It seems like everyone in the world of rugby league either has an opinion on what is likely to happen in the Zac Lomax proceedings, or they are wondering how any outcome might impact future player contract disputes.
Unfortunately, some of what is being presented by mainstream media is creating confusion for fans. Media identities are giving their hot takes, but are they based on legal procedure or the facts?
The aim of this post is to try to clear some of that confusion for TCT readers.
Firstly, here’s some clarity on what has been transpiring thus far in the courts.
The first hearing was called a Duty (Equity) hearing. These types of hearings are reserved for urgent matters where an individual might be at risk of duress or matters that could have a significant impact on a wider group of people/businesses/industries. Matters that cannot wait for the lengthy court backlog at present.
Tuesday’s hearing was what’s called a Directions Hearing. It’s essentially where the parties discuss the procedural steps of the upcoming hearing and present their arguments and intentions in summary from their parties point of view.
The much publicised dates of 12 & 13 Feb are set aside for the formal civil hearing which will involve opening statements, evidence, cross-examination of witnesses & supbeonered parties and closing submissions.
Unless the parties settle during deliberations a decision won’t be made on the 13th as is being reported. There will likely be a separate judgement hearing after the Judge/Justice reviews the evidence and makes a decision which is legally binding for all parties.
Secondly, based on what has been presented in court and reported by the media, and remember that is probably not all of the facts, I’ve put together this overview of the case, along with my opinion on what might eventuate.
Remember, though the following is based on legal processes, it is also only my opinion. Ultimately, it comes down to the Judge/Justice.
From the Court’s Perspective
The NSW Supreme Court doesn’t have the capacity to entertain or consider cases that could be reasonably resolved at a lower level or if the complainant (Parra) could not show they had exhausted all other available means for resolution. For example:
- When Parra approached the Supreme Court to commence legal action against Zac, in order to be considered for a Duties (Equity) Hearing, they would have had to provide significant tangible evidence that they were left with no alternative.
- When the Duties (Equity) Hearing took place in January, if what Parra had provided in their brief of evidence was insufficient or unreasonable, then the subsequent Directions Hearing (Tuesday) and the Formal Hearing (12-13 Feb) would not have been scheduled. At best the parties would have been referred to a court approved mediation service.
- Tuesday’s Directions Hearing was each parties opportunity to provide their intentions, arguments and key evidence in summary. If anything it was more important than the hearing as it will set the tone for how the hearing is planned and managed. While the media jumped on Matt Tripp’s ridiculous arguments, they were baseless and irrelevant at best, and delivered in a manner more akin to one eyed on-field banter as opposed to professional and factual legally backed evidence.
- A hearing of this magnitude has the potential to impact many individuals, clubs and sporting codes across Australia. The decision will be made by Justice Francois Kunc based on the relevant legislation alone, no biases or opinions allowed.
Matt Tripp
From Parra’s Perspective
Parra have a very strong case in a number of areas:
- They showed admirable clemency to even consider, let alone grant a release on any grounds given Zac was only one year into a 4 year contract.
- Their release terms while rigid, were backed by precedent and endorsed by the code’s Governing Body (NRL).
- They ensured that Zac received adequate input and appropriate legal representation during the release negotiation process.
- They negotiated, mediated and considered a number of options, possibilities and scenarios that would allow Zac to re-enter the NRL prior to seeking a court ordered resolution.
- They did not deny Melbourne’s offers with the intention of contravening restraint of trade provisions. They denied them as the offers were in their view unreasonable and did not represent a fair business exchange under what are extraordinary circumstances.
- They are not denying Zac the opportunity to play NRL. They are seeking a fair exchange that benefits their roster, from any club who is interested having Zac on their roster. That’s not restraint of trade, that’s setting reasonable boundaries to protect the club and the game’s best interests.
From Zac’s Perspective
He is claiming that Parra’s original release terms prohibiting him from playing NRL until 2028 are a restraint of trade on the basis that, for employees, “restraints in trade are ‘in general’ not enforceable in Law”. While on face value this is an accurate statement, he is not considering, accepting or respecting all the factors at play. For example:
- The Supreme Court can lawfully uphold Restraints of Trade if they are deemed reasonable and necessary to protect the best interests of the industry/game.
