Rehn –v- Australian Football League & Ors
[2003] SASC 159
This AFL Football season has probably seen more media speculation about
player payments than most. “Kites” have been flown about
the salaries paid to certain players only to be “shot down” by
the player or his manager. The AFL (not to mention the ATO) has been
ever vigilant to ensure that player payments do not breach relevant
salary cap limits.
Despite this, player payments are not transparent and largely
remain – as you would expect – “commercial
in confidence”.
There are circumstances however, where this situation will
not prevail, as Shaun Rehn, to his benefit, recently discovered.
Former Adelaide Crows ruckman, Shaun Rehn, sued the AFL, the South
Australian National Football League and the Adelaide Football Club
for compensation after he suffered a career ending knee injury during
a home and away game at AAMI Stadium in 1999.
Rehn claimed that as a result of his injury he would lose
income that he would otherwise have earned under his player
contract and the opportunity to earn income from product endorsements
and similar activities.
Rehn’s lawyers sought orders that the AFL discover and
produce for inspection certain player contracts and marketing
contracts, in aid of his compensation claim. The AFL opposed
the making of any such orders.
Judge Kelly, Master of the South Australian Supreme Court, ordered
that the AFL discover and produce for inspection all player and marketing
contracts of AFL players who earned $245,000 or above in the 2000,
2001 and 2002 football season, limited to:
• the income, tenure and name of each player; and
excluding,
• the identity of third parties to the marketing
contracts.
The figure of $245,000 was selected because it was Rehn’s
income in his last year as a player.
The AFL appealed this decision.
Doyle CJ was called upon to decide the appeal. His Honour identified
two issues which needed to be dealt with in order to dispose of the
appeal. They were:
• were the contracts directly relevant to any issue
arising on the pleadings so as to render then discoverable
under Rule 58A.03 of the Court’s Rules without a
court order; or
• were the contracts indirectly relevant to any
issue arising on the pleadings and was it in the interests
of justice that they be discoverable under Rule 58A.04(I)
of the Court’s Rules.
Dealing with the first issue, Doyle CJ said that it was “perhaps” self-evident
that a document that demonstrates Rehn’s earning capacity
at the time of his injury and a document that demonstrates
what his earning capacity would have been at trial but for
his injury would be directly relevant to an issue arising
on the pleadings. The difficulty for His Honour was how to
distinguish between such a document and one that was indirectly
relevant.
His Honour resorted to the following example to resolve
the above difficulty:
“ In the case of an injured worker claiming damages
from the worker’s employer, the employer’s
records of payments to the worker who replaced the injured
worker, or the record of payments to a worker doing the
same work, would in my opinion be directly relevant to
the issue of the injured worker’s earning capacity
but for the injury. On the other hand, the employer’s
record of payments to workers doing merely similar work,
or records of payments to workers doing different work,
but work which the plaintiff might have done apart from
the injury, I would regard as indirectly relevant to the
issue of the worker’s loss of earning capacity. The
latter category of documents would arguably provide relevant
material in valuing the lost earning capacity, and might
help to provide upper and lower limits to the value of
that capacity. But, it seems to me, such material can fairly
be regarded as indirectly relevant rather than as directly
relevant.”
Using this approach, Doyle CJ found that, although some
of the contracts in issue may or would be directly relevant,
the same could not be said of the class of contracts to be
produced. His Honour was therefore not satisfied that Judge
Kelly’s order was supportable under Rule 58A.03.
Turning to Rule 58A.04(I), Doyle CJ found that the contracts
were clearly indirectly relevant to the issue of earning
capacity and it was in the interests of justice that production
of the contracts be ordered. His Honour was influenced in
reaching this decision by the failure of the AFL to produce
any evidence that:
• the production of the contracts was an onerous
task or would involve significant expense;
• the inspection of the marketing contracts would
not provide any useful information;
• they were under obligations of confidentiality
not to disclose what was in the contracts; and
• other players and clubs objected to the production
of the contracts.
Doyle CJ upheld Judge Kelly’s order under Rule 58A.04(I).
One of Rehn’s Solicitors, Mr Griffin, was also an agent for a
number of other players. The Adelaide Football Club objected to his
having access to the contracts on the basis that he would be unable
to put out of his mind knowledge he would acquire about payments made
to other players thereby breaching his legal obligations not to use
information gained from the proceeding for any purpose other than the
proceeding.
Doyle CJ, whilst accepting the difficulty Mr Griffin would
find himself in armed with the knowledge he would acquire,
was not prepared to exclude him from having access to the
contracts principally because there was no evidence that
any other club or person objected to his having access and
whether the information the contracts would reveal was of
any value to him; as an experienced agent, the information
may not have been particularly useful.
Although the Court Rules in Victoria regarding discovery are different
to those considered in this case, the result would most likely be
the same, based on the evidence put before the South Australian Court.
Details of player contracts are jealously guarded by both
players, their managers and their employers. Whether they
can maintain the confidentiality of such contracts, in all
circumstances, is no longer a given. Sports people and their
Managers and Agents would be well advised to give this decision
serious consideration, if they wish to guard against unexpected
disclosure of confidential information regarding their contracts.
Written by Stephen Newman, Wendy Bracciale and Levent Shevki
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