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A CRITICAL ANALYSIS OF THE APPLICATION OF LABOUR LAWS TO ATHLETES

NONTOBEKO PHELI NKAMBULE

STUDENT NUMBER: 201106704

SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE

DEGREE OF MAGISTER LEGUM

(LLM)

LABOUR LAW

in the

FACULTY OF LAW

at the

UNIVERSITY OF JOHANNESBURG

SUPERVISOR: Dr AH DEKKER

NOVEMBER 2016

PLAGIARISM DECLARATION

TABLE OF CONTENTS

PROLOGUE……………………...……………………………………………………….……....5

CHAPTER ONE…………………………………………………………………….………….. 7

Introduction…………………………………………………………………………..……….….. 7

Relevance of Research………………………………………………………………..…….……. 9

Research Question and Aims……………………………………………………..………...……. 9

Methodology……………………………………………………………………...... ……….. 11

Conclusion…………………………………………………………………………………..….. 11

CHAPTER TWO………………………………………………………………………...... …. 13

Introduction……………………………………………………………………...………...……. 13

Common Law Difference Between Employees and Independent contractors………..………... 15

Defining The Employment Status of The Athlete…………………………………...………..... 19

The Nature of The Athlete’s Contract……………………………………………...…………... 24

Social Benefits…………………………………………………………………...………..……. 27

Conclusion……………………………………………………………………...………….…….32

CHAPTER THREE…………………………………………………………………..………...34

Introduction………………………………………………………..………...…………….……..34

Common Forms Of Dismissals For Players……………………………….…………...………..36

Dispute Resolution In Soccer……………………………………………………….……..…….38

Procedure In The Labour Relations Act……………………………………………………...….42

The Remedy Of Specific Performance………………………………………………...... 43

Conclusion………………………………………………………………………….……………48

CHAPTER FOUR……………………………………………...…………………………….…50

Conclusion………………………………………………………………..……………………...50

BIBLIOGRAPY…………………………………………………………...…………………....57

LIST OF CASES……………………………………………………………………...………...59

PROLOGUE

Before I delve into the essence of this dissertation, it is imperative that one establishes a clear understanding of the role played by sports in society, and why the topic of this dissertation is one that has to be addressed in respect of labour law.

It would be almost impossible to find a South African who has no memory of the 1995 Rugby World Cup. Though I was only three years old when Joel Stransky calmed himself to kick the drop-kick that sealed the Springbok’s triumph, over the years, I have been exposed to numerous clips, and word of mouth stories from various generations of that unforgettable day.

That glorious day in our country’s sporting history has come to symbolize so much more than a game of rugby. That day is arguably the day that united a nation that was once torn apart by racial divide caused by apartheid. In that one moment, it was as if all that once divided us disappeared, and we along with the rest of the world came to truly understand the meaning of the term “rainbow nation”.

Sports has proven itself as a means of breaking down barriers and allowing people to find a common interest to unite around. Though rugby was inherently a “white man’s game”, this did not deter millions of black, coloured and indian South Africans from celebrating the triumph of the Springboks as their own. Sports proved its worth as a nation building tool once again in the 1996 African Cup of Nations. Following the heroics of the Springboks merely a year earlier, Bafana Bafana, with the backing of all of South Africa, went on to win the tournament on home soil. The images of a white Neil Tovey lifting a trophy synonymous with a “black man’s sport”, sent ripples across the world. Here again, the world bore witness to how sport can uplift a nation and allow its people to rally around a positive cause.

One of the most persuasive reasons that allowed me to take on this topic, is the obsession that society has with sports and with athletes. With more frequency, we are witnessing athletes gracing the covers of tabloid magazines in a similar fashion to movie stars and music artists. Furthermore,

5 the shear amount of money people spend on their teams’ supporter kits and tickets for games, is proof that there is a sports obsessed culture within our society. This in itself, ultimately means that people have a genuine investment in the treatment of athletes. Thus, my interest is in investigating whether there is a comfortable fit for athletes as employees in terms of South African employment law.

CHAPTER ONE GENERAL

1 Introduction 2 Relevance of research 3 Research questions and aim 4 Methodology 5 Conclusion

1. INTRODUCTION

One of the main reasons that sports is so attractive, is the uncertainty that it creates. The uncertainty of the result, is why it can be distinguished from other forms of entertainment, such as film, where the movie is scripted.1 In sports, there is no script. Nobody can predict what will happen, or who will win. Thus as supporters, one is constantly sitting on the edge of their seat while watching this nail biting entertainment.

The second appealing factor about sport is that it is inherently a business. Participation at the highest level gives athletes the opportunity to be rewarded with endorsements, sponsorships and lucrative salaries.2 In the 2016/2017 transfer window, Manchester United paid astronomical fees in the range of 90 million pounds for the services of French international Paul Pogba, beating the previous fees that were paid for Gareth Bale and Cristiano Ronaldo, respectively. What the business of buying and selling athletes achieves, is that it ensures that fans are constantly watching their respective sports channels to see if the teams they support are buying the players needed to win trophies. It creates a turbulence of emotions as fans watch some of their favourite players being sold to rival teams, or their clubs buying other important players. It creates conversations around the braai, dinner tables and on social media, as fans debate the worthiness of some players over others, and question the decisions of the club in the buying and selling of certain players.

1 Le Roux R, “Under Starter's Orders: Law, Labour Law and Sport” 2002 ILJ 1195 1196. 2 Smailes S, “Sports Law and Labour Law in the Age of (Rugby) Professionalism: Collective Power, Collective Strength” 2007 ILJ 57 at 58.

The third attraction, is more of a concern than it is an attraction. Supporters of clubs are highly invested in the treatment the players receive from the club. An example of this, would be the manner in which Manchester City fans rallied behind England goalkeeper Joe Hart. The goalkeeper had been at the club for ten years and his performances during that 10 year period had made him a cult hero amongst Manchester City supporters. The new manager that was hired by the club, refused to play Joe Hart and as a result, the decorated goalkeeper had to become accustomed to sitting on the bench. The manager had made it publically clear that he preferred another goalkeeper. In response to one of their heroes being mistreated, Manchester City fans responded by holding up banners in support of Joe Hart at games and chanting his name so the club would be made aware of their disapproval.

Something similar occurred in South African soccer, when an article was written about soccer player Ndumiso Vezi. It was reported that the player was released from his contract by Ajax Cape Town football club, after he had survived a hit-and-run car accident in 2013. Following this, the club requested that he pay back the R339 000 that was spent on his hospital bill. The article also revealed that the player’s contract stipulated that he would earn R5 000 per month in his first year, R6 000 in the second, R11 000 in the third and R12 000 in the fourth.3

What caused public outrage, was the fact that soccer, along with rugby and cricket are the highest financially supported sports in the country, and yet players are earning such poor salaries. Furthermore, questions were asked about medical aids at clubs and whether they should be responsible for the wellbeing of the players. This happened despite the fact that the South African Premier Soccer League is rated as the best on the continent. The league is so well supported that the popular Chiefs v Pirates derby has been aired live in Europe. With such money being poured into soccer, players should not be subjected to wages that can barely sustain a dignified standard of living.

3 Mseleku S, “Pressing Issues: Paying a PSL player R5k a month is almost a crime” accessed at http://city- press.news24.com/Sport/Pressing-Issues-Paying-a-PSL-player-R5k-a-month-is-almost-a-crime-20150719 on 28-7-2016.

2. RELEVANCE OF RESEARCH

It must be noted that in the case of Coetzee v Comitis,4 the court held that the National Soccer league performed a public function, and as a result, its activities are in the public’s interest. The court further held that, any person wanting to play soccer professionally, is subject to the rules of the National Soccer league.5 The key phrase to be taken from this judgment, is “public interest”. The court is essentially saying that, because South Africa is such a proud sporting nation, and society generally has a vested interest in sport, the activities of sporting bodies are thus a matter of public interest and the sport supporting public has the right of access to certain information. This judgment has confirmed that clubs are accountable not only to their players, but to the public with regarded to the treatment of players. Thus, the public has an interest in the employment contracts of players, making this a necessary dissertation to be written.

The mistreatment of athletes such as Joe Hart and Ndumiso Vezi by sports clubs tend to invoke tremendous amounts of emotion from passionate supporters. Such mismanagement of athletes gives supporters reasons to want to know more about the details contained in an athlete’s contract of employment. The investment that society as a whole puts into the supporting of sports, gives us a right to have adequate knowledge regarding the treatment of the men and women who are so often the role models of our children.

3. RESEARCH QUESTION AND AIMS

Sports contracts have unique features, as can be seen in the McCarthy v Sundowns Football Club- case.6 In its decision, the court took note of specific features that would never be found in a conventional contract of employment. The court stated that, “a professional footballer cannot resign during the period of his contract of employment and take up employment with another club without the agreement of his old club. If a professional footballer leaves a club after the period of his contract of employment, he cannot begin playing for another club unless and until he is

4 2001 (1) SA 1254 (C). 5 at para 38. 6 (2003) 24 ILJ 197 (LC).

9 provided with a clearance certificate”.7 This decision gives a practical example of the unique features of the sports contract. Ordinary employees, engaged in conventional forms of employment, are often entitled to resign, often by giving the required notice, whenever they please. Professional athletes contracted with clubs do not have such liberties at their disposal.

The sports contract contains features that will not be seen in any other form of employment. Some of the unique features are for example, the fact that sports contracts are for a fixed period. They do not continue indefinitely.8 Furthermore, such contracts can include clauses that specifically deal with the physical condition and fitness of players, their clothing and footwear, and transfers.9 It thus goes without saying, that your traditional employment contract is highly unlikely to include such clauses.

It is imperative that one understands the unique features of athlete’s contracts, and how they essentially differ from the ordinary employment contract. The purpose of the research is to determine the correct employment status of the athlete and to determine whether the current labour legislation can adequately manage this unique type of contract and it will further determine what labour law changes are needed to ensure that it can protect this special category of employees.

7 At 198-199. 8 Smailes (n 2) 60. 9 Smailes (n 2) 60.

4. METHODOLOGY

This study will be a literature study, comprising of an analysis of legislation, case law, relevant electronic sources, textbooks and academic articles. Ultimately, this dissertation will be a critical analysis of the application of labour laws of athletes.