- Unlike most employee level restraint of trade claims, this ‘restraint’ was not embedded in the fineprint of his pre-employment contractual provisions; it was agreed upon wilfully under legal supervision as part of a negotiation for his own breach of contractual provisions.
- In my opinion he has now, off his own actions, exhibited a consistent pattern of behaviour that contravenes and disregards legally binding agreements made under legitimate Legislation. This, and with the understanding that the decision will likely set a game changing precedent that moulds player behaviour and sporting contracts in general moving forward, will, in my opinion, be a significant contributing factor in Justice Kunc’s decision.
- If Parra can prove Zac entered contract talks with BOTH R360 and the Melbourne Storm before asking for his release from Parra, on balance his whole argument goes out the window. I believe this would mean Zac may be considered financially liable to a certain degree.
Lomax
Other Considerations:
- If some of Parra’s arguments are deemed true, (remember that’s if) then in my opinion Melbourne could be in a world of trouble, the type of trouble that the NRL won’t be able to sweep under the rug. There are much bigger penalties for businesses if it is proven that they have deliberately broken rules than there are for individuals who have done so
- If Parra’s release conditions are deemed unreasonable, the onus is on the NRL as the governing body who approved the release provisions.
- The RLPA advocating for Zac could in the long run have a negative impact if the court deems they are advocating for protections that aren’t lawful or enforceable. Collective bargaining agreements are great mostly, but they cannot offer terms that contravene legislation, offer protections from legislative penalties or provide either party with less than what they would be entitled to under law.
Conclusion
I genuinely believe Parra’s case is strong for a number personal, professional and legal reasons.
It’s hard to predict what will happen not knowing all the facts. It’s anybody’s guess really. The case for Parra is strong from a factual, evidence, and legislative perspective.
But the justice system is unpredictable and I believe has an undeniable history of passing more favourable decisions if a person’s socioeconomic or social standing is at the higher end of the scale, even if the decision is meant to be based on legislative interpretation and evidence alone.
Roly-Poly Parra
Great read breaking down the legal elements for us uneducated punters, thanks Roly.
No problem Zest. There is a lot of headline sensationalism in mainstream media that relies on people not questioning the narrative of the writer. Legislation is written in a precise and clinical manner designed to ensure it is interpreted and applied consistently in a legal setting. However it is difficult to translate this plain “old English” way of defining into a readable, transparent context that is readable for all us regular folk. That was the aim of this piece. I am glad you found it helpful.
What a great read. Clear and concise. I am also glad to see that you didn’t roll out the old trope that contracts are not worth the paper they are printed on.
However I especially like that you clearly make the point that legal outcomes are unpredictable. Unfortunately judges are for the most part intelligent pragmatic people.
However like all humans they can be subject to human failures at times due to their emotions.
Should the Eels be successful here, I am hoping strongly that they will, maybe more clubs will start to stand up to agents and aggressive clubs. The power needs to be put back into the hands of the clubs.
Maybe not the Storm. Thinking of the Eels Storm GF here.
Hi John,
Thanks for the positive feedback and personal insight.
I agree with your hope this case will address the current power imbalance in some areas of the game. I think apart from shaping how player contract breaches and club conduct with respect to contract negotiations are managed moving forward, there will likely be a secondary flow on effect that impacts the overarching influence and control that the NRL, player managers, and the RLPA have over these types of legislative matters.
Point 3 “From Zac’s Perspective” may well influence the outcome. The Supreme Court, as a layman, is my understanding would probably consider his history of breaking contracts which is different to breaching a contract. Should Parra prove Lomax has breached this current contract then the Court would normally rule against his claim unless the existing contract was considered unreasonable.
It would be difficult to rule in favor of a person who has contempt for contracts that one willingly signs having received legal representation.
The restraint on trade cannot really be justified when opportunities exist in other areas related to his skills. While NRL clubs may express an interest in Lomax would they really pursue that interest when there is a current history of breaking contracts.
A great read – thank you to the author.
Thanks Zero,
I like your take regarding Zac’s contempt for adhering to contracts and provisions willingly signed under legal supervision. Past behaviour will always play a factor in these types of cases, especially if it is repeated and unreasonable behaviour that is of the same nature to that of the current matter at hand. Obligations within an employment agreement (contract) are so often forgotten in high paying professions that focus on rights and entitlements.
thank you so much for explaining what is going on for us EELS fans!
