The legal technicality that saved the ACT Brumbies’ future

21 July 2017. Super Rugby Quarter Final. ACT Brumbies v Wellington Hurricanes at Canberra Stadium. Brumbies players realise that their season has come to an end after Hurricanes wing Wes Goosen scored a try in the second half. Photo: Sitthixay DitthavongA legal technicality helped save the ACT Brumbies from being axed from Super Rugby after the ARU deemed cutting the Canberra club would be unlawful.

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Billionaire Western Force backer Andrew “Twiggy” Forrest released documents on Wednesday showing the ARU’s risk assessment of axing the Brumbies, Melbourne Rebels or the Force.

Forrest launched a stinging attacking on ARU chairman Cameron Clyne, calling on him to resign and claiming the ARU made its call to cull the Force in February.

The ARU officially exiled the Force on August 11, but the parties are awaiting the outcome of an appeal in the NSW Supreme Court.

The Brumbies were moved into a safe zone in April, and it was widely thought the club’s rich history, form and financial stability were the major reasons for guaranteeing their future.

The reality was the Brumbies’ history, finals record and fact they have never borrowed money made it impossible for the ARU to axe Australia’s most successful club.

But Forrest’s document shows the legal risk of attacking the Brumbies also worked in the club’s favour given kicking them out of the competition would have breached a participation deed.

On the document released by Forrest, the ARU’s evaluation of terminating the Brumbies was considered “high risk”.

“Unless circumstances change, ARU would need to negotiate an agreed termination of the Participation Deed with the Brumbies,” the document stated.

“If a negotiated exit is not achievable, an attempt by the ARU to terminate the Brumbies Participation Deed without cause would constitute unlawful termination.”

The document made the same assessment for the Rebels, but considered the Force a “low” risk legally.

“There is no legal obligation to retain the Western Force in the Super Rugby competition following a negotiation of the broadcast contracts,” it said.

“If the broadcast contracts are re-negotiated with effect from the end of the 2017 Super Rugby season, the Alliance Agreement will automatically terminate at the end of the 2017 season and the obligation on the ARU to maintain the Western Force as a Super Rugby team in Perth will lapse at that point.”

Clyne hit back at Forrest on Wednesday afternoon, rejecting the process to cut a team was a “charade” or that the decision was made in February when the legal advice was given.

“At various stages of this process, the ARU board has requested recommendations and information from ARU management to assist with making its decision,” Clyne said.

“I can only assume that Andrew has been provided with a document that contains some of the analysis that was undertaken by ARU management at the request of the board, to assess the many implications and considerations for exiting each of the three teams we originally assessed, which included the Brumbies, Melbourne Rebels and Western Force.

“As we have previously announced, there was an extensive analysis conducted on each of these teams and one of the key issues we assessed was the legal risks associated with any decision to exit one of those teams.

“These legal risks were factored into our decision but the board still had options outside of legal avenues to pursue its course to remove a team.”

Forrest, one of Australia’s richest men, called a press conference on Wednesday to respond to comments made by ARU chief executive Bill Pulver on Tuesday.

Pulver said Forrest had come to the table too late after tabling a stunning $50 million offer to prop up the Western Force and assure the future of the code.

Clearly frustrated up by the comments, Forrest accused the ARU of bullying tactics and said he would not lie down in trying to save the Force.

“I’m here to say to the ARU; you cannot bully this team, your ambush has been sprung, you have now been discovered,” Forrest said.

“Chairman of the ARU, Mr Cameron Clyne, you’ve told me so many times that there was a broad spreadsheet of factors which were all based on merit, which were based on fairness and of course Australia now knows that was a charade. You received advice you could not cut the Rebels.

“I ask you now to resign Mr Cameron Clyne. This has been discovered. The secret is now out. The process from here now must be transparent, we must all come clean.”

Forrest disagreed that his generous offer to the ARU had come too late.

“My message to the leaders of the ARU, Mr Bill Pulver, who I’m not holding to account, you’ve been am honest and faithful servant. But Mr Pulver and remaining ARU board ??? it is not too late. I’m in business. I know what too late looks like. I know what 11th hour looks like and I certainly know what bullies look like.

“This is not 11th hour, this is not too late. Keep the Western Force, stop this legal charade, be transparent and let’s get on with building a fabulous sport in Australia and the code of rugby union across Australia and across the world.

“The document I have, which I have released, came from caring members of the business community. It shows clearly that late in February this year the advice was received and taken to cut the Western Force for no other reason apart from legal advice. This is what I have stood up for, this is what I accuse the ARU of; of litigating, of lawyers and not leadership, of choosing not for merit but choosing to cut because they can bully a submission.”

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