Chapter 1 contains an informative background as to what makes sports such an important aspect of South African society. It provides a demonstration of the public interest that accompanies sports, and shows that the public interest gives the citizens of this country the right to receive information regarding the well-being and treatment of athletes, especially with regards to their employment.

Chapter 2 will look to determine the employment status of the athlete. Particularly, if athletes are regarded as employees or independent contractors working on a fixed term basis. This is an essential aspect of the dissertation as it will establish what rights the athlete is entitled to with regards to what is provided in the various pieces of labour legislation.

In chapter 3, I will analyse the disute resolution structures that are available to both the club and the athlete. I will then compare these structures to the ones that the LRA has established, and determine whether they are in line with what the LRA envisages or not. The chapter will further look at the remedy of specific performance, and analyse wether such a remedy is suitable to athlete contracts, or should damages be a primary remedy in such contracts.

Chapter 4 is a concluding chapter. Each important aspect of the entire dissertation is summarized in this chapter. This chapter serves as the glue of the dissertation, as it provides a summarized reminder of what the dissertation entails and what purpose it serves.

5. CONCLUSION

The purpose of this chapter, was to demonstrate the impact that sports has on our society, and the investment that the sport supporting public has placed on teams and players alike. It is this investment that we have in sports, that gives us as supporters a right to know about the management of the sports stars that we support week in and week out, especially with regards to their employment status. This chapter demonstrated the reasons why we support sports, especially in a society such as South Africa and laid the foundation for the discussions that is to be had in the remainder of the dissertation. The dissertation will expose the unique features of the sports contract and demonstrate the contrasting nature of conventional employment contracts in comparison to those of sports contracts. This contrast is important to understand early on, so that it can be understood as to why the labour laws have to be applied uniquely to athletes, because the very nature of the work that they do is unique.

CHAPTER TWO THE EMPLOYMENT STATUS OF ATHLETES

1. INTRODUCTION 2. COMMON LAW DIFFERENTIATION BETWEEN EMPLOYEES AND INDEPENDENT CONTRACTORS 2.1 Common law duties of the employer 2.1.1 To remunerate the employee 2.1.2 To provide the employee with work 2.1.3 To provide safe working conditions 2.1.4 To deal fairly with the employee 2.2 Common law duties of the employee 2.2.1 To render services to the employer 2.2.2 To work competently and diligently 2.2.3 To obey lawful and reasonable instructions 2.2.4 To serve the employer’s interests and act in good faith 3 DEFINING THE EMPLOYMENT STATUS OF THE ATHLETE 3.1 The supervision and control test 3.2 Organisation test 3.3 Dominant impression test 3.4 Applying the fixed term contract amendments to the athlete’s contract 4 THE NATURE OF THE ATHLETE’S CONTRACT 5 SOCIAL BENEFITS 5.1 The case of Handre Pollard 5.2 The case of Senzo Meyiwa 5.3 Access of athletes to COIDA and UIA 6 CONCLUSION

1. INTRODUCTION

Due to the extraordinary nature of an athlete’s work, it has often been disputed whether or not to regard an athlete as an employee or rather as an independent contractor. It is imperative to determine whether or not an athlete is an employee, as this will affect whether he or she is entitled

13 to certain rights in terms of our labour legislation. Should an athlete qualify as an employee, this would essentially mean that he/she is entitled to the protection afforded by the various labour and social security statutes. The uncertain employment status of an athlete will be resolved in this chapter by analysing applicable labour legislation and case law in order to determine the role of the athlete in terms of the labour law sphere.

Unlike athletes engaged in team sports, athletes engaged in an individual sport such as tennis, golf or boxing, are not regarded as employees as they do not have employers. They are often regarded as independent contractors.

Anderson makes the example of tennis players and how they are contracted with tournament organisers rather than entering into an employment contract with a club, which is the case in team sports such as rugby and soccer.10 A tennis player will enter into a contract with various tournament organisers, such as Wimbledon, the Australian Open or the US Open. These organisers will then stipulate what is expected of the player whilst participating in the tournament and what kind of remuneration they will receive as they progress through the tournament.11

In an individual sport such as tennis, players receive certain amounts of remuneration with each stage of the competition. Thus, unlike players contracted to a team, they do not receive a monthly income. Their income is dependent on whether they progress from one stage to another in a particular competition. Their income is dependent on the number of tournaments played, as well as any additional income received from sponsorships. They essentially do not have the luxury of being protected by labour legislation in the same vein as soccer and rugby players, because they do not qualify as employees.

It is thus clear that although traditional employment contracts and athlete employment contracts are governed by the same labour laws, due to the sui generis nature of the athlete employment contract, there are aspects of it that the labour laws cannot influence.

10 Anderson J, Modern Sports Law (2010) 258. 11 (n 10) 259.

2. COMMON LAW DIFFERENTIATION BETWEEN EMPLOYEES AND INDEPENDENT CONTRACTORS

In terms of Roman law, the locatio conductio operarum, refers to the letting and hiring of services, and the locatio conductio operis, refers to the letting and hiring of work. In other words, the locatio conductio operis refers to the work done by an independent contractor.12

To begin with, locatio conductio operarum is a contract entered into by two parties, whereby there is an agreement with regards to two aspects, namely, the work that is to be performed, and the remuneration that is to be paid.13 The focus in this type of contract, is on the effort given to the performance of the task, as well as to the personal nature of the service rendered. The issue of risk and liability plays an important role in this type of contract. To elaborate, any person who is party to a contract of service, will remain entitled to claim his/her remuneration from his/her employer even when such a person cannot render the services agreed upon to the employer. This however, will only apply should the inability of the employee to render his/her services be due to no fault of the employee in question.14

The locatio conductio operis, on the other hand, the most important aspect of this contract is not the personal nature of the services rendered, but rather the end result of the services rendered. In terms of this contract, “a person undertakes to perform or execute a particular piece of work, and he or she promises to produce a certain specific result”.15 The most important feature of this type of contract, is the fact that the employer is not interested in the personal nature of the work done, but on whether the work is completed as promised. Thus, the employee is responsible for producing the work that was promised. It does not matter whether the employee performed the work himself/herself, or made use of other people to perform the work. Essentially, the employee is responsible for the success of the work he/she was contracted to render.16

12 Watkins G, “Employee’s Tax-Independent Contractor” 2015 http://www.workinfo.org/index.php/legislation/item/1260-employee-s-tax-independent-contractors (24-09- 2016). 13 (n 12). 14 (n 12). 15 (n 12). 16 (n 12).

From the above, it becomes very clear that the locatio conductio operarum is a traditional contract of employment, while the locatio conductio operis is a contract of the independent contractor. Thus, when clubs obtain the services of a particular player, they expect the services to be rendered by that particular player. Such a player cannot delegate his work in a manner that an independent contractor can. It is the particular set of skills that a player has which attracts a club to contract with him/her. The club is thus of the opinion that they are in need of those particular skills. Thus, another player cannot fulfil the role in question because, he/she cannot apply the skills in the manner the contracted player can.

2.1 Common law duties of the employer

The common law duties of the employer and the employee are rather broad and all encompassing. Labour legislation and particularly the LRA have incorporated and refined some of these duties, thus making them statutory rights. Below I will address the most important of these duties.

2.1.1 To remunerate the employee

The relationship between an employer and an employee is transactional. For services rendered to the employer, the employee is thus entitled to remuneration in return. Thus paying the employee for work done, is the primary duty of the employer.17 In the Smit-case, it was pointed out by the court that compensation is an integral part of the contract of service.18 Once an athlete becomes professional, it essentially means that the sport which they partake in, becomes their profession and their main source of income. Thus, professional athletes render their services to the clubs to which they are contracted with, based on an understanding that in return for services rendered, such athletes will be financially compensated.

17 McGregor MM and Dekker AH and Budeli M and Germishuys W and Manamela ME Manamela TE and Tshoose CI Labour Law Rules (2014) 40. 18 at 158.

2.1.2 To provide the employee with work

Essentially, the employer is under no obligation to provide the employee with work to do. The exception to this rule, applies in cases whereby the employee’s salary is dependent on him or her performing the work he/she agreed to do. In such instances the employer will be under a duty to provide the employee with work.19

2.1.3 To provide safe working conditions

Depending on the work that is performed by the employee, as well as the working space used by the employee, the employer is under a duty to provide the employee with the necessary protective gear to perform his/her tasks, as well as to ensure that the conditions that the employee works under are suitable and safe.20

2.1.4 To deal fairly with the employee

In South Africa, this duty is protected by the constitution. The constitution explicitly prohibits unfair labour practices.21 The LRA, further entrenches this right, by protecting the employees against unfair labour practices through the duration of the employment relationship, and also protecting employees against unfair dismissals at the end of the employment relationship.22

2.2 Common law duties of the employee

Like the common law duties of the employer, legislation has adopted these duties and moulded them in order to form part of the country’s labour legislation. The ones referred to below are the most essential duties that an employee must perform.

19 (n 17) 40. 20 (n 17) 41. 21 Section 23. 22 (n 17) 41.

2.2.1 To render services to the employer

The primary duty of any employee, is to place his/her services at the disposal of the employer. An employee who fails to make his/her services available to the employer will not be entitled to remuneration.23 One must also bear in mind that the contract of service has a subordinate element to it.24 What this means, is that the employer has control over the utilisation of the skills and talents of an athlete during the duration of the contract. The team, and in particularly the management team, can dictate to an athlete where to play, how to play and when he or she can play, and the athlete in question is contractually obligated to submit to such demands.

2.2.2 To work competently and diligently

It is generally accepted by the law that an employee who enters into an employment contract, does so by implying that he/she has the necessary skills and qualifications to be competent in the line of work that he/she has been employed to do. Thus, should an employee fail to perform his duties competently and diligently, he/she can be found liable for breach of contract.25

2.2.3 To obey lawful and reasonable instructions

As explained above, the employee is under the control and supervision of the employer. Thus, he/she is under an obligation to follow the instructions given to him/her by the employer. Should an employee fail in this regard, he/she would commit insubordination and is in breach of his/her contractual obligation.26

2.2.4 To serve the employer’s interests and act in good faith

23 (n 17) 41. 24 Mould K, Specific Performance as a Remedy for Breach of Athletes’ Contracts (2014 thesis UP) 18. 25 (n 17) 41. 26 (n 17) 42.

