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AFL players have the right to choose their employer

Jarrad Grant was delisted after the trade period ended. Possibly because a trade could not be organised. Photo: Getty

Jarrad Grant was delisted after the trade period ended. Possibly because a trade could not be organised. Photo: Getty

With the end of the AFL trade period last week we have to ask ourselves, does the new draft trade system make a mockery of the Aussie notion of a “fair go”?

Does it breach the fundamental right of players to freedom of contract – that is, choosing who they would like to work for?

Yes, AFL players are uniquely qualified and provide highly sought-after services and a product that is enjoyed by millions.

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But given this you would imagine that they should be entitled to the ultimate freedom of contract – to be able to pick and choose their own employer, right? Wrong! It’s just not that simple.

Understandably, fans of the game like myself want a competitive league, but as a whole Australians still believe in a “fair go” for players (and clubs).

If the new bidding system doesn’t deliver on fairness for players as employees moving forward, maybe it’s time to rethink what “Aussie rules” really stands for.

The AFL trade system that we have seen on display during the recent trade period contains an eye-wateringly complex, constantly-changing set of rules for trading players.

While the new draft system is designed to achieve a balance of competing interests, is the new system really fair to the fundamental rights and freedoms of AFL players as employees under contract?

Players first seeking employment have no freedom of contract, while even the superstars of the game have restrictions on their ability to choose employers.

Jarrad Grant was delisted after the trade period ended. Possibly because a trade could not be organised. Photo: Getty

Jarrad Grant was delisted after the trade period ended. Possibly because a trade could not be organised. Photo: Getty

As the only professional sporting organisation in the world that has implemented a draft system without offering a free-agency option, this new model of ‘player transfer’ was considered necessary if the AFL was to take action to avoid a potential legal challenge from a player willing to be a test case.

But the truth is that freedom of contract for AFL players is actually very restricted. Players must enter a draft system – without any free agency, i.e freedom of contract.

Nineteen-year-old Brisbane on-baller James Aish felt the full brunt of the system when he told the Lions he wanted to be traded to the Collingwood Magpies.

The Lions refused the deal, with chief executive Greg Swann quickly issuing a statement confirming the club had absolutely no intention of trading Aish.

The Lions have since made a deal with Collingwood but only at the eleventh hour.

What kind of pressure does this put on young men trying to make decisions about their future, right down to the home they will be living in or the schools their children will be attending next year?

Geelong coach Chris Scott has been one of the most vocal critics of free agency, calling for the system to be scrapped because it “flies in the face” of equalisation and erodes player loyalty to clubs.

While the free-agency restrictions limit the capacity of the upper echelon of players to relocate, the supporters benefit through each club’s retention of its champion footballers.

James Aish fortunately got the move away from Brisbane he desired. Photo: Getty

James Aish fortunately got the move away from Brisbane he desired. Photo: Getty

In restraint-of-trade cases involving sport, like Adamson v NSWRL, the judiciary accepted that labour market controls are justified on the grounds that they protect the legitimate interests of the league, namely competitive equality, financial viability and player retention.

At the same time, however, the courts have consistently maintained, in cases like Buckley v Tutty, that a restriction cannot impose a greater restraint than is reasonably necessary to protect the genuine interests of the controlling sporting organisation.

The question remains whether the current bidding system adequately protects clubs, is not unreasonable upon players, is not injurious to the League itself while conserving the best wishes of fans of the League.

Early signs point to wealthier clubs, such as Collingwood, doing better out of the current model, however this raises concerns as to whether poorer clubs will be adequately protected or more vulnerable down the track.

Moving forward, with no guarantees under the new rules that a restricted free agent will be able to change clubs, it is conceivable that an aggrieved player could emerge to legally challenge the AFL’s system.

And nobody wants to watch a player sitting in a courtroom instead of taking a mark on the field.

Giri Sivaraman is a Principal in Employment Law at Maurice Blackburn Lawyers.

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