No worries at all Gail. As a proud Eels fan of several decades myself, I am glad to hear that you found my explanation helpful.
Restriction of trade, in my humble and quite potentially “unlearned” point of view would be if Parramatta were stopping him playing Rugby League as a whole .
I believe the terms are towards an NRL club that Parramatta put in .
I could be COMPLETELY off base here, but I feel there is no impediment to Lomax taking up a contract with the Super League in the UK.
Hi Dazed and Confused. You don’t have to be “learned” to exhibit intelligence or have an opinion with substance. He could 100% go to Super-league, and he can also go to any NRL club that is willing or able to offer Parra a fair and reasonable exchange for his services.
Yep agree with the above comments – good and easy read, on what is going to be a complex matter.
From my perspective a few thoughts/ guesses/ opinions:
1. Working in Lomax’s favour is being an employee. Anyone who runs a business knows how stacked the system is to favour employees over businesses. The other big factor is presumably Parra has said no to taking Zac back. I’d have thought we had the cap space to do so (despite signing Pezet and Kelly). If Parra is arguing “fair exchange” but won’t take Zac back, that undermines their argument a bit.
2. Working in Parra’s favour is the seemingly professional and contractually sound process they ran. They seem to have done everything by the book, openly and fairly. In addition to that, if Zac’s case holds up, it’s hard to imagine in what scenario a contract would be held up? A player could simply demand release at any point and walk straight into another contract. In which case, how does any contract help any club? They would effectively be 1-way agreements that work only in favour of the employee and not the employer.
There must surely be an NRL club out there that can make a player exchange work with Parra. I wonder to what extent Zac also wants to go to Melb to be out of the public spotlight more, knowing the backlash this is causing. The there’s also the convenience of walking straight into a perpetual premiership contender……
I imagine we are all more than a bit over it now. Hopefully this doesn’t drag out much longer. I don’t wish the guy and I’ll, but it’s hard to feel any sympathy for someone who has a knack for making colossally dumb decisions.
Hi Mick,
I agree the nature of the employee – employer/employment relationship will play a significant factor. From a Fair Work Commission perspective since the Fair Work Act (Cth) was introduced there has been a significant increase in decisions finding in favour of the employee whether they are the complainant or the respondent. But it’s important to factor in that Zac’s income exceeds the high income threshold of $183,100 per annum. Most of the protections in the Fair Work Act are designed for lower income workers on Modern awards where there is a significant power imbalance between the employer and employee.
I too am interested in seeing if there is any merit to the claim that Zac asked to come back. I am not sure it will fly either way given the risk one takes when they separate from an employer to join another is that it might not work. In a run of the mill situation, it would be obtuse to assume you can just return to where you resigned, especially if they have replaced you or used your budget elsewhere. It’s anyone’s guess. How the court manages this element if it’s deemed to be true will be of interest not just to sporting clubs but to employers in general.
I do believe the fairest deal for everyone would be for Zac to be allowed to play for a club that is willing to provide Parra with a fir and reasonable exchange.
Perhaps now that trial matches and Junior reps have commenced, it will help the media focus on the footy a bit more. We are all in need of that after the last few weeks. But alas they will probably just focus on Payne Hass.
It’s my understanding that most judges are extremely loathe to make the kind of decisions with such potentially far reaching consequences. If he were to find for Lomax the precedent for professional sporting contracts would be devastating. It would make contracts to all intents and purposes virtually unenforceable legally. If that were to happen, it would be utter chaos. I simply cannot believe that any judge would be that reckless.
Hi Brett,
Your understanding is correct in essence. It does seem unfathomable given the evidence at hand and what is at stake. Though if judges were immune from misinterpretation that results in proven miscarriages of justice, then the state court of appeals and high court of Australia would not be in constant high demand. Let’s hope common sense and precedent prevail and this doesn’t end up in those spaces.
Sad but true. In the unlikely event the judge finds for Lomax, I’ll be interested if the club appeals the decision. I’m thinking that the most likely scenario is that the judge finds for the Eels but reduces the scope of the release contract from three years to one year.
