The great interceptor

Rugby League ... Dennis Tutty and the try he shouldn't have scored ... Case that changed the face of professional sport ... Growth of the player associations, courtesy of the Barwick High Court ... Free kick ... Restraint of trade ... Braham Dabscheck comments 

Tutty: fought the hard men of Rugby League ... and won

Dennis Tutty played 160 games in the New South Wales Rugby League (NSWRL) between 1964 and 1976; though he stood out of the game in the 1969 and 1970 seasons which we will come to later. 

In 1975 he played 10 games with Eastern Suburbs before he broke his arm. Well, someone actually broke it for him, not that he asked them to perform such a favour. 

In the Round Nine game against Parramatta he scored an intercept try, one of 18 tries he scored during his career. I saw him score that try.

In October 2008 I interviewed him about something else and told him that I had seen the try he had scored against Parramatta in Round 9 of the 1975 season. 

Much to my surprise he said that Easts' coach, the legendary Jack Gibson, had criticised him for doing this; he should have tackled the Eel before he off-loaded the pass that Tutty subsequently intercepted. 

Coaches are such odd beings. Tutty was criticised for not following team rules, directions and/or what was expected of him; even though what he had done had had a major impact on the game and ensured Easts of victory; Easts won 17 to 12. They were Premiers in 1975, defeating St. George 38 to 0; another game I happened to see way back then.

This intercept try by Dennis Tutty wasn't the first time that he had done something that he shouldn't have, something where he took the initiative which had a major impact. 

This is an understatement in that his other intervention revolutionised the governance of Rugby League, if not all professional team sports in Australia. In 1969 he took action against the NSWRL's employment rules, namely its retain and transfer system as an unreasonable restraint of trade. 

In December 1971 the High Court of Australia handed down a decision in his favour which forced the League, and subsequently other team sports in Australia, to introduce major changes to their employment rules and governance. 

Jack Gibson: Tutty should have rackled the Eel

Tutty began his career with Balmain in 1964 as a result of playing junior football with a club in Balmain's 'zone' (he supported Western Suburbs). 

Under the then NSWRL's employment rules, once a player signed with a club they were bound to that club for the rest of their playing life. They could only move to another club with the permission of the club they were signed to, even if their contract with that club had expired. 

Under Rule 30 of the Constitution and By-Laws, Standing Orders and Competition Rules of the New South Wales Rugby Football League:

(c) A player who signs as a professional player should note carefully that he is in effect tied to his Club and cannot subsequently sign for any other club unless he is released-either by transfer or by the club agreeing to strike his name from their list of registered players.

(f) Unless the Club agrees in writing that the player's name shall be removed from their list of registered players at a stated time then the Club is entitled to retain the player's name on its register indefinitely.

Tutty, a fitness fanatic, quickly established himself as a talented player. He represented Australia in a Test Match against New Zealand in 1967. He had signed a deal for the 1965 to 1967 seasons where he received annual payments in the range of £800 to £950 ($1,600 to $1,900). 

Given his rising status he believed he should be paid more. He was particularly piqued by a high payment to Dave Bolton, a Great Britain half back (he played for Balmain from 1965 to 1970) who was rumoured to have received a signing on fee of £12,000 ($24,000). 

He also complained about interstate players being paid more than local players. He believed that other clubs were prepared to pay him three times more than what he was receiving from Balmain.

He sought a 'decent' signing on fee from Balmain for the 1968 season. He was unsuccessful. He then asked to be placed on the club's transfer list to be potentially employed by another club, which was refused.  

Despite this he was talked into playing for Balmain in 1968 by Keith Barnes, a fellow player he respected, who was now coaching the Tigers. He received payments of $2,400 for the 1968 season. 

At the end of 1968 he requested to be placed on Balmain's transfer list. Balmain again said no. He decided to sit out the 1969 season, and subsequently 1970 as well. 

He wasn't the only player to experience problems with Balmain. Arthur Beetson, Peter Jones and Laurie Moraschi were also in dispute with the club. In 1979 'Big Artie' would call a meeting at the Balmain Leagues Club which resulted in the formation of the Rugby League Players' Association. 

Beetson: RL Players' Association

Jack Gibson, Tutty's coach at Easts in 1975, would play a major role in enhancing its establishment. But that is another story.

During 1969 Tutty obtained secular employment as a cleaner at the Balmain Leagues Club. Such unskilled work provided him with wages slightly above the minimum. Brian Marsden managed the gym and sauna at the Leagues Club and was also manager of the Australian weightlifting team. 

He introduced Tutty to David McKenzie the manager of the Australian fencing team, which also trained at the Leagues Club. 

