Melbourne, Aug.2 : The family of legendary Australian cricketer, Sir Donald Bradman, has decided to legally challenge the way his name has been commercially exploited over the past decade.
The Australian quoting from a statement of claim filed in South Australia's Supreme Court by Johnson Winter and Slattery, solicitors for Bradman's son, John, said that the latter will seek damages from the law firm Allens Arthur Robinson for alleged failures of "due care, skill and diligence" in the assignment of the great cricketer's name to the Bradman Foundation.
The foundation licenses the name to corporates to support Bowral's Bradman Museum and Bradman Trust. ince the foundation's inception, Allens has provided it with pro bono legal advice. According to the statement of claim, Allens also advised Bradman.
The essence of the complaint is that Allens, while serving the foundation, disregarded Bradman's repeated instructions that his heirs and successors enjoy right of veto over the foundation's commercial uses of the Bradman name.
The family's disenchantment with the foundation briefly became public three years ago when the foundation licensed food company Unibic to market "Bradman" chocolate-chip cookies in India.
The family described Bradman as "a loved and missed family member, not a brand name like Mickey Mouse".
The latest skirmish was provoked by John Bradman's perusing the Allens website on August 2 last year. He found that the profile of Allens partner Jim Dwyer included the statement that "for over 10 years he acted as legal adviser to Sir Donald Bradman" - a statement since removed.
The statement of claim, issued yesterday to comply with South Australia's Limitation of Actions Act, describes the means by which the foundation came to exercise control over the commercialisation of the most famous name in Australian sport.
It also suggests that Bradman's paramount concern remained his own flesh and blood. As he put it in a letter dated February 25, 1992 to foundation life member Basil Sellers: "The future happiness of my family is the most important goal that remains in my life. No amount of money can justify putting that goal at risk."
Under the original July 1994 deed of assignment, made operative by a statutory declaration prepared for Bradman by Allens, the Bradman Foundation replaced the cricket great as the "registered proprietor" of his name and signature.
The plaintiffs claim that Allens failed to advise Bradman as to "the nature, effect and value of the registration and use as trademarks of Sir Donald's name and all forms of his signature", in particular that the authorisation entitled the foundation to act "in ways of which Sir Donald and his family did not approve".
This effect did not become obvious because, not surprisingly, nobody wished to use Bradman's name against his wishes while he remained alive.
Around the time of Bradman's 90th birthday in August 1998, however, Dwyer revisited the arrangement, advising Bradman that the time had come for a "properly documented" agreement that would "give the family an effective ongoing voice in the use of your name".
Bradman replied that he understood "the concerns which have arisen in your mind", and would be obliged if Dwyer could draw up a suitable agreement. Bradman was advised seven months later by the Bradman Trust that Dwyer would "draw up a suitable agreement that reflects the position of the Bradman family and the Bradman Foundation".
When the draft deed was forwarded, Bradman noticed "an omission" - that while the deed provided for "a Bradman to give guidance and advice" on an ongoing basis, the "power of veto is not included whereas I think it should be".
Bradman had just caused the foundation to decline an offer from Castrol to license his image for a motor oil. In a letter to Allens dated October 1, 1999, he wrote: "The museum might have been tempted by the fee had I not objected and I would like my successor(s) to be able to play a similar role after my death."
The omission was not rectified by the firm by the time of Bradman's death on February 25, 2001, aged 92, causing the current estrangement between the foundation and the family.
To avoid any charges of bad faith, the Bradman family has earmarked charities to receive any damages paid.
Nonetheless, the dispute could scarcely have arisen at a more embarrassing time for the foundation, which among other events has planned a gala banquet on the night of the centenary of Bradman's birth, August 27.
At the event, jointly hosted by Cricket Australia and featuring Australian cricket captain Ricky Ponting as guest speaker, John Bradman is scheduled to speak and his daughter and Bradman's granddaughter Greta to sing.
Eight years ago, the foundation successfully secured the support of the federal Government in protecting the name from indiscriminate commercial usages.
The Corporations Amendments Regulations 2000 made it illegal for any company to suggest a link to "Sir Donald Bradman" where such a link did not in fact exist - a protection that placed him on a par with members of the royal family and the Anzacs. t this initiative of Prime Minister John Howard, the family and foundation jointly expressed gratitude. That united front now seems fissured beyond repair.