Appreciate the comprehensive review of the case, the real problem is the manner in which PVL is addressing the issue . He seems to have a hamfisted view that players are:more important than the fabric of the contracts and fairness. In somewhat frightening that he has been prepared to make a statement favouring in some respects Lomax and possibly the Storm.
If the judgement somehow favours Lomax, it will become a major problem for the NRL and contracts, something which PVL is apparently ignoring.
A conversation with a junior lawyer last week was interesting, said most judges would be reluctant to bring an order more favourable to the Lomax side given the contract was signed with extensive legal advice, consultation with the RLPA and registered with the NRL. It would set a precedent that could become a problem , see how it turns out.
Thanks for the update.
Do you think that PVL’s ham fisted approach may have something to do with the contract landing on the NRL portal prior to engaging with the Eels. Surely PVL was aware of that event! Would have been a lot better for the NRL if it could have been settled out of court.
Further what part if any did Bellamy play. When did he get involved in the conversation. No contract between Lomax and the Storm would arrive on the NRL portal until after a discussion was had between Bellamy and Lomax.
John, I am with you here. I am perplexed but not surprised that the media have not scrutinised this one with PVL; but he holds sway doesn’t he.
This has shown to be somewhat a cocerning image for the game in terms of his comments shared today. Totally unbelievable and I for one and am questioning who is really running the game.
I truly hope the courts see in Parra’s favour as the game is in even more strife here…
PVL lost me a while back and this just echos these thoughts….Melb must have something here.
If Melbourne’s contract was lodged on the NRL portal before any discussion with Parra, that is a massive fail from the NRL. Once a contract is on their portal, they know it exists and should have acted to do something about it. I have a feeling this court case will have significant findings against the NRL Watch this space I suppose.
Hi B&G 4 Eva,
Thanks for your thanks. PVL’s actions in addressing this situation have really shown a complete disregard for the laws that underpin organisational compliance, procedural fairness and employment contracts. It’s also shown how out of touch he is with the wider NRL fanbase as well as his propensity to favour/turn a blind eye to the actions of certain clubs and inability to make consistent business decisions.
The junior lawyer you spoke to is on the money. A decision in favour of Zac could set a dangerous precedent. Especially given the high level of representation, consultation and consideration shown in the release conditions process.
Good piece sixties. A few aspects that may or may not come out in the Court process are the level of discovered written discussion (these days email figures greatly) to firm up on intent and timing, the NRL’s involvement (and what they stand for), the role of Mangers/Agents (note that Schifkoske seemed to fade off the scene), what the RLPA really stands for(appear to be extremely compromised). There could be a Netflix doco in this puzzle.
Every legal eagle I speak to regarding this matter all say.. there is no restraint of trade if the subject is allowed to ply his trade elsewhere and at comparative earnings . The fact that he is barred from plying his trade at his preferred location is not a restraint of trade.
I’m happy with this explanation and I thank the author for the above very good explanation as well.
Be assured however, the Eels won’t get away Scott free here. I’m not putting my conspiracy cap on and I’m very far from a conspiracy avocate but the Eels WILL receive a hefty blowback for having the audacity to challenge the NRL.
Like it or not, the NRL, like most billion dollar organisations, is as shady as hell.
It will be a miracle if we make the 8 this year and it will be a bloody nightmare for PVL personally if the Eels win the court case and then win the premiership.
Hi Spark,
Thanks for the positive feedback. You can add this legal eagle to your list: I do not believe the restraint of trade claim is valid.
I also agree there will be some subtle retaliation from PVL towards Parra if the NRL is implicated for their shonky practices relating to this matter. Although I am hopeful any adverse outcomes for the NRL will mean the beginning of the end of PVL’s reign as ARLC Chairman.
Reiterating my comment on X – general “restriction of trade” vs “non- compete” – they can’t just paint them with the same brush:
A non-compete clause is a specific, common type of restraint of trade clause that prevents a former employee from working for a competitor or starting a similar business for a set time and area.
An excellent piece of clarification in a world of muddy water comments by many people who know little about the law. It seems to me that the NRL are super keen to have ZL back in the game despite his blantant arrogance when doing exactly what the NRL said would result in a 10 year ban. ZL has multiple options available to him to earn a living as a pro athlete so restraint of trade is a very weak claim. If he is allowed to re enter the game every NRL side may as well burn every contract they have with players, staff and officials because they will be become null and void overnight.