This duty is also referred to as a fiduciary duty. The employment relationship is built on trust. Thus, whilst under the employ of the employer, an employee will be expected:

 Not to work against the employer’s interests  Not to compete with the employer  To devote hours of work to promote the employer’s business  To act honestly27

In the case of the relationship between an athlete and the club that he/she is contracted with, the club will be expected to adhere to the duties of an employer, and the athlete will be expected to adhere to the duties of an employee

3 DEFINING THE EMPLOYMENT STATUS OF THE ATHLETE

The courts traditionally used the following three tests to determine whether or not an employment relationship exists:

3.1 The supervision and control test

This test looks to determine whether or not one party controls the activities of another. In order for this test to apply, the employer must prescribe what must be done, how it must be done, where it must be done, and when it must be done. In the case of Colonial Mutual Life Assurance Society Ltd v MacDonald28 the court held that, an employment relationship cannot exist, where the employer does not control and supervise the work of the person they have contracted with. Essentially, the employer must prescribe to the worker, not only what must be done, but also the manner in which that work has to be done.29

27 (n 17) 42. 28 1931 AD 412. 29 at 434-435.

3.2 Organisation test

This test was first applied by the courts in the case of R v AMCA Services Ltd.30 The court in this case had to determine whether insurance agents were employees or independent contractors. The court held that the agents were members of the organisation in question, and therefore would be regarded as employees. According to this test, one looks at the extent to which a worker is integrated into the employer's organisation. In terms of this test, one has to focus on the extent to which a worker is integrated into the employer's organisation. Ultimately, this test was dismissed by the court, for being too vague, as it is not always possible to measure the extent to which any person is integrated into the organisation.31

3.3 Dominant impression test

When determining whether any particular individual can qualify as an employee, the courts in recent times have been found to apply, what has now come to be known as, the dominant impression test. This test essentially requires the courts to consider the employment relationship in its entirety, and after all relevant factors have been taken into account, the impression one gets, will determine whether an employment relationship exists or not. The Dominant Impression test received approval in the case of Ongevallekommissaris v Onderlinge Versekeringsgenootskap.32

Following this decision, the test was reaffirmed by the decision in Smit v Workmen's Compensation Commissioner.33 The factors that were taken into consideration by the courts when determining a dominant impression, were as follows:

 the right to supervision;  the dependence of the worker on the employer in the performance of duties;  whether the worker can work for another person;  whether the worker is required to devote a specific time to his work;

30 1959 (4) SA 207 (A). 31 At 211-212. 32 1976 (4) SA 446 (A). 33 1979 (1) SA 51 (A).

 whether the worker is obliged to perform his duties personally;  whether the worker is paid according to a fixed rate or on commission;  whether the worker provides his own tools; and  whether the employer has the right to discipline the worker.

Once all these factors were taken into consideration, the court would decide, whether the dominant impression would suggest that the relationship in question was one of employment in nature. It was the factors that were listed in the Smit-case that ultimately established what constitutes an employment relationship, in terms of legislation.

Section 213 of the Labour Relations Act,34 defines an employee as:

any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any other person who in any other manner assists in carrying on or conducting the business of an employer.

According to Section 200A of the LRA, any person will be regarded as an employee if, that particular person “works or renders services to the person or entity cited in the proceedings as his or her employer".35 Section 200A further states that, if one of seven listed factors is present in the relationship, such a person will be regarded as an employee. The seven factors that will determine whether any person can be regarded as an employee, are as follows:36

 the manner in which the person works is subject to the control or direction of another person;  the person's hours of work are subject to the control or direction of another person;  in the case of a person who works for an organisation, the person forms part of that organisation;  the person has worked for that one person for an average of at least 40 hours per month over the last three months;

34 Act 66 of 1995. 35 Section 200A. 36 (n 35).

 the person is economically dependent on the other person for whom he or she works or renders services  the person is provided with the tools of trade or work equipment by the other person; or  the person works for or renders services to only one person.

When considering these factors, in light of the work that an athlete performs for the club he or she is contracted to, it becomes abundantly clear that such a person can be regarded as an employee.

3.4 Applying the fixed term contract amendments to the athlete’s contract

The above analysis makes it unequivocally clear that an athlete can be regarded as an employee. However, what is not made certain, is the category of employee the athlete can fit into. Due to the limited duration of their employment contracts, it is not feasible for them to be regarded as full time employees. Section 198B of the LRA looks to protect fixed-term employees. Because athlete contracts are for a limited duration and often have a renewal option, it is thus fair to state that such contracts fall under the fixed term employee structures. In terms of the LRA, a fixed term contract can only last for a period of three months or less. Should the contract exceed the three month limit, without justifiable reasons from the employer’s part, such a contract will be deemed to run indefinitely and the employee will thus be regarded as a permeant employee. This essentially means that the employee must be treated no less favourably than an employee employed on a permanent basis performing the same or similar work, unless there is a justifiable reason for different treatment.37 The LRA further states that, the only employees protected by fixed term contracts, are those who earn below the threshold set by the BCEA, which is R205 433 per annum, and those fixed term contracts that were not permitted by a collective agreement (there are a number of exclusions, but these are the ones applicable to athlete contracts).38

Because the Premier Soccer League (PSL) has entered into a collective agreement with the majority trade union the SA Football Players Union (SAFPU), which allows the trade union to negotiate player contracts, and SA rugby has entered into a collective agreement with majority

37 Section 198B. 38 (n 37).

22 trade union SARPA, which allows the trade union to determine the remuneration structures of the players, rugby and soccer players are automatically excluded from the application of fixed term contracts. The fact that the majority of players in these two respective sports will most likely earn above the threshold, will further exclude them from the application of fixed term contracts. The question thus becomes, whether such athletes can be regarded as permanent employees? In my opinion, this is not possible, due to the sui generis nature of the work they perform. The laws of nature dictate that the human body must deteriorate with age. Athletes are required to keep their bodies at peak physical condition and perform consistently. The reality of the fact, is that athletes are subject to the aging process, just like the rest of us, and at some point, they will not be able to perform at their best consistently, as their best years would be behind them. Furthermore, the risk of injury and the possibility of being traded to another team, makes it impossible for such employees to be deemed as permanent. Because it is not feasible to treat one player in the same vein as another, due to the fact that some players will be regarded by the club as more valuable due to the fact that they are better, the best thing clubs can do, is to set a minimum standard applicable to all. So what rugby and soccer teams tend to do, is to have generic standards applicable to all. E.g., they all face the same disciplinary process, there is a standard level of physical fitness they must all reach, and they all have the benefit of whatever insurance mechanisms the club makes available.

When rugby and soccer players are contracted to clubs, that club becomes the primary source of their income. Secondly, the coaching team determines how a player’s skills should be utilised, meaning, that the club exercises control over the player. Finally, when such players are contracted to these clubs, it is often a provision in the contract that strictly stipulates that the player is prohibited from playing for another club, during the duration of the contract. This essentially means that the player can only render his or her services to the club he or she is contracted to.

The nature of the athlete contract, would dictate that the athlete is subject to a fixed term contract. However, it has been demonstrated that, though it fits all the outward requirements of a fixed term contract, it falls short of meeting the amended requirements to be protected as fixed term employees. Thus, the sui generis nature of their contracts, means that there is a greater onus on the

23 clubs and the trade unions to protect athletes, because they fall beyond the protection of the LRA with regards to fixed term employees.

4 THE NATURE OF THE ATHLETE’S CONTRACT

Above, it was demonstrated that the contract the parties enter into, is regarded as a service contract. It was also shown what the service contract entails. With the above acting as the background, now I will demonstrate how, despite the unique features of the athlete’s profession, the contract between an athlete and its club constitutes an employment relationship similar to the employment relationship one finds in traditional forms of employment.

In his thesis, Mould gives a list of seven characteristics that make up a player’s contract of employment. These characteristics are:39

 The player must perform personal sporting services for his or her employer  These sporting services are rendered subject to the control and direction of the employer  These agreements all provide for the absorption of the player’s labour power in respect of the rendering of athletic services, either to the exclusion or semi-exclusion of other employers  The remuneration payed to the athlete has to be similar to that of traditional employment. Thus medical aid, and retirement contributions have to be made available to the athlete as part of his or her remuneration.  The agreements will provide that the employer has the power to discipline or terminate the services of the athlete due to misconduct or poor work performance  The contracts will specifically state that the player is an “employee” of the club and that the club will be regarded as the “employer” of the athlete.  The contract will also state that because the parties are engaged in a contract of employment, their relationship will be governed by the applicable labour legislation.

39 (n 24) 72-73.

The list provided above demonstrates how the employment relationship between the athlete and the club is similar to that of traditional employment relationships. The similarities of the two types of employment relationships, will be demonstrated below.

In the case of Dempster v Addington Football Club,40 a professional football player entered into a contract with a football club. The club guaranteed to pay the player a minimum wage of R220 a month during the playing season. The issue in this case, was whether the player was allowed to receive remuneration outside of the remuneration that was offered to him by the club. The court focused strictly on the wording of the contract, and determined that based on the wording of the contract, the club was under an obligation to remunerate the player in the manner agreed upon in the contract. The court did however stress the difference between the playing season and the off season.41 Thus, what we often see in SA rugby, is that players will contract to play for a SA team during the super rugby tournament. Once the tournament is over, they enter into contracts with oversees based rugby teams, and will thus apply their trade with them. These players thus provide their services to SA rugby teams during the SA rugby season, and during the off season, they are permitted to apply their trade elsewhere. However, both clubs must remunerate the player for the period during which he renders his services to them.

Returning to the Dempster-case, the matter of the player’s performance aspect of the contract is of great interest. The player’s employment contract required the athlete to apply his mind diligently to football, as well as to attend all training sessions and matches as directed by the coach. The employment contract in this case demonstrates the physically testing nature of the work an athlete engages in. This is similar to the work performed by traditional employees. Just like an athlete’s body is his/her source of income, traditional employees use their bodies as tools. E.g., a lawyer must have a voice in order to present a case, and a surgeon must have hands to perform surgery. Though most traditional forms of employment require mental fitness over physical fitness, the two forms of employment are still similar. Just like athletes are required to be alert on the field, traditional employees must similarly be alert at work.

