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Victory to the Bad Guys, or was it?


Martin Chandler | 5:59pm gmt 03 Mar 2013
Victory to the Bad Guys, or was it?
The Devil and his Apprentice, in the eyes of the ICC anyway
It was in South Africa, on 24 April 1977, that the first clues about what was to be dubbed in the press as "The Packer Circus", were publicly announced when Lee Irvine, during a speech at a cricket dinner, stated that Barry Richards, Mike Procter, Eddie Barlow and Graeme Pollock had signed lucrative contracts to play an eight-week series of matches throughout the world.

The full details had to await a press conference given by England captain Tony Greig at Hove, just over a fortnight later, on 11 May. A total of thirty five players had signed contracts for three years each. Eighteen were Australian, including thirteen of the party who had recently arrived in England to defend the Ashes. Of the other seventeen Greig, Derek Underwood, Alan Knott and John Snow had signed. Snow was a veteran, and unlikely to play Test cricket again, but the other three were England regulars.

Reaction ranged from Ian Wooldridge in the Daily Mail, who wrote I suggest that the only surprise about what happened was that it was so long delayed, to Jeff Stollmeyer, president of the West Indies Board; I don't see how anyone can condemn the players. After all their careers are not all that permanent, and then to Wooldridge's colleague, Alex Bannister;The hardest thing to say about the defection of Greig, Knott and Underwood to the Packer Circus is that they are selling out the game that has made them.

Two days later, entirely predictably, Greig was stripped of the England captaincy although, a fortnight later, the Test and County Cricket Board did at least instruct the selectors to pick the side for the forthcoming ODI series against Australia strictly on merit. So Greig, Knott and Underwood were all named in the squad. On 2 June the BBC interviewed Geoff Boycott, soon to be back in the Test arena after a self-imposed exile of some three years. He had, after thinking about it, refused to sign for Packer because the three year contract would have involved his having to compromise his committments to Yorkshire, something that he was not prepared to do.

There were negotiations between the two sides throughout June but as time passed attitudes hardened in both camps. On 30 June Kerry Packer promised an all out scrap if his players were banned. Three weeks later he made it clear that that would mean action in the courts, as well as scheduling his "Super Tests" to clash with official Tests. Very soon afterwards the itinerary was announced and indeed Super Tests were scheduled to coincide with four of that winter's Australia/India Tests. A couple of days later the ICC indicated that all players contracted to Packer's JP Sport had until 1 October to withdraw, or be banned from official Test cricket. Jeff Thomson did pull out, essentially because his Packer contract was in conflict with one he had with Radio 4IP Brisbane. Shortly after that West Indian Alvin Kallicharran did likewise, but they were the only two, despite Thomson and Kallicharran's sometime agent David Lord claiming that many Packer players were ready to jump ship.

Packer arrived in London on 1 August and the writs started flying around. The main litigation was a case brought by Greig, Snow and Procter on the one hand, and JP Sport on the other, as Co-Plaintiffs against the TCCB and the ICC. As the Defendants were unincorporated associations they had no legal personality and could not be sued in their own names. The named Defendants were therefore Doug Insole and Donald Carr for the TCCB, and Hugh Webster and Jack Bailey for the ICC. An interim application for an injunction that was heard on 3 August was resolved on the basis of undertakings by the Defendants not to seek to ban any player before the trial of the action was concluded. By now the TCCB had indicated an intention to support the ICC by banning all who signed for Packer from county cricket as well. The trial of the injunction application was fixed for 26 September, and a number of other players signed up for the "Circus" in the meantime. But for some reason Packer had trouble with Yorkshiremen. Not long after Boycott turned him down umpire Harold "Dickie" Bird did as well, and although he secured Fred Trueman's agreement to commentate for him, two weeks before the trial pace bowler Chris Old knocked him back as well.

Before looking at what happened in the High Court over the 31 days of the trial's duration it is worth bearing in mind what the legal issues were. The Plaintiffs? case was put on two bases, firstly, for JP Sport, that the ICC ban and proposed TCCB one amounted to the tortious (wrongful) act of inducement to the players to breach their contracts with it, and secondly, for the players, that they would be in restraint of trade.

To succeed on the inducement argument JP Sport had to establish three things. The first was that the ICC and TCCB were aware of the existence of the players' contracts with JP Sport. That of course was accepted. The second step was to satisfy the Court that the Defendant's intended, by their actions, to bring about a breach of contract. If intent was established the final, and closely related hurdle, was to convince the Judge, as always in a civil court on the balance of probabilities, that what was done did, in fact, amount to that inducement. It is worth noting at this point that if those requirements are met the case is proved. Considerations such as the public interest and the moral high ground are irrelevant.

