Jack Anderson: If the GAA asked for legal advice on the AFL threat, here's what I'd say
LOCAL HERO: Crossmolina Deel Rovers' Kobe McDonald with fans last weekend. Pic: INPHO/Bryan Keane
It’s difficult to know what more to say about Katie Taylor, her career renders superlatives superfluous. Maybe just two points; a stat and a legal fact.
First, the stat: the Taylor, Pili fight at Croke Park in front of 83,000 puts it in the top 10 most attended professional boxing bouts in history. Think about some of the names in that top ten – Jack Dempsey, Gene Tunney, Max Schmelling, Julio Cesar Chavez, Anthony Joshua, Wladimir Klitschko, Tyson Fury. And now, our Katie.
Second, as a young Katie Taylor first made her way to a boxing gym in Bray in the 1990s, one of the leading professional boxers in the world was Britain’s Jane Couch. But Couch could not fight at home because the British Boxing Board of Control would not give her a licence. The BBBC’s legal representative explained that refusal: “Many women suffer from premenstrual tension which makes them more emotional and more liable and accident-prone. They are too fragile to box and they bruise easily.”
In 1998, Couch took the BBBC to an employment tribunal and won on two grounds, the main one being sex discrimination. The sport’s journey since then has not been straightforward but it’s a reminder that Taylor has been the accelerant on a fire first lit by fighters like Couch.
The second element of the Couch case was unreasonable restraint of trade i.e., the BBBC had unlawfully restricted her right to earn a living. Restraint of trade, in a modern sense, is free movement of labour. As a principle, it was at the heart of the most important of sports law cases – Bosman; a ruling that permitted footballers to move freely from one club to another on the expiry of their contract.
Talk of a scheme whereby the movement of GAA players to the AFL could be restrained should be treated with legal caution. It would be ridiculous to think that when in 2017, having accepted a job in Australia, and handing in my notice, that my then employer in Ireland could in any way legally restrict me from going Down Under. (As it happens, they were only too glad to see me off, offering a lift to the airport.)
Similarly, the idea that a voluntary organisation such as the GAA could restrict or even ban a player (such as Kobe MacDonald) from taking up employment in Australia (or anywhere) is a non-starter. It is possible that, as in the post-Bosman era, some sort of solidarity or training compensation system could be negotiated between the GAA and the AFL. But would the GAA even want that? Should it even go there? I’d say no for various reasons.
Firstly, how exactly would it work? One of the most ligated areas of sports law at the Court of Arbitration for Sport is the amount of training compensation that has or has not been paid to clubs that developed footballers at youth level. The GAA and AFL would likely have to set up (and fund) some sort of tribunal to mediate on compensation levels to clubs and counties.
Second, such a system would formally recognise the AFL’s right to scout for Irish talent. You’d legally be recognising them as the professional wing of the game.
Third, if AFL clubs are to pay compensation for GAA talent, does it not follow that compensation should be sought from all other sports or codes that “poach” GAA talent, and vice versa?
And fourth, and probably most importantly for the GAA; be careful of unokintended consequences. If you did go down this pathway, then existing internal GAA rules restricting club and county transfers would equally be open to challenge and compensation. Let’s keep that Pandora box closed for now.
If the GAA asked for advice on this issue, I’d give the following.
First, accept that the AFL’s interest in Irish talent (male and especially female) is only likely to increase. AFLW players are among the best paid female athletes in Australia but participation levels among teenage girls have plummeted and for those still active, competition is fierce among the codes. Netball and football are the AFLW’s biggest rivals for local talent and neither sport is as physically demanding as footy. Irish players – athletic, off-the-cuff, give-and-go, skilful – are thus in demand.
In addition, a new team is being set up in Tasmania. Nineteen teams mean more games and in an already attritional sport, will mean larger playing squads.
And don’t forget, Irish players are cheap. Australian players must generally be picked up on draft and paid within the club’s salary cap. Irish players can be given rookie contracts outside budgetary caps.
Second, recognise that the AFL, for all the wistful talk about the Irish experiment, is a ruthless commercial concern that acts in its self-interest. The AFLW league has, for example, changed schedule regularly over the years to suit domestic demand. Whether such rescheduling might impact the LGFA championship in Ireland is of zero concern to the Australians.
Mayo’s All-Ireland win genuinely made the sporting headlines Down Under (Kobe helped) but the first reaction of many in the AFL I spoke to was – a magnificent game, in front of 82,000 but they don’t get paid? Implicit in that reaction is the Australian view, that, if you in Ireland don’t value them; we’ll pay to bring them here.
The third piece of advice is that the problem with the International Rules series was that some Australian players (neither were the Irish always the better angels) knew that on-field ill-discipline would have no impact on their AFL career. It was only when suspensions in International Rules’ games carried over into the AFL season that the violence stopped. And that’s probably the way to go here – hold the AFL to account under their own standards.
The situation in Ireland as to who is approaching players and facilitating AFL scouting is thus far unregulated. Contrast that with the AFL which has detailed, onerous player agent regulations. Agents must be fully accredited and are subject to reporting obligations. They are tightly restricted in how and when they approach young players e.g., they are not permitted to approach before October 1st in the year of a player’s 16th birthday; nor during the period commencing seven days before secondary school or university examinations and never on social media.
Fourth, AFL clubs are great at the hard sell – the lifestyle, facilities, the commercial opportunities. And look, who wouldn’t like, as Mark O’Connor and Oisín Mullen did last weekend, playing in front of a febrile 90,000 crowd at the MCG. Good luck to the GAA players who have a go but maybe as a GAA community we need to do more to ensure that it’s an informed choice.
The AFL is a brutally competitive and often lonely environment. Don’t except a country kid from Victoria who has dreamed of nothing else but playing for his local club to put out the welcome mat for an Irish rookie. A good starting point for anyone departing is to read Maurice Brosnan’s interview with Westmeath’s Fionn O’Hara from this time last year on the precariousness of an AFL career.
And lastly, some of the (over) reaction to recent departures to the AFL reminds me of the fear that the protagonist feels in Coetzee’s great book . Worrying about an outside threat is always easier than having to confront problems at home. The best response to the slow drip of players Down Under may be (with Mary McAleese or McAleese-less) to quicken the pace towards a fully integrated GAA.