40 1967 3 SA 262 (D). 41 At 265.

Secondly, traditional employees are encouraged to improve their productivity by any legal means, and the same can be said for athletes. Athletes are subjected to intense scrutiny with regards to performance enhancing measures.42 Where traditional employees are capable to boost their productivity by taking concentration supplements and energy boosting supplements, athletes are tested to ensure that their abilities on the field are based on natural talents and have not been enhanced medically. An athlete who enhances his or her abilities through medical supplements, is likely to have their contract of employment terminated as well as be prohibited from participating in the sport for a certain period of time, during which he/she will receive no income. Like athletes are governed by the laws of the sporting bodies, traditional employees have to adhere to similar laws. For example, lawyers must adhere to the rules of the law society. They are permitted to do whatever is legal to boost productivity and profits. However, once they engage in unethical behaviour, they run the risk of being struck off the roll, similar to athletes being banned for doping.

Another element of the athlete’s contract of employment that one must make note of, is the fact that, like the traditional employment contract, athletes have bargaining power.43 Once an athlete has established himself as a player of quality and in high demand, they put themselves in a position where they can participate equally in the contractual negotiations. Clubs are willing to bargain with such a player out of fear that if they do not meet the demands of the player, then they run the risk of losing the player in question to one of their rivals. This is different in the case of traditional employees, as the employer often opens up a vacant position for the public to apply. Thus the employer is in a position where he can choose the most suitable candidate. Similar to athletes, traditional employees that possess much needed attributes, will possess their own form of bargaining power. They may be an expert in their particular field, which makes them a highly valued commodity, meaning, they are capable of negotiating their own contracts.

Sport administrators have a lot of bargaining power. In order to counter this power, professional athletes have followed the example set by traditional employees, and have formed unions. By forming such unions, players allow themselves to be involved in the managing of their own

42 (n 24) 76. 43 Naude T, “Specific performance against an employee: Santos Professional Football Club v Igesund” 2003 SALJ 269 at 271.

26 affairs.44 In rugby, the majority of players in this country are members of a trade union known as the SA Rugby Players Association (SARPA). SARPA entered into a collective agreement with SA Rugby, in order to establish a voice for the players at the highest levels of decision making in the sport.

Amongst the things that were agreed upon, SA Rugby would recognizes SARPA as the collective bargaining representative of the players, as long as SARPA remained the trade union that was sufficiently representative of the players.45 This would be 30% or more, as stipulated by the LRA.46 SA Rugby will not conduct any negotiations directly with the players, but rather with the representatives of the players. Remuneration is always a central factor when it comes to collective agreements, and the agreement entered into by SA Rugby and SARPA was no different. The two parties agreed on a structure for remuneration with regards to players who have not only been contracted to SA Rugby, but have also been selected by SA Rugby. The parties agreed that the agreed upon structure would be reviewed annually through negotiation between the parties.47

Thus, the very fact that players are entitled to form trade unions, and such trade unions can enter into collective agreements on behalf of the players, demonstrates the bargaining power that players possess, similar to that of regular employees.

5 SOCIAL BENEFITS

Because an athlete qualifies as an employee, this essentially means that he or she is entitled to all the benefits that come with being regarded as an employee and this includes social security. Social security has often been described as a safety net. What this means, is that social security will be the net that catches an individual, should such an individual lose their income due to some

44 Smailes S, “Sports Law and Labour Law in the Age of (Rugby) Professionalism: Collective Power, Collective Strength” 2007 ILJ 57 at 61. 45 (n 44) 67. 46 Section 11. 47 (n 44) 69.

27 unplanned event. In the case of athletes, they continuously put themselves at risk of sustaining career ending injuries. Thus, it becomes imperative that these athletes have safety nets in place.48

Due to the physical nature of sports, athletes are more at risk to lose their income due to incapacity than a traditional employee. In sports such as rugby, there are compulsory income protection schemes that have to form part of a player’s contract of employment. What this means, is that, once the player gets injured during a match, and medical experts declare such a player as incapacitated, the insurer will take over the contractual obligations for the duration of the incapacity.49 In the past, 10% of a player’s monthly income would go to his medical cover, but last year, SARU approved a 90 million rand budget increase, that will allow for medical cover to be free, so players can save for their pension.50 An example of such compulsory income protection schemes, can be found in clause 10.1 of the standard player contract between provincial rugby unions and a player contracted to play for the union in question.

The clause reads as follows:

The Player shall become a member of an income replacement insurance scheme nominated by South African Rugby Players Association to insure him against the loss of remuneration as a result of being unable to play rugby due to accident, injury or illness. The scheme must include cover for all rugby- related injuries.

5.1 The case of Handre Pollard

Even though it seems that SA Rugby has taken measures to insure the protection of the income of players, there are in fact loopholes to contractual clauses such as the one quoted above, that ultimately leave professional rugby players at the mercy of their employers. Springbok fly half Handre Pollard is such a player.

48 (n 44) 116. 49 (n 1) 1199. 50 Ray C “Funds injection secures medical insurance for rugby players” 2015 http://www.timeslive.co.za/sundaytimes/sport/rugby/2015/12/20/Funds-injection-secures-medical- insurance-for-rugby-players (30-10- 2016).

During the off season, Pollard left South African shores in order to apply his trade in Japan. Whilst playing for his Japanese team, Pollard sustained a shoulder injury. His contractual insurance covered the injury, and he was thus able to return to his home franchise team the Blue Bulls. On his return to the Bulls, he sustained a season ending knee injury. Pollard sustained the injury while training for the super rugby season with the Bulls, but because he had not yet played a match for the franchise, his remuneration benefits were taken from him. In terms of his contract of employment with the Blue Bulls, Pollard was required to play for the Bulls once he had returned from Japan, in order to be covered by the Bulls insurance cover. Due to the fact that he had not played for the Bulls when he sustained his knee injury, Pollard did not receive a salary whilst injured.51

Even though clause 10.1 suggests that an income replacement scheme is a standard feature in any player’s contract, the case of Handre Pollard proves that the Rugby Unions/Franchises as employers, are in a position to manipulate the employment contract to avoid remunerating the injured player. Surely, if a player is injured whilst training for the club he is contracted with, the club should cover such an injury. If Pollard was injured whilst surfing during the off season, then an argument could be made that the club should not be required to cover his medical expenses. But because he was injured doing what he was contractually required to do, it cannot be fair, that the Bulls can manipulate the contract and find loopholes to avoid the expense of looking after him.

5.2 The case of Senzo Meyiwa

South African soccer does not fare much better than their rugby counterparts, as far as the protection of their athlete-employees are concerned. In professional soccer, where footballers sustain an injury that will side-line them for a period of time, or suffer a career ending injury, such players should be protected by the Premier Soccer League Insurance cover.

51 Sports 24 “Pollard: No salary for six months?” 2016 http://www.sport24.co.za/Rugby/pollard-no-salary- for-six-months-20160222 (24-09-2016).

In terms of the Premier Soccer League’s insurance cover, when a player is forced into retirement due to a career ending injury, such a player will be paid out from the PSL insurance cover. This pay out, is capped at 4 million rand and the team that the player was employed with, is entitled to 50% of this pay out. This pay out, is dependent on the age, income and duration of his contract with that particular team.52 A practical example of how this played out, would be the case of Senzo Meyiwa.

Senzo Meyiwa was an Orlando Pirates and Bafana Bafana goalkeeper who was tragically shot and killed in 2014. Following his death, a media circus surrounded the financial protection his family would receive from the club he was employed with. In the case of Meyiwa, the insurance cover took the form of a life policy pay out.

Once a player is employed by a premier soccer league team, both the team and the league will cover the premiums of the player’s insurance policy. Thus, once the player is injured to a point where he can no longer play professional football, such a player can be paid out from the insurance scheme. In Meyiwa’s case, this insurance was to be paid out to his family. However, what caused controversy, was the fact that the 4 million rand pay out would be equally shared between Meyiwa’s family and the club he was employed with at the time of his death, Orlando Pirates. According to the club, it is entitled to 50% of the insurance pay out due to the fact that the club covered the insurance whilst Meyiwa was an active employee of the club.53 Because clubs like Orlando Pirates take life policies out on behalf of their players, and subsequently pay for these life policies, when a player dies, they look to ensure that they can still make a profit from the loss of a player who was essentially an income generating asset.

5.3 Access of athletes to COIDA and UIA

52 Fakude E “Former Bafana Bafana defender Siyabonga Sangweni is set to go home with a cash payout from the PSL’s insurance policy after being forced to retire through injury” 2016 http://www.kickoff.com/news/64231/siyabonga-sangweni-to-claim-from-psl-insurance-following-injury- forced-retirement (24-09-2016). 53 Kickoff Magazine “Senzo Meyiwa insurance payout explained” 2016 http://www.kickoff.com/news/64423/senzo-meyiwa-insurance-payout-explained (24-09-2016).

The Compensation for Occupational Injuries and Diseases Act (COIDA) is a social insurance scheme with the purpose of providing no-fault compensation for employees who have sustained an injury whilst at work, or contracted a diseases due to his/her work.54 What it essentially does, is that it allows an employee to claim from the fund, regardless of who was at fault for causing the injury. The fund is financed by a contribution from the employer. Due to the fact that the employer has a common law duty to provide safe working conditions, the onus automatically falls on the employer to contribute to the fund. The employer is prohibited from deducting the employee’s salary in order to fund the contribution required to sustain the fund.55

The Unemployment Insurance Act (UIA) on the other hand, is an act with the purpose of providing short term financial assistance in the case that the employee finds himself/herself temporarily unemployed. Unlike COIDA, both the employer and the employee are required to make monthly contributions to the fund.56

The question then arises as to whether athletes are covered by such a social insurance scheme? Both rugby and soccer seem to have developed their own means of private social insurance and thus not relying on COIDA and UIA. Rugby has compulsory income protection schemes. Thus, when a player is incapable of rendering his services to the club, the insurance scheme will take over the contractual obligations of the club, until the point comes that the player can render his services to the club again. In the case of soccer, the PSL insurance protects players that have sustained career ending injuries. As explained above, the cover is capped at 4 million rand and the club is entitled to half the pay-out.

