Western Force appeal: ARU win case to axe club

WESTERN Force were axed after an appeal against the ARU’s decision failed. But billionaire backer Andrew Forrest says he will establish a rogue rugby competition to keep the club alive.

Western Force players have discovered the fate of the club.

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DISENCHANTED Western Force coach Dave Wessels went on the attack today and said “an IPL of rugby” will be boldly born out of the Australian Rugby Union’s court win to shut the Western Force out of Super Rugby.

Pie-in-the-sky ideas are floated all the time in sport yet few with a billionaire backer like mining tycoon Andrew Forrest who today ripped into the ARU with renewed venom when promising to launch a rebel Indo-Pacific rugby competition with possibly six teams.

Wessels imagined where the idea was heading as a version of cricket’s Indian Premier League, a competition with well-paid hired stars and teams craving for a shot in higher level rugby.

Forrest said he had retained leading silk, Allan Myers QC, to find a fight plan when he reviewed Tuesday’s decision in the NSW Supreme Court that the ARU was entitled to exclude the Force from a new 15-club format for Super Rugby next year.

FORCE v ARU EXPLAINED: Scroll down for a breakdown of the what, why and how of the Supreme Court ruling

An emotional Western Force captain Matt Hodgson. Picture: ABC Perth

Matt Hodgson with Andrew Forrest after the decision. Picture: ABC Perth

While the gloves will stay on in that fight with Forrest aiming to seek leave to appeal to the High Court, he has moved nimbly on another front to quickly fire up another competition for the Force to play in.

“We are not giving up remotely...I’ve just begun to fight,” Forrest said.

Forrest is more advanced with his game-changing idea for the future of rugby than anyone might imagine. It will be a new competition formed by outcasts, a club forced to be rebels, but a parallel rugby competition if it can be treated that way by rugby officialdom.

“Out of great disappointment comes even greater opportunity...this is the beginning of the new Force,” Forrest said on Tuesday morning.

He was speaking to a room of media, Force staff and most importantly a still-united Force playing group at RugbyWA headquarters where the tears of captain Matt Hodgson spoke for the emotion within every player present.

“Believe me, the Indo Pacific region is strong and deeply powerful with broadcasters, a huge population and fans for rugby and I assure you it (a new competition) will start strongly,” Forrest said.

Billionaire and philanthropist Andrew Forrest has thrown his support behind Western Force players.

Forrest has been talking to eager ears like those in Singapore where rugby has a grand state-of-the-art stadium, no team yet big bucks of their own to ignite an Asia Pacific Dragons outfit on more than a part-time basis.

Hodgson was appalled again that he received no phone call from the ARU over the court decision and said it was lip service to player welfare in an ugly stoush that has stretched beyond 140 days since the call was first made to cut a team.

“You see what the Force means to people for 12 years and it is taken away by a little letter of the law,” Hodgson said.

Tears filled his eyes but the most impressive Force stalwart delivered a powerful stance.

He expected a protest would flow over to Saturday night’s Test between the Wallabies and Springboks at Perth’s nib Stadium.

“I wouldn’t be surprised if some fans didn’t show up at all and others wore (Force) blue...or black for a day of mourning,” Hodgson said.

Pacific islands nations like Fiji, Tonga and Samoa plus cashed-up Hong Kong interests shape as a potential market for new teams in a new competition.

Western Force players have discovered the fate of the club.

“Andrew has exciting ideas. Players will individually decide what is best for them but I see an IPL of rugby,” Wessels said.

“Andrew has the intellect and the backing to pull it off.”

Forrest called again for ARU chairman Cameron Clyne to resign over the handling of the Super Rugby cull saga.

The press conference in WA followed the court decision this morning where NSW Supreme Court Justice David Hammerschlag dismissed an appeal by RugbyWA against an arbitrator’s decision which backed the ARU’s move to drop the Force.

