sport – employment – dispute resolution Murphys Law October 2013.

sport – employment – dispute resolution

Murphy’s Law

October 2013

what is sport?

A good starting point is to see sport as a human activity that exists

somewhere along the continuum from work to play.1. There is a need to

demarcate sport from recreational activities in general and games and play

specifically. But an attempt at a definition reveals the dynamic and changing

nature of sport. In modern elite sport, professionalism has led to an

increasing transformation of sport into a type of work with the word

‘amateur play’ seemingly contracting quickly. 2. There are also a number

of anomalies in the way participation in sport is described. Some sports

such as football, rugby and golf are seen as being ‘played’ and the

participants are ‘players’. These are the sports most akin to work.3.

There are other sports where it is uncommon to talk of those involved as

being players; with fishing, archery, and hunting the sport is not ‘played’ but,

in contrast to the former group it is closer to play and leisure than work.

Sports Law, Simon Gardiner et al.

whatever it is -

“The language of sport is the language of war, love, politics, religion and of life itself. Sport also has its own unique dialect, which includes sign and body language that everybody understands. Its goals are recognized universally. Sport is about commitment and compassion, pressure and participation, highs and lows and the everyday. Sport provides role models and examples to inspire and deter, and these are some of the most powerful parables of modern life – and through the medium of television in particular they reach the far corners of the globe, with force and immediacy.”

The Sporting Word, Desmond Lyman and David Teasdale

sports law or sport and the law?

The ‘sport and the law’ versus ‘sports law’ debate can be divided into three arguments. The first position holds that there is no separate identifiable body of law .1. that relates exclusively to sport and the possibility that such a corpus of law will emerge in the future is extremely remote. The second position contends that there is no separate identifiable body of law currently relating to sport. However as the public law has begun to intervene and this has resulted in cases being brought before the courts it is predicted that in the near future a substantive corpus of law pertaining to sport will emerge.2. The third position asserts that there is a body of law .3. that can be referred to as sports law.

Sport and the Law, A Concise Guide, Laura Donellan

interlinking federation rules

… a loose but increasingly cohesive body of rules governing the practice of sport and the resolution of disputes in law. That body of rules straddling the boundaries between many well-known branches of our law, but has at its centre an unusual form of international constitutional principle prescribing the limited autonomy of non-governmental decision-making bodies in sport.

Sports Law, Beloff et al

.. the rules of a body like this are often said to be a contract. So they are indeed in theory. But it is a fiction ... putting the fiction aside the truth is that the rules are nothing more or less than a legislative code - a set of regulations laid down by the governing body to be observed by all who are, or become, members of the association. Such regulations, those said to be a contract, are subject to the control of the court.

Amazulu Football Club v Hellenic Football Club (2002) 23 ILJ 2357 (ARB)

the regulatory framework in professional football

• interlinking – sometimes conflicting – rules

– FIFA

– CAF

– SAFA

– NSL

• law and the courts are eschewed-

– the good (though sometimes naïve);

– the bad;

– the ugly.

the good – urgency

• McCarthy v Sundowns Football Club & Others (2003) 24 ILJ 197 (LC) Judge Waglay describes a special class of employee

This court must, however, be mindful of the fact that, unlike any other employees, professional footballers only have a relatively short period within which to practice their profession, a profession which is inherently risky as they may suffer injuries which may ruin their careers; they are subjected to the vagaries of selection not faced by other employees; they are required to earn sufficient to sustain themselves and their families in a relatively short period and cannot simply, like any other employee, decide to move from one employer to another. Here we have a class of employees who face restrictions in carrying out the trade which restrictions can have an effect on their earnings that cannot be calculated with any degree of certainty.

• disputes and differences are almost always very urgent.

the good – specialist knowledge access to records etc

• Whether the player-employee is protesting the unlawfulness or fairness of the employer’s conduct, the boundaries of lawfulness, and particularly fairness, in the context of sport only can be fully comprehended with reference to the special nature of employment in sport.

Introduction to Sports Law in South Africa, R Cloete et al

• There are considerably more arguments in favour of enforcing the private arbitration provisions agreed upon between the parties in this matter, the most important of these being that the dispute will be dealt with by an arbitrator who has specialist skills and knowledge in this field. The applicant enjoys no fewer rights in the private arbitration process than he would have should the matter be referred to private arbitration rather than arbitration under the auspices of the CCMA.

Augustine and Ajax Football Club (2002) 23 ILJ 405 (CCMA)

the bad -

• Professor Blanpain, Sport and the Law: The Bosman Case: The end of the Transfer System? ‑

The Bosman saga is the story of a young footballer who has summoned the courage and dogged determination to take on the might of European and Belgian football. He has paid a heavy price for it: his family life, his career and much of his personal happiness have suffered greatly. And the battle is not yet won… the Bosman case is the inevitable result of persistent abuse of power and unprecedented arrogance, which have marked top class football in Belgium over the past few decades. And the signs are that this attitude has not changed, even following the judgement by the European Court of Justice.

There has been abuse of power towards the players, most of who are blackmailed to the point, in some cases, of being deprived of their livelihood, as is abundantly clear from the Bosman story; and arrogance towards the government, for instance, including the judiciary, which is sometimes simply ignored and sometimes treated with scorn – when it is not actually being manipulated to football’s own ends or, to use the jargon of the football bosses, ‘roped in’ on their behalf.

the ugly -

Judge Traverso sets aside the Constitution and Regulations of the National Soccer League on the basis that they were “inconsistent with the Constitution and invalid to the extent that players whose contracts with clubs have terminated are not entitled to claim a free transfer and/or to be declared a free agent.” The court described the treatment of professional footballers by clubs and associations as not being much different to that of second hand motor vehicles.

