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Thread: Western Force Appeal Dismissed

  1. #181
    Champion Contributor Jehna's Avatar
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    Quote Originally Posted by GIGS20 View Post
    I hope, if they go to the high court, that they take more than that one leaky clause.
    Reading the finding, I can see clearly why the Arbitration went the way it did and why the appeal was dismissed.

    And I'm no lawyer!

    I hope this was all some clever legal tactic designed to make a bigger case more successful because if it wasn't it seems like a massive waste of time and money.

    Perhaps John Edwards, Hansie or Fulv could calm my frazzled nerves.
    I’m a little late to this party, but I am a lawyer (although admittedly not a contract lawyer), and I think your assessment is spot on Gigs when you consider the terms of the Alliance Agreement, the arbitration decision and the appeal decision.

    The difficulty with the legal system for this matter (and frankly probably all matters) is that this case wasn’t about what was ethical or moral or fair…it is about strict legal interpretation of a contract.

    The agreement defines ‘term’ at Clause 1.1 as “the period commencing on the Commencement Date and ending on the expiry date of the last of the SANZAR Broadcast Agreements (being 31 December 2020) or, subject to clause 2.4, if the last of the SANZAR Broadcast Agreements is terminated or renegotiated earlier as a result of the renegotiation of the commercial terms of a broadcast arrangement, such earlier date”.

    The decision by SANZAR to reduce the Super Rugby comp from 18 teams to 15 resulted in the broadcast agreements being renegotiated. The last renegotiation took place on 19 July 2017. Whilst the renegotiated agreements didn’t affect the expiry dates of the agreements, the terms of the agreement changed generally which in effect invoked the second part of the definition of ‘term’.

    Unfortunately, the definition of ‘term’ in the Alliance Agreement is poorly worded. One would assume the effect of the clause was to make the expiry date 31 December 2020, or if the Broadcast Agreements were terminated or renegotiated such that they expire on an earlier date, the term would be whatever the new earlier date is.

    But that is not what says. It essentially says (or has been interpreted as saying) that ‘earlier date’ refers to the expiration of the Broadcast Agreements which given that were renegotiated and replaced with new agreements, is the date upon which the former Broadcast Agreements finished and the new ones started – that is 19 July 2017.

    As Hamemrschlag J alluded to, it is baffling that WARU confined their challenge to an argument of strict legal interpretation of this clause in the contract.

    There may have been a broader argument about whether the contract was entered into in good faith by the ARU, but that is lost now. I’m not sure why we didn’t run it. Perhaps at that stage, we didn’t have any concrete evidence of the ARU’s misleading or deceptive conduct. It is an incredibly difficult argument to run and get up on when you literally have a room full of lawyers nutting these agreements out. Ignorance of the law really isn’t an excuse and unless you can point to specific misleading or deceptive conduct, the reality is that this agreement is what WARU signed up to and heavy reliance is also placed on the agreed terms of the contract.

    Whilst I’m not necessarily criticising WARU for that decision (it may have been the best option at the time) with the benefit of hindsight it is clear that this agreement was bad from the word dot and we never should have signed it.

    On that note, I have to say, I wonder how we ended up in a position where we felt like signing this agreement was our only option? Clearly I’m not fan of Clyne and I don’t want to give that man any credit, but he did raise an interesting question in his press conference yesterday (albeit in a totally arrogant and condescending manner) about where Twiggy’s support was 18 months ago when we were staring down the barrel of signing away all our rights and power to the ARU. Whilst the ARU can go f*ck themselves in terms of thinking that they have the right to ask this question, I can’t help but wonder the same thing. Don’t get me wrong, I am eternally grateful for Twiggy’s support and frankly he owes us absolutely nothing so it isn’t really fair to complain about why the support didn’t come sooner. Perhaps Wayne Smith is right that the reason he only came to the forefront now is because he suspected the Force was being set up. But for anyone who has been following the disaster that is the ARU, it seemed pretty obvious that signing this agreement was signing a deal with the devil and it surprised me we went down this path. It also surprised me that we agreed to these terms even though our backs were a little against the wall.

