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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.
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….