Rules
in sport often correspond to the culture of the society in which the sport is
played as well as to the accepted norms of the people.
Rules
ensure order and discipline on the playing field and contribute towards
fairness in sport to determine who the ultimate winner will be.
Types of Law
1. Criminal Law
-this is the collection of rules which regulates the punishment of
persons for offences or crimes committed by them.
-Crime is conduct which the common law or statute law prohibits
and is subjected to punishment.
Examples:
murder, culpable homicide, assault, theft, robbery and fraud
2. Civil Law
-concerns
the adjudication upon, and the settling of, disputes
between citizens of the state or between citizens and the state.
-All citizens enjoy certain rights, e.g. the right to own and use
property, the right to privacy, and the right to security, etc.
-Civil law covers a wide variety of topics, such as contract law,
the law of property, the law of defamation, etc.
Sport and The Law
Sport is part of the society and such is subjected to the general
law of the country.
Sport today is regarded as part of the entertainment business and
all the various facets of that business apply to sport as well.
Matters which have already engaged the attention of the courts are
contractual issues, employer relationships, invasion by the media of rights to
privacy, defamation and the rights of spectators.
What is also increasing is the number of cases where participants,
spectators and the general public have sought redress from the courts for
injuries suffered by them in sporting events or as a result of them.
LEGISLATION AND SPORTS CLUB
A sport club is an association of a
particular nature. It is not a partnership and usually not an association for
gain. Generally, a member is only liable for subscriptions as required by the
rules of the club to be paid while he remains a member.
SPORTS INJURIES AND THE LAW

Sports injuries are an unfortunate but inevitable aspect of
participation in sport. Injured players or spectators may in certain cases look
to the law for a remedy. Liability for sports related injuries may arise from
either the criminal law or the law of delict.
CRIMINAL
LAW
The criminal
law applies to act of violence on the sports field in the same manner as it
applies to other forms of violence.
An
act of violence on the sports-field may constitute the crime of assault.
ELEMENTS OF CRIMINAL LAW AND SPORT
1. ASSAULT
The
essential elements of this crime are the act of applying force or the
apprehension of it; unlawfulness; and intent. A participant, who performs a
forceful or violent act in contravention of the rules with the intent to
injure, commits assault. It is different in sports such as boxing and
wrestling, where hitting the opponent is the very purpose of the sport and the
participant acts lawfully if blows are struck and injury caused within the rule.
2. CONSENT
A
participant in a contact sport who knows and accepts the violence and possible
resultant injury that the sport involves, will in law be taken to have
consented to such injury. Consent is a unilateral legal act, e.g. not requiring
an agreement with another person, and
may be given expressly e.g. by an oral or written declaration.
Causing
injury to an opponent by executing a forceful tackle in rugby is not unlawful
if it occurs within the rules of the sort, because of the opponent’s implied
consent to the risk of injury. A rugby player submits himself to the robust
tackling and forceful bodily contact that is part of the game. The person
giving the consent must be capable of violation, i.e. have the mental capacity
to decide and understand the implications of participating in a sport that
involves the risk of injury.
When
a parent must give consent on behalf of a child, that child must want to
participate in the sport.
3.
SELF-DEFENSE
Self-defense
appears when a person assaulted or about to be assaulted in the course of a sporting
event, i.e. where unlawful violence is used or threatened against him or her,
may use reasonable force to repel the attacker. Injury inflicted upon the
perpetrator of an assault by a person acting in self-defense is justified where
the force used by the defender was necessary and reasonable in the
circumstances.
Requirements
for self-defense to be legal act:
➢There must have
been an unlawful attack causing an injury, for example by using his fists on
the rugby field.
➢The attack must be
directed against a person that is part of the game.
➢The defense must be
directed at the attacker.
➢The attack must
have commenced or be threatening.
➢The means of
defense must have been necessary and reasonable
THE LAW OF DELICT
People are
exposed to the possibility of suffering some sort of loss or damage.
Compensation for damages can only be claimed based on legal grounds. If a
person is insured against damages, then the insurance must pay for the damage.