    Regardless, at least we have options moving forward with Twiggy’s support and as so many have said already, hopefully this will turn out to have been a blessing in disguise.

    But in terms of our legal options moving forward, I think we've exhausted them. The difficulty with any appeal, particularly now to the High Court, is that the appeal must now be on the basis that Hamemrschlag J made an error of law which frankly he didn’t. His reasoning is sound and it comes back to the specific wording of the terms use in the Alliance Agreement.


    Quote Originally Posted by GIGS20 View Post
    couple of journos denigrating the idea because it will be "NRL standard" because "no big names would give up a wallaby jersey to play"

    I beg to differ on the big name point. I reckon given recent press Taf would be in, Dane is a shot and maybe even Adam if the deal is right.

    If twiggy could announce those three, along with some others on the fringes (like Alex Newsmen, who will never replace Andrew Kellaway or Billy Meakes who will never be more than a tackle bag while Beale is walking) there might start to be some pressure on the ARU to recognise.

    Notwithstanding, the comp will develop into a step above Nrc and will easily replace Super Rugby when it dies in three years.

    I say any team that wants to enter before 2020 Plays for free, after that there is an entry fee.
    Also, (GIGS making all the sense these days ) on this note, there seems to be a perception that another comp will fail because the ARU is unlikely to endorse player eligibility for the Wallabies if players are not playing in Super Rugby. But at this stage, you have got to wonder whether there really is a lot of force (no pun intended) behind this argument. The Wallabies have been atrocious pretty much it feels like since 2003. Is the desire to play for your country when your team is an embarrassment so appealing that it outweighs the opportunity to play competitive rugby in another capacity in circumstances where you’re also likely to have more capacity to earn money? Certainly, perhaps for some people it will be, but I also think there are a lot of players who will forego the opportunity to play for the Wallabies at this time for other interests.

    And the reality is that the ARU might find themselves in a position where they have to relax that rule. It wouldn’t be the first time the ARU have changed the rules in the interests of recruiting players who might allow us to stand a chance in the World Cup so we’re not an embarrassment *cough* the Giteau law….

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  2. #182
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    Quote Originally Posted by Jehna View Post
    I’m a little late to this party, but I am a lawyer (although admittedly not a contract lawyer), .
    We remember when you were just a poor uni student

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  3. #183
    Champion Contributor Jehna's Avatar
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    Quote Originally Posted by travelling_gerry View Post
    We remember when you were just a poor uni student
    I know. Almost 8 years later and I'm just so fancy and important these days

    But in all seriousness, all it means is that I work so hard and so many hours that I don't have time to keep up with TWF. What a terrible life choice!

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  4. #184
    Veteran sittingbison's Avatar
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    I think Forrest was not part of the process because it was literally none of his business. It was the ARUs responsibility. They literally "own" rugby, more importantly they hold the purse strings even of Super Rugby (which is the big mistake). The Force, and RugbyWA, HAD to go to the ARU, putting out the hand to Forrest would have been most inappropriate. Same goes for Firepower, and Giteaus ridiculous bleating today. The only thing he could possibly have done differently might have been to become the major sponsor when Emirates pulled out, yet they were very turbulent times (2012-14) for FMG and ore production, even to the point of extinction.

    As Forrest said, it was not until the fix was in that could he step up.

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  5. #185
    Veteran valzc's Avatar
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    "....But at this stage, you have got to wonder whether there really is a lot of force (no pun intended) behind this argument. The Wallabies have been atrocious pretty much it feels like since 2003. Is the desire to play for your country when your team is an embarrassment so appealing that it outweighs the opportunity to play competitive rugby in another capacity in circumstances where you’re also likely to have more capacity to earn money? Certainly, perhaps for some people it will be, but I also think there are a lot of players who will forego the opportunity to play for the Wallabies at this time for other interests...."

