The decision by Adelaide Crows defender Nathan Bock to join Gold Coast Suns when his current contract expires at the end of this season has had ‘football people’ and commentators panicking about the future of the AFL and reminiscing of a bygone era of club loyalty.
It is not Nathan Bock’s decision that is a threat to football.
It is the reaction of those involved in an industry which has a long history of denying, at great cost, its players basic rights to freedom of movement.
The AFL is a big business. It is Australia’s most successful sports business. That is why it has its envied status today.
The AFL Commission’s decision to expand into the Gold Coast must be seen in that context – as a business decision. And, like any business, it must apply both business principles and law to its activities.
Bock’s transfer to the Gold Coast has to be seen in this light. He, too, is in business. Like all professional footballers, he has a right to commercially exploit his sporting prowess and associated celebrity.
However, the reaction to Bock’s move has been emotional.
“Welcome to a new world of AFL footy- that, is the culture that the AFL is about to create,” Adelaide Crows coach Neil Craig said at Bock’s announcement.
There are widespread calls for the Crows to be compensated for the ‘loss’ of the services of an uncontracted player who has given 8 years and 100 games of service.
Why? Those suggesting the apparent demise of ‘club loyalty’ should firstly appreciate its dark side: historically it has been a most one-sided notion imposed with the not so subtle spectre of forced pay cuts, an unwanted trade or even the threat to take a player’s career away from him.
In the last fortnight, the AFL’s own Footy Record recalled the plight of two of its former champions – Dan Minogue and Colin Watson – who had to stand out of football to win clearances to their preferred clubs.
Minogue, after returning from the Great War, sought to move to Richmond from Collingwood because of his displeasure with the club’s treatment of a team mate.
Collingwood’s response was to force him out of the game for a year.
Minogue’s determination proved to be legendary. His stand not only saw the Pies relent, but as captain coach he led Richmond to its inaugural premierships in 1920 and ’21, the first over his former club.
Watson’s ambitions were simpler. After winning the 1925 Brownlow with the Saints, he sought a move to country footy, and stood out of the game for a year after St Kilda refused its permission.
This is a troubling thought, for if champions like Minogue and Watson had to stand out of football, one can imagine the number of lesser known players who had their careers cut short by a system imposed by belligerent club administrators in the name of loyalty.
Even then, stands such as those made by Minogue and Watson had administrators and fans fuming, with an ‘open go’ for players seen, albeit without reason, as a threat to the very game itself.
The Australian courts have for many years taken a dim view of the restraints imposed upon players seeking to move clubs when out of contract.
In finding rugby league’s player draft to be unlawful in 1991, Mr Justice Wilcox of the Full Federal Court said that “the right to choose between prospective employers is a fundamental right of a free society… (and a) right which separates the free person from the serf”.
The High Court of Australia acknowledged the correctness of the decision in refusing to hear an appeal from the New South Wales Rugby League seeking to impose a system modelled on the AFL’s own player draft.
In 1972, the High Court found that Balmain player Dennis Tutty had been unreasonably restrained by rugby league’s transfer system. The court said the rules cannot be legally justified because they can prevent a former player from playing for a new club.
In a strong indication about the lawfulness of any compensation scheme for a club like Adelaide Crows, the court said that it would be unlawful for an employer to “restrain an employee (like Bock) from working elsewhere unless (the employer) is compensated for the loss of his services”. Bock’s fine performances for the Crows whilst under contract are therefore compensation enough.
Dennis Tutty paid a terrible price for his fight. Forced out of the game for two seasons, he missed Balmain’s 1969 Premiership and probably Kangaroo selection.
These are serious restraints which impose a heavy toll on players and which courts in Australia and, indeed, England, the United States and Europe have struck down in the public interest.
With the exception of the AFL, which has resisted a free labour market, all major professional sports have prospered in recent decades whilst affording players their legal right to freedom.
The reason all these legal challenges succeeded was that the sports were not able to prove that they were necessary to justify their stated aims of competitive balance and financial viability. The fact is, they are not as effective as the free market.
The AFL – as the best run business in Australian sport – can easily and should manage this basic right, especially through its collective bargaining agreements with the AFLPA.
Those that wish to criticise Nathan Bock’s right exercise his freedom of choice and think the game was better off in an apparent forgotten age of club loyalty should look to the success of sport around the world, which operates without such restraints.
They should also remember the courage and the sacrifice of the likes of Dan Minogue, Colin Watson and Dennis Tutty and accept that such restraints would not be tolerated in any workplace in the land.
Brendan Schwab is Chief Executive and General Counsel of Professional Footballers Australia and a member of the Board of FIFPro, the world soccer players union. He is also part-time General Secretary of the Australian Athletes’ Alliance (AAA), the peak body for Australia’s elite players’ associations. In 1995, he successfully challenged Australian soccer’s transfer system, resulting in the free agency for players that is a part of today’s A-League.
