The Australian and New Zealand Sports Law Journal 2006

Articles included:

Warnings and Exclusions Post Personal Responsibility - Deborah Healey
Attempts to exclude or limit liability for personal injury in the context of sport and recreation traditionally have had only limited success.  The Civil Liability amendments with their focus on personal responsibility for risky activities of a voluntary nature should provide additional scope for such limitation of liability.  This article looks at the amendments and considers whether the first wave of cases decided under them suggests that the likelihood of enforcement is increased.

A Commentary on Two of Australia's Greatest Consuming Passions, Alcohol and Sport, and the Regulation of the Relationship Between Them - Mal Mallam
Alcohol and sport, two of Australia’s greatest consuming passions, have been interrelated since early in Australian history. In present day the relationship is evident within Australian culture and has become synonymous with the marketing and promotion of both sport and alcohol. However greater regulation of the interrelationship, aimed at addressing the wider community health issues surrounding excessive consumption and alcohol related harm, particularly where youth are concerned, is seemingly imminent. This article explores the current regulatory framework of the relationship between alcohol and sport and the environment within which the two exist, with a view to inciting discussion about the continuing sustainability of the relationship.

Draft Systems in Professional Team Sports and the Restraint of Trade: Is the AFL Distinguishable From the NRL Draft? - Chris Davies 
When the New South Wales Rugby League (“NSWRL”) implemented a draft system in 1990 it was successfully challenged by the players in Adamson v NSWRL. This article examines this decision, though it should be noted that the rules of the NSWRL draft are no longer in operation. The Australian Football League (“AFL”), however, has continued to use its draft system and it is argued that the AFL draft rules are much fairer on the players than the rules previously used by the NSWRL. This is because while the AFL draft does initially restrict a player’s choice of employer, this is only true for the first two years. At the end of that period the rules provide players with some genuine bargaining power to help them choose the employer of their choice. It is suggested therefore that the AFL draft is distinguishable from the draft system once used by the NSWRL that was declared invalid by the courts. There are still problems with the AFL draft in that clubs are able to initiate the trade of players without the player’s consent, but it is suggested that this can be solved by the introduction of a consent clause. It is also suggested that the restrictive nature of the draft can be reduced by the introduction of a limited form of free agency for players who have been playing for a certain period of time and/or played a certain number of games.

Show Me the Money!!! Player Agents and Conflicts of Interest.  Simon Johnson
Professional sport in the 21st century is big business. It is not just athletes who benefit from this; player agents also operate in an increasingly competitive and lucrative industry. This article reviews the development of the player agent industry, focussing on the American and Australian experiences. One of the key features of this industry is consolidation - more and more players are being represented by the same sports agency firm. In light of the consolidation of the player agent industry, it is almost inevitable that conflicts of interest will arise. Australian sport has lagged behind the United States in introducing regulations governing the behaviour of player agents. Although the common law of fiduciary obligations will apply to the player/agent business relationship, it is submitted that the most appropriate method of seeking to maintain and enforce the integrity of the athlete/agent relationship is to introduce and, subsequently, to enforce effective regulations regarding the accreditation and activities of sports agents. 

Not to be Too Pedantic… But What Exactly is a Dangerous Sporting Activity - David Thorpe and Pam Stewart
This article examines the defence to a claim in negligence which is provided by Section 5L of the Civil Liability Act 2002 (NSW). The section was enacted as part of the extensive reform of tort law in New South Wales following the Review of the Law of Negligence Final Report, in late 2002 (the Ipp Report). The section provides a complete defence where a plaintiff is injured by an obvious risk of a dangerous recreational activity. Similar provisions exist in other states’ tort law reform legislation. This article examines in detail the decision of the New South Wales Court of Appeal in Fallas v Mourlas, the leading case so far in New South Wales, on the interpretation and application of section 5L and, in particular, the manner in which the Court of Appeal interpreted the key words used in the section. The definition of a dangerous recreational activity as one which involves a significant risk of physical harm is crucial to the application of the defence and the authors conclude that the interpretation of those words by Ipp JA in the New South Wales Court of Appeal is problematic. The authors consider some relevant rules of statutory interpretation as well as relevant parts of the Ipp Report and other decisions in the Supreme Court of New South Wales and Court of Appeal concerning the ‘dangerous recreational activity’ defence. The authors conclude that the circumstances in which the defence will be available are far from certain and that further appellate consideration of section 5L or legislative amendment is needed.