    Just to add to that - the way in which the Wallabies team is selected with Tahs bias regardless of form, I think it won't be too long before the whole Wallabies team will be solely Tahs selection only. So IMO that based on how its going now, doesn't bode well for the future of the Wallabies team anyway. It's already happening now, with good talented skilled players, knowing they're not in the Tahs/Cheika favour have already decamped overseas. If we have an alternate Aus comp, that will provide another avenue for them to follow, and losing a few more Test matches may force the issue of eligibility onto the ARU.

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  6. #186
    Immortal Contributor shasta's Avatar
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    Quote Originally Posted by sittingbison View Post
    I think Forrest was not part of the process because it was literally none of his business. It was the ARUs responsibility.
    Which made Clyne look incredibly insincere and pathetic at yesterdays press conference. He intimated that he was the poor man who is copping the flak but has so much sympathy for WA and actually did everything in his power, gave every chance for WA to put their case. But in the end it is all Twiggy's fault for being too late. He is beneath contempt and anyone from the east to the west can see it clearly.

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  7. #187
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    As the ARU owned the team, he is effectively saying why didn't Forrest save our team 18 months ago. And, when we gave ourselves the ultimatum for best and final offer that we weren't going to accept, why didn't we give ourselves a firm commitment based on our knowledge of dealing with Melbourne.

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  8. #188
    Champion Contributor Jehna's Avatar
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    Quote Originally Posted by shasta View Post
    Which made Clyne look incredibly insincere and pathetic at yesterdays press conference. He intimated that he was the poor man who is copping the flak but has so much sympathy for WA and actually did everything in his power, gave every chance for WA to put their case. But in the end it is all Twiggy's fault for being too late. He is beneath contempt and anyone from the east to the west can see it clearly.
    I also enjoyed the part where he relied on a letter they apparently wrote to WARU on 2 August asking them to present their best option for not shafting the Force, as the sole evidence that the ARU hadn't decided the future of the Force back in Feb. Because that letter clearly had nothing to do with the fact that the Force had taken the matter to arbitration and they had no choice but to make it look like they were open to all options and hadn't made any decisions....

    But again, whilst i'm not trying to be critical of Twiggy or give any credence to what Clyne had to say, I am not sure that I accept the explanation that Twiggy couldn't get involved earlier or it would have been inappropriate to do so because it was an ARU matter. I can certainly see why he may not have wanted to get involved at that stage. It's just a shame the financial backing couldn't have come at a time before we sold out to the ARU given that really sealed the deal in terms of the downfall of the Force.

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  9. #189
    Immortal Contributor shasta's Avatar
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    Quote Originally Posted by Jehna View Post
    It's just a shame the financial backing couldn't have come at a time before we sold out to the ARU given that really sealed the deal in terms of the downfall of the Force.
    Maybe. But we only have a throw-away line from Clyne that it would have made any difference. On the evidence available that is worth nothing.

    Rugby WA was given a suggestion on the weekend before the Adelaide meeting that the course could be reversed at the 11th hour if Mr Forrest came good with the 50 mill. I can only guess that his offer was to make good on the savings that the ARU would put to grassrootsif a team were axed. I also guess that the money is in fact needed to prop up Super Rugby instead. So - no deal. I just hope the senate can uncover that.

    BTW good to see you around here after a long absence. You sound busy.

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  10. #190
    Immortal GIGS20's Avatar
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    Quote Originally Posted by Jehna View Post
    GIGS making all the sense these days
    I'm sure I'll return to my usual misguided, uninformed and stupid self once the emotion of the moment wanes.

    And welcome back, your signature is testament to how long it's been!

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    C'mon the

  11. #191
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    ARU chairman Cameron Clyne hits back at RugbyWA, Andrew Forrest

    ON a day of high drama and emotion in Australian rugby, ARU chairman Cameron Clyne has been left bemused and wondering why RugbyWA didn’t seek financial help for the axed Force sooner.