Due to the physical nature of sport, occupational injuries are inevitable, hence why the various sporting codes ensure that private systems are in place to compensate players should they sustain any injuries. Thus, there is no need for COIDA and UIA, because the private insurance schemes the clubs have, ensure that the player’s income is protected.

54 (n 17) 129. 55 (n 17) 130. 56 (n 17) 132.

6 CONCLUSION

Through the LRA and various tests, such as the control test, it was established that the contract between a player and his/her team, can be regarded as a contract of employment. It has been established that the locatio conductio operarum is the contract that best fits the athlete’s contract of employment. This is because the contract that an athlete enters into with the club, is of a highly personal nature, thus making it an employment contract. Furthermore, the LRA has adopted the common law duties of both the employer and employee. By codifying these duties, the LRA ensures that should a party fail to honour his/her duty, such action will be a breach of a legislative requirement. However, because such athletes can be classified as employees in terms of the applicable labour legislation, this does not mean that their field of work can be covered in the same manner that traditional employees are covered by the applicable legislation.

Although employees, the athlete’s contract of employment is sui generis in nature. It was established that the contract the athlete engages in, is not that far removed from the traditional employment contract. This further cements the fact that athletes engaged in team sports, are first and foremost employees of the clubs they render their services to.

Furthermore, because the athlete is regarded as an employee, addressing the employment contract becomes imperative. The employment contract of the athlete is likely to include seven standard features. These features include the remuneration entitled to the athlete, the social security benefits that the athlete is entitled to, and the fact that the club as the employer of the athlete has the power to discipline, control and direct the work done by the athlete.

Due to the physical nature of the work that the athlete does, the most important social security available to him or her, is insurance for injuries sustained. Both professional rugby and soccer have measures in place that allow for an athlete to be protected whilst injured. However, the efficiency of this protection is debatable. In soccer, the pay out from insurance is limited, because it is capped at a certain amount, and once that capped fee is paid, the club the player is contracted to is entitled

32 to 50% of the pay-out. Thus, such players are probably better advised to cover themselves, which is not in light of the LRA which guarantees social security for all employees.

CHAPTER THREE DISMISSAL OF ATHLETES

1 INTRODUCTION 2 COMMON FORMS OF DISMISSALS FOR PLAYERS 2.1 Constructive dismissal 2.2 Failure to renew a fixed term contract 3 DISPUTE RESOLUTION IN SOCCER 3.1 The establishment of the NSL Dispute Resolution Chamber 4 PROCEDURE IN THE LABOUR RELATIONS ACT 5 THE REMEDY OF SPECIFIC PERFORMANCE 5.1 Santos Professional Football Club (Pty) Ltd v Igesund 5.2 The case of Lionel Mapoe 6 CONCLUSION

1. INTRODUCTION

In the year 2000, officials in India charged the then South African captain Hansie Cronje with alleged match fixing between South Africa and India. Cronje famously held a press conference in which he denied the charges that were laid against him. In the days that followed, Cronje admitted that he had been dishonest and that he had in fact fixed matches, and further that he had approached several members of the South African cricket team to join him in his illegal activities. The King Commission was set up, which acted as the tribunal that would hear and determine the case.

Several members of the cricket team testified, among these, were players such as Jacques Kallis, Mark Boucher and Lance Klusener. All three players gave testimony to the effect that Cronje had approached them with an offer to fix a match between India and South Africa.

With the evidence mounting against him, it was ultimately the testimony of South African cricket legend Herschelle Gibbs that effectively sealed Hansie Cronje's fate. Gibbs confessed to the fact

34 that he had accepted an offer from Cronje of $15 000 to score less than 20 runs in a one-day cricket match against India.

With the evidence stacked against him, Hansie Cronje finally admitted to accepting about $100,000 in bribes to fix cricket matches between the periods of 1996-2000. Following all the testimony and the confession of Hansie Cronje at the King Commission, a decision was made by the South African cricket authorities to find Hansie Cronje guilty of match fixing and hand him a life ban from cricket.

The relevance of Hansie Cronje’s case to this chapter, is so one can establish an understanding of how disputes are settled in the world of sport, as compared to disputes in the traditional employment sector. In this chapter, I will analyse the common forms of player dismissals and the dispute resolution procedures that follow. I will then compare these procedures, with the ones set out in the LRA. The Hansie Cronje saga was one the involved gross misconduct by those players essentially employed by Cricket South Africa, and processes were in place that ultimately saw Cronje dismissed and Herschelle Gibbs and Henry Williams suspended from international cricket for a period of 4 months.

Because Hansie Cronje was an employee of Cricket SA, the dispute resolution process that has been set out in the LRA could have been applied. The alleged misconduct, was a clear breach of not only the rules of SA cricket, but also a breach of a well-known rule in terms of international cricketing standards. Thus, dismissing Cronje and suspending Gibbs and Williams was substantively fair. Procedural fairness on the other hand, came in the form of a hearing set up by the commission. This hearing allowed those who were facing match fixing charges to give testimony, thus adhering to the audi alterem partem rule. The procedure followed by the commission, demonstrates an alignment with the procedure followed in the LRA with regards to a dismissal based on misconduct. Thus, in this chapter, I will compare the internal dispute resolution structures, to those set up by the LRA, and seek to demonstrate the similarities and differences between the two.

Furthermore, I will look to examine the remedies available to both the player and the club during matters of contractual dispute, with a particular focus on the remedy of specific performance.

2. COMMON FORMS OF DISMISSALS FOR PLAYERS

2.1 Constructive dismissal

A constructive dismissal refers to a situation whereby an employee resigns because the employer has made continued employment intolerable for the employee. This type of resignation is not done voluntarily, due to the fact that the unbearable behaviour of the employer has left the employee with no other choice but to resign.57

In the case of Copeland and New Dawn Prophesy Business Solutions (Pty) Ltd,58 the court established the following three factors that must be present in order for an employee to have a successful claim of constructive dismissal:

 The employee must show that he/she resigned  The employee must show that the employer made continued employment intolerable  The employee must show that it was the employer’s conduct that cause the intolerable circumstances.59

The reason that this is a common form of dismissal for athletes, is due to the fact that the athlete’s profession lacks certainty. Often players get injured and lose their place in the team, and whilst they were recovering, another player performed well and has now become a favourite of the coach, and the injured player no longer has a place on the team. Another common scenario is a player that loses form and is no longer viewed as valuable by the coach. Lastly, the scenario whereby a new coach comes in and buys new players during the off season due to the fact that he is not pleased with the players he has at his disposal. The new players replace the old ones, and the old ones find

57 (n 17) 151. 58 (2010) 31 ILJ 204 (CCMA). 59 (n 17) 152.

36 themselves on the side lines with no game time. In these three scenarios, players are not being utilized and are thus forced to leave the club, not because they want to, but because the conditions at the club have forced them to.

A good example of how a constructive dismissal played out in reality, was in the case of former Kaizer Chiefs striker Lehlohonolo Majoro. When Kaizer Chiefs secured the services of Coach Stuart Baxter, the coach was immediately given the freedom to change the team to his liking.60 Despite the fact that Majoro was amongst the team’s top goal scorers in the previous season, Coach Stuart Baxter insisted on buying a new striker during the transfer window. With the arrival of new players, Majoro was forced out of the first team, and in order to remain fit, he was training with the reserve team. It is important to note that the reserve team trains at a different facility than the first team, so even if Majoro was improving, there was no way that the new coach could witness this. Furthermore, the club’s management publically admitted that Majoro was no longer the main striker and was surplus to requirements, hence he was demoted to the reserve side. He was thus left out of the first team completely and didn’t even feature on the bench for the majority of the season. With a whole season gone without any game time, the player’s trade union SAFPU, took the matter to the Dispute Resolution Chamber in order to have Majoro declared a free agent. The chamber duly obliged and Majoro was allowed to leave Kaizer Chiefs and join Orlando Pirates, due to the fact that employment conditions at Kaizer Chiefs had become intolerable.61

2.2 Failure to renew a fixed term contract

This type of dismissal refers to a situation whereby the employee has a reasonable expectation that the employer is going to renew a fixed term contract on the same terms, but the employer either renews it on less favourable terms, or fails to renew it at all. This scenario gives rise to a dismissal.62

60 Fakude E “Majoro took Chiefs to Dispute Resolution Chamber” 2014 http://www.kickoff.com/news/41824/majoro-took-chiefs-to-dispute-resolution-chamber (3-11-2016). 61 (n 60). 62 (n 17) 148.

This type of dismissal is often witnessed in athlete contracts. It especially plays out in scenarios where a player has performed consistently throughout the season and has been a regular player for the team, but the club fails to renew his/her contract, and he/she is forced to find another team to play for. In such a situation, the player has inherently been dismissed.

This type of dismissal played out in the case of SARPA obo Bands and Others v SA Rugby (Pty) Ltd.63 Following the conclusion of the 2003 rugby world cup, three players alleged that they had been given verbal assurance by the springbok coach Rudolf Straeuli that their contracts with SA rugby would be renewed. However, when SA rugby failed to renew the contracts on the ground that they were not issuing any contracts to any player, the matter was taken to the CCMA and ultimately the Labour Appeal Court. The players alleged that they had been unfairly dismissed due to the fact that the coach’s behaviour gave rise to the reasonable expectation that contracts would be renewed. The court held that, in order to determine whether or not the players had a reasonable expectation, one would have to apply an objective test. The test is “whether a reasonable employee would have acquired an expectation that his contract would be renewed on the same or similar terms”. The court first held that, the players new that the coach had no power to renew contracts, and thus should not have relied on his word. The court further held that, the players had no reasonable expectation of renewal as their contracts were for a specific event, and this event was the Rugby World Cup. Considering that the tournament was over, along with the fact that their contracts did not provide for a renewal, the court was of the view that they did not have any reasonable expectation of renewal.64

3. DISPUTE RESOLUTION IN SOCCER

Now that there is an understanding of the common forms of dismissals for players, it is imperative that one sees how the internal structures resolve these disputes as compared to the LRA.

