AMI Sport & Entertainment Pty Ltd & Anor v The Rugby Union Players Association Inc & Ors [2005] NSWSC 950

New South Wales Supreme Court

CITATION : AMI Sport & Entertainment Pty Ltd & Anor v The Rugby Union Players Association Inc & Ors [2005] NSWSC 950

HEARING DATE(S) : 20 September 2005

JUDGMENT DATE : 21 September 2005

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Interlocutory relief refused.

CATCHWORDS : INTERLOCUTORY INJUNCTION - DELAY - BALANCE OF CONVENIENCE - Whether interlocutory application for injunction should be granted in view of applicants' delay - balance of convenience.

- Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242 CASES CITED : - Capgemini US LLC v Case [2004] NSWSC 674

AMI Sport & Entertainment Pty Ltd - First Plaintiff Gregory Paul Keenan - Second Plaintiff The Rugby Union Players Association Inc - First Defendant Australian Rugby Union Limited - Second Defendant PARTIES : Queensland Rugby Union Limited - Third Defendant New South Wales Rugby Union Limited - Fourth Defendant Australian Capital Territory and South New South Wales Rugby Union Limited - Fifth Defendant Western Australian Rugby Union t/as Western Australian Rugby Union Inc - Sixth Defendant

FILE NUMBER(S) : SC 4983/05

B.J. Gross QC - Plaintiffs COUNSEL : R. Bellamy - First Defendant M.F. Holmes QC, K. Williams - Second to Sixth Defendants

McCabe Terrill - Plaintiffs SOLICITORS : Dempseys Lawyers - First Defendant Freehills - Second to Sixth Defendants

LOWER COURT JURISDICTION :

1 The First Plaintiff ("AMI") carries on business as a manager of professional sports people. Amongst its clients are a number of elite professional rugby union players. 2 The First Defendant ("RUPA") is an incorporated association which represents the interests of elite rugby union players. Its members include AMI's clients. The Second Defendant ("ARU") is a body which controls at national level the organisation, management and selection of rugby union teams to represent Australia. The Third to Sixth Defendants ("the Unions") control at State level the organisation, management and selection of rugby union teams to represent their States. 3 On 1 August 2005, RUPA introduced a Player Agent Accreditation Scheme. The Scheme is designed to ensure that rugby union players negotiating playing contracts with the ARU and the Unions are represented by agents who conform to certain standards of professional conduct. The Scheme contains regulations as to the terms which should be included in management or agency contracts between agents and players for the better protection of players. 4 It is of the essence of the Accreditation Scheme that it is compulsory, that is, that all agents seeking to represent elite players in contractual negotiations with the ARU and the Unions must subscribe to the Scheme and must become Accredited Agents, and the ARU and the Unions must refuse to negotiate with any agent purporting to represent a player in negotiations unless the agent is an Accredited Agent under the Scheme. 5 All professional agents representing elite rugby union players in Australia have now subscribed to the Scheme and have become, or will become Accredited Agents – with the exception of AMI. AMI has decided that it does not wish to subject its business to the restrictions imposed by the Scheme. 6 By a Summons filed on 14 September 2005 AMI seeks a declaration that the Scheme, or at least the requirement that it be compulsory, is void for illegality as being an unreasonable restraint of trade. By way of interlocutory relief AMI seeks an order that RUPA, the ARU and the Unions be restrained until determination of the proceedings from refusing to deal with it as agent for any person on the basis that it is not an Accredited Agent under the Accreditation Scheme. Consequential interlocutory relief is also sought. 7 AMI's application for interlocutory relief came before me yesterday as an urgent matter in the Duty Judge List. Mr B. Gross QC appeared for AMI, Mr Bellamy of Counsel appeared for the ARU, and Mr M. Holmes QC appeared with Ms Williams for the ARU and the Unions. 8 Mr Gross submitted that the Accreditation Scheme was either a contract or a combination between RUPA, the ARU and the Unions the effect of which was to restrain or inhibit AMI in the free exercise of its trade or business as a representative of elite professional rugby union players. He said that AMI was, in effect, put in the position that it either accepted the terms upon which the Accreditation Scheme required it to do business with players, the ARU and the Unions or else it was forced out of that business entirely. 9 Accordingly, Mr Gross submitted that the Scheme was a restraint of trade and was void at common law unless the Defendants were able to demonstrate that the restraint was no more than was reasonable for the protection of RUPA, the ARU and the Unions. Mr Gross relied on Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242 and the authorities therein cited. 10 Mr Bellamy, for the ARU, conceded that there was a serious question to be tried as to whether the Accreditation Scheme was void at common law for illegality as a restraint of trade. Mr Holmes QC, for the Unions, conceded that there was a serious question to be tried as to whether the Scheme operated as a restraint of trade but he said that there was no serious question as to whether it was void for illegality because the restraints, if any, were clearly no more than were reasonably necessary for the protection of elite rugby union players, RUPA, the ARU and the Unions. 11 Mr Holmes emphasised those terms of the Scheme which, he said, were beneficial to the sport as a whole, such as the requirement that agents representing players comply with certain minimum standards of professionalism and honesty and that agency contracts between agents and players should not contain certain types of clauses which would operate unfairly against players. 12 This is not the occasion to debate whether such restraints as the Accreditation Scheme imposes upon agents are no more than reasonably necessary for the proper protection of interested parties. What interests require protection and what protections are reasonably necessary are questions which can be decided only at a final hearing, after all of the evidence has been assessed and full submissions have been made. 13 At this stage of the proceedings, especially in the light of the very scant evidence which the parties have been able to produce in the time available, I am satisfied that there is a serious question to be tried as to whether the Scheme provides no more than reasonable protection for the interests legitimately to be protected. 14 Most of the contest in this interlocutory application has been focussed on the issue of the balance of convenience. In my opinion, that is the critical issue. 15 Mr Gross submits that the balance of convenience dictates that the interlocutory relief sought should be granted, for the following reasons: