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March 21, 2011 | by  | in Opinion |
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Laying Down the Law – Law in Sport

Prima facie, the law and sport don’t seem to have much to do with each other. One is concerned with running around throwing, catching, shooting or dodging—while the other is much more content with being ensconced behind a dusty desk. But once you peer a little closer you do discover that there are some interesting relationships between the Law and sport.

Some of them are blatantly obvious; Conrad Smith earned his chops at Vic law school before making it on the pitch. Other relationships are harder to discern, like whether or not NFL player swaps are a form of insider trading—or if bringing back the biff amounts to an incitement of violence.

All of those issues are complex but interesting. But they aren’t foundational stuff. What’s more interesting is the chance to take a look at a little known case outside of the legal world—a case that shows how important sporting issues can be to the very fabric of our democratic society.

The year was 1985. All was not well in New Zealand; the eighties were a time of change, be it economic, political or social. For many New Zealanders, South Africa’s ongoing apartheid regime and the rugby tours that went with it were a lightning rod for political activism. Students, academics, leftists and pluralists had taken to the streets and were demanding action.

But it was not just the streets they took to. On the 11th, 12th and 13th of July, anti-springbok protestors took their fight to the High Court of Wellington. The plaintiffs, members of the Auckland University Rugby Football Club and the Teacher’s Rugby Football club decided to apply for an interim injunction against the New Zealand Rugby Football Union. In April of that year the NZRFU had accepted an invitation from the South African Rugby Board to tour South Africa. Looking for a chance to stick it to the Boks while displaying New Zealand’s (not inconsiderable) rugby prowess at the time, they jumped at the chance.

Unfortunately they underestimated the strength of public reaction. The plaintiffs were pretty pissed off, and they had not a moment to lose—the All Blacks were set to depart for South Africa on the 17th of July. So they decided to go for the jugular, arguing that the decision by the NZRFU to accept the invitation was invalid—because acceptance would not promote, foster and develop the game of rugby in New Zealand, which the NZRFU is required to do.

In an unexpected decision the High Court fell down on the side of the angry plaintiffs. They agreed; the plaintiffs had a strong case that letting the tour go ahead would be detrimental to the good of the game and the NZFRU had willingly closed their eyes to the issue. But moreover allowing the tour would fly in the face of a unanimous resolution in Parliament against it, clear public outrage, the spirit of the Gleneagles agreement (a 1977 agreement amongst the Commonwealth to discourage sporting links with South Africa), it could incite violence against South Africans and it would be contrary to the interests of the nation. All in all, it was quite the slam-dunk. The High Court placed an interim injunction on the tour until the case could be heard in full. In effect, the plaintiffs had won.

But that’s not where the story ends. Finnigan v the New Zealand Rugby Football Union is important for a different reason. It’s important because it shows how critical the real world is to the law and to the way the law operates. Ordinarily, a private organisation would have no worries about being hauled in front of a court of law on a public matter such as this. Finnigan changed all that. It pointed out that the decisions of private organisations do have public consequences, and those consequences can be serious. In this exceptional circumstance the High Court peeked behind the veil and put democracy and public opinion to the fore. And for that, we should be eternally grateful.

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About the Author ()

Conrad is a very grumpy boy. When he was little he had a curl in the middle of his forehead. When he was good, he was moderately good, but when he was mean he was HORRID. He likes guns, bombs and shooting doves. He can often be found reading books about Mussolini and tank warfare. His greatest dream is to invent an eighteen foot high mechanical spider, which has an antimatter lazer attached to its back.

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  1. Angie says:

    The High Court was only able to consider the interim injunction, after the Court of Appeal judge, Justice Cook, ruled that the subject matter was to important to dtermine the issue purely on private law rules. In using public law rules on standing – the stininato doctrine, he determined that finnigan had standing. That in my view was the most courageous decision by the Judge. The rest is history

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