Coetzee v Comitis and Others 2001 (4) BCLR 323 (C)

but what are the basics

• you must know what rules may be applicable-

– professional footballer local level / players status and transfer rules of the League;

– potentially impacted by national, continental, international rules (SAFA, CAF, FIFA);

– contract of employment – will incorporate rules by reference (and remember collective bargaining arrangements);

– registration – contract of adhesion.

• amateur / professional – both must register to be eligible

but what are the basics (cont)

• only professional will have employment contract (should be the case and you had better understand where it cannot be). Other relevant matters may be-

– image rights?

– work permits?

• international footballers?

• misconduct provisions (vis a vis Club; League; National Association?)

• other disputes and differences (vis a vis Club; League; National Association?)

quasi criminal

• misconduct rules within the particular code (but remember the umbrella – Khenyeza) and-

If the strict liability standard is to be applied, this fact must be clearly stated. The fact that the Court of Arbitration for Sport has sympathy for the principle of a strict liability rule obviously does not allow the CAS to create such a rule where it does not exist. 2. The fight against doping is arduous, and it may require strict rules. But the rule-makers and the rule-appliers must begin by being strict with themselves. Regulations that may affect the careers of dedicated athletes must be predictable. They must emanate from duly authorised bodies. They must be adopted in constitutionally proper ways. They should not be the product of an obscure process of accretion. Athletes and officials should not be confronted with a thicket of mutually qualifying or even contradictory rules that can be understood only on the basis of the de facto practice over the course of many years of a small group of insiders.

Arbitration CAS 94/129 USA Shooting & Q. / Union Internationale de Tir (UIT), award of 23 May 1995

quasi criminal (cont)

– private prosecutions/association prosecutions

– other rules of application – prohibited substances

– and there can be overlap:

• prohibited substances;

• spitting;

• improper registration.

– generally national association disciplinary committee has jurisdiction. In South Africa the League disciplinary committees/SAFA appeals board/SAFA arbitration tribunal – CAS? (note conflicting rules on affect of appeal)

quasi civil

• can be anything-

– club and club – often over whose contract is valid

– club and association (administrative challenges Tirfu Raiders Rugby Club v SARU Case no: 8363/2006)

– club and player

• employment disputes usual and not -

– unfair dismissal;

– unfair labour practice;

– contractual claim;

– free agency – sporting just cause – just cause generally

• registration issues

• youth development claims

quasi civil (cont)

• dealt with by dispute resolution chamber of the League (again unusual) – some interesting questions about appeals but until know – SAFA Appeals, arbitrator, CAS.

• zeroing in on employment-

• regulations on the status and transfer of players

• contracts – collective bargaining agreements

• employment laws: developing special understanding

• issues that arise

– validity of contract as against the law – Coetzee – or the rules Onkwonkwo;

– dismissals – operational requirements : Hartslief v Lamontville Golden Arrows Football Club (2007) 28 ILJ 638 (LC); Mmethi v DNM Investment CC t/a Bloemfontein Celtic Football Club (2011) 32 ILJ 695 (LC)

– misconduct and incapacity

– unlawful. Hartslief; Mmethi; Ajax Cape Town.

dispute resolution processes and perspectives

A club, official, player, coach, agent, or any person subjected to the provisions of this constitution, may not seek recourse in a court of law or administrative tribunal on any issue that may be determined in terms of the constitution or rules of the League or SAFA or the statutes of FIFA unless all procedures prescribed in these prescripts have been exhausted.

NSL Constitution, Article 24

• article 18 of the constitution of the League

– constitutes dispute resolution chamber

• independent chairperson and a number of panel members

– parties subject to the jurisdiction of chamber

• the league;

• clubs;

• players;

• coaches;

• agents (be careful – jurisdiction, FIFA and SAFA players agent regulations, Consumer Protection Act)

dispute resolution processes and perspectives (cont)

– nature of disputes

• determination of status of the players

• disputed transfers

• unfair dismissal and breach of contract

• training and development compensation due to clubs

– process is statement of case, documents, proper and timeous submission and then recorded hearing and written decision

– appeals and referrals to arbitration are dealt with in the SAFA Constitution and Rules;

– further appeal? Court of Arbitration for Sport in Lausanne

dispute resolution processes and perspectives (cont)

dispute resolution processes and perspectives (cont)

If participants do not comply?

• Courts when considering whether to hear a matter-

– Mmethi v DNM Investment CC t/a Bloemfontein Celtic Football Club (2011) 32 ILJ 695 (LC)

– cases on private arbitration clauses (but remember sports person seldom actually agrees)

dispute resolution processes and perspectives (cont)

• Commission for Conciliation Mediation and Arbitration?

If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute ought to have been resolved through private dispute resolution in terms of a private agreement between the parties to the dispute the Commission may …

Labour Relations Act, 1995, section 147 (6)

– Augustine; Overmeyer [Note that it is important to properly access the situation…..]

• Mmethi tells us it is very, very important to understand the environment and the applicable rules.

thoughts and conclusions

• the anti doping regulatory framework-

– compliance on the part of club and player;

– impact of the failure to comply?

• greater appreciation of the importance of misconduct matters generally

• image rights questions – understanding “fine shaving”/sponsors imposing duties on employees/clubs doing the same:

– Brian Roy and Ajax

– Kahn and EA Sports

– the non-flying Dutchman (and questions of taxation)

thoughts and conclusions (cont)

• do not forget sports specific legislation-

– Boxing Act

– National Sport and Recreation Act

– Safety at Sports and Recreational Events Act

– South African Institute for Drug Free Sport Act

• other – Consumer Protection Act may be very important.

• its all new, its developing fast, and it will continue – the need for content and the attraction of sport will ensure that happens

that’s it

• thank you very much

thank you