As to restraint of trade the question to be dealt with was, in simple terms, whether the proposed ban unreasonably interfered with the liberty of the players to use their skills during the winter, when not required by their counties. The law is essentially simple. Anything that restricts that freedom is contrary to public policy. But this time there is a more complex gloss, which allows a Defendant to escape the effects of the doctrine if he can establish that the restraint is justifiable in the public interest and in the interests of both parties.

The players and JP Sport were represented by MCC member Robert Alexander QC, arguably the foremost advocate of his day. The Marylebone Club were originally a party to the proceedings as well, and former Cambridge Blue Oliver Popplewell QC had represented them on 3 August, and asserted that the Club had been wrongly joined in to the proceedings a view which, at some point before the trial, was clearly accepted. It seems deeply improbable that Alexander would have advised joining in a party with such a defence lightly, and doubtless he had some tactical consideration in mind when settling the original Statement of Claim.

Alexander took two days to open the case, portraying English First Class cricket as a late 20th century version of a Victorian workhouse, and the players as menial servants who were subjected to a harsh regime by their Lords and Masters, the Defendants. Having finished his opening his first witness was Greig, who told the court that as England captain he could expect to earn around GBP10,000 per annum. His contract with JP Sports paid him nearer GBP25,000 per annum, and he had an undertaking from Packer to continue to employ him once his playing days were over. He also received an interest free loan to buy a property in Australia and said that he was prepared to sacrifice the England captaincy in the interests of security for his family. He added that he thought the Defendant's needed a jolly good shake-up, that he had expected trouble when the news broke, but that he had not foreseen a complete ban.

The next witness was Snow, whose evidence was that at his age he would earn no more than GBP4,000 from cricket, and that he had had nightmares about the prospect of having to become an umpire once he could no longer command a place in a county side. Unlike Greig he was not surprised by the ban. During his international career Snow had had more than his fair share of brushes with authority. His somewhat cryptic comment was When the donkey kicks, you know which way it kicks.

Procter was next. He was 31 and in the English season just ended he had led Gloucestershire to the Benson And Hedges Cup, third in the Championship and sixth in the Sunday League. He had been the only bowler in the country to reach 100 First Class wickets for the season, and had not been far short of 1,000 runs either. Yet his earnings from the game were just GBP7,500. As a South African he bemoaned his inability to test himself against the world's best, and expressed the view that county cricket would be immeasurably worse off if the Packer players were banished. At the time few would have disagreed with him, although the passage of 35 years has in fact given us a much more competitive county game, in an era when very few of the world's best ever appear in it. His remuneration with JP Sports was to be around GBP16,000 for each tour he undertook.

It was the afternoon of Day 5 when Packer began his evidence. Out came the story of his being passed over for the rights to broadcast home Tests in Australia despite having a compelling case on economic grounds (He had offered AUSD2.5 million over five years, but that was rejected on the basis that the Board had already agreed to accept AUSD248,000 from ABC over three years). He had no concerns about warning the English game that if the county ban remained in force "The Circus" would be visiting the northern hemisphere to compete in the English summer as well. He went on to explain why his companies enhanced TV coverage would be good for the game, and why the Super Tests would be as well. When Thomson's letter of withdrawal was put to him he described it's stated reasoning as Straight out of Grimm's fairy tales, and complained that Thommo had yet to return his GBP6,000 advance.

Next to give evidence was former Australian Test batsman Ross Edwards, who had been tempted out of retirement to join World Series Cricket. He believed Packer's venture would give an enormous fillip to cricket in Australia and that the ban would be a retrograde step. Edwards was followed by Knott, who complained bitterly about the rule that prevented wives from accompanying their husbands on tour, and the fact that he had been forced to consider giving the game up due to the strain on his marriage. He said he would earn about GBP11,500 from cricket in 1977, but had no choice but to accept that the previous year he had enjoyed a tax-free GBP27,000 from his benefit.

Underwood came next, and the most widely reported comment of his was his fear, in the absence of any academic qualifications, as to what he could do after leaving the First Class game. The last cricketer to give evidence for the players was Asif Iqbal. He echoed the same fears about his family life as Knott. He had earned GBP4,600 from his recent summer with Kent, GBP1,000 from an equipment manufacturer and, prior to signing for JP Sport, around GBP500 per month from the National Bank of Pakistan. The last witness called by Alexander was Lynton Taylor, a Packer man, who gave evidence about what he viewed as the wholly negative attitude taken by the ICC at a compromise meeting that took place in June.

