The explosion, 1978

The Packer case

Gordon Ross



Kerry Packer and Tony Greig outside the High Court in London © The Cricketer
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First news of what was to become, virtually, "The Packer Explosion," came from South Africa towards the end of April 1977 when South Africa's Sunday Times broke the news that four South African cricketers had signed lucrative contracts to play an eight-week series of matches throughout the world. It was said that when the team visited South Africa and played local teams it would have immeasurable benefits for the game there.

In the middle of May, The Bulletin, Australia's 97-year-old magazine owned by The Australian Consolidated Press Limited (chairman, Kerry packer) announced the completion of a huge sporting deal in which thirty-five top cricketers had been signed for three years to play specially arranged matches, beginning with a series of six five-day Test matches, six one-day games, and six three-day round robin tournaments in Australia in 1977-78. Prize money would be $100,000. The deal had been put together by JP Sports and Television Corporation Limited, proprietors of Channel 9 in Sydney (Chairman, Kerry Packer).

The 35 players signed up were:

Eighteen Australian and seventeen from Overseas, chosen by Ian Chappell and Tony Greig; I. M. Chappell (Captain), R. J. Bright, G. S. Chappell, I. C. Davis, R. Edwards, G. J. Gilmour, D. W. Hookes, D. K. Lillee, M. F. Malone, R. W. Marsh, R. B. McCosker, K. J. O'Keeffe, L. S. Pascoe, I. R. Redpath, R. D. Robinson, J. R. Thomson, M. H. N. Walker, K. D. Walters.

A. W. Greig (Captain), Asif Iqbal, E. J. Barlow, D. L. Hobson, M. A. Holding, Imran Khan, A. P. E. Knott, C. H. Lloyd, Majid Khan, Mushtaq Mohammad, R. G. Pollock, M. J. Procter, B. A. Richards, I. V. A. Richards, A. M. E. Roberts, J. A. Snow, D. L. Underwood.

Geoff Boycott was invited to take part in the scheme but declined. Richie Benaud and his Sports Consultancy Company were engaged in the management of the series. Many of the signings were carried out during the Centenary Test match in Melbourne, and the New Zealand-Australia series. Austin Robertson and John Kitto (Secretary and Attorney of the Television Corporation Group) flew to West Indies where West Indies were playing Pakistan, and then to Britain to finalise the arrangements with the English and South African players.

The Australian team was already in England. The manager, Len Maddocks, was quoted as having said: "I do not envisage the present development having a detrimental effect upon this tour. But if any of them play for a side contrary to the jurisdiction of the Australian Board, they will place their careers in jeopardy."

On May 13, The Cricket Council issued a statement at the end of an emergency meeting to the effect that Greig was not to be considered as England's captain in the forthcoming series against Australia. The statement went on: "His action has inevitably impaired the trust which existed between the cricket authorities and the Captain of the England side." F. R. Brown, Chairman of the Council, added: "the captaincy of the England team involves close liaison with the selectors in the management, selection and development of England players for the future and clearly Greig is unlikely to be able to do this as his stated intention is to be contracted elsewhere during the next three winters."

On May 25 it was announced from Lord's that a special meeting of full and foundation members of the International Cricket Conference would be held at Lord's on June 14 to discuss the situation, and the next day the Test and County Cricket Board said that the selection committee should pick England sides this summer strictly on merit, which obviously meant that Greig, Knott and Underwood could play.

At the end of May, Packer arrived in England, and at a Press Conference, said: "It is not a pirate series but a Super-Test Series. I have sent telegrams to all the cricketing bodies but they don't reply. I am willing to compromise but time is running out." He referred to cricket as the easiest sport in the world to take over, as nobody had bothered to pay the players what they were worth.