Professional football in South Africa is governed by various codes, rules and regulations. In terms of these rules and regulations, disputes that emulate from within the structures of the professional

63 [2005] 2 BALR 209 (CCMA). 64 At para 52-54.

38 game, must be resolved through the Alternative Dispute Resolution (ADR) structures that have been set up by the football authorities, rather than approaching a court of law.65 The main feature of this type of dismissal, is whether the employer’s conduct gave rise to the expectation that the contract would be renewed.

FIFA, which is the governing body of football across the globe, require that all its affiliates, including the National Soccer League (NSL), and the South African Football Association (SAFA), to ensure that their constitutions contain a provision stipulating that disputes are to be resolved internally.

The reason for preferring ADR over the judicial system, is because FIFA believe ADR to be:

“generally quicker, more flexible, less expensive, confidential, in some instances a win - win situation as parties compromise, maintain and preserve business relations, and is conducted by people with expertise and experience in the relevant field of sport”.66

3.1 The establishment of the NSL Dispute Resolution Chamber

The NSL Dispute Resolution Chamber was established in terms of the Constitution of South Africa, stating one of their goals as:

“everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”.67

In light of this provision of the constitution, footballing authorities have made it a feature of standard player contracts, that the contract contain a provision which stipulates that, should any

65 Razano F “Keeping sport out of the courts: The National Soccer League Dispute Resolution Chamber - A model for sports dispute resolution in South Africa and Africa” 2014 AFRICAN SPORTS LAW AND BUSINESS BULLETIN (ASLBB) 2014 1. 66 (n 65) 3. 67 Section 34.

39 disputes arise between the contracting parties that the dispute in question will be resolved through ADR measures that have been established.68 The Chamber forms part of these measures.

Two separate structures have been established by the NSL Constitution, in order to deal with dispute related matters. The first of these, is the Dispute Resolution Chamber, and the second, is the Disciplinary Committee. It is the duty of the committee to oversee all disputes of a disciplinary nature. Such disputes will include disciplinary charges that are instituted by the NSL or charges that have been brought before the committee by other members.69 Should a player be found guilty by the committee, then the committee has the power to impose sanctions such as warnings, suspensions, bans, and monetary fines. The constitution of the NSL states that, any party that is dissatisfied with the outcome of a matter before the Disciplinary Committee, can lodge an appeal with SAFA. Following the decision by SAFA, should the party still be dissatisfied, the matter can be referred for arbitration. The decision that is taken at the arbitration stage, is both final and binding. However, it is possible to lodge a further appeal with the Court of Arbitration for Sport.70

With regards to the Dispute Resolution Chamber, it has jurisdiction over disputes of a contractual nature, as well as the determination of the status of footballers, disputed transfers of footballers, unfair dismissal and breach of contract.71

Disputes regarding unfair dismissal have to be heard within 30 days of the dismissal or the breach of contract. The reason for the 30 day period was established in the Mofokeng & Others and African Warriors Football Club-case.72 The court held that, the reason for establishing the 30 day period, was so that the chamber could align itself with the procedure that is followed in the Commission for Conciliation Mediation and Arbitration (CCMA). The court further added that, the 30 day period allowed for disputes to be resolved within a reasonable period of time.73

68 (n 65) 5. 69 (n 65) 6. 70 (n 65) 6. 71 (n 65) 6. 72 (2012) 33 ILJ 2008 (ARB). 73 At p 2011D-E.

During a hearing before the chamber, the parties in dispute are permitted to be represented by a representative of their choice, as well as to provide evidence to strengthen their case. By doing this, the chamber ensures that it adheres with the audi alterem partem rule. However, it must be stressed that all this must be done with as limited formalities as possible. The purpose of the chamber is not to resemble a court of law. It was established with the intention of resolving disputes in a speedy manner with the least amount of complication.74 This point was best set out in the case of Zothwane and Lamontville Golden Arrows Football Club.75 In this matter, the club alleged that Zothwane had not complied with the NSL Constitution and Rules as he had failed to support his case, by establishing a precedence, and he had also failed to attach relevant documentation. The court held that, though the rules are in place, one need not strictly adhere to them, as the purpose of the chamber was to resolve matters in a fair and speedily fashion.76

When coming to a decision, a the chamber has the power “to make an order for the payment of damages or compensation, payment of a transfer fee, an order for specific performance, a declaratory order or a costs award”.77 As explained earlier, a decision of the chamber can be appealed to SAFA, then sent for arbitration, and ultimately, the Court of Arbitration for Sport.

An important case to note with regards to the importance of resolving contractual disputes internally, is the case of Soul Mmethi v Bloemfontein Celtic Football Club.78 Mmethi was a player contracted with Bloemfontein Celtic Football Club. After being retrenched by the club, Mmethi referred his case to the Labour Court. Mmethi argued that the club had breached its contractual obligations, and he was thus entitled to damages. The court held that, the provision that stipulates that disputes should be resolved through the Dispute Resolution Chamber did not mean that the inherent jurisdiction of the courts is abandoned. The court further held that the court will always have jurisdiction over sports related disputes but that did not mean parties to an agreement could simply ignore the agreement and approach the courts. It was held that the court had the discretion

74 (n 65) 9. 75 (2007) 28 ILJ 284 (ARB). 76 At 285E. 77 (n 65) 8. 78 (2011) 32 ILJ 659 (LC).

41 to either refer the matter back to the chamber, or to judge on the matter itself.79 The court in this case decided that it could not find a reason to interfere with the provision of the contract which stipulate that the matter be heard by the chamber. Thus, the matter was ultimately referred back to the chamber.

4. PROCEDURE IN THE LABOUR RELATIONS ACT

Above I established how disputes are resolved in professional football. Now, I will analyse the manner in which disputes are resolved in the LRA and compare the two. Because the cases mentioned above deal with dismissals, and one of the disputes that the Dispute Resolution Chamber is allowed to hear, is one regarding dismissals, it only makes sense that I look at the dismissal process that is set out in the LRA.

When an employee has been dismissed by his/her employer, the employee in question must refer the case to the CCMA with 30 days of the dismissal. The matter will be determined by conciliation. However, should conciliation prove to be ineffective, the matter will go for arbitration. Not all cases may go for arbitration. In the case of an automatically unfair dismissal, such a case must go to the labour court for adjudication.80 The awards that can be given in the case of unfair dismissals, are re-instatement, re-employment and compensation. Any award made at the arbitration process is final. The award cannot be appealed, it can only be reviewed. The employee can only review an award on the grounds that, the commissioner committed misconduct, a gross irregularity or exceeded his/her powers, or if the award was improperly obtained.81

Both parties at the CCMA proceedings are allowed to place their facts before a commissioner and speak. Legal representation is generally frowned upon. However, the commissioner may make an exception, should all the parties consent to it, or if it is in the interest of justice to permit legal representation.82

79 (n 9) 12. 80 (n 65) 192. 81 (n 17) 193. 82 (n 17) 194.

The proceedings in the Dispute Resolution Chamber are almost identical to those set out in the CCMA. Considering that the structure of the Dispute resolution chamber were designed to mirror the CCMA, players can take comfort in the fact that they are treated in the same manner as employees engaged in traditional forms of employment. A difference that can be noted however, is the award that the two tribunals are entitled to give. Both structures can make a compensation award, but the chamber does not have the power to re-instate someone. The chamber however, does have the power to make an award for specific performance. Thus, by enforcing an employer’s contractual obligations, the chamber can ensure that a player returns to his club and is remunerated. This power almost indirectly empowers the chamber to re-instate a dismissed employee.

A further difference to note, is the fact that the Dispute resolution chamber permits legal representation, but the CCMA is hesitant in allowing it. Though it is understandable that both the CCMA and the chamber want to limit the formalities of the proceedings, it might be better for the CCMA to emulate the chamber and permit legal representation, especially when an employee lacks the educational background to understand the proceedings.

5. THE REMEDY OF SPECIFIC PERFORMANCE

Above I analysed the most common forms of athlete dismissals, and further demonstrated the manner in which such disputes are resolved, both internally and in terms of the LRA. Internal Dispute resolution structures in terms of contract law and even labour law have the remedy of specific performance as its most powerful weapon.

Structures such as the Dispute Resolution Chamber in football has the power to enforce specific performance. Due to the fact that it is a key remedy in resolving contractual disputes, it thus becomes imperative to determine whether or not it is a suitable remedy in the case of athlete contracts.

The whole concept of pacta sunt servanda is so parties can honour their contractual obligations. When a breach of contract occurs, the offended party has the remedy of specific performance at

43 his/her disposal.83 This remedy is essentially aimed at keeping the contract alive, so that both parties can fulfil their contractual obligations. When a court makes an order of specific performance, it compels the party that has breached his/her contractual obligations, into honouring those obligations in the manner that was agreed upon in the contract.84

Section 193(2) of the LRA states that, the remedy of reinstatement is the preferred remedy for employees who have been unfairly dismissed. Section 193 of the LRA, stipulates that, an employee can only be denied his/her primary remedy of reinstatement, only where there is an exception that is catered for by legislation. Thus, the Labour Court, or the arbitrator, must require the employer to reinstate or re-employ the employee, unless, the following exceptions are present.85

 the employee does not wish to be re-instated or re-employed;  the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;  it is not reasonably practicable for the employer to reinstate or re employ the employee; or  the dismissal is unfair only because the employer did not follow a fair procedure .

Thus, when a judge or arbitrator is unable to enforce the primary remedy of reinstatement due to the existence of any of the above mentioned exceptions, it will be the duty of the judge or arbitrator to make an award for compensation.86

The remedy of reinstatement, is the LRA’s way of ensuring that the parties honour the employment relationship. Thus, the remedy of reinstatement is the LRA’s equivalence, to the remedy of specific performance. This is important to note, because it demonstrates the manner in which the dispute resolution structures set up by the LRA will resolve contractual disputes, as compared to the internal structures that prefer the remedy of specific performance.

