasi-legal settings
such as the Australian Sports Anti-Doping Authority, and the players and
media acquiesce in this.^12
There is no doubt that the peculiar nature of professional team sports
justifies nuanced application of competition policy and other legislation.
However, the distribution of the large rents involved in team sports turns on
the interaction between the regulatory environment and market forces, and
pursuit of a more or less active public policy affects thefinancial returns to
different groups. In other countries, with increased recognition of the size of
the rents, players have become more purposeful in securing their share, and
governments have become more aware that the sports industry is big business.
In the UK, for example, tax collection was lax in the twentieth century, with
professional sports clubs infinancial trouble often given extensive leeway, but
in the twenty-first century the tax authority has become insistent on prompt
payment of taxes and issues credible threats of bankruptcy to clubs that fall
behind. In Australia this interaction between the regulatory environment and
(^10) In 1990–91 players challenged the rugby league draft system in court, where it was ruled a
restraint of trade, and subsequently the NRL has acknowledged that changes to the labour market
need the approval of the players’association. The AFL Players’Association, in the mid-1990s,
negotiated collective agreements with a minimum wage in return for a commitment that no player
would seek redress through an industrial tribunal. Subsequent AFL agreements included statements
that all parties accepted the need for the draft and salary caps, which forestalled any restraint of
trade action under common law. 11
A 1993 case established that liability for injury included the offending player’s club, if, for
example, players were not trained to play in a way that reduced the likelihood of injuring
opponents. Yet it remains hard to prove negligence by players or club. In 2005 Jarrod McCracken
succeeded in obtaining $97,000 damages from two Melbourne Storm players and their club (but
not from the NRL), on the grounds that the spear tackle that paralyzed him was intended to cause
injury. 12
Following the revelation of widespread drug abuse by Essendon AFL club,The Australian,on
23 June 2014, ran an op-ed headlined‘Get Canberra out of Sport’. Davies (2012) deals with the legal
issues in greater depth.
Richard Pomfret