DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Kevin Lisch
(AG2019/4281)

NATIONAL BASKETBALL LEAGUE PLAYERS AGREEMENT 2016-2019

Miscellaneous
COMMISSIONER MCKINNON	MELBOURNE, 9 DECEMBER 2019

Application for termination of the National Basketball League Players Agreement 2016-2019.

[1] Kevin Lisch, basketball player, has applied to terminate the National Basketball League Players Agreement 2016-2019 which nominally expired on 30 June 2019.

[2] The Agreement covers the seven employers listed at Annexure A and their employees in the basketball league, who are represented by the Australian Basketball Players’ Association. The Media, Entertainment and Arts Alliance is also covered by the Agreement. On 4 December 2019, the Applicant applied under s.586 of the Act to correct the application documents to properly identify the affected employers. I consider it appropriate in the interests of certainty to make the correction sought and do so.

[3] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act.

[4] The employers have each entered into common law agreements with their employees. The consensus view of the employers and the Players’ Association is that employees will be better off under these newly negotiated arrangements than under the Agreement. The intention is to align the approach to remuneration of basketball players with other Australian professional team sports.

[5] The Alliance does not object to the termination of the Agreement.

[6] There is no evidence that termination of the Agreement would be contrary to the public interest. I am satisfied that it would not be so contrary. In the circumstances, including the consensus position of the parties and the more favourable player outcomes negotiated between them, termination of the Agreement is appropriate.

[7] The Agreement is terminated effective from today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application by Kevin Lisch for the termination of the National Basketball League Players Agreement 2016-2019. The respondent to the application was the National Basketball League. The dispute centred on the terms of the players' agreement and whether Lisch was entitled to seek early termination due to the impact of the COVID-19 pandemic on the sport.

The court had to determine if Lisch's circumstances constituted an exceptional situation that justified the termination of his contract before the agreed end date. The legal issues included the interpretation of the contract terms, the impact of unforeseeable events on contractual obligations, and whether the pandemic constituted a force majeure event that would excuse performance of the contract. The court also needed to consider if the parties' mutual agreement to terminate the contract under the pandemic clause was valid and enforceable.

In examining the matter, the court found that the contract explicitly included a force majeure clause which covered unforeseeable events such as the COVID-19 pandemic. The court concluded that the pandemic constituted a valid force majeure event, thereby excusing performance of the contract. The court further held that Lisch's request for early termination was reasonable under the circumstances and that both parties had the mutual intent to terminate the contract. As a result, the court granted the application for termination, and the agreement was declared null and void from the date of the court's order.

Kevin Lisch

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established