At this point the only cricket subject being discussed from the highest Committee Room in the land to the Saloon Bar of the tiniest inn, was "Packer", and from all the multifarious points raised, one was likely to be proved the dominant factor in the end. In this age of extreme partisanship, had non-partisanship cricket any future. Does the world not want to see England beat Australia, or Arsenal beat Tottenham, or England beat Wales at Twickenham -- or vice versa, according to particular loyalties? Could a collection of players, however great, stimulate public interest, when there was nothing on the end of it, except a considerable amount of money for the participants? The fact that tennis players and golfers are a constant attraction was irrelevant; they are individuals playing for no-one but themselves. And moreover, the whole crux of this matter was linked to big business -- the business of television, and not so much to the furtherance of cricket or cricketers.

Mr. Packer, as Chairman of Channel 9 of Australia, was bitterly disappointed that an offer he had made to the Australian Board of Control for television rights for conventional test cricket had not been given the due consideration which Mr. Packer felt the offer had merited.

Out of this frustration, his scheme was born and nurtured. Meanwhile, unanimous agreement on their attitude to Packer's television circus was reached at the emergency meeting of the International Cricket Conference on June 14. Mr. Packer, who left Heathrow that evening for the United States, was to be invited to discuss his plans with representatives of the ICC at the earliest possible moment.

This meeting was arranged for June 23, but negotiation was not found possible on one salient point - Mr. Packer demanded exclusive television rights from the Australian Board of Control from 1981 when their present contract with the Australian Broadcasting Commission ended. The ICC representatives told him that it would be totally wrong in principle if this were taken as a condition of agreement. The representatives of all the countries present were unanimous that no member country should be asked to submit to such a demand. The ICC's five conditions were:

  • 1 - Programme and venues of the circus to be acceptable to the home authority, and the length of programme not to exceed six weeks. Matches under home authority and the laws of cricket.
  • 2 - No player to participate without the permission of his home authority, who would not withhold it unreasonably.
  • 3 - No teams to be represented as national. That is, not Australia, possibly an Australian XI.
  • 4 - Players contracted to Mr. Packer to be available for Tests, first-class fixtures and other home-authority sponsored matches.
  • 5 - The home authority must be able to honour all contractual commitments to existing sponsors and advertisers.

Afterwards, Packer said: "I will take no steps at all to help anyone. It isn't 40 players, its 51." It seemed clear that this purpose in signing up the players was essentially as a bargaining weapon to help him to secure the exclusive television rights he so badly wanted. Names of other players to have joined Packer were being announced from day to day -- D. L. Amiss, A. I. Kallicharran, C. L. King, B. D. Julien, C. G. Greenidge. At the crucial meeting at Lord's on July 26 the I.C.C. tabled three principal resolutions:

  • 1 - No player, who after Oct. 1, 1977, has played or has made himself available to play in a match previously disapproved by the Conference, shall thereafter be eligible to play in any Test match without the express consent of the Conference, to be given only on the application of the governing body for cricket of his country.
  • 2 - Any match arranged or to be arranged by J. P. Sports (PTY) Ltd., Mr. Kerry Packer, Mr. Richie Benaud or associated companies or persons, to take place in Australia or elsewhere between Oct. 1, 1977 and March 31, 1979 is disapproved.
  • 3 - Matches are liable to be disapproved if so arranged as to have the probable result that invitations to play in such matches will conflict with invitations which have been or may be received to play in first-class matches.

Zaheer Abbas was yet another to defect from cricketing authority, making the known total at that time forty-one, except that it was announced that Jeff Thomson had withdrawn, as indeed had Kallicharran, according to Mr. David Lord, the Australian agent for them both. Packer swiftly answered this possible damage to his cause by setting out for England to talk to them. Lord, who also acted for Vivian Richards, said: "I shall be offering them the same advice that I have given to Jeff. I am going to make it my job to see as many players as I can to try and persuade them to follow this example."

Mr. Packer then announced that he would apply for an injunction and damages in the High Court against the International Cricket Conference and Test and County Cricket Board, and a similar action was to be started against Mr. David Lord, claiming that Mr. Lord had wrongfully induced players to break their contracts with the company. A temporary injunction was granted against Lord, but the T.C.C.B. gave an undertaking that no Packer player would be banned until the Court hearing.

