Contracts, IPL and McCullum exploiting loopholes

[GIMH]

UK law affects what UK organisations can do to UK citizens, though.

But I dunno, just speculating, just think that if anyone ever challenged it it would be interesting.

 

[zaremba]

ECB are clearly very confident the thing is based on solid legal footing and the idea that they've not sought legal counsel on the matter is inconceivable.

Yes Giles Clarke has put it on record that the ECB have indeed taken Counsel's advice on the issue of NOCs; and the ECB maintain the position that the NOC system does not amount to an unlawful restraint of trade. However that should be taken with an enormous bucketful of salt. In any serious litigation both sides will have taken Counsel's advice. This proves absolutely nothing. Different points of view, different Counsel, different advice, different presentation of the same advice. What matters is not what Counsel advises, it's what the Court decides.

For what it's worth, I tend to think that four_or_six's suggestion is right, and that large parts of the actions of the BCCI / ECB cartel amount to unlawful restraints of trade.

 

[trapol]

Do not forget the fact, and im not sure what happens in other countries, but NZ cricketers are actually Independent contractors and not employees of NZC.

This has a major bearing i wouldve thought on McCullums ability if he wanted to challenge things legally, to go and play in the IPL if he so wished

NZC do not have control over its players they can go and play wherever and whenever they wish. Case in point is Bond. If he wanted the hassle of a lawsuit he couldve taken NZC to court and made them pick him for NZ whilst he was playing in the ICL. Now that wouldve been fun to watch

 

[four_or_six]

ECB are clearly very confident the thing is based on solid legal footing and the idea that they've not sought legal counsel on the matter is inconceivable.

Thanks, I didn't realise that was out in the open. Though... Allen Stanford.

 

[BoyBrumby]

Thanks, I didn't realise that was out in the open. Though... Allen Stanford.

Very good point. Mr Clarke (who I must confess to not being much of a fan of) seems to be the sort of chap who would waive due diligence when something shiny is flashed in front of him.

 

[Richard]

Do not forget the fact, and im not sure what happens in other countries, but NZ cricketers are actually Independent contractors and not employees of NZC.

This has a major bearing i wouldve thought on McCullums ability if he wanted to challenge things legally, to go and play in the IPL if he so wished

NZC do not have control over its players they can go and play wherever and whenever they wish. Case in point is Bond. If he wanted the hassle of a lawsuit he couldve taken NZC to court and made them pick him for NZ whilst he was playing in the ICL. Now that wouldve been fun to watch

No-one can force a set of selectors to pick them. Any legal settlements would have to relate to salary and contract, not actual appearances.

 

[trapol]

Wrong again Richard..why am i not surprised.

Its all about reasonable expectation. Bond and McCullum for that matter would win their cases hands down that they would be selected in NZC's best team. Both Bond/McCullum are certainties in the NZ side, where it gets harder to define is for a fringe player who's selection isnt gauranteed.

But those two would be picked and therefore it is a restraint of trade.

 

[trapol]

I dont believe im saying what i want to say very well

Try again... if you are the best in the country (as Bond/McCullum are) the selectors cant just leave them out and not pick them

That is restraint of trade

If you are a Broom/Elliott/Tuffey etc etc etc then its more down to opinion on whether or not they are the best in the country so not picking them is more plausible and therefore leaving them out is something the selectors could get away with. This is the Gray area

Please dont tell me im wrong here either Richard because i can promise you im not

 

[Richard]

You are if you think any court of law can force someone to be picked for any given cricket match. Restraint of trade does not apply to being picked for matches, but being given contracts. Any selection panel is free to make any form of selection whenever they wish for whatever reason they wish.

If it came down to contracts not being given to players who could reasonably be called patently obvious candidates, then yes, restraint of trade would be able to be used somewhere to demand some large compensation. But there is no "trade" involved in picking cricket teams.

If there was players could sue with considerable regularity, because let's face it, selection panels make almighty stuff-ups regularly and pick players with obvious, clear inferior credentials ahead of those with better ones with considerable regularity. But given that this doesn't amount to any form of restraint of trade, no lawsuit has ever resulted from it.

 

[silentstriker]

UK law affects what UK organisations can do to UK citizens, though.

But I dunno, just speculating, just think that if anyone ever challenged it it would be interesting.

ECB is not doing anything. If the situation was that they could let him play unless the ECB objected, it'd be restraint of trade. But its the other way around. ECB have to pay an active role in someone's employment overseas. I don't see how by any law they are obligated to do that.

