*302 Greig and Others v Insole and Others 1977 G. No. 22461977 J ...

[1978] 1 W.L.R. 302 Page 22
[1978] 1 W.L.R. 302 [1978] 3 All E.R. 449 (1978) 122 S.J. 162 [1978] 1 W.L.R. 302 [1978] 3 All E.R. 449 (1978)
122 S.J. 162
(Cite as: [1978] 1 W.L.R. 302)
expressly limits the operation of such obligations to
the respective period of each “tour.” Likewise,
while clause 5 obliges the player, if directed by the
promoter, to participate as a player in any series of
matches outside Australia which may be promoted
and conducted by the promoter during the term, it
leaves the promoter free to promote or not to promote
a series of matches outside Australia as he
pleases. Clause 6 (a) entitles the player to receive a
stated sum payable by three stated instalments for
his participation in each “tour” in Australia, the
first to be payable on the date of the contract; but,
once again, neither that sub-clause nor the immediately
succeeding clause 6 (b), which defines the
rights of the player to remuneration in respect of
“tours” outside Australia, in terms imposes any obligation
on the promoter to arrange any “tour”
whatever, whether inside or outside Australia.
In the result, the defendants contended, the contracts
in such form on their true construction really
do no more than confer on the promoter the option
to call on the player to provide his services for one
or more “tours” on the stated terms as to remuneration
and otherwise, if, but only if, the promoter sees
fit to arrange one or more “tours.” If the promoter
does not so see fit, so it was submitted, the player is
left entirely without rights or remedies and indeed
is bound to repay the first instalment of his remuneration
paid to him on the signing of the contract.
The player, however, on this construction, for the
whole of the term of the contract is left subject to
the full force of the restrictive provisions contained
in clause 3 (b) of the contract, in particular those of
sub-clause (i), which preclude him from playing in
any other cricket match without the promoter's
written consent.
Such being their construction of the players'
contracts with World Series Cricket, the defendants
submitted that the contracts are on their face unduly
restrictive, having regard to (i) their likely duration,
(ii) the right to assign given to the promoter by
clause 10, which made it impossible to assume that
other persons for the time being holding the benefit
of the contract would always act reasonably; (iii)
the fact that the promoter was not bound to promote
any tour at all; (iv) the absence of any provision entitling
the players to terminate the contracts. The
defendants relied on the decision of the
House of Lords in Instone v. A. Schroeder Music
Publishing Co. Ltd. [1974] 1 W.L.R. 1308 ,
in which an agreement between a song writer aged
21 and music publishers was held contrary to public
policy and void, as being in unreasonable restraint
of trade, substantially on four grounds very similar,
mutatis mutandis, to those just mentioned.
I accept the defendants' further submission
that the appropriate time to consider the validity of
the players' contracts is at the date of their signature
and that it is not legitimate to construe them by reference
to the way in which the parties thereto have
acted under them, for example, subsequent statements
by Mr. Packer as to the manner in which he
intended to operate them: see Russell v. Amalgamated
Society of Carpenters and Joiners [1910]
1 K.B. 506 , 522, per Farwell
L.J. If I accepted their construction of the contracts,
I would also see considerable force in their submission
that the contracts were void, in as much as
they would on this footing subject the players to the
theoretical risk of their cricketing talents being sterilised
for the whole term of the contracts, without
any *326 right to monetary compensation.
Possibly even such an apparently one-sided
agreement could be justified on particular facts, but
I would think this difficult.
However, without purporting to decide the
point as between the promoter and the players who
are not parties to these proceedings, I do not accept
the defendants' basic construction of the contracts
for this reason. A number of authorities set out in
Halsbury's Laws of England , 4th ed.,
vol. 16 (1976), p. 356, para. 557, illustrate that,
where a contract of employment by its terms imposes
on an employee a binding obligation to work,
without expressly imposing on the employer a corresponding
obligation to provide work, the court
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