The controversial Indian Premier League (IPL) is now underway, with English cricket stars conspicuous by their absence. They have been banned from both the IPL and its rival tournament, the Indian Cricket League (ICL), by the England and Wales Cricket Board (ECB). Players competing in the ICL will receive a 12 month ECB ban, from all forms of English Country cricket.
Many players feel that they are being unfairly prevented from benefiting from by far the most lucrative cricket tournament in history, with some positing that such a ban may flout the law on restrictive covenants.
Background
The IPL has already attracted an audience of one billion consumers and billions of pounds in revenue. Television rights alone sold for $1 billion. The auction of players across eight rival teams also raised a further $723 million. The ECB, to whom 12 key players are centrally contracted, has refused to allow these elite cricketers to participate, much to the chagrin of many cricketers who for many years have watched their salaries pale in comparison to those of competitors in other sports. It is concerned that the bank-rolled Twenty20 league will adversely impact on the integrity of the game and perhaps even spell the end for Test cricket.
ECB's position
The ECB has argued that it must protect the England national team's interests; England have a Test Match Series against New Zealand scheduled for shortly after the IPL ends this year, and the Ashes series (England v Australia) follows next year's tournament. Many commentators have called into question the lawfulness of the ECB preventing cricketers from plying their trade in the Indian tournaments. In the past fortnight, three Northamptonshire players (Justin Kemp, Andrew Hall and Johan van der Wath) won their appeals against their suspension from the ICL by the ECB. A panel chaired by Nicholas Stewart QC ruled that the suspension was unenforceable because the ECB had not specifically outlawed their participation in the ICL prior to taking part. Indeed, the panel unanimously rejected a request to refer the decision back to the ECB. It is hard to see how effectively the ECB could actually specify the IPL/ICL as being 'off limits'. Employers who wish to rely on post-termination restrictions often seek to set out a list of competitors to whom such restrictions apply. However it is recognized that this approach can be circumvented where there are changes in the market, mergers or takeovers which render the list obsolete. As things stand, it is the IPL which is seen as the major threat; in a year's time, there could be an English or South African Premier League.
The law
The law on restraint of trade and restrictive covenants has always been a grey area. At stake are competing principles of free movement and an open labor market versus the right of an employer to protect a legitimate business interest. There has been a recent trend towards the courts adopting a more commercial position and enforcing post-termination restrictions, provided that such restrictions go no further than is necessary to protect the relevant business. That is why technical legal drafting is required and restraint of trade cases become expensive and time-consuming affairs. However what is the position when the individual is still a current employee? All employees owe an implied duty of fidelity to their employer. Many contracts of employment will expressly require exclusive service or require the individual to gain consent from his employer prior to pursuing additional employment opportunities. An analogy can be drawn with the Kerry Packer World Series Tour in the early 1970s where the courts (Greig v Insole) forced counties to drop bans imposed on players on the grounds of restraint of trade.
Money talks
The ECB may realize that money talks and that its top players could simply refuse to sign central contracts in the future, should an accommodation not be found. The Professional Cricketer's Association has stated that over 10% of all professional cricketers in England have been approached to play in either the IPL or the ICL. What is also inevitable is that others will try to copy the format of the IPL and hope that new markets can be tapped into equally successfully. Cricket has for a long time been fairly immune to the commercial market forces which have shaped other sports, such as football. Football's financial revolution in the early 1990s also brought with it a string of hotly contested legal disputes, most famously the Bosman case, and it seems that cricket has now turned down a similar path. |