If the damages were caused by an unlawful act of another person, then that
person must pay for the damages by law. The law of delict establishes who
should bear the loss, who should be compensated and how much should be paid in
damages.
DEFINITION OF A DELICT
“An unlawful act of one person (the doer) that causes damage to another”
Under the law of delict an injured player or
spectator can claim compensation for physical, psychological and financial
damage caused by an injury attributable to the intentional or negligent conduct
of a player or official.
The
person responsible for the unlawful infringement is liable to compensate for
the damage caused by the infringement.
The
person who suffered harm or damage has the corresponding right to claim
compensation.
ELEMENTS OF A DELICT
The elements of a delict and requirements for delictual liability in
South African law are the following:
➢ An act
➢ Unlawfulness
➢ Fault
➢ Causation
➢Damage
An Act
An act is a voluntary human conduct that means that:
i) only people (not animals) can act by law
ii)any human conduct that was susceptible for will control by time of the specific activity, is by law an act.
Smoldon v Whitworth
In the English case
of Smoldon v Whitworth the referee of a rugby game was held liable to a player
who was injured when a scrum collapsed in a dangerous manner. In the course of
the game scrums had collapsed an abnormally high number of times. In one of
these cases the plaintiff suffered a broken neck, leaving him paralysed. It was
found by the court that the referee had not enforced the correct procedure for
engagement and that this was one of the reasons for the high number of
collapsed scrums.
Unlawfulness
An act is unlawful when it is in contrast with the rules of the game, for
example hitting someone with your fist during a rugby game.
Fault
The doer has fault when
he injures someone by acting intentionally or by negligence. A person acts
intentionally if his will is directed at causing injury and he or she is
conscious of the unlawfulness of his or her conduct. By law any person younger
than seven years as well as a mad person can never be held responsible, because
their mental ability is too deficient and therefore they will never have fault.
Avila v Citrus Community College District
(2003)
In the case of Avila v Citrus Community
College District, Jose Avila a 19 year old boy, played a baseball game for his
college. During the game he was hit by the bat when a member of the other team
threw it at him and cracked his helmet. After Jose was hit with the bat he felt
dizzy in his head and had severe pain. The coach of his college team did not
call on medical help, but told Jose to keep on playing. Jose told the coach he
was not feeling well, but the coach told him to finish the game. After the
incident Jose made a case against Citrus Community College for negligence,
because the coach did not send for medical help and he forced him to continue
play. Jose won the case.
Causation
A person can only be held responsible for acts
he committed. He or she cannot be held responsible on behalf of someone else
for acts he didn’t commit.
Damage
A person must cause damage to another person
before he or she can be held responsible for an unlawful act. On the sports
field the one person must gain an injury because of the unlawful act of another
person causing the injury.
The law of delict also determines the
following:
i)Who is
guilty?
ii)
Who needs to be compensated?
iii) How much should the compensation be?
COMPENSATION
As soon as it is determined that a delict has
happened, the law provided certain compensation to the disadvantaged
party. The type of compensation depends
on the following factors:
i)
The nature of the loss
ii)
Type of damage
iii)
The injury
iv)
If it was deliberate or negligent
v)
The nature of the unlawful act
vi)
If the delict has already happened or is threatening to happen
As a general rule, a complaint of delict can
only be claimed against the person who committed the unlawful act.
DISCIPLINARY PROCEEDINGS IN SPORT
A
sport club, as an association, has no inherent power to conduct disciplinary
proceedings unless it is specifically provided for in its constitution.
Associations in the sporting arena generally have constitutions and by-laws,
regulations or rules that regulate all matters concerning disciplinary action.
The constitution should make specific provision that a committee shall have the
power on behalf of the association to take such steps as it may deem fit
against a member failing to comply with the constitution or the rules of the
club.
A. Disciplinary Code
It
is vital that any sport organization must have a proper disciplinary code.
B. Authority
A disciplinary tribunal exercising
disciplinary powers.
C. Procedural Fairness
The right to
be heard
Requirements for a fair hearing:
i)
Proper information
➢ The implicated person must be given reasonable
and timeous notice of the hearing.
