AFL v SOL.
6 August 2009
Chief Justice Marilyn Warren made orders today following on from her judgment on 25 June.
The orders require SOL to provide confidentially to the AFL's external lawyers and a nominated internal AFL lawyer copies of certain agreements entered into by Melbourne Stadiums Limited (MSL) relating to Etihad Stadium. SOL is permitted to redact (black out) parts of the agreements which are commercially sensitive.
The orders effectively bring the current action to an end. The action was only about the AFL seeking access to documents. No substantive claims were brought by the AFL against SOL or MSL.
SOL's Chief Executive Officer, Ian Collins, said:
'The AFL has been complaining about match returns from Etihad Stadium and the MCG, but its complaints ignore the facts that:
• Etihad Stadium would not have been built without a contractual commitment from the AFL to play games at the stadium;
• such a commitment is an essential component of any 'BOOT' project to Build, Own, Operate and Transfer a major asset;
• that contractual commitment was contained in the user agreement negotiated more than 12 years ago which runs through to 2025, when the AFL becomes the outright owner of the stadium;
• in the meantime, the stadium is held by investors, including superannuation funds, who are legitimately seeking a fair, commercial return reflecting the costs and risks associated with the development, construction and operation of the stadium;
• gate receipts have reduced in recent years in part because of increased club membership, which means that the value of match attendance is delivered to clubs in different ways;
• it is open to the AFL to provide higher returns to clubs from matches at Etihad Stadium out of revenue the AFL derives from media rights and advertising at the stadium and from recognition of the present day value of its future ownership of the stadium;
• it is also open to the AFL to negotiate variations to the user agreement which has been done from time to time. The stadium owners have made it clear that they are prepared to consider, as they have in the past, any reasonable proposal which offers mutual benefits and value for money.'
Ian Collins also drew attention to page 9 of the 2008/09 annual report of the MCG Trust which sets out the position of the MCG in relation to its dealings with the AFL. He added:
• 'like the MCG, we are genuinely sympathetic to the financial situation of Victorian AFL clubs and we recognise that it is the loyalty of club supporters that brings large numbers of spectators to our grounds each year;
• also like the MCG, Etihad Stadium has significant debt and servicing costs, in contrast to the AFL which has no debt and $16M in a 'future fund';
• we have been a good and responsive partner for the AFL and its clubs and have recognised that the circumstances of the competition will change over the life of a long term contract in ways that might merit review from time to time;
• we have also demonstrated in the past that we are willing to agree variations and support clubs where the AFL offers a reasonable exchange of value; and
• the Stadium owners would certainly be willing to offer increased value to the AFL and the clubs if the user agreement was extended for ten years (as is proposed for the MCG).'
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