 

[BoyBrumby]

ECB is not doing anything. If the situation was that they could let him play unless the ECB objected, it'd be restraint of trade. But its the other way around. ECB have to pay an active role in someone's employment overseas. I don't see how by any law they are obligated to do that.

I don't pretend to be a legal expert, but as the ECB is a British based organisation with the ultimate responsibility for all players registered as domestic in England I think a decent employment lawyer would be able to set out a case that they were placing an unfair restriction on an EU citizen's potential earnings because the BCCI would effectively be acting on the ECB's say so.

 

[silentstriker]

I don't pretend to be a legal expert, but as the ECB is a British based organisation with the ultimate responsibility for all players registered as domestic in England I think a decent employment lawyer would be able to set out a case that they were placing an unfair restriction on an EU citizen's potential earnings because the BCCI would effectively be acting on the ECB's say so.

Yes, I'm not a lawyer either, and I don't know anything specific about the EU's restraint of trade laws, so you could be right.

But there has got to be a loophole, like the IPL changing its stance so that it could only pick players 'selected' for 'duty in IPL' by a member board. I mean, it's not restraint of trade if ECB does not, for example, select a player for Test duty... Some lawyer's wording somewhere might make it legal, but as I said, it's just conjecture on my part.

 

[BoyBrumby]

Yes, I'm not a lawyer either, and I don't know anything specific about the EU's restraint of trade laws, so you could be right.

But there has got to be a loophole, like the IPL changing its stance so that it could only pick players 'selected' for 'duty in IPL' by a member board. I mean, it's not restraint of trade if ECB does not, for example, select a player for Test duty... Some lawyer's wording somewhere might make it legal, but as I said, it's just conjecture on my part.

That's true, but I don't think it's quite analogous because in your instance the ECB would be employing someone else (presumably adjudged to be better qualified for the "position") in the player's stead. With the IPL situation they're effectively saying to someone who they aren't employing that they can't earn a living elsewhere. Even to a layman that doesn't sound equitable, so might constitute unfair restraint.

Just guessing tho, sure one of our legal minds could confirm?

 

[trapol]

Richard

Re: your last post

Do you know or are you guessing? Of course a cricketers trade is involved as its his job.

I gave you a specific example of how it applies and again NZ MAY be different as they are Independent contractors and not emplyees. Maybe other people can help me out by stating what the situation is like for other countries cricketers?

But Bond and McCullums case is very black and white and as i said fringe players not so much

 

[Richard]

Richard

Re: your last post

Do you know or are you guessing?

I know full well that there are no laws govorning the selection of sporting sides. Only laws govorning employment - including things like restraint of trade.

A cricketer's "trade" is not being picked, it's being given a contract.

 

[trapol]

Yes Richard

But a cricketers Trade is his services for 'playing cricket'

And a contract is only a contract for being avaliable to play if needed. Selection is based on whether you are the best in the country.

So for Bond not to be picked you are stopping him from plying his trade which is restraint of trade

 

[Richard]

To not give Bond a contract when all obvious reason points to the fact that he deserves one is, well, something like failure to give due earnings or whatever, and some amount of restraint-of-trade, wrongful dismissal etc. suit could possibly be filed against ex-employers NZC. To not select him in any given team is not under any circumstances a breach of any law.

Do you seriously, honestly, genuinely believe any sportsman can under any circumstances file a lawsuit for non-selection in a team?

 

[GIMH]

They could in England if they felt it was based on some sort of discrimination, I would imagine.

 

[zaremba]

I know full well that there are no laws govorning the selection of sporting sides. Only laws govorning employment - including things like restraint of trade.

A cricketer's "trade" is not being picked, it's being given a contract.

I disagree.

A cricketer's trade is playing cricket. If he has a contract, yes he'll be paid his basic pay, but that's only part of the story. If he doesn't play, he will suffer losses such as (a) loss of appearance money, prize money and bonuses: (b) loss of profile and consequent loss of sponsorship; (c) loss of what would otherwise be invaluable experience if not actual atrophy of his skills; and (d) loss of the enjoyment and satisfaction of playing.

The restraint of trade laws would (in my opinion) equally apply to both
(A) agreements whereby the colluding parties agree not to give contracts to players, and
(B) agreements whereby they agree not to pick certain players.

Of course, in practice it may be harder for a player to prove, as a matter of fact, the existence of a type B agreement.

If the existence of an agreement of either Type A or Type B is proven, the key in each case will be whether the restraint of trade can be justified. In the case of the worldwide anti-ICL cartel, I can see why they would argue that the restraint is justified, although I'm not particularly confident that a court would uphold that argument.

 

[Richard]

You seriously believe any court would tell a cricket board "you must pick <name player> in your team"?