At the close of the Plaintiffs case the Defendants made an unexpected application to the Judge, that being to amend their case to add an assertion that the ICC and TCCB were in fact Employers Associations, and therefore entitled, as a matter of law, to immunity if their actions were found to be in restraint of trade. It is one of those specious legal arguments that is so beloved of law students and their examiners. The amendment was allowed, but was doomed from the outset, Alexander remarking that no-one would be more surprised than the two organisations themselves were they to be found to be Employers Associations rather than governing bodies. The old adage "Desperate times call for desperate measures" applied.

It was Day 10 of the case when Michael Kempster QC rose to open the case for the players. He had a dozen witnesses to call. It had been hoped that Sir Donald Bradman might be one, but Lady Bradman was ill and the great man was not prepared to come to England at the time. So Kempster began with representatives of the Australian, West Indies, New Zealand and Indian Boards, all of whom said much the same thing, explaining that the revenues derived from Test cricket percolated down through the game's lower levels to support it throughout the country concerned. The consensus was that there was a real likelihood, were Packer to get his way, that not only would revenues drop but that tours would cease to be viable at all, and that the game at grass roots level would wither on the vine. ICC secretary, former Essex opening bowler Jack Bailey was next, and he made a number of telling points, summed up by the comment that the proposed ban was the only way the game could protect itself worldwide.

The next witness for "the establishment" was Boycott, who immediately caused ripples by talking about a phone call he had received from Greig, once the latter had learned of his intention to give evidence. Greig's action in making that call could easily have been interpreted, by anyone not knowing the characters of the two men, as an attempt to interfere with the course of justice. His Honour chose, fortunately for Greig, to deal with the incident merely with a quiet word. As he was to demonstrate a few years later in the Botham v Imran libel trial Boycott enjoyed himself in court, and was a source of considerable entertainment after a few days of rather dull evidence, and on this occasion, as in the Botham case, seemed disappointed to have to leave the witness box when counsel had no further questions for him.

Doug Insole, TCCB chairman, followed Boycott and put up a doughty defence but was, ultimately, undone by his own hand. In the usual way the preliminary stages of the proceedings had required an exchange of documentary evidence including the minutes of meetings. In addition to those immediately handed over Alexander also sought disclosure of the original shorthand notes, which carried a rather less sanitised account of the relevant discussions. In these Insole was quoted as saying The players contracted to Packer should be banned from First Class cricket, unless they rescind their contracts with him .... Although Kempster tried manfully to do so there is, realistically, no way of interpreting that comment other than as an inducement to breach of contract. Insole's cross-examination by Alexander was uncomfortable to say the least.

Ray Illingworth was called as well, still at this stage Leicestershire skipper, he appeared in court dressed in his Test blazer and tie. He explained that he understood why the players had signed, and conceded that cricketers had been underpaid for years. He added that he might well have signed himself, but that if he had he would have expected to be banned, as the two forms of the game would have been in direct conflict.

The secretary of the Cricketer's Association, former Warwickshire pace bowler Jack Bannister was next. He revealed that the association had voted 91-77 in favour of a county ban. Interestingly he disclosed that a vote at Hampshire had been 15-1 in favour. Richards was known to have abstained, so at least one of the county's other two Packer players, Andy Roberts and Gordon Greenidge, must have voted in favour of it. The Chairman of the TCCB's finance and general purposes committee was next, and he confirmed that in the three previous seasons only Essex of the 17 First Class counties would have made a profit without their share of the Test match revenues. Worcestershire chairman Mike Vockins was then called and he expressed the view that the cost of producing a First Class player was, over five years, around GBP50,000, and that it was wrong that Packer should reap the benefit. He also felt that the presence of Packer players in county sides would be divisive, and that the membership of the counties, whose subscriptions were for some their lifeblood, were by and large supportive of the ban.

The last witness was TCCB secretary Donald Carr. He largely confirmed the evidence of those who had gone before and set out five basic reasons for why a ban was necessary:-
1. A need to support the ICC.
2. A deterrent to other players from leaving the authorised game.
3. Adverse reaction from other county cricketers.
4. Safeguarding places in county cricket for Test players.
5. The disruptive influence of Packer players who would be looking to recruit others.

