Under such equalisation systems, draft picks are gold. When Essendon were hit with a barrage of sanctions over a decade ago due to the supplements scandal in 2011, the club was set back on its haunches by years in terms of on-field performances.

What smashed the club the hardest was being forbidden to exercise first and second draft picks in the 2013 and 2014 AFL drafts.

Player drafts work for their intended purposes. But the idea may eventually become a figment of the collective imagination in rugby league circa 2025 and beyond; reduced to paragraphs in a position paper and nothing more robust than a gravy train on biscuit wheels. The right of a person to choose who they work for is a fundamental element of a free society. We don’t live under a communist regime; the internal restrictions on which club a professional player can play for must be critically scrutinised.

In the simplest of terms, there won’t be a rookie external draft in rugby league unless the players themselves, and their representative Rugby League Players Association, agree to it. A draft in AFL exists only because it’s a collectively bargained system; the players countenance its existence.

As far back as 1971 Australia’s High Court recognised, in deciding on Dennis Tutty’s appeal against the non-draft player-transfer rules operating in the premier rugby league competition at that time, that it was a legitimate objective of the then semi-professional sports league to ensure competition between evenly matched teams, to maintain public and media interest.

Player drafts, though, have a decidedly more chequered history. The concept of an internal player draft in rugby league in Australia was, in 1991, declared on appeal by the Full Federal Court to be void on the basis of it being an unreasonable restraint of trade.

That case concerned an application, made by 154 players (the plaintiff cohort was larger; some pulled out by the end) then participating in the premier NSW Rugby League premiership competition. The subject internal draft rules, introduced by the governing body to operate in conjunction with a salary cap, did in the opinion of the court constitute an unreasonable restraint as regards to the players’ interests.

That draft model operated so that players coming off-contract who couldn’t come to new terms with their existing employer or wished to change clubs could only move through a draft mechanism whereby any club, in an order inverse to the club’s finishing position on the ladder in the just-completed season, could choose to sign a player for the player’s nominated contract price.

The cabal of plaintiff players claimed this system (a) contravened specific provisions of the (then) Trade Practices Act, and (b) contravened the common law on the basis the rules constituted an unreasonable restraint of trade. The players’ case failed at first instance and on appeal in proving statutory breaches. The players failed on their unreasonable restraint case at trial.

But that final limb of the players’ case, claiming a breach of the common law doctrine guarding against unreasonable restraints of trade, became the focus of the Full Federal Court’s examination.

There was no debate that the internal draft constituted a restraint of the players’ trade. However, the restraint would only be reasonable if it did no more than strictly necessary to protect the interests of the league and its clubs, having regard also to the interests of the players. Put another way, a restraint must afford no more than adequate protection to the party in whose favour it is imposed.

On the question of reasonableness, the court asked two questions. First, would the interests of the governing league be placed into peril if the internal draft was never implemented? Second, did other means exist to protect the league’s interests in ensuring competitive uncertainty?

On the first question, the evidence painted a picture of a league that was very competitive, although it hadn’t reached such a state of equal competition that no improvement in competitiveness was achievable. Clubs weren’t poaching players mid-season; it wasn’t clear how the draft would offer the league any shield of protection.

On the second question, the parallel existence of a salary cap was determined to be of importance; preventing overspending while at the same time providing a natural equilibrium in terms of the setting of player salaries. In finalising the appeal, the Full Federal Court struck down the internal draft as being an unreasonable restraint.

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The restraints imposed by player drafts strike at the essential interest of each player in being free to play with the club of their choice. That restraint is void unless shown to provide no more than adequate protection to the interests of the sporting bodies that impose those rules. In the case of rugby league’s internal draft introduced over three decades ago, it was struck down by the Full Federal Court on that basis.

None of that means that a external, rookie-only draft would likewise be struck down on the basis of it being contrary to the common law. A rookie draft is different; a more robust argument can be made for its introduction in terms of distributing talent on a more equal basis, where rookie salaries might also be effectively set in stone to nullify the contention that a player is financially hamstrung by a particular club selecting him. For these reasons, it’s important to distinguish the legitimacy of a rookie draft, from the internal draft struck down in the early 1990s; they’re two different systems.

But the evidence, data and rationale as to why a draft is needed must be compellingly comprehensive, and coupled with actual agreement from the affected players and their representative body. There must be a codification in the players’ collective bargaining instruments. Otherwise, another lawyers’ picnic is the likely consequence.

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