FINAL EXAM 2020, answers PDF

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Question 41 (a) On the facts, Mary entered Shane into an agreement with a computer and phone manufacturing company sponsor called ‘JCN Ltd’. However, Shane’s current soccer team are sponsored by a rival mobile phone company, ‘Banana Ltd’. In Australian sports, different restraints of trade and player endorsement are in force to ensure endorsement does not conflict with the commercial interests of the organisation’s sponsors. For example, the NRL playing contract requires a player to not use his player property to conflict with the name, reputation, image, products or services of the club. The restriction of player endorsements in Australia is reasonable about both “the interests of the parties concerned and the interests of the public”: Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd. In the case of Carlton (Nike) & Anthony Koutafides (Adidas), Koutafides had personal sponsorship with Adidas whilst playing for Carlton who was with Nike - still reached an agreement because s 27.1 of the AFL enterprise agreement which provided players can wear whatever they want in footwear. S 26.2(a) of the AFL enterprise agreement states that “parties agree that player may use player’s image provided it does not conflict with AFL protected sponsor or club protected sponsor etc.” Although the facts of the current case do not relate to the AFL, the provision can be still be used in the interpretation of other Australian sports. Therefore, it can be used to determine that Shane must not promote the JCN Ltd mobile phone provided the endorsement did not conflict with any of Shotz’s sponsors, of which Mary was provided a list because they are protected sponsors. (b) It is unlikely that Shane must play his final year in Darwin. Repudiation applies when one party shows an intention to no longer be bound by the contract only in a manner substantially inconsistent with their obligations. Shane is not interested in moving to Darwin. Shane was provided with a variety of luxuries in Sydney, where he intended to settle as permanent residents with his family who were happy living there. The conditions which Shane would be governed in Darwin could be substantially inconsistent with the club’s current obligations. In Penrith District Rugby League Football Club Ltd v Fittler & Sing- held that the decision of Penrith to switch competitions amounted to a repudiation of the playing contract. Penrith could not perform their obligations to the players because the conditions which the players

would be governed under the new competition were radically different from their existing arrangements. Therefore, if the Shotz cannot provide Shane and his family the same luxuries living standards that he was provided for in Sydney, then the decision to move to Darwin may amount to a repudiation of Shane’s playing contract. However, if the club could substantially provide, then Shane would have to play his final year in Darwin under contract. (c) There are implications for missing doping tests under Australian sports law. The NAD scheme applies to the NF responsible for the Oz League. As such, the anti-doping rules and ‘sporting administration bodies’ rules can be applied to the case. Division 2.1 of the NAD scheme lists the anti-doping rule violations. According to Cl 2.01(d) of the scheme, 3 missed tests or filing failures within 18 months constitutes a violation. Some of the possible procedures for this violation include receiving a notice about the violation from SIA CEO and SIA gathering evidence to set out allegation: NAD Scheme Part 4. More implications from the violation could include Shane’s NF applying their anti-doping policy and convening a tribunal hearing, where it will be decided whether a violation occurred: WADC art 8. The final procedure and implication is the sanctions to which the violation apply to. In this case, Art 2.4 of the WADC applies to the facts, where violators of this section are ineligible for one to two years depending on the fault of the athlete. (d) -

Duty to follow the instructions of principal  On the facts, Mary owed the duty to Shane of providing endorsements that do not conflict with any of the Shotz club’s sponsors. This was clearly breached when Mary arranged a deal with ‘JCN Ltd’ who are a rival of one of Shotz club’s sponsors.

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Duty to act with due care, skill and diligence  On the facts, Mary owed the duty of ensuring that Shane’s whereabouts information for doping purposes was kept up to date. This was clearly breached when Mary accidently failed to update Shane’s details....