Specific performance as remedy for breach of athletes’ contracts by Kenneth Lindsay Mould Submitted in fulfilment of the requirements for the degree LL.D In the Faculty of Law, University of Pretoria September 2014 Supervisor : Professor S.J. Cornelius CONTENTS Acknowledgments Summary Declaration of originality Chapter 1: Introduction and background 1.1.Introduction 1. 1.2.Background 6. Chapter 2: The development of the contractual obligation in Roman law, Roman-Dutch law and English law 2.1. Introduction 17. 2.2. The development of the contract in Roman law 17. 2.2.1. Nexum 18. 2.2.2. The development of the contract in Roman law since nexum 19. 2.2.2.1. Contractus verbis 19. 2.2.2.2. Contractus litteris 20. 2.2.2.3. Contractus re 21. 2.2.2.4. Contractus ex consensus 23. 2.3. The development of the contract in Roman-Dutch law 24. 2.4. The development of the contract in English law 27. 2.5. The concept of a contract in current South African law 35. 2.6. Conclusion 36. Chapter 3: Origins and nature of the athlete’s contract 3.1. Introduction 44. 3.2. The meaning of sui generis as it relates to contracts 44. 3.3. The contract of employment in Roman law 47. 3.4. The contract of employment in Roman-Dutch law 48. 3.5. The contract of employment in English law 49. 3.6. The contract of employment in South African law 56. 3.7. The nature of the athlete’s contract 62. 3.8. Conclusion 79. Chapter 4: The remedy of specific performance in Roman law 4.1. Introduction 83. 4.2. The meaning of “specific performance” 84. 4.3. The origin and development of the remedy of specific performance in Roman law 85. 4.3.1. The period of the kings 85. 4.3.2. The Roman Republic 88. 4.3.3. The Roman Empire 91. 4.3.3.1. The Principate 91. 4.3.3.2. The Dominate 93. 4.3.4. The codification of Roman law by Justinian and the role of specific performance within this codification 94. 4.4. The requirement that contractual obligations should remain possible 97. 4.5. Conclusion 98. Chapter 5: The remedy of specific performance in Roman-Dutch law 5.1. Introduction 105. 5.2. The availability of the remedy of specific performance in Roman-Dutch law: Voet and Grotius’s points of view 107. 5.3. The availability and suitability of the remedy of specific performance in Roman-Dutch law: a different point of view 110. 5.3.1. The procedure known as “gijzeling” 111. 5.3.1.1. The process of “gijzeling” in which a person was condemned by a Judgment of the Provincial Court to render an account or to perform an Act 113. 5.3.1.2. The process of “gijzeling” in cases where a judgment was given against any collegiae, tutors, curators, receivers, agents or other condemned in some particular capacity 120. 5.3.1.3. The process of “gijzeling” in cases where a Provincial Court ordered performance as well as the payment of a sum of money 121. 5.4. The procedure followed in the execution of judgments for the specific performance of an act in Roman-Dutch law 121. 5.5. The development of the remedy of specific performance in Roman-Dutch law Since “gijzeling”: the situation in the Netherlands after the Napoleonic invasion 122. 5.6. Conclusion 123. Chapter 6: The remedy of specific performance in English law 6.1. Introduction 128. 6.2. The nature of the remedy of specific performance in English law 129. 6.3. Factors against the decree of specific performance in English law 133. 6.4. Conclusion 137. Chapter 7: The remedy of specific performance in South African law 7.1. Introduction 140. 7.2. The influence of the Roman-Dutch perception of specific performance on South African law 140. 7.3. The influence of the English perception of specific performance on South African law 144. 7.4. The remedy of specific performance and the Constitution of the Republic of South Africa 156. 7.5. Conclusion 160. Chapter 8: Comparison between the treatment of athletes’ contracts in South Africa and abroad 8.1. Introduction 163. 8.2. The treatment of athletes’ contracts in other jurisdictions with focus on specific performance as remedy for breach of these contracts 164. 8.2.1. Jurisdictions within the United States of America 164. 8.2.2. The European Union 177. 8.2.3. The United Kingdom 186. 8.2.4. Australia 195. 8.2.5. New Zealand 201. 8.3. Conclusion 203. Chapter 9: Comparison between specific performance and other remedies for breach of contract 9.1. Introduction 211. 9.2. Contractual remedies for breach of contract in South Africa 212. 9.2.1. Damages 212. 9.2.2. Interdict 222. 9.2.3. The penalty clause 229. 9.3. The most suitable alternative to specific performance from a legal-practical South African point of view 233. 9.4. Conclusion 236. Chapter 10: The restraint of trade clause 10.1. Introduction 245. 