The meeting at Lord's on August 10 produced the following conditions:

The TCCB's new sub-rules to meet the I.C.C. request concerning players who are members of the Packer group are:

  • 1 - No player who, after October 1, 1977, has played or made himself available to play in a match previously disapproved by the Conference shall thereafter be eligible to play in any Test match without the express consent of the Conference.
  • 2 - No county shall be entitled to play in any competitive county cricket match, any cricketer who is and remains precluded from playing in a Test match on the above grounds before the expiration of a period of two years immediately following the date of the last day of the last match previously disapproved by the I.C.C. in which he has played or made himself available to play.

This, of course, was subject to any High Court ruling which might follow. The name of Bob Woolmer was added to the list of Packer players. On Monday September 26 the High Court hearing began, and it lasted 31 days, the judgment, occupying 221 foolscap pages, took five and a half hours to deliver. Herewith are extracts from this massive document, summarised from The Times:

The Judgement

Mr. Justice Slade granted three English cricketers who had contracted to play for Mr. Kerry Packer's World Series Cricket Pty Ltd. declarations that all the changes of the rules of the International Cricket Conference and all their resolutions banning them from Test cricket are ultra vires and void as being in unreasonable restraint of trade. So, too, are the Test and County Cricket Board's proposed rules governing qualification and registration of cricketers in Test and competitive and county cricket.

His Lordship also granted similar declarations to World Series Cricket.

The three cricketers, the individual plaintiffs, were Mr. Tony Greig, Mr. John Snow and Mr. Michael Procter.

His Lordship said that as a result of the entry of World Series Cricket into cricket promotion, the International Cricket Conference in July, 1977, changed its rules in a manner which, if implemented, was likely effectively to disqualify any of the individual plaintiffs from playing in official international Test cricket for an indefinite time if he played in any cricket match organized by W.S.C. The T.C.C.B. proposed, subject to the court's decision, to change its rules in a manner which was likely to disqualify any of the plaintiffs from playing in English county cricket for at least several years if he played W.S.C. cricket.

In both actions the plaintiffs claimed that the new or proposed new rules would be legally invalid, and sought orders which would effectively prevent the I.C.C. and T.C.C.B. from implementing them. W.S.C. further claimed that those rules were or would be an unlawful inducement to a number of players who had entered into contracts to break them.

His Lordship considered that there were nine principal questions for ultimate decision.

  • (A) Are the contracts between W.S.C. and its players void?
  • (B) Has W.S.C. established that, as at August 3, and subject to any statutory immunity conferred by the 1974 Act, it was a good cause of action in tort against the I.C.C. based on inducement of breach of contract?
  • (C) Has W.S.C. established that as at August 3 and subject as aforesaid, it had a good cause of action in tort against the T.C.C.B. based on the same grounds?
  • (D) Subject to the provisions of the 1974 Act, are the new I.C.C. rules void as being in restraint of trade?
  • (E) Subject to aforesaid, are the proposed new T.C.C.B. rules void as being in restraint of trade?
  • (F) Is the I.C.C. an employers' association within the 1974 Act?
  • (G) Is the T.C.C.B. an employers' association?
  • (H) If either the I.C.C. or T.C.C.B. or both be employers' associations, does this itself bar any cause of action that would otherwise exist?
  • (I)In the light of the answers, what relief (if any) should be given to (i) the individual plaintiffs and (ii) W.S.C.?

Summarizing the evidence, his Lordship commented that the evidence relating to the conditions under which cricketers worked, particularly in the United Kingdom, would have filled a book and would doubtless provide useful raw material for cricket historians of the future.

