Melbourne coach Paul Roos recently described free agency as “the greatest de-equalisation policy we’ve had in the last 100 years of footy”.
In its third year, a regular criticism of free agency has been that it has hurt the less successful clubs by providing an easy path for their best players to leave for the more successful clubs. Roos’ comments were prompted by the announcement by one of his players, unrestricted free agent James Frawley, that he was leaving the struggling Demons and joining premiers Hawthorn. This offseason has also seen preliminary finalists North Melbourne gain two free agents – Jarrad Waite and Shaun Higgins – from sides that missed the finals.
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Free agency was, as Roos alluded to, brought in at the behest of the players in the previous round of collective bargaining between the AFL and the Players’ Association. The players pushed for it in an effort to liberalise a player movement system that was one of the most, if not the most, restrictive in world sport. Prior to its introduction, players could only change teams by asking their existing club to facilitate a trade or by entering themselves into the draft. Through free agency, veteran players are given the opportunity to choose which employer they would like to work for, an opportunity which employees in almost any other industry would receive as a matter of course.
From a legal point of view, sporting competitions are a strange beast as they require competitors to collude and combine to produce a product (in this case, a season of AFL football). Generally, the more even the competition, the more interest will be generated in that product and the more income will be produced for the competing teams. Obviously, if the same handful of teams are competing for a flag year in and year out then the public’s interest in the league as a whole will reduce.
It is for that reason the AFL has introduced a series of measures such as salary caps, equalisation payments, and most recently the cap on football department spending, all of which are designed to produce a competition that is relatively even.
Controlling the distribution of new players and the movement of existing players among teams is an important part of the league’s equalisation efforts. The player draft was introduced in the mid-1980s after a two-decade period in which just five of the 12 VFL clubs won premierships. In conjunction with the other equalisation measures put in place, this produced a period of great evenness across the competition. In the decade from 2000 to 2009, every side made the top four at least once. The twelve premierships between 1998 and 2009 were won by nine clubs. In the same period, eight teams won at least one wooden spoon.
The concern voiced by critics of free agency such as Roos is that the work done to create that evenness of competition is being eroded. Certainly, moves such as Buddy Franklin joining the already-powerful Swans last year and Frawley seeking to join the defending premiers this year lend themselves to the argument that free agency will make the strong stronger at the expense of the already weak. But other top-level free agents like Brendon Goddard, Dale Thomas and Nick Dal Santo have moved to middle of the ladder clubs. Only Thomas joined a club that had played finals the previous year, and even then Carlton had only qualified due to the unprecedented sanctions that saw Essendon kicked out of the 2013 series.
It is too early to tell what effect free agency will have upon the league’s objective of ensuring a relatively even competition. The AFL and the Players’ Association intend to review its operation following the current trade period, which is the third year of free agency.
What is clear is that even with the concessions given to veteran players in the most recent Collective Bargaining Agreement, the AFL’s player transfer system remains one of the more restrictive in world sport.
For an example of a much more relaxed system, we need only look across the Murray River to the National Rugby League, which has no draft and no trade period. Junior players are free to sign with the club of their choosing, and once there can shift to any other club of their choosing at the conclusion of their contract.
Despite that, the NRL seems to produce a relatively even set of results from year to year. South Sydney’s win on the weekend means that since 2001, ten of the league’s 16 clubs have achieved premiership success. In the same period, nine clubs have won the wooden spoon. This relative evenness is produced with no real restraint on the players’ ability to conduct their trade other than the salary cap.
At common law, any restraint of a person’s trade is prima facie void. A restraint can only be justified if it is reasonable to protect a party’s legitimate interest and goes no further than is necessary to adequately protect that interest.
In the past, courts have struck down rules of sports leagues for breaching this principle. In particular, in the early 1980s the VFL’s zone and transfer system was ruled invalid after it was challenged by a South Melbourne player who did not move to Sydney. In the early 1990s the then-NSW Rugby League’s attempt to introduce a draft was quashed after being challenged by the players’ association.
The legality of the AFL’s draft has never been challenged in court. Rather, the successive CBAs between the league and the players’ association legitimise the league’s draft and trade rules. The current CBA contains a statement to the effect that the players acknowledge that those rules are necessary and reasonable to protect the interests of the competition.
Whenever a new CBA is negotiated, it is part of the background to those negotiations (whether spoken or unspoken) that if agreement is not reached, the players may choose to challenge any or all aspects of the draft and trade rules as being unreasonable restraints. It is for that reason that the AFL agreed to the introduction of free agency despite whatever misgivings they and the clubs might have held. It is also for that reason that the players’ association will continue to chip away at the existing rules in subsequent agreements, meaning that not only is free agency not going away, its reach is inevitably going to get wider.
