SPORT Law and rugby league as communal lifelines

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SPORT Law and rugby league as communal lifelines GRAEME ORR examines the South Sydney litigation. One of the most famous lines written about sport belongs to Caribbean marxist, CLR James: What do they know of cricket, who only cricket know?

James was emphasising that a practice as significant yet banal as sport could not be understood in isolation from the societies in which it is played. Someone who only knows cricket from the inside - its rules, its records, its physical demands - may gei a guernsey on Channel 9, but will not be an insightful commentator. The same philosophy underlies the realist and critical legal studies movements. To be a fonnalist, a master oflaw's blaCk-letter rules yet ignorant of its context, is to be peculiarly blinkered. The legal equivalent ofJames' motto is Justice Frankfurter's letterto a barely pubescent b~y who wrote, seeking advice on how to prepare for his dream of becoming a lawyer. The judge counselled him to explore the world and read about everything but law. Law and sport are both fundamental aspects ofcultural, indeed economic life. Moreover, they are both curious mixtures ofrule bound competition and creative possibility. Unsurprisingly then, they are interlinked and mutually revealing at many more interesting levels than the 'sports law' that has grown up to service-the business ofprofessional sport. This brief gives an example of these links, in describing the tumultuous litigation between South Sydney District Rugby League Football Club (Souths), and News Ltd and the National Rugby League (NRL).

The background Souths, a foundation club ofAustralian rugby league, is also its most honoured, with 20 premierships between 1908 and 1971. With headquarters in Redfern, Sydney, Souths epitomised rugby league's working class roots, whilst attaining the sort of success that mirrored Sydney's centripetal pull. . League faced a host ofchallenges in the 1980s and 1990s: commercialisation, incr~ased competition from other codes

and a mobile and fickle population. A national competition was created, reaching 20 teams in 1995-96. As this happened, Murdoch's News Ltd, hungry for cheap cable television content, fostered reseniment and geldlust, especially amongst clubs outside Sydney. News established a rival 'Superleague', splitting the sport and generating unsustainable financial pressures. The split could not last, and the rival leagues merged to fonn the NRL. In doing so, they agreed to reduce the number of teams to just 14 for 2000. Incentives were offered to traditional Sydney clubs to

form joint ventures, in a process similar to union amalgamation.

Souths, which prided itselfon living within its means, had had a frugal decade both on and off the field. It refused to seriously consider losing its identity in a merger. But the playing field was never level. Superleague clubs benefited from enonnous infusions of News' money and non-Sydney clubs were protected against the criteria for exclusion. Souths was cut from the NRL competition. The club seemed set to die.

The fight It did not. Loyal fans re-emerged from the woodwork, joined by hosts of supporters ofother traditional clubs, resentful of Murdoch's takeover of the code. The most visible signs of this were two massive demonstrations in Sydney: one,

involving over 80,000 marchers, ·the largest since the Vietnam moratorium.

The less visible, but ultimately more effective battle occurred in the Federal Court. Relying on the Trade Practices Act 1974 (TPA), Souths argued that the merger of the rival

competition~,

subject to a strict limitation on the

number of teams, breached the prohibition against 'exclusionary provisions' in s 45(2). It lost at first instance, but succeeded 2-1 on appeal: [2001] FCA 862. That the majority judges disagreed on the legal reasons, creating a case without a ratio, did not seem to matter. The NRL, under a new CEO, immediately invited Souths back into the - league, rendering the case moot except as to,damages. But News and the NRL successfully appealed to the High Court: [2003] HCA 35. A majority of four agreed with the trial judge that Souths was not a 'particular person 6r [part of a particular] class of persons' as required by s 4D. The merger had not, in a legal . sense, targeted identifiable clubs. The majority believed it -would be unfair to legally hamstring merger partners when a truce had been necessary to save the code, and limiting the number of teams in a sporting competition was inevitable.

Only Kirby J preferred an expansive reading of restrictive trade practices law. Souths did not rely on the more obvious weapon, the provisions against abuse of market power. Presumably that claim was not pursued because it assumes a substantial

degree of market power. The NRL owns the sole elite competition, but the 'market' would be read as football generally, rather than league alone.

My team The campaign to save Souths highlighted larger wounds. In treating league as an 'entertainment product', to be grown hydroponically in a marketing bowl, league's management almost killed its roots. Indeed professional sport generally has come to embody the contradictions sustaining hyper-capitalism. Everything can be bought and sold. Clubs seek to abstract themselves from their communities,

becoming placeless brands (Cronulla-Sutherland became 'The Sharks') or franchises capable of re-locating to the highest bidder. Sport is now mediated as a television spectacle, dependent on broadcast and merchandising

B R royalties rather than attendances. Yet lasting interest in a

code is only sustained through desires born out of fleshy realities such as loyalty. Football is notoriously tribal. A child may adopt a team

E F S

Footy, umpires and the spirit of The Law

for arbitrary reasons, like its colours, but over time, those

colours come to suffuse her blood. So league's marketers JOHN HARMS puzzles over the have sought a return to its grassroots, symbolised in their relationship between rules and spirit. paying the Hoodoo Guru's to rework their hit 'What's my Scene' into 'That's my Game' and 'That's my Team', as the My father has aiways had strong views on The Law. Not so code's latest jingle. much the law of the land, but The Law as a concept in its religious context which, for him, is far more important. He is And what of 'my team', the Souths 'Rabbitohs'? So a Lutheran minister, descended from a line of Lutheran named after the players who sold rabbits door-to-door to ministers, all quite conservative in their theology; Lutheran survive, the emblem survives - although the twee theology. And I mean, straight-to-the-original-texts-to-seealternative 'Bunnies' is increasingly popular to juvenile what-the-reforrner-himself-had-to-say-about-things type of minds. Yet survival meant starting anew. The club lost all its theology. Hence the fifty-odd volumes of Luther s Works see players during its hiatus and has rarely been competitive plenty of action in Dad's study. since. Success breeds success in sport: 1989 was the last time Souths topped the league. And organisationally, the club These days he is retired - inasmuch as a clergyman is lurches from crisis to crisis, despite attracting profiled ever retired. But throughout his preaching life (which supporters as diverse as Nick Greiner, Alan lones and f' continues now in phone calls and at the dinner table) he has Anthony Albanese, and Russell Crowe, Ray Martin and been one to use the time-honoured phrases of the Lutheran Andrew Denton. tradition. One I remember, because I heard it so often, is that The most famous league club in the world, Souths has 'The Law only exists to make way for the Gospel'.' Dad's loyal fan clubs across Australia. But sentiment and history theological colours are shaded by this dictum - despite cannot forever conquer the tectonics of demographics. reverting occasionally to the Lutheran pietism of my Outside its Indigenous community - which sport grandmother, where The Law seems to take over. In later life everywhere disproportionately relies on - inner-south especially, he has, argued against legalism, and all its Sydney is no longer natural league territory. There was a stultifying effects. Legalism generates fear. For my father, 'Pink Rabbitohs' group, but gay districts like Newtown The Law makes us aware of our inadequacies, and hence to. eschew contact sports. (The Newtown 'Jets', the first league repent and seek redemption, thereby living in hope. He is team in Australia, and so named for being;under a confident that Gospel values are paramount, that they yield a conspicuous flight path, lost its elite team amidst financial Sense of being .alive, as his generosity of spirit would problems in 1983, although a second-string team was suggest. revived in 1991). Lebanese and Greek communities have ' Except for footy, where Dad knows, like all ofus, that the produced brilliant players and passionate supporters, but law exists so that we can yell at umpires. A spirit of Asianised suburbs like Marrickville are less fruitful. Most of all, inner-city gentrification and aspirational consumerism have seen sport's natural constituency, 'mainstream'

families, head for the outer suburbs and beachside provinces.

Our law Is it ironic that a working-class club found refuge in the TPA, legislation designed to grease the wheels of capitalism? Niceties of statutory interpretation meant nothing to Souths supporters. But News is nothing if not a monopolist, so

wielding the TPA against it was not odd. . The judgments themselves are dense testaments to the black-arts oflegal interpretation. Ultimately, the High Court held that the effect ofthe merger provisions was not evidence of their purpose, even though the effect, the demise of traditional teams such as Balmain, St George, North and Western Sydney and, almost, Souths, was desired from the start. The TPA is now narrower than it might have been. Yet the case is unusual in that rarely is a sport divided into rival

competitions. Not being in competition with itself, if the NRL chose to shrink in the future, clubs like Souths would not even reach first base on an 'exclusionary provision'

argument. But in the meantime, the Full Federal Court, at least to Souths' fans, has assumed the mythical status of the High Court in 'The Castle', as a dispenser of justice-asfairness. Graeme Orr is a legal academic at Griffilh University, Brisbane and a Rabbilohs' converl. © 2003 Graeme Orr

forgiveness is neither compulsory nor necessary once one

enters the MCG or the Gabba or York Park, particularly where the men in white are concerned. And this puts the poor umpires in a terrible situation. It seems everyone is against

'- them: even the AFL rules commission. It is the ambiguous nature ofthe statutes offootball which makes the game all the more delicious. That the rules are so open to interpretation gives the game an uncommon

resemblance to real life. There seems to be little certainty, and because the interpreters are human, little. consistency.

And of course, little justice. There is so much symbolism in football, and surely here the game must remind us ofthe legal system itself. , I would prefer if this isn't mentioned beyond the leather chair you're sitting in (and please hang on tig~tly to your balloon ofcognac), bull often feel sorry for the umpires. The Australian Football field umpire (or Umpire, with a capital U, as he is referred to in the official laws of the game) has to be an immensely strong character, fortified by the wisdom gleaned from the experience of injustice. Umpires know that a game can only be played ifthere is a man in white. But they also know that no matter what they do they will be condemned by half of the crowd. Yet they love the game so much that they are willing to crucify themselves publicly - on a weekly basis. For what could be more like Golgotha than the Yarra Falls end of Victoria Park? What could be more like Gethsemane than the morning of a Carlton-Collingwood Grand Final? What could be more