The first of those took the rights and wrongs no further, and the second smacks of the words of the then Lord Chief Justice, Rayner Goddard when he sentenced the tragic Derek Bentley to death in 1952*. As to the third there had always been disparity in the earning potential of members of the same team and it had never caused problems before. The last made little sense either as logic would suggest that in reality existing Packer players would be none too keen on recruiting their own replacements. There was a grain of truth in the fourth point, and with Paul Downton there was a very real prospect of a man keeping wicket for England overseas during the winter and then losing his county place to Alan Knott in the summer. But the then rules which governed players changing counties were responsible for that problem, and were something else that seemed to be in restraint of trade, although they were never challenged in the courts.

It was Day 26 when Carr finished his evidence, and Day 28 when Kempster finished his closing speech. He had a lousy case on the law so he concentrated on portraying his witnesses for what they undoubtedly were, men of the highest integrity with genuine and sincere believe that their views represented the best way of safeguarding the future of the sport they all loved. He also vividly portrayed the threat to the game's soul that Packer presented, and glorified the history and spirit of the game, and contrasted that with the selfish and purely commercial motives that Packer had. Had he been addressing an English jury, twelve good men and true, then he might well have carried the day. But Sir Christopher Slade was a High Court Judge, brought up to ignore sentiment and apply the law. It was unlikely that he needed to hear from the players counsel, and indeed by now Mr Alexander had gone off to another case, but his substitute, Andrew Morritt QC, put in a polished performance that did not finish until Day 31. He, of course, stuck to the law - it was almost all in his favour.

Judgment was handed down on 25 November. Whilst stressing that the individual Defendants had acted in good faith and in what they considered to be the best interests of cricket. the Judge, in a judgment that ran to more than 200 pages of foolscap and occupies 64 pages (with parts of it summarised) in the official law reports, found in the Plaintiffs' favour on all points, with costs, estimated at GBP250,000. Insole observed We were well and truly stuffed. Not surprisingly there was no appeal.

Although the High Court case is the one usually remembered there were in fact three other pieces of "Packer-related" litigation that went to trial, and plenty of other proceedings or threats of proceedings that for whatever reason did not result in a final hearing. It is worth briefly mentioning all three. The first one, decided on 30 September, four days after the High Court case begun, was over whether Packer could call his product "Super Tests" or not. The ACB issued proceedings in the wake of an insert that was distributed with The Australian Woman's Weekly magazine that they asserted could lead to confusion. The ACB succeeded in obtaining an order preventing Packer using the words "Test" or "Super Test" or from describing any of its teams as "Australia" or "The Australian Team". I presume they got their costs paid, but that would have been scant consolation for the fact that despite their endeavours the media in general were always to refer to "Super Tests", and call the side "WSC Australia"

The second case did not actually involve any Packer related party, but was fought out between the trustees of the Sydney Cricket Ground and the New South Wales Cricket Association. Packer approached the trustees for permission to use the SCG. He was refused but then, an increased payment having presumably been offered, the trustees changed their minds. The NWSCA claimed a legal right to first call on the SCG and won, so for the first season of WSC it was necessary for the Sydney Showground to be used. This case was concluded exactly one week before Sir Christopher Slade delivered his judgment.

The final instalment in the case certainly has its comedic elements and involved Australia's favourite larrikin, Jeff Thomson, who should have learned a valuable lesson about contracts a year previously, but clearly didn't. Having broken his initial contract with WSC Thommo then committed himself in writing to the Board for the 1978/79 season. He then decided that, on reflection, and having presumably extricated himself from his commitments to the Brisbane radio station, he fancied his share of Packer's millions and re-signed for JP Sport for three years. He had asked the Board for his release from his contract, and they had declined the request, so he couldn?t say he wasn't aware of it. Perhaps surprisingly the Board didn't sue JP Sport for inducement to breach of contract, but they did sue Thommo and, unsurprisingly, won, so he couldn't take part in the WSC tour of the Caribbean after all. But, I hear you shout, his name is there for all to see in the record books as having taken part in that tour. This is because having won the point of principle, and doubtless having had their costs paid by WSC one way or another, the ACB saw no point in paying an unwilling and de-motivated Thomson, so they did release him after all.

By the end of WSC's second season the Board had neither the resources or the desire to fight on and, at long last, a deal was struck and the game got back to normality. It was a better place for the players, all of whom did ultimately benefit as had been predicted, and so did the spectators, because the best features of WSC were kept. The litigation that had kept the legal profession so busy for so long was at an end. The main event, and the only one anyone now recalls, had been a resounding success for Packer, but it didn't go all his way, as the results of the other three cases show - it was just a shame for the establishment that those pyrrhic victories came in the equivalent of three up-country fixtures.




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