McKenzie was a solicitor with Parish, Patience & McIntyre. He advised Tutty that the actions of Balmain and the retain and transfer rules of the NSWRL were, in all probability, an unreasonable restraint of trade and believed that Tutty would be successful in an action before the courts.

Tutty decided to take on the League. He had no idea of what he was getting into; especially the length of time it takes for legal processes to work themselves out and the need for disbursements to prosecute a case. 

He swore affidavits in May 1969. The hearing of his case before the Supreme Court of New South Wales did not start until May 1970, with a decision on October 2, 1970. 

The NSWRL's appeal to the High Court of Australia began in April 1971. It was not decided until December 13, 1971. Tutty prosecuted the case on the income of an unskilled labourer; possibly a unique event in the annals of Australian jurisprudence. 

Unlike most other sport employment cases he did not receive the financial and emotional support of a players' association or a club. 

Other than for three players from Balmain he didn't have the support of other players.

Both the Supreme Court of New South Wales and the High Court of Australia found that the NSWRL's employment rules were an unreasonable restraint of trade. 

Tutty was jubilant when he heard the High Court's decision. He said:

"I have beaten them. I am free. There is no way they can hold me now ... I know I was right. I had to do it. When a man gets up and says, 'You play under our terms or you don't play at all,' it is too much. They try to dictate your life."

In a subsequent interview in 1989 he said:

"I'm not bitter ... I didn't do it to be a martyr ... I did it because I had been wronged and I wasn't prepared to let it go at that ... That wasn't the way my parents brought me up ... I was taught to right a wrong. Someone had pointed their finger at me and said, 'You either play by our rules or you don't play rugby league at all'. It wasn't right and I set out to change it." 

This decision had a major impact on the governance of Australian sport and the rights and income earning potential of players. Three are readily identifiable and there's a final broader lesson that can be gleaned from Tutty's case. 

First, other (lower) courts have invariably followed the High Court's decision in similar cases where players/player associations have challenged similar employment rules. 

Second, since Tutty's case there has been a sustained growth in player association formation and activity, in contrast to the general situation that has confronted traditional unions over the last 50 years associated with the rise of neoliberalism. 

McKenzie: gave Tutty legal advice 

This is not a phenomenon confined to Australia; it is global. Once player associations have established themselves and found leaders with the ability to enter negotiations with their respective leagues/clubs they have been able to trade employment rules that leagues may desire for other employment benefits such as minimum wages, shares of income, intellectual property rights, guarantee of contracts, funding for post career education, post career income/pensions, medical support, a grievance procedure and so on. 

In this sense Tutty's case has given player associations a 'free-kick' not afforded to traditional unions. 

Third, the last decade has experienced a phenomenal growth in women's sport - the Matildas, cricketers, AFLW, NRLW, Netballers, Women's National Basketball League, Women's Rugby. 

Other than for the Netballers, the women players have teamed up with the male player associations in attempting to provide benefits for players/members. While males generally receive better pay and benefits than female players, women have been able to utilise the facilities (meeting rooms, phones, communication channels) and contacts that in many cases took the male associations decades to establish.

Finally, let us think more about the general lesson we can all learn from this intriguing case. I want to do here is focus on that intercept try that I saw Dennis Tutty score for Eastern Suburbs against Parramatta way back in Round 9 of the 1975 season. 

Sport is often employed as a metaphor for life. For Dennis Tutty sport was (and is) his life. There he was playing for Easts against Parramatta in 1975 and he did something for which he was criticised by his coach, even though it ensured Easts won the game. 

He trusted himself to do what he thought was right, to do something that needed to be done. He read the play, saw an opportunity and had the courage to go for it. 

Originally Published in Waverley, Issue 1 – December 2024, Publication Of Waverley Historical Society Inc. Sydney.

Buckley v Tutty (1971) 125 CLR 353 

Much of the information contained in this article is derived from the author's previous writings on the Tutty case. See Braham Dabscheck, 'Righting A Wrong, Dennis Tutty And His Struggle Against The New South Wales Rugby League', The Australian And New Zealand Sports Law Journal, 4/1, 2009, pp. 145-160, and Braham Dabscheck, 'The Intercept That Changed The Game Forever: Fifty Years of Buckley v Tutty', Sports Law and Governance Journal, 1/1, 2022, pp. 23-46. 

Braham Dabscheck,'Big Artie's Most Important Offload: Forty Years of the Rugby League Players' Association', Sporting Traditions, 36/2, November 2019, pp. 1-29 

Braham Dabscheck is a Senior Fellow at the Melbourne Law School at the University of Melbourne who writes on industrial relations, sport and other things.