    Facing the press on Tuesday afternoon in Sydney, Clyne said he was relieved that there was finally some clarity after the New South Wales Supreme Court dismissed RugbyWA’s appeal to reverse the ARU’s axing of the Perth-based franchise from Super Rugby.

    But the under siege administrator also lamented the timing of billionaire mining magnate Andrew Forrest’s support for the Force.

    “One of the frustrating things here is that there’s been a lot of opportunities for RugbyWA,” Clyne said.

    “Obviously we stepped in there and bailed them out 18 months, two years ago because no-one else came forward.

    “I’m really, I guess, frustrated and disappointed that there was obviously a desire late in the piece to provide support.

    “I just don’t understand why RugbyWA didn’t contact Andrew Forrest in April.

    “This would have been maybe a far different outcome.

    “I’m also a bit bemused as to when we wrote to RugbyWA on August 2 before we made our decision saying ‘what is your best and final position?’ that they didn’t come back with anything substantive.

    “I guess I feel for the rugby fans in WA.

    “I particularly feel for the player group, but I guess I’m also really frustrated that there were so many opportunities where we engaged and unfortunately we had to make a decision ...

    “I really say ‘where was it on August 2, where was it in April and where was it when we bailed them out 18 months ago?’”

    Clyne also expressed his sympathy to recently retired Force captain Matt Hodgson, who was in tears earlier in the day as he addressed the media following confirmation of their lost appeal.

    “Clearly this is a very disappointing day for the people in WA and I’ve got enormous sympathy for what people like Matt Hodgson are going through,” Clyne told reporters in Sydney.

    “He’s put a huge amount into that club and I fully understand why he’s upset.

    “I’m happy that we’ve got resolution in the sense that we can now proceed with a 15-team competition, which is a far better Super Rugby format than we’ve had in the past.

    “I’m happy for with the four-team structure that the Australian teams will be more competitive, but I absolutely have sympathy for what the rugby fans in WA are going through.

    “This was never going to be an easy situation and one team was always going to be in a disappointing situation, so absolutely I’ve got sympathy for that.”

    Clyne added that he would be happy to accept an invitation from Hodgson to run through the ARU’s rational to cut them.

    “We absolutely respect the contribution that Matt’s made to Australian rugby and to the Western Force in particular, and we’d be more than happy to sit down with him and take him through some of the underlying rational behind the decision,” he said.

    “That is a genuine offer from us and we’ll definitely do that if that’s something he’d like to do.”
    Force plan rebel competition

    In addressing the media earlier in the day, Forrest said Clyne “should have stayed with running a bank” and called for the ARU chairman to resign.

    But Clyne responded that he maintained the support of the board.

    “That’s up to our members,” Clyne said.

    “The members are in a position at any point in time to call a meeting and seek that to occur.

    “The members have actually endorsed me twice this year in April and, again, in June at the EGM.

    “We put this to them and the members support going to a four-team competition, so obviously if the members take a different view they’re more than welcome to.”

    On April 10, the ARU announced that they would be removing either the Force or the Rebels from Super Rugby within the next 48-72 hours.

    That decision, however, turned out to be premature with it taking four months before the ARU announced they would “discontinue” the Force franchise after an extensive review.

    https://www.foxsports.com.au/rugby/a...7c81197c936057

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  12. #192
    Champion Contributor Jehna's Avatar
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    Quote Originally Posted by shasta View Post
    Maybe. But we only have a throw-away line from Clyne that it would have made any difference. On the evidence available that is worth nothing.

    Rugby WA was given a suggestion on the weekend before the Adelaide meeting that the course could be reversed at the 11th hour if Mr Forrest came good with the 50 mill. I can only guess that his offer was to make good on the savings that the ARU would put to grassrootsif a team were axed. I also guess that the money is in fact needed to prop up Super Rugby instead. So - no deal. I just hope the senate can uncover that.
    Oh absolutely. After we signed the Alliance Agreement we were done for. There was no chance the ARU would relinquish control of us when they were in such financial difficulties because we were their playing card. As someone said earlier in this thread, you can’t tell me that the discussion around reducing the competition hadn’t been on the table for some time prior to all of this. The ARU would always want the ability to control the franchises if it was available to them.