Having said that I believe a negotiated result will happen before the court date and could look something like….ZL go play super league in the UK or play rugby in Aus, Japan, or anywhere else that wants a qulity payer & goal kicker for 1 year. Then he will end up in Perth with the Bears. Logic is the NRL want him to continue playing and the Bears need a headline player. The EELS will be offered an improved financial solution and possibly a junior player in exchange and squeezed into agreeing to this. I hope this does not happen but I suspect a senario like this will be the end result. I truely hope I am wrong and he leaves the game for good. GO EELS
Hi LakeEEL,
Thanks for the positive feedback. I reckon NRL/PVL would probably prefer a settlement before the hearing to avoid legal scrutiny of their practices/actions. However, I think a settlement is more probable during the hearing, since agreements can be reached until the final judgment. Parra’s Senior Counsel may also prefer settling at that stage, as court approval is required for such settlements and PVL’s actions will be held to account.
The NRL could step in here immediately and offer Parramatta compensation where Lomax contract for the remaining years of his deal or Melbournes contract offer which ever is greater is added to the Eels salary cap .
The Eels can use the salary cap dispensation how ever they see fit , all in the one year or spread out over no more then three.
Moving forward this can be used as a precedent , giving clubs who lose talent a leg up without inconvenience to the player in question.
If clubs want players to break contracts they will strengthen their competitors ability in the market .
Essentially giving Parramatta a $2 million plus advantage over the competition , seems fair particularly with the star quality of the player in question.
You are a great thinker Bup. Always enjoy your opinions and insights. Great article. Thanks for posting sixties
Without knowing any legal matters I’d be satisfied with a salary cap make up for our benefit.lomax is going to have a way worst reputation than Jamie Lyons not just with us but all supporters
Not sure that compromise from the NRL will ever happen, then you’re giving Parra and Storm a leg up over the rest of the NRL Teams just for the sake of a fued.
Speaking as a long suffering Parra fan, why dont I care about this?
The season is about to start and if I’m honest good on Parra for digging in but it ranks well down the list of things I’m concerned about apropos the Eels
When Parra eventually win the court case I wouldn’t be surprised if no other NRL first grade club wants a bar of him
Round 1 is going to be spicy, I can smell an upset
I agree so much so I’m flying dow to Melb for the game !!!
I’m very confident we can beat them .law of averages says Melbourne are due for a loss $3 parramatta get on
Big Bob, from a Lomax at the Eels perspective I could care less, and to be fair, the players and coaches are solely focussed on the season. However, this is a battle that Parra had to take up. It’s also critical to future sports contracts in Australia. As such I’m following what is happening. There is an ugliness about PVL’s comments that should concern us all. He’s just doubled down in his support of Lomax, not the Eels NRL club and not the release contract. He’s proven that he’s comments warning players about going to 360 were just rhetoric, just hot air. I wanted to publish what Roly-Poly Parra kindly wrote for me as I reckon it makes it so much easier to understand the process.
I really hope this case can be sorted as soon as possible the media coverage on it is relentless and if it’s not distracting now it will take its toll eventually the more it drags out.
If he ends up at the storm on Melbourne’s terms the game is in a horrible place moving forward in terms of contracts.
Managers will be shopping players around the minute they show any type of consistent form looking for upgraded deals constantly.
I was fascinated to read that we’d let Zac go if the
receiving clob also took Matterson! I:m familiar with that good old Western Suburbs league saying “As good as two men off.” First time I’ve seen it exemplified.
I obviously think more highly of Matterson than leadership does. I guess he’s never been forgiven for taking the three weeks out to save a few thousand bucks.
Very True Noel!
