Arbitration call brings pay dispute to a head

Australia's cricketers could be re-contracted by next week even if agreement on a new Memorandum of Understanding is not reached following a proposal to hasten an outcome on the dispute that has left players unemployed and the game's immediate future unclear.

Cricket Australia Chief Executive James Sutherland today called on the Australian Cricketers' Association to enter into intensive negotiations over coming days to try and urgently reach an in-principle agreement on the MOU that was due to come into effect on July 1.

Quick Single: Sutherland calls for pay talks lock-in

If that process does not break the months-long impasse, CA has proposed that the outstanding matters of difference be referred immediately to a formal, independent arbitration process with Sutherland pledging to "accept the umpire's decision and move on".

The plan was put to the players' union today, along with the proposal that if a Heads of Agreement on a new MOU (under which players could be re-contracted) can't be agreed by next week, CA will offer short-term interim contracts as soon as both parties agree to arbitration.

Those interim agreements, which for men's players would reflect the terms of the lapsed MOU while women who weren't covered by that deal would be covered by CA's modified model tabled in March for the new version, would enable the men's Test team to take part in next month's scheduled tour to Bangladesh.

They would then be updated to reflect the terms of the new MOU once that agreement is reached.

The ACA resolved last month that none of its members (the 300 or so professional men's and women's players in Australia) would take part in any CA matches until a new MOU was signed.

At that emergency executive meeting the union also confirmed that the "players expressed a strong desire to tour both Bangladesh and India (for a proposed ODI series later this year) and urged CA to support them by renewing an MOU on fair terms, allowing the tours to proceed".

In recent days, the ACA has also proposed draft interim contracts that would cover the scheduled Bangladesh tour for which the 13-man Australia squad is due to begin a preparatory camp in Darwin on August 10 with the prospect of further short-term deals covering subsequent tours until a deal is reached.

However, Sutherland said today that CA would not agree to that proposal as it failed to deliver sufficient certainty that those tours to Bangladesh and India – or even the marquee five-Test Ashes series against England in November – would proceed without potential interruption.

"We have concerns that the urgency at our end is not being reciprocated at the other side (the ACA)," Sutherland said today.

"We're proposing that in the short term both parties get together with a really strong intent to get this deal sorted and hopefully by early next week we can have it resolved.

"In the event that it’s not resolved, at that time we're proposing that any residual matters that haven't been resolved are sent to arbitration.

"We believe that now is the time for the game to get on, to get played, for preparations for tours and for the season ahead to happen and to that end we're prepared to take residual issues to arbitration and we're prepared to accept whatever decision comes.

"We encourage the ACA and the players to take up that challenge.

Quick Single: Bangladesh Tests in spotlight as MOU drags

"Hopefully arbitration's not required, hopefully we can deal with the issues which are on the table and have them resolved over the next few days."

The ACA responded to CA's proposal Thursday night and, while the union would not rule out accepting the call for arbitration if agreement could not be reached in the coming days, indicated its unease at entering in an adversarial process designed to deliver binding outcomes.

"This dispute has arisen from Cricket Australia's attempts to, without making the case, end a successful 20-year partnership with players," the ACA said in a statement.

"Cricket Australia has lost the players and most of the game's stakeholders in the process.

"And now, after pushing the players into unemployment, an extended period of a lack of financial transparency, after three months of rejecting mediation and only after the recent arrival of the CA CEO into talks, CA discovers the need for urgency.

"These facts are the cause of immense frustration to all in the cricket community, including the players."

Sutherland expressed optimism that the impasse – which centres on CA's desire to modify the model in the previous MOU that saw players paid a set percentage of gross cricket-related revenue, and which the players staunchly want retained – could be resolved quickly if sufficient urgency was shown.

He said the decision to send the matter to formal arbitration differed from the ACA's suggestion prior to detailed negotiations getting underway that an independent mediator be engaged to broker a truce in discussions.

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Mediation or Arbitration: What is the difference?

Mediation is an informal, facilitated discussion approach to dispute resolution, where parties in conflict come together to try and find agreement with the support of an independent third party, the mediator.

Arbitration is a more formal process similar to a court hearing where both parties agree to adhere to the ruling of an independent arbitrator. It involves both sides testifying and presenting evidence, and the arbitrator makes a binding decision to resolve the dispute.

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However, the ACA tonight reiterated its call, first made in May, for the appointment of a mediator rather than arbitration because it would provide a process that was "non-adversarial, voluntary and faces no jurisdictional constraints".

The union also questioned the time it would add to the ongoing process for an independent arbiter – possibly a retired Supreme Court judge or similar, as indicated by Sutherland – to comprehend the complex nature of revenue sharing at the core of the current stalemate.

"This means both parties with the assistance of an independent mediator work together to fashion an agreed resolution," the ACA said.

"This is important because a mutually agreed outcome will be better for the future of the game rather than a decision imposed by a third party.

"Arbitration is an adversarial process more akin to a court room.

"A further concern is the time it would take for an arbiter to meaningfully understand the complexities of revenue sharing in elite professional sport and then to make judgement.

"This compromises the needs for urgency.

"That said, in the spirit of doing all we can to resolve the dispute, the ACA will examine the correspondence provided by CA and any suggested parameters for arbitration before making further comment.

"And will continue to work intensively in the CEO to CEO negotiations which are currently taking place with a view to achieving resolution."

The ACA confirmed tonight it had this week tabled an updated counter proposal, in the form of a draft Heads of Agreement and flagged as a potential peace plan, along with drafts of the alternative player contracts they claimed would enable the Bangladesh tour to proceed.

They have also previously indicated that, under terms in their revised model, as much as $30 million could be directed to grassroots cricket should CA's surplus revenue and players' performance bonuses allow.

However, Sutherland said today that analysis of the modelling contained in the union's updated proposal revealed a shortfall in the total amount that would flow back to the game's grassroots level compared to the funding it received under the previous MOU.

"I acknowledge the ACA has put forward a document known as a peace plan, and it claims that there could be something like $30 million that flow to grassroots through that plan but, like any plan, the devil is in the detail," Sutherland said today.

"We find that cricket as a whole is actually worse off and certainly our ability to fund greater investment in grassroots is compromised by the way that plan is put together."

It is understood he has proposed further meetings with his ACA counterpart Alistair Nicholson tomorrow and, despite the frustration expressed by both parties at the lack of progress in the negotiations, Sutherland expressed optimism that an agreement could be reached by next week.

"I believe with positive intent and the right people in the room we can get this sorted within the next few days," he said.

"I’ve been through about five of these negotiations before with (previous ACA Chief Executives) Tim May and Paul Marsh.

"At times these things can be very complex, difficult, even fiery, but in the end we’ve always been able to find a way through.

"Both parties have been able to see a balance that is struck between the interests of the players and the interests of the game as a whole and unfortunately we’ve haven’t been able to find that landing spot yet.

"But hopefully that can happen in the next few days."