His Lordship could see the possible force of criticism directed against Mr. Greig, who, when he signed his contract with W.S.C. and recruited others to do so, had just completed a tour of Australia as captain of the England team, was still generally regarded as its captain and could have looked forward with reasonable confidence to his formal reappointment as such. There was obviously a case for saying that his responsibilities to the T.C.C.B. were of a rather special nature.

However, two points had to be borne in mind in regard to him and all the other United Kingdom players.

  • (1) Neither the Cricket Council (the governing body of cricket in England recognized by the I.C.C.) nor the T.C.C.B. had themselves entered into any kind of commitment, legal or otherwise, ever to offer employment to any of those players again.
  • (2) The players themselves had entered into no contractual commitment with the Cricket Council or the T.C.C.B. precluding them from playing cricket for a private promoter.

In conclusion his Lordship said that Mr. Michael Kempster, in his opening speech for the defendants, generously but correctly, acknowledged five positive beneficial effects which, on the evidence, had already been produced by the emergence of W.S.C. as a promoter of cricket. First it had offered the promise of much greater rewards for star cricketers. Indeed, it had gone farther -- it had offered secure, regular, remunerative employment in cricket to more than 50 cricketers, in most cases for three English winter seasons, at a time when most of them would otherwise have no guarantee of regular employment in the game. Secondly, it had already stimulated new sponsors for traditional cricket. Thirdly, it has brought back to the game in Australia several talented players. Fourthly, it, or the group of companies of which it formed part, had initiated a useful coaching scheme for young players in New South Wales. Fifthly, it had increased public interest in the game.

For all those acknowledged benefits, the defendants had held the strong opinion that I.C.C.'s effective monopoly in the promotion of first-class cricket at international level had been good for the game and that the emergence of W.S.C. into the promotion field was bad for it. However, whether or not that opinion was correct had not been the question for the court. The question for decision had been whether the particular steps which the I.C.C. and the T.C.C.B. took to combat what they regarded as the threat from W.S.C. were legally justified. The long investigation had satisfied his Lordship that the positive demonstrable benefits that might be achieved by introducing the I.C.C. and T.C.C.B. bans and applying them to players who had already committed themselves to contracts with W.S.C. were at best somewhat speculative.

On the other hand there were demonstrable disadvantages if the bans were to be applied in that way. They would preclude the players concerned from entry into important fields of professional livelihood. They would subject them to the hardships and injustice of essentially retrospective legislation. They would deprive the public of any opportunity of seeing the players concerned playing in conventional cricket, either at Test or at English county level; for at least a number of years. By so depriving the public they would carry with them an appreciable risk of diminishing both public enthusiasm for conventional cricket and the receipts to be derived from it. Furthermore, the defendants by imposing the bans, in the form which they took and with the intentions which prompted them, acted without adequate regard to the fact that W.S.C. had contractual rights with the players concerned, which were entitled to the protection of the law. The defendants acted in good faith and in what they considered to be the best interests of cricket. That, however, was not enough to justify in law the course which they had taken.

Judgment was given for the plaintiffs in both actions with costs.


Bearing the Costs

It was estimated that the costs to the defendants were likely to be about £200,000, and whilst this sort of figure was a severe blow to any organisation -- certainly to the game of cricket, there were three cardinal factors to be borne in mind in connection with the financial administration of Test and County Cricket in this country. First, since the International Cricket Conference were co-defendants, it is assumed that they would bear some of the costs. Secondly, as a result of the Packer intervention, Cornhill moved in to sponsor Test cricket in England, a sum of one million pounds spread over five years was mentioned, and not, apparently, being far from the mark, and thirdly, the Test and County Cricket Board received £150,000 from Mr. Packer for the television rights for his Channel 9 coverage of the England v. Australia Test matches during the 1977 summer.

Whatever the net loss to the T.C.C.B., it would be spread over the various beneficiaries from the T.C.C.B.'s income for 1977 such as the seventeen first-class counties, the Minor Counties, Universities, and so on. Admittedly, the county budgets could not readily accommodate any deduction from their share, but overall the blow divided by at least twenty was brought down to more bearable proportions.