WA Rugby had appealed the decision of arbitrator Bernard Coles QC, who ruled that a new SANZAAR broadcast agreement of 15 teams was legally binding, therefore nullifying a participation agreement between the ARU and Western Force guaranteeing them survival until December 31, 2020.

That date is when the old broadcast agreement of 18 teams ends, but it is also the date the new agreement with reduced teams and games ends, creating confusion as to whether there was any firm difference.

This became the major point of contention between the lawyers of WA Rugby and the ARU in the Supreme Court when the matter was heard 10 days ago.

Robert Newlinds SC, arguing for WA Rugby, said it would be moot for the Force to have a participation agreement if they could be axed without notice.

ARU barrister Justin Gleeson SC countered by saying the new broadcast agreement – which is for the same value and includes the same networks but has less teams and games – made the premise of the alliance agreement redundant.

RugbyWA said it expected the ARU would now confirm termination of the Western Force’s participation in the Super Rugby competition.

“The ARU had formed the view in February this year that the Western Force were the only team that could legally be removed from the competition,” RugbyWA said.

“For the ARU to suggest there was an objective and transparent process, evaluating the merits of both the Western Force and Melbourne Rebels, was misleading and disrespectful to both RugbyWA and the Victorian Rugby Union.”

“This has caused significant damage to both the game and the Super Rugby competition and reflects poorly on the ARU’s own values of honesty and integrity.”

SANZAAR decided to reduce the competition after the clunky four-conference 18-team model was spurned by fans and led to a drop-off in viewers and attendees.

The ARU announced that it would assess the business cases of the Force and the Melbourne Rebels, before deciding the Perth team was the franchise they intended to cut in August.

This led to the legal action by WA Rugby to save the team.

They were supposed to be allies, but they were not friends

We break down the NSW Supreme Court ruling which has cleared the way for the ARU to kick the Western Force out of the Super Rugby competition.

THE FACTS

The ARU is one of three member of SANZAR.

SANZAR operates the Super Rugby competition.

In 2017 SANZAR took the decision that the Super Rugby competition needed to be trimmed from its existing 18 teams structure to a 15 team competition.

The restructure would result in one of the 5 Australian teams dropping out. The Australian team nominated to drop out of Super Rugby was the Western Force.

The restructure required the renegotiation of the broadcast agreements for the Super Rugby competition. This renegotiation was completed in July 2017.

The ARU owns the Western Force having bought them from the WARU in 2016.

A condition of the sale was the 'Alliance Agreement' - an agreement which required the parties to, amongst other things, 'co-operatively work in an alliance to grow and develop rugby in Western Australia'.

The Alliance Agreement expired: 'on the expiry date of the last of the SANZAR Broadcast Agreements (being 31 December 2020) or, subject to clause 2.4, if the last of the SANZAR Broadcast Agreements is terminated or renegotiated earlier as a result of the renegotiation of the commercial terms of a broadcast arrangement, such earlier date.'

THE ARGUMENTS

The WARU argued that dropping the Western Force from the Super Rugby competition breached the Alliance Agreement.

The ARU argued that the 'Alliance Agreement' had expired as a result of the broadcast agreement renegotiation that ended in July 2017.

THE JUDGMENT

The case was a simple matter of contractual interpretation and the court applied the words as written in the agreement not with the implied meaning the WARU assigned those words.

The judge opined that 'hopefully they (ARU AND WARU) both had the interests of furthering the game of rugby union in mind. It is to be remembered that ARU owns the Force. If the alliance comes to an end, it owns the Force unconditionally without any potential obligation to sell it back in the future, and can do with it what it likes, even destroy it.

"As the facts of this case demonstrate, they were supposed to be allies, but they were not friends."

THE RESULT

The court held that the Alliance Agreement was terminated when the broadcast agreements were renegotiated. The ARU is free to cut the Force from Super Rugby.

Originally published as Western Force appeal: ARU win case to axe club