83 Hutchison D and Pretorius C The Law of Contract in South Africa (2009) 319. 84 (n 83) 319. 85 Vettori SM, “The Role Of Human Dignity In The Assessment Of Fair Compensation For Unfair Dismissal” 2012 AFRICAN JOURNALS ONLINE (AJOL) 102 104. 86 Vettori (n 85) 104.

One must remember that these remedies only apply in cases of unfair dismissals. The constitutional court in Chirwa v Transnet,87 determined that the LRA has suitable remedies in cases of unfair dismissal, thus, applicants cannot approach a high court to resolve a dispute regarding unfair dismissals as the Labour court has exclusive jurisdiction in this regard. However, when the dispute is strictly contractual in nature, then parties are entitled to approach the high court and have the common law remedy of specific performance made available to them. As will be demonstrated in the case studies below.

In the past, courts were often reluctant in making an order of specific performance, due to the fact that you would be forcing parties whose relationship had broken down into fulfilling their contractual obligations. They were thus more willing to make an order for damages. This approach is especially understandable in the context of athlete contracts. Would it be reasonable to force a player to remain at a club that refuses to play him/her? Would such a player not be better served ending the contractual relationship and move on to another club where he can get the playing time he/she requires? Should the commercial gains of having the player at the club outweigh the player’s professional needs? This issue was at the centre of two cases that will be discussed below, and have set the precedence of giving an order of specific performance in the case of athlete contracts.

5.1 Santos Professional Football Club (Pty) Ltd v Igesund88

Igesund was a professional soccer coach who entered into a contract of employment with Santos football club. Igesund repudiated the contract of employment when he notified the club of the termination of his services. Following the notice, the club approached the court for an order of specific performance, that would essentially compel Igesund to serve out his contract as head coach of the club. It is important to note that the contract between Igesund and the club contained a clause to the effect that, should Igesund breach the contract, the club will have as one of its remedies, the

87 2008 (4) SA 367 (CC). 88 2002 5 SA 697 (C).

45 order of specific performance.89 The main reason given by Igesund to leave the club, was that he was offered a more lucrative contract of employment with another professional football club.

The court held that it was evident that Igesund's principal reason for leaving Santos was that he had secured a better contract. The court further noted the fact that Igesund was a coach with a good reputation and he thus had bargaining power at the time he entered into the contract with Santos. Due to his reputation, he was able to contract on equal terms and subsequently negotiate a high income for himself.90 The court explained that Igesund would face no hardship in honouring his contractual obligations, and only the club would be prejudiced if Igesund did not fulfil his contractual obligations.91 The court ordered Igesund to serve out his contractual obligations, and thus the claim for specific performance succeeded.

The reasoning of the court to not grant an order of specific performance is clear. Igesund would face no hardship in being forced to fulfil his contractual obligations. It was he who chose to commit a breach of contract. It was from this breach that the employment relationship between himself and the club began to sour. Any unpleasantness he might face in continuing an employment relationship with the club, will be due to his own fault. Furthermore, the fact that he was a well- known and respected coach, allowed him to contract on equal terms with the club and to command a high income. This means that he entered into the contract voluntarily. The court cannot reward a well paid employee with allowing him to abandon his contractual obligations in order for him to be even better paid elsewhere, especially when he was at fault for the breakdown in the contractual relationship.

5.2 The case of Lionel Mapoe

In the case of Vrystaat Cheetahs (Edms) Beperk v Mapoe,92 Mapoe was a professional rugby player that had entered into a contract of employment with the Freestate Cheetahs. During the course of

89 Mould K “The Suitability Of The Remedy Of Specific Performance To Breach Of a "Player’s Contract" With Specific Reference To The Mapoe And Santos Cases” 2011 SAFLI 11 198. 90 At 79D–E/F. 91 At 84I/J - 85B. 92 4587/2010 (29 Sep 2010).

46 the employment relationship, Mapoe repudiated his contract, when he chose to sign a contract of employment with the Sharks. The matter was referred for arbitration, and the arbitrator order Mapoe to fulfil his contractual obligation. When Mapoe ignored the order given by the arbitrator, the Cheetahs applied for an interdict to compel Mapoe to honour his contractual obligations. If such an interdict were to be granted, it would effectively result in an order of specific performance against Mapoe.93

When coming to its decision, the court essentially agreed with the decision made in the Santos v Igesund-case. The court held that the facts and context of the case in Igesund related closely to the facts and context of the case before it. Using the same reasoning from the Igesund judgment, the court held that the breakdown in the employment relationship was due to Mapoe, and that his only reason for wanting to leave was the fact that the Sharks had offered him a more lucrative contract. Relying on the decision in the Igesund-case, the court in the Mapoe case, exercised its discretion and made an order of specific performance against Mapoe. This had the effect of compelling Mapoe to honour his contractual obligations with the Cheetahs.94

The problem with athletes, is that there is no like for like replacement. In other words, in traditional forms of employment, an employer can simply replace one employee with another suitably qualified one. In cases of athletes, this is not possible, hence why specific performance is a primary remedy. Those associated with professional sport often refer to something known as “the X factor”.95 This refers to an exceptionally talented player with the ability to single handily change the outcome of any match. “The X factor” cannot be taught, and no matter how much an athlete trains, he will never obtain it. It is something that one is simply born with. The problem comes with the fact that this cannot be weighed in monetary terms. The club cannot simply receive compensation and then obtain the services of another athlete, which was the case in both the Igesund and Mapoe-cases. Igesund was a highly sort after coach, and Lionel Mapoe was a bright up and coming young talent that several teams wanted to sign. Such people cannot simply be

93 At p 7. 94 At p 90. 95 (n 89) 209.

47 replaced, hence why the employer seeks to hold onto them through the remedy of specific performance.

Lionel Mapoe was a particularly exceptional case. He was a young black player, who had represented South Africa at all age groups and was identified as a potential springbok. SA rugby requires all Currie Cup teams to field at least three players of colour in their starting line ups.96 This proved to be especially difficult for the Cheetahs as they did not have enough players of colour within their ranks. Not only was Mapoe exceptionally talented, he was a player of colour, which made him of high value to the Cheetahs. It only made sense for them to fight the Sharks in court in order to keep him.97 Had they failed to do so, they would not only lose the services of a really good player, but they would face severe fines from SA rugby for failing to reach their transformation targets.

Thus, the two cases mentioned above, demonstrate why cancellation or an order for damages is not a suitable remedy in contractual disputes between the club and the player. Specific performance is a primary remedy in such cases.

6. CONCLUSION

Like in traditional forms of employment, athletes and clubs get involved in disputes and such disputes have to be resolved. In the same manner that a traditional employee can be dismissed, an athlete can also be dismissed. Constructive dismissal and failure to renew a fixed term contract were identified as the common forms of dismissals that athletes face. In such dismissals, because athletes are employees, they have the remedies of the LRA should the internal dispute resolution structures fail them, as was seen in the SARPA obo Bands and Others v SA Rugby (Pty) Ltd-case.

The LRA encourages employers and employees to resolve disputes without having to resort to the LRA dispute resolution structures. This is exactly what sporting bodies in this country do. They set up their own internal structures, whereby contractual disputes can be resolved without turning

96 (n 89) 209. 97 (n 89) 210.

48 to the courts. Courts are only involved as a last possible resort. This was demonstrated by my case study of the Dispute Resolution Chamber, used to resolve contractual disputes between the club and the player in the professional football context. This process was compared to the processes that are in place under the LRA, and it was determined that although they differ slightly, the internal structures are more than capable of resolving contractual disputes between the employer and the employee.

Finally, I looked at the remedy of specific performance and I compared it to the remedies made available by the LRA in cases of dismissals. The primary remedies of reinstatement and re- employment have the same effect as specific performance, as they both look to continue the employment relationship. However, they differ in the sense that, specific performance is a common law remedy designed to resolve contractual disputes, whereas the LRA remedies are designed to resolve disputes regarding dismissals. Thus, specific performance is a primary remedy in cases of contractual disputes between players and the clubs they render their services to. Though courts typically take a reserved stance when it comes to making an order of specific performance, the cases of Igesund and Mapoe demonstrate that this is not the case with regards to the employment contracts of professional athletes. It was established that the unique circumstances of their employment demand that specific performance become a primary remedy and one that the courts are willing to enforce.

CHAPTER FOUR CONCLUSION

The year 2016 was an Olympic year, meaning that there was a greater focus on athletes and the treatment of athletes, by the respective federations. As a country, we witnessed the likes of Wayde Van Niekerk and Caster Semenya win gold, and unite the nation even for a brief moment. In that month, sports became the topic of discussion, as the nation gained a keen interest for our athletes. The amount of money that medal winning athletes would win, along with the track suits that Team SA wore, were a topic of discussion around braais across the country. It is this interest that we as South Africans demonstrate every time our athletes represent us on the world stage, which made this dissertation a necessary one. I wanted to demonstrate through case law, legislation and the case studies of various athletes in South Africa, that there is a relation between the labour legislation in place and the employment contracts of athletes engaged in team sports.

In my proposal, I set out to determine three particular issues. Firstly, whether athletes are considered employees in terms of the LRA, or whether they qualify as independent contractors? Secondly, in what way are the principles of the labour legislation appropriate for the regulation of the employment contract of athletes considering the unique features of their employment? Especially considering UIF, COIDA and other social security laws that are applicable in the employment relationship. And finally, should the Labour Courts play a bigger role in dispute resolution cases, or leave the athletes and their clubs to utilize their internal dispute resolution measures, due to the uniqueness of their employment relationships?

In chapter two, the focus of the chapter was to determine whether or not an athlete qualified as an employee, and if he/she does qualify, how the LRA specifically affects them. I began by looking at the common law definition of an employee. The common law differentiates between the locatio conductio operarum and the locatio conductio operis. The locatio conductio operarum is a service type contract where the work done by the employee is of a personal nature. The employer employs a particular employee to provide services, and in return for the services provided, the employer will remunerate the employee. The locatio conductio operis on the other hand, is more concerned

50 with the end result of the services rendered. In this type of contract, the employer only cares that the work is efficiently done, without much regard for who performed the work. The personal nature of the services rendered, are not of much concern in this type of contract.

