Clive Palmer's Gold Coast United has lost his bid for a stay of execution after it was unsuccessful in securing an injunction against its expulsion from the A-League in the Brisbane Supreme Court.
The struggling Gold Coast United club was axed from the competition on Tuesday, following a series of alleged breaches of its participation agreement to play in the A-League.
Justice Jean Dalton refused the application for an injunction about 7.45pm.
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She ruled the wearing of the "Freedom of Speech" slogan was not a material breach of the club participation agreement, but Mr Palmer's repetative comments, particularly on Feburary 19 and 20, were a serious matter and she did consider them to be a materail breach.
Justice Dalton said Gold Coast United had not voluntarily offered an apology or withdrawn comments to the press and had given no indication the comments would continue.
She considered that, had the injunction been granted, that the two parties would have to work closely together, which she did not think was possible.
Justice Dalton said she believed the FFA was well advanced in making arrangements to go ahead with Gold Coast United's remaining fixtures without Mr Palmer's ownership.
She said it would have no affect on the A-League's ladder.
When announcing the club's axing, Football Federation Australia chairman Frank Lowy said Gold Coast's actions were no longer tolerable.
"The termination has been made following at least three clear breaches. [There has been] a conscious and deliberate contravention of FFA procedures, a deliberate defiance of the direction given by FFA and repeated public statements by or on behalf of Gold Coast United that bring the A-League, FFA and the game of football into disrepute and are prejudicial to the interests of FFA, the A-League and the game of football in Australia," Mr Lowy told reporters on Tuesday.
This afternoon in the Brisbane Supreme Court, Barrister Peter Flanagan, for Gold Coast United, argued on a prima facie basis, Gold Coast United did not officially enter into a club participation agreement, a semantics-based argument which didn't appear to get much traction from Justice Dalton.
Mr Flanagan said the breach was not serious enough to warrant immediate termination, in that it was not a breach which was not capable of a remedy.
"[It's a] classical case of the punishment, if you like, simply not fitting the crime," Mr Flanagan told the court.
Mr Flanagan said breach remedies were not sought and grievance procedures were not followed before the club was axed from the competition.
Mr Flanagan said Mr Palmer's remarks, critical of football and the operation of the A-League, could be considered disparaging, but the club owner still had a right to be heard in grievance proceedings with the FFA.
He argued an interim injunction be granted as "one would need to identify how this (club participation agreement) is to be read interlocking with this mass of documents by which the FFA and the clubs are bound", such as the 351 page operating manual.
Justice Dalton questioned if the statements could be remedied with an apology or withdrawal, as asserted by Mr Flanagan, as the Australian people were sick of hearing insincere things
"Wouldn't they regard an apology or a withdrawal an insincere thing, done with an alterior motive?" she said.
David Jackson, for the FFA, argued the "laws of the game specifically provide statements of this kind aren't meant to be on jerseys" regarding freedom of speech.
Mr Jackson said the FFA had issued a direction not to use them and that direction was deliberately ignored.
He said, if an injunction was granted, "it will be persisted".
Mr Flanagan argued that without an injunction, "third party rights" would be clearly affected.
He argued if Gold Coast United could not field a team for the remainder of the season, members and sponsors would be affected.
The players and youth clubs would lose a chance to play in front of scouts and lose security and employees would have contracts terminated, he said.
Mr Flanagan said it would also upset the league table, as players could be rested in forfeited games in the lead-up to the finals and forfeited games would see three points awarded to the opposing team.
Newcastle Jets chief executive Troy Palmer sent an affidavit to the court agreeing the ladder would be compromised by Gold Coast United's expulsion.
But Mr Jackson argued "unlike most clubs of this kind", there had been no on-going player retention and pointed to Gold Coast United's policy of short-term contracts.
He said there would be an impact on sponsors regardless of any injunction, as the dispute would be on-going.
Mr Jackson said the FFA "can and will" stage Gold Coast United's remaining games using the same players, although they may not be able to use the same coach.
But Mr Jackson said there had been turn over in coaching staff anyway, since Miron Bleiberg parted company with Gold Coast United two weeks ago. He said the FFA had arranged support staff.
Mr Jackson said the FFA "have resources and ability" to do these things.
Both organisations indicated they had put arrangements in place to get the team to Wellington for Sunday's match with the Pheonix.
Justice Dalton has adjourned to make her decision.
Mr Palmer was not present in the court.
Read more: http://www.brisbanetimes.com.au/sport/a-league/palmer-loses-bid-to-save-club-20120302-1u85b.html#ixzz1nx5GTjYs
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