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A CRITICAL ANALYSIS OF THE APPLICATION OF LABOUR LAWS TO ATHLETES by NONTOBEKO PHELI NKAMBULE STUDENT NUMBER: 201106704 SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE DEGREE OF MAGISTER LEGUM (LLM) in LABOUR LAW in the FACULTY OF LAW at the UNIVERSITY OF JOHANNESBURG SUPERVISOR: Dr AH DEKKER NOVEMBER 2016 1 PLAGIARISM DECLARATION 2 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 3 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 4 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. 6 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. 7 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. 8 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.