Whacking Day is coming and apparently, the NRL has already all-but determined it's necessary for the Eels to be given the BIG stick. The only thing delaying the ceremonial announcing of penalties is a calculation of just how many whacks are required to punish the Eels and scare the bejesus out of everyone else.
If it were my decision I'd whack the Parramatta Eels where it hurts. I'd whack the club with a fine, of a million plus the sum of the amounts by which the club has breached the salary cap over however many years prior. Then I'd ask for the Auckland Nines prizemoney back. Then I'd whack on a 20 competition point deduction for this season, and each of the next three.
And then, I'd suspend ALL of those sanctions until the end of the 2019 season, so the Sword of Damocles dangles precariously.
In return for my display of extreme munificence I'd demand each Eels director resign immediately and undertakes to never again darken rugby league's doorstep. Then I'd fumigate the Eels' joint.
And while that's happening I'd place the club in the hands of an NRL-appointed administrator, and vest him or her with carte blanche until the end of season 2019, so not a cent flows in or out of the club during that period without the governing body's approval.
And while the sword perilously sways, I'd require the football club permanently divorce itself from the grip of the associated Parramatta Leagues Club, so nobody can be a director of both. Then I'd set the football club up, to accept members able to control its destiny.
It's hardly controversial to suggest the Eels have a massive problem. Yet regardless as to the extent by which the Eels have breached the mandated spending limits, or otherwise organised for players to be illegally remunerated, the club finished deep in the bottom half of the NRL table each season since 2010.
Moreover, one gets the distinct feeling that any breaches of the salary cap by the Eels might be attributable to the collective gross ineptitude and incapacity of the directors and senior staff, where the controlling minds could not properly comprehend, let alone adhere to, the complicated salary cap rules.
Depending on whom you're inclined to listen to, the consequences of the rampant salary cap shenanigans, which apparently occurred inside Eels Central in recent years, include that Parramatta will be docked at least enough competition points to ensure they're no chance of playing finals football come September.
Add to that the inevitably monstrous fine, and a raft of associated sanctions imposed on the club and those who seemingly treated the salary cap as a suggestion.
If only things were so simple – both in terms of the procedure and the outcome.
If it's ultimately determined by the NRL CEO Todd Greenberg, in his absolute discretion, that the current and former directors and staff of the Eels, and hence the club itself, have breached the NRL's Playing Contract and Remuneration Rules – otherwise termed the "salary cap rules" – to an extent materially beyond what the club has already confessed to, the seriousness of the available penalties cannot be underestimated.
They include immediately payable, or suspended, fines of up to $1 million in the case of the club; $100,000 in the case of each director and staff member involved.
In certain circumstances additional fines can be imposed, equal to the amount of any actual salary cap breach. Moreover, squarely in play is the actual or suspended deduction of competition points in respect of past, present and future seasons. The governing body could also strip any trophy won; claw back any prizemoney paid.
To put it bluntly though, it's wrong to even insinuate the NRL can swiftly impose brutal punishments on the Eels.
That might well be what happened in 2002, when the Bulldogs were stripped of 37 competition points and fined half a million bucks. But the sheer audacity of the Dogs' cheating, coupled with the club's ridiculous success that season stemming from the skulduggery, left no option. By the time the penalties were announced in August 2002, Canterbury had won 17 consecutive matches.
And yes, that's what happened in 2010 when the NRL imposed similarly draconian penalties on the Melbourne Storm; however, in that case the investigative, adjudicative and sanctioning process – which might otherwise take weeks or months – was truncated into a 48-hour period, thanks to News Ltd influencing the sanctioning process and simultaneously controlling the Storm's decision to acquiesce to the penalties imposed.
That's what happened in the past; it's not what the rules say. Rather, if Greenberg comes to the view that the salary cap rules have been broken the NRL must issue Parramatta (and anybody else in the gun) a breach notice, particularising the nefarious conduct and proposing the proposed punishment. Recipients of such notices are then afforded time in which to respond. For breach notices thicker than the Yellow Pages, this process takes time.
After any response is submitted, the NRL CEO must consider it and decide whether to impose the penalty originally specified or a different penalty. Other options include deciding the alleged breach never happened, or deciding that a different breach might have occurred (in which case the process starts afresh).
Now, assume the penalty specified in a breach notice constitutes the sun rising on Whacking Day for the Eels, and that Todd Greenberg remains resolute in imposing the proposed sanctions even after receiving Parramatta's response. What the club can do is request that any determination as to guilt or penalty be reviewed by the NRL Appeals Committee, chaired by former High Court Justice Ian Callinan, QC. The caveat is that, if four or less competition points are deducted, there is no right of appeal.
Such a review may proceed if Callinan decides that Parramatta's case is made on "plausible" grounds, or if there's any other good reason why the Appeals Committee should hear it. If the appeal proceeds, the club could appeal on the basis that Greenberg's decision was unreasonable; unsupported by the evidence; or because the punishment is manifestly excessive.
So, whack away; or is there a better way?
Darren Kane is a Sydney sports lawyer