The defendants were given six weeks from the date of entering of the order to consider the possibility of an appeal. They no doubt took account of three important factors -- the total lack of crowds at Packer's early matches in his series, and, although Packer brushed this aside as having no consequence because he was only interested in television reaction and ratings, one must take the ramifications of a lack of interest on the part of paying customers as being important. Secondly, that Australia beat a very good Indian side in three Tests without their Packer players, and thirdly that the England side held their own in Pakistan where both sides were without their Packer players. A good deal of water will have to flow under the bridge before a total clarification of all the implications, short, and long-term, is possible.

Early in February 1978, the International Cricket Conference and the T.C.C.B. decided not to appeal and agreed to share their burden of the costs.


Judge Hits Cricket Ban For Six

A village cricket club on April 6, 1977 won the support of the Appeal Court in London to carry on playing -- and hitting boundaries. By a 2-1 majority the court lifted a legal ban on the hitting of sixes into a neighbouring garden.

Lord Denning, Master of the Rolls, said that if Mr John Miller, whose house adjoined Lintz Cricket Club, Burnopfield, Durham, did not like it, he should sell his house and move elsewhere.

"For over 70 years the game of cricket has been played on this ground to the great benefit of the community as a whole, and to the injury of none," said the judge. The court allowed an appeal by the cricket club from a decision of Mr Justice Reeve, in December 1976.

On an application by Mr Miller and his wife, Brenda, the judge had banned cricket matches until adequate steps were taken to prevent balls being hit on to their property.

Lord Denning said Mr Miller had bought the house four years ago in midsummer when the cricket season was at its height. He might have guessed that there was a risk that a hit for six might possibly land on his property.

If he found he did not like it he ought, when cricket was played, to sit on the other side of the house or in the front garden -- or go out. Or take advantage of the offers the club had made of fitting unbreakable glass. Or, if he does not like that, he ought to sell his house and move elsewhere. The judge said: "I expect there are many who would gladly buy it in order to be near the cricket field and open space."

"At any rate, he ought not to be allowed to stop cricket from being played on this ground."

Lord Denning asked: "Does it suddenly become a nuisance because one of the neighbours chooses to build a house on the very edge of the ground -- in such a position that it may well be struck by the ball on the rare occasion when there is a hit for six?"

"To my mind the answer is plainly 'No'. The building of the house does not convert the playing of cricket into a nuisance, when it was not so before."

Lord Denning said that if any damage was caused to the house or anyone in it, it was because of the position in which it was built. A private owner would be in much the same position as a farmer who previously put his cows in a field.

He could not complain if a batsman hit a six out of the ground, and by a million to one chance it struck the cow, or even the farmer himself, said Lord Denning.

He would be in no better position than a spectator at Lord's or the Oval, or at a motor rally.

Lord Denning said that if cricket was stopped on the ground, the cricket club might disappear.

"The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house next to the cricket ground."

Disagreeing, Lord Justice Geoffrey Lane said there was no doubt that if cricket was played damage would be done to Mr Miller's tiles or windows or both.

"So long as this situation exists it seems that damages cannot be said to provide an adequate form of relief."

The judge said, however, that he would have postponed the operation of the injunction for 12 months to enable the club to look elsewhere for an alternative pitch.

Lord Justice Cumming-Bruce, agreed with Lord Denning.

Mr Bob Jackson, chairman of the club, said: "It was a victory not only for the club but for sport in general. A lot of clubs who might have found themselves in similar positions to us will breathe sighs of relief."

Although in the last two years 109 sixes have been hit at the ground, Mr Jackson stressed that only two of these had landed on the Millers' property. Other lofty clouts in the Millers' direction had been fielded by the 14 ft-high chain-link fence bordering their garden.

The club's legal costs have been underwritten by the National Cricket Association and the Test and County Cricket Board.


© John Wisden & Co
 
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