After looking at these two types of contracts that were established by Roman law, it was determined that the athlete’s contract forms part of the locatio conductio operarum. This was determined by the fact that, the contract that an athlete enters into with a club, is very personal in nature. The club obtained the particular services of a particular athlete in hope that such an athlete will prove to be a good investment for the club. The position was not made available to all players. The club went out of its way to recruit a particular player, thus, the services provided by such a player, are very personal in nature.

This contention is further supported by the tests developed by the courts in this regard. The control test seeks to determine the amount of control the employer has over the work performed by the employee. The organisation test, seeks to determine the extent to which an employee is integrated into the organisation of the employer. The final test, is the dominant impression test. In this test, one is requested to view the employment relationship in its entirety, and once all relevant factors have been taken into account, one would have to decide whether the dominant impression they received, was one of an employment relationship or not. The courts have encouraged the use of the dominant impression test over the other two tests.

Section 200A of the LRA established seven factors. According to this section, should one of the seven factors listed, apply to the employment relationship, then the person in question would be deemed as an employee in terms of the LRA listed factors, such as the fact that the club controls the direction of its players, as well as the fact that the club provides the players with tools to perform their work, coupled with the fact that the player is contracted to only one club at a time, prove that a number of the listed factors apply to athletes, which in turn qualifies athletes engaged in team sports to be regarded as employees.

Once the role of the athlete was established in the common law set up, I looked at the duties that the athlete has as an employee, as well as the duties that the club has as the employer. The duties of the club are:

 To remunerate the employee  To provide the employee with work  To provide safe working conditions  To deal fairly with the employee

The duties of the athlete as an employee of the club are:

 To render services to the employer  To work competently and diligently  To obey lawful and reasonable instructions  To serve the employer’s interests and act in good faith

Though these duties were established in terms of Roman law, South Africa has codified them so as to form part of our legislation. The LRA has incorporated these duties within its provisions, thus making a violation of these duties, a breach of a statutory obligation.

It must be remembered that, even though athletes can be regarded as employees, the nature of their contracts would suggest that they are fixed term contract employees. The recent amendments to the LRA look to protect fixed term employees, as they previously found themselves in an increasingly vulnerable position. However, due to the fact that sports such as rugby and soccer provide trade unions that have entered into collective agreements with the respective governing bodies of those sports, along with the fact that there is a high probability that the majority of players earn above the R205 433 per annum threshold, such athletes cannot be protected by the amendments. The amendment state that, when an employee falls outside of the requirements to be protected as a fixed term employee, and the employer does not have a reasonable justification for why such an employee falls outside of the requirements, such an employee will then be regarded as a full time employee of the employer, and subsequently entitled to all the benefits that

52 accompany a full time employee. However, due to the limited nature of the athlete career, coupled with the fact that athletes can be traded to other teams, no athlete can ever be regarded as a permanent employee of any club. The most clubs can do to ensure that athletes are treated the same, is to have minimum standards that apply to all players, regardless of their reputation and income.

During the course of chapter two, I made a point of demonstrating similarities between the athlete’s contract of employment and the contract of employment of a traditional employee. This was important because it further cemented the fact that athletes engaged in team sports are just as much employees, as those engaged in traditional forms of employment. The fact that an athlete is employed by a club and subjected to the control of a sporting body does not affect their status as employees. Traditional employees are also accountable to certain authorities. Like an athlete can be suspended or expelled from the sport for doping, a lawyer can be suspended or have his/her name struck off the roll, for improper conduct. Another similarity, is the fact that like traditional employees, athletes have bargaining power. They too can form trade unions, such as SARPA, which is the trade union that represents rugby players. This trade union entered into a collective agreement with SA rugby, and is now entitled to represent players on a number of issues including player income. Having trade unions ensures that athletes have a voice when it comes to decisions that directly affect them.

Furthermore, it was demonstrated that there are social security benefits that athletes qualify for. Though teams do not make UIF and COIDA available to athletes in the same manner that they are made available to traditional employees, soccer and rugby have established their own private means of social security to protect their players. Rugby has a compulsory income protection scheme, which ensures that the insurer will take over the contractual obligation of the club, in the event that a player becomes injured. Where soccer is concerned, there is an insurance scheme that looks to ensure that players are protected far after they retire. However, because the club contributes 50% to the insurance cover, it thus automatically becomes entitled to 50% of the payout. This might not be ideal, due to the fact that players retire when they are relatively young, and limiting their pay-out, will limit their ability to enter into their new careers.

In chapter three, I investigated dispute resolution processes that athletes follow, and I compare them with the dispute resolution processes that have been set out in the LRA. I began by looking at the two most common ways in which an athlete can be dismissed by the team he/she is employed by and where the application of the LRA does not provide a comfortable fit. These two forms are, constructive dismissal and failure to renew a fixed term contract.

Constructive dismissal refers to a dismissal whereby the employer has made continued employment intolerable, thus forcing an employee to resign. In the case of athletes, this can present itself in the form of a player falling out of favour with a new coach, thus forcing the player to move to another club, as was seen in the Lehlohonolo Majoro-case.

A failure to renew a fixed term contract on the other hand, refers to a situation whereby, an employee is employed in terms of a fixed term contract and the employer, either through his words or actions, gives the employee the reasonable expectation that the contract will be renewed. What then ensues, is that the employer fails to renew the contract or renews it on less favourable terms, which ultimately means the employee has been dismissed. This was played out in the SARPA case, where the rugby players were given verbal assurance by the coach that their contracts would be renewed, but SA rugby failed to renew the contract. The court ultimately decided that the players knew that the coach had no authority to make such guarantees, thus, they had no reasonable expectation that the contract would be renewed.

When such disputes arise, mechanisms must be in place to resolve them. In the case of professional soccer, there is what is known as the Dispute Resolution Chamber. The purpose of this chamber is to resolve disputes, in a similar manner to the CCMA. This chamber has the authority to hear matters concerning contractual disputes, the determination of the status of footballers, disputed transfers of footballers, unfair dismissal and breach of contract. The chamber also has the power to make an order of damages or specific performance. The purpose of the chamber, is to ensure that disputes are resolved internally, and that the courts would only be involved as a last possible resort. It has already been mentioned that the chamber was established, so as to align with the CCMA. Thus, the two dispute resolution structures are rather similar. Both the chamber and the CCMA were designed to resolve disputes speedily and involving the least amount of formality.

It was mentioned in chapter three, that one of the main remedies available in contractual disputes between the athlete and the club, is that of specific performance. This is a remedy that is made available to an aggrieved party, when the other contracting party fails to honour the terms and conditions of the contract. Courts have been reluctant to make such an order, as it ultimately forces parties whose contractual relationship has soured to honour the sanctity of a contract. However, through the Igesund and Mapoe judgments, it was established that this was the best remedy available in contractual disputes between athletes and clubs. The two cases demonstrated that one cannot place a monetary value on an athlete. Thus, the court cannot simply make an order of damages so as to compensate the aggrieved party. Compensation cannot replace the special talent that a certain player provides. Daniel Carter was a once in a generation fly-half for New Zealand. No matter how much money the aggrieved party receives, they will still suffer hardship, because they would have lost the services of a talented player, who brings spectators to the stadium and is of great commercial value to the team. Such a player cannot be replaced, thus specific performance is a more suitable remedy in cases of player contracts, as was demonstrated in the two already mentioned judgments.

In chapter three, I demonstrate the significance of the labour law remedies for dismissal, and I compare them to the remedy of specific performance used in terms of the common law. In cases of dismissals, the various sporting codes tend to want to resolve these disputes internally. Approaching a court, is a matter of last resort. However, if a court were to be approached, it would have to be the Labour Court, as the Constitutional Court has confirmed that the Labour court has exclusive jurisdiction in disputes regarding dismissals. However, specific performance is a remedy only made available in cases of contractual disputes. The LRA remedies of reinstatement and re- employment were not appropriate in the matter of Mapoe and Igesund, due to the fact that dismissal was not at issue. The dispute was contractual in nature, thus making specific performance a more suitable remedy. Specific performance, ultimately has the same effect as the LRA’s primary remedy of reinstatement. Both remedies seek to continue the employment relationship. The only difference is, the LRA remedies are designed for dismissal disputes, whereas specific performance was designed to resolve disputes that were contractual in nature.

Nelson Mandela once famously said:

Sport has the power to change the world. It has the power to inspire, it has the power to unite people in a way that little else does. It speaks to youth in a language they understand. Sport can create hope, where once there was only despair. It is more powerful than governments in breaking down racial barriers. It laughs in the face of all types of discrimination.

Athletes are often vehicles of inspiration, during any nation’s darkest time. It is only fair, that we as a nation take a keen interest in the well-being of the men and women who proudly fly this nation’s flag globally.

[17 526]

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LIST OF CASES

1. Coetzee v Comitis [2001] 1 All SA 538 (C)

2. McCarthy v. Sundowns Football Club [2003] 2 BLLR 193 (LC)

3. Colonial Mutual Life Assurance Society Ltd v MacDonald 1931 AD 412

4. R v AMCA Services Ltd a o 1959 (4) SA 207 (A)

5. Ongevallekommissaris v Onderlinge Versekeringsgenootskap AVBOB 1976 (4) SA 446 (A)

6. Smit v Workman's Compensation Commissioner, 1979 (1) SA 51(A)

7. Dempster vs Addington Football Club (Pty) Ltd 1967 (3) SA 262 (N)

8. Copeland and New Dawn Prophesy Business Solutions (Pty) Ltd. Van Wyk C. (2010) 31 ILJ 204 (CCMA)

9. ARPA obo Bands & Others/SA Rugby (Pty) Ltd [2005] 2 BALR 209 (CCMA)

10. Mofokeng & others and African Warriors Football Club. Seedat A. (2012) 33 ILJ 2008 (ARB)

11. Zothwane and Lamontville Golden Arrows Football Club (2007) 28 ILJ 284 (ARB).

12. Mmethi v Bloemfontein Celtic Football Club (2011) 32 ILJ 659 (LC)

13. Chirwa v Transnet Ltd and others [2007] JOL 21166 (CC).

14. Santos Professional Football Club (Pty) Ltd v Igesund 2003 5 SA 73 (C)

15. Vrystaat Cheetahs (Edms) Beperk v Mapoe Case Number 4587/2010 decided on 29 September. 2010