10.2. The origins and development of contracts in restraint of trade 246. 10.2.1. Roman law 246. 10.2.2. Roman-Dutch law 250. 10.2.3. English law 253. 10.3. The development of the restraint of trade doctrine in South African law 262. 10.4. Conclusion 277. Chapter 11: Breach of contract committed by the employer 11.1. Introduction 287. 11.2. Constructive dismissal 288. 11.3. Dismissal through non-renewal of fixed-term contracts in sport 293. 11.4. Remedies available to the professional athlete in case of breach of contract by his employer 298. 11.4.1. Injunction, interdict and specific performance against an employer 299. 11.4.2. Damages suffered by the employee-athlete 304. 11.5. Conclusion 306. Chapter 12: Conclusion and recommendations 12.1. Conclusion 317. 12.2. Recommendations 331. Bibliography 333. ACKNOWLEDGMENTS I would like to express my gratitude and appreciation to the following persons: My promoter, Professor Steve Cornelius, for taking a leap of faith in accepting me as a candidate. I will be forever grateful for the privilege of working under your supervision. Professor Ian Blackshaw for sharing much of his academic insight and extraordinary knowledge – both academic and general. Senior colleagues, especially Professors Rochelle le Roux, Graham Glover and Bradley Smith, Doctor Brand Claassen as well as the Honourable Mr Justice Edwin Cameron for taking valuable time to discuss the topic with me when it was still in a developmental phase. Jan Berry for providing me with motivation and professional support at a time when it was much needed. Marga van Aardt, who acted throughout as my academic assistant and conducted neat and proper work in conducting the bibliography. My extended family, especially my late grandfather Elias Jacobs and late grandmothers Bettie Jacobs and Frieda Mould, for their often blind belief in my abilities. My parents, Lindsay and Aldu, for installing in me the discipline to undertake this task and provided me with the opportunity to study at a tertiary institution and pursue my dream of an academic career. My sister, Liza-Anne Meyer, for keeping me humble, and her husband, Sakkie Meyer, for his unwavering support. Jana, my wife, soul mate and greatest friend. With you I am everything and without you I am nothing. To God Almighty and His Son Jesus Christ, whose Grace is beyond comprehension. Kenneth Mould Bloemfontein November 2014 SUMMARY SPECIFIC PERFORMANCE AS REMEDY FOR BREACH OF ATHLETES’ CONTRACTS By Kenneth Lindsay Mould, submitted in partial fulfillment for the degree Doctor Legum in the Department of Private Law, University of Pretoria, under the supervision of Professor SJ Cornelius. The aim and object of this thesis are to determine the most suitable, but more importantly, effective, remedy for breach of the athlete’s contract. Sport as a profession, but also a business, has never been more profitable. This has inevitably led to athletes’ contracts being repudiated on an alarming and global scale. Contractually-determined formulae for remunerating parties who have, or will be, suffering damages due to the repudiation of either a professional athlete or a professional sports club, union or franchise of the athlete’s contract between them, has failed to stem the ever-rising tide of breach of athletes’ contracts. Therefore, this thesis has set out not to suggest ways in or formulae by which a disadvantaged party may be remunerated if a professional athlete or his/her “employer” repudiates the professional athletes’ contract between them, but to determine and suggest to courts which contractual remedy would be most suitable in case of breach of said type of contract, but also most effective in ensuring that parties to an athlete’s contract respect the nature of the legal tool that binds them. Ultimately, the thesis aims to establish how the maxim pacta sunt servanda, which forms the cornerstone of the law of contract, may be protected. Specific performance is considered the primary contractual remedy in South African law. Current South African case law suggests that South African courts would have no objection to compelling a professional athlete who wishes to rescind his contract prematurely (that is, before the contract expires) to honour said contract through an order of specific performance. However, one of the unique challenges presented by this thesis is the fact that sport is a global profession. This means that athletes ply their trade in various jurisdictions in which they are not necessarily domiciled. Whereas, for example, specific performance is the primary contractual remedy in South African law, it is but a secondary one in English law, which would only be granted if equity so demands.