The term I often hear bandied about in the media is “the PUB TEST”. In what world does Lomax going to the Storm, after the rebel Rugby comp idea went south, after he walked out on first the Dragons, then the Eels (after ONE season) pass “the PUB TEST” ? Peter V’Landys seems to be fixated on optics, he thinks the idea of a rep. quality winger well known for Shakespearean level betrayal coming back to the NRL is awesome for the game – at such disadvantage for the former club – well, I think he mustn’t know the DNA of Rugby League fans very well. It’s a tribal game. A club that still celebrates its ill-gotten trophyware (2007, 2009) is getting their way AGAIN. May be V’Landys thinks having the Storm as the perpetual cartoon villain is great for the game, and he may be a genius. That just doesn’t help every NRL fan that is not a Storm supporter
If R360 ever gets off the ground it’s going to cut the NRL to shreds.
Hass would have probably already gone if it had started and now that PVL has shown that he’s a flip flopping lettuce leaf who won’t enforce any bans, then it will be a free for all.
Players will just quit mid contract, earn some cash then return to whatever is left of the NRL at the time of their choosing.
If he grows a pair and tries to enforce any bans then all the player has to do is quote precedent.. you didn’t ban Lomax so why are you banning me ???
You can have all the legislation in the world but if someone is denied procedural fairness then it’s moot.
PVL ban will be dead in the water.
PVL has made a further rod for his back when he said recently that Lomax hasn’t signed anything with R360 PRIOR to his edict and therefore won’t be banned.
He had better hope that the evidence doesn’t show the contrary because if it does , then he will look even more foolish if he fails to act.
Moses has definitely suggested that Lomax did indeed sign documents with R360 PRIOR to that declaration from PVL.
You are wrong
Well, Peter it is nice you are actually taking an interest in this matter. Your earlier comments about banning then back flipping with Lomax reminds of a name they apply to a certain president. TACO.
No doubt you have been reading the attached comments on this site relating to the very issue that is of serious concern and the fans are rightly concerned not only about the Storm cheap attempts to get past the Eels but also why Lomax has such a childish trait of not knowing what he wants.
When it is reported that Lomax never wants to play NRL again why would you want him back especially now for the third time he wants to break his agreement. You should be supporting the club that serves the interest of the game rather than grandstanding over such an emotional matter that is bringing disrespect to the brand. How about you wait and see what unfolds in Court and whatever the outcome make some sort of sensible comment that doesn’t belittle the great club Parramatta Eels. Better still go back to the racecourse.
Peter,
Thanks you taking the time out of your busy schedule of saving the world.
Im aware that you were asked to sit on the UN and give your thoughts on climate change but you deferred as you believed the job was beneath a man of your stature.
Once we have looked after Melbourne Storm , I’m sure we can get together with the Commission and change the rules so that no other team can benefit in similar circumstances !
In fact I’ve already laid the groundwork via the media to indicate that we would be looking at changing up things after this unpleasantness.
I especially like the fact that you are remaining so resolute despite the fact that about 90% of fans and all the rest of the NRL clubs completely oppose the benefit and support you are personally giving the Melbourne Storm.
That’s a true leader ! A man that believes HE is always right and everyone else can get stuffed !
We are all looking forward to your next act to completely alienate the fan base.
Maybe let the Storm supply thier own referees?
Give them extra salary cap relief due to the rigours of being so protected ???
Once again thanks for gracing us with your presence Oracle.
Brilliant, Andy. A lot of fun.
The article and responses are really very good, and if I want to get more involved I will have to lift my game. The thing that strikes me is that even if the judge follows the law to a high degree and takes guidance from precedent, there will still be enough grey area that interpretation from the judge may swing his decision one way or another, or actually render his decision-making to a standoff. In that case, he may have to rely on his own worldview regarding what is good and what is wrong.
In this case, he may say to himself that Zac has taken such an egregiously unethical stance against a club low on the ladder that had rolled out the red carpet and left no stone unturned in efforts to elevate him to a player of the very highest echelon. In turn impoving his value in the market substantially.
Just thoughts, and every case is different.
I’m praying Melbourne’s dodgy business dealings do them some harm, (still holding a grudge from 09) they’ve proven yet again there the dodgiest team in the league, and that bulshitt that there Matt Tripp came out with was comical.
Thanks again guys for being the only source of Eels news I trust, you guys are the greatest.
Zac Can play rugby with the force or any where else in the world for that matter, he can do boxing, ufc, or afl if he wanted to, he is not being restricted at all, he can even play in the nrl if a club can come up with a decent offer.
Restriction of trade ( rubbish )