To arbitrate, or not to arbitrate

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What is the Cricket Australia-ACA pay dispute all about?

From a point where the national team came within days of going on strike in December 1997, resolution of Australian cricket’s previous pay war was the result of compromise on both sides to take the heat out of the situation. 

The players, having previously indicated their willingness to down tools for the nascent Australian Cricketers Association, announced they would withdraw the threat of industrial action and thus end the prospect of major dislocation to the game, its broadcasters, sponsors and fans. The Australian Cricket Board, meanwhile, agreed to negotiate in private with the ACA and accept the principle of revenue sharing, despite the objections of numerous board directors who had advocated letting the players strike rather than give up a fixed percentage.

Two decades on, and a similar pathway to peace appears within reach, but will again require compromise within compromise – no easy task. Most important from this week’s public proposal by Cricket Australia’s chief executive James Sutherland, geared at ending perceived “stalling” by the ACA, is that if no heads of agreement are reached in the next few days, the male players will be offered contracts under the terms of the previous MoU, and the women under the vastly improved terms of CA’s recent offer.

Like every other perceived movement in a bitter and lengthy dispute, CA’s proposal was not all carrot. The stick arrived in the form of stating that if a heads of agreement cannot be reached, the contract offers would apply only if the ACA accepted the prospect of submitting the argument to private arbitration, as distinct from submitting to FairWork Australia, the national body for industrial relations dispute resolution. 

As an industrial relations process, arbitration has been likened to the proceedings of a divorce court, whereas the ACA’s previous request for mediation looks a little more like marriage counselling. In his flurry of media activity after months of silence, Sutherland referred repeatedly to the board’s preparedness to “accept the umpire’s decision”. In the same breath CA is clearly backing its prestige and networks to offer up the right kind of umpire. 

Already it is being said that CA would like the arbitrator to be Gordon Lewis, the former county court judge who has been a CA and ICC code of conduct commissioner for years. Lewis is widely respected, and a singular figure who earlier this year released an engaging autobiography called Bitten By An Elephant. Among numerous code of conduct cases, Lewis famously threw out the heated accusations between James Anderson and Ravindra Jadeja during the Trent Bridge Test of 2014, and also ruled on David Warner’s confrontation with Joe Root the previous year.

Lewis does have some industrial relations background also. In 2008 he advised the Victorian state government against handing any powers of veto to the United Firefighters Union, stating that clauses “requiring union agreement before implementation” could cause problems for the smooth operation of the firefighting service. That view is not a million miles away from CA’s present rhetoric about not allowing the ACA to have any control over how money in the game is spent. In the words of Sutherland to The Australian – the board’s chosen mouthpiece of late – such powers are “unthinkable”.

“The players have a really important role to play in the success of our sport but whether they should be decision-makers about where we invest our grassroots funding is a completely different matter. What would the players know about that? What would the ACA know about that? Our decision-making authority being compromised by some form of veto is unthinkable.”

More unthinkable, of course, is the looming scenario whereby CA is unable to send a Test squad to Bangladesh, an ODI squad to India and present men’s and women’s teams for dual home Ashes due to commence in October. Such a turn of events would not just be ruinous to CA’s standing as a national board, but also see all manner of commercial deals, both actual and prospective, go to pieces. By pushing their respective positions to that extreme, both CA and the ACA would lose enormously, or to quote Shakespeare’s Prince in Romeo and Juliet: “All are punished.”

That’s why the offer of rolled over contracts for the men and lucrative new deals under the proposed terms for the women is the most significant element of this week’s events. Instantly, it removes uncertainty from the game, ensuring Steven Smith’s men go on tour, and that the game’s many “stakeholders” can get back to work in preparation for their summer deals and campaigns. Critically, it allows for heightening levels of commercial anxiety to ease, and so avoid CA having to accept vastly downgraded fees for the game’s sponsorship and broadcasting rights – downgrades that would ultimately hurt the players as well as the board.

Less convincing is CA’s desire to ensure that arbitration ends the dispute as soon as possible. Without the time sensitivity implicit in tours and series being threatened by out of contract players, there seems no obvious need for any “residual” issues between CA and the ACA to be settled in such a manner. The end of the very public 1997-98 standoff was followed by a period of more than eight months in private discussions before the first MoU was finalised in September 1998. Meanwhile Australia’s Test team defeated New Zealand and South Africa at home but lost in India. In other words, the show did go on exactly as Sutherland is hoping for, and the players followed up the MoU’s announcement by winning in Pakistan for the first time in 39 years and then retaining the Ashes.

But at the moment, having judged the ACA to be advantaged by running down the clock, CA is seeking to start another clock in its favour. CA’s acceptance of continuing negotiations or mediation, instead of arbitration, would require the board – whose “not for quoting” hand in this week’s proposal was as evident as the sight of a director quietly entering CA’s headquarters via the car park as Sutherland’s Thursday press conference got underway at the front door – to accept something less than their ideal resolution.  

Recent history, rather than the events of two decades ago, suggests that sort of humility does not come easily.

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Source: ESPN Crickinfo