On 13 February 2014, the Australian Wagering Council Limited (AWC) lodged a collective bargaining and collective boycott notification (the Notifications) with the Australian Competition and Consumer Commission (ACCC), Australia’s competition regulatory body. A business who lodges the Notifications will be granted immunity from legal action under the Competition and Consumer Act 2010 (Cth) (the Act) if they are not objected to within 14 days of lodgment. The AWC had lodged the Notifications on behalf of betting agencies Bet365, Centrebet, Betstar, IASBet.com, Sportingbet, Sportsbet, Tomwaterhouse.com, UNIBet, Betfair and Ladbrokes (the Betting Agencies) in relation to their dealings with the NRL.
If the ACCC had not stepped in and issued a draft objection to the Notifications on 27 February 2014, the Betting Agencies would have been awarded immunity from legal action for conduct which may breach section 93AB and section 45 of the Act. In reaching its decision to issue the draft objection, the ACCC was not satisfied that the likely benefit to the public from the conduct would outweigh the likely detriment.
In the submission of the AWC, it was argued that collective bargaining between the Betting Agencies would benefit the public through a reduction in transaction costs and an increased ability to complete with the large betting agencies (such as the TAB). However, the ACCC agreed with the NRL submission that it is unclear that the proposed collective bargaining would result in any reduction of transaction costs.
The ACCC further determined that an increase in bargaining power for the Betting Agencies would only be to the benefit of the Betting Agencies themselves. As a result, the ACCC alleges that the AWC has not demonstrated any public benefit arising, or likely to arise from the collective bargaining and found that it may generate anti-competitive behavior through reduced competition.
The collective boycott proposed by the AWC was opposed in the NRL’s submission to the ACCC. The NRL submitted that collective boycotts could result in the withholding of vital wagering information which may further question the integrity of Australian sport. The ACCC has stated in it the draft objection notice that the proposed collective boycott both fails to be in the public benefit and is likely to result in public detriment.
The ACCC has indicated that the draft objection notice may not be its final stance on the issue. The ACCC intends to ‘engage in further public consultation’ before making a final decision.
Applicants and other interested parties have been invited by the ACCC to request a conference (before 14 March 2014) to be held in relation to the draft objection notice.