    I was thinking it would have been nice if Twiggy or someone else could have stepped in and bought the Force before we had to go crawling to the ARU. Once we turned to individual jersey sponsors we were clearly in a lot of strife. I was hopeful maybe Volvo or Clough might be able to step up but it wasn’t a particularly good financial climate in WA back then and of course, we weren’t performing particularly well at that time, and rugby generally was starting to decline. So I understand if that was the reason no one wanted to step up then.

    The dealings between Twiggy and the ARU since he has come on board and his promises of financial backing have been fascinating. I hope we do find out more about this moving forward.

    Quote Originally Posted by shasta View Post
    BTW good to see you around here after a long absence. You sound busy.
    Quote Originally Posted by GIGS20 View Post
    I'm sure I'll return to my usual misguided, uninformed and stupid self once the emotion of the moment wanes.
    And welcome back, your signature is testament to how long it's been!
    I am busy. Adulting is hard. I can't believe they make you work for money.

    Ha. And Gits will always be relevant. Point to a current Australian 10 or 12 playing for the Wallabies that is better than him right now! I would still pass the ball to him any day

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    Let me make one thing clear.

    In March 2016 we notified the ARU we were going to need help at the end of the season. Considering they had previously bailed out the Rebels, QRU and NSWRU we thought we'd ask first. One plan was that if they rejected us, we would need to fast track a few other options.

    BUT HEY - they came to us and said " we can help, in fact our intention is to follow the NZ model and centralise high performance and own all of the licences - we can then leverage a whole package to sponsors, we can move players like they do in N.Z. and if we start with you guys and prove the model, we can then sell it to the other franchises".

    This ladies and gentlemen is why we then began talking about an Alliance.

    So, Clyne is right - we did let them know 18 months ago we were heading into financial problems, but he is milking this and misrepresenting it to suit his agenda. They could have said - NO, they came with the centralised model and we believed them. Snake Oil salesmen!!!!

    Let me also say that Bill Pulver acknowledged their commercial team had done zilch to help us on Sponsorship. We have acknowledged that their High performance team have been great.

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  14. #194
    Champion Tonkar's Avatar
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    Quote Originally Posted by Hansie View Post
    Let me make one thing clear.

    In March 2016 we notified the ARU we were going to need help at the end of the season. Considering they had previously bailed out the Rebels, QRU and NSWRU we thought we'd ask first. One plan was that if they rejected us, we would need to fast track a few other options.

    BUT HEY - they came to us and said " we can help, in fact our intention is to follow the NZ model and centralise high performance and own all of the licences - we can then leverage a whole package to sponsors, we can move players like they do in N.Z. and if we start with you guys and prove the model, we can then sell it to the other franchises".

    This ladies and gentlemen is why we then began talking about an Alliance.

    So, Clyne is right - we did let them know 18 months ago we were heading into financial problems, but he is milking this and misrepresenting it to suit his agenda. They could have said - NO, they came with the centralised model and we believed them. Snake Oil salesmen!!!!

    Let me also say that Bill Pulver acknowledged their commercial team had done zilch to help us on Sponsorship. We have acknowledged that their High performance team have been great.
    Clearly The Western Force / Rugby WA were lied to.. Well just shows they wanted leverage to improve the game, What a joke,, They hadjust sold the Rebels to Cox. I think the senate enquiry might take a long time just like the jail time the board might get lol.. Be some cheap real estate going in Sydney or transferring assets into family trusts..

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  15. #195
    Veteran Contributor hertryk's Avatar
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    Quote Originally Posted by SNOB View Post
    So where are we going to be burning our Wallaby gear? Should have fire pits in front of all gates to dispose of unwanted and tainted products!
    Sent mine cut up to St Leonards together with pictures of our kids playing rugby...

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