➢ The implicated person must be well informed of
the substance of allegations against him or her.
ii) Proper opportunity to be
heard
➢ The person against whom the disciplinary action
is being taken, must be present at the proceedings and be
given an opportunity to be heard and to state his or her case.
iii) Legal representation
➢ The implicated person has
the right to have legal representation of his or her choice.
➢ If legal representation is not allowed, a
tribunal should at least allow some form of representation,
such as representation by a player’s union representative, other player or club
member or parent.
➢ The question of legal representation depends on
the circumstances of the particular case.
It is very important to conduct the right
disciplinary procedures when a disciplinary action is implicated against a
person.
SPORTS
CONTRACTS
The
law of contract plays a fundamental part in sports law. the vast majority of
obligations that occur within the context of sports, are of a contractual
nature. In this section the realization of a contract will be discussed. In the
sporting arena, there are contracts between:
➢ Players and their agents
➢ Players and their clubs or unions
➢ Players and their individual sponsors
➢ Referees and their clubs or unions
➢ Referees and their sponsors
➢ Unions and their sponsors
➢ Unions and TV broadcasters
➢ Unions and the media
What Is A Contract?
A
contract can be described as an agreement between two or more people with the
intention to call for lawful enforceable commitments, and that comply with the
requirements for a valid contract as set out by law. Not all agreements are
contracts, because not all agreements create commitments.
Requirements
For A Valid Contract
i)
There must be an agreement between the parties. The parties must agree on the
objectives of the contract. It is also
called “true agreement”. Without agreement, there can be no contract.
ii)
Each party involved by the contract must be competent to act lawfully to
compile a contract.
iii)
The agreement must be lawfully executed, which means it must be legal.
iv)
The agreement must be physically executed and the performance must be
measurable.
v)If
any formalities are prescribed for the realization of a contract, it must be
met.
OFFER AND ACCEPTANCE
Consensus
is the basis of each contract. A contract can only be realized when consensus
are reached between the parties regarding the rights and obligations created by
the agreement between them. The most general method that is used to determine
if consensus was reached is to determine if there was an offer and an
acceptance.
THE OFFER
An
offer is a conditional promise to do a refrain from doing something in the
future. An offer is therefore a statement by one party (addressor) to another party
(addressee) which he or she has the intention to be contractual bound by the
acceptance of the offer.
ACCEPTANCE
An
acceptance is a statement by the addressee (the person to whom the offer is
addressed to), by which he or she indicate that they agree with the terms of
the offer exactly as set out in the offer.
Possible aspects that can occur in a
contract:
➢ Description of services to be rendered and general duties
➢ Period of employment
➢ Remuneration and
benefits
➢ Working hours
➢ Confidentiality
➢ Disciplinary rules
➢ Grievance procedures
➢ Leave
➢ Performance standards
Breach Of Contract
If a party fails to honour his obligation in terms
of a contract, the party commits breach of contract.
Forms of Breach Of Contract
1. Delay by the debtor
➢
Delay by the debtor occurs when
a party (the debtor) does not perform on time by his own fault. If the parties
have agreed on a specific date by which performance should take place, a party
will be in breach if he or she does not perform by the determined date. The
reason for the delay must be the debtors own fault.
➢Example:
the manufacturer of sportswear makes an agreement with your sports club to
deliver the clubs match clothes before a certain date. If the manufacturer does
not deliver the clothes by that date then he is in breach of the contract.
2. Delay by
the creditor
➢ Delay by the creditor occurs when the creditor does
not co-operate with the debtor to make performance possible.
➢Example:
the manager of the sport club agrees with the sportswear manufacturer to place a final order for match clothes on the
10th of January for delivery of the clothes one month after date of
order. After placing the final order on the 10th of January the
manager of the sports club contacts the manufacturer almost daily to make
certain changes to the order. This makes the performance of the manufacturer
impossible to deliver on time. The club therefore commits breach of contract by
not co-operating with the manufacturer to make performance on his part
possible.
3. Positive
malperformance
➢ If a party
renders performance which is not of the extent or quality set out in the
contract, that party commits breach of contract in the form of positive
malperformance.
➢Example, the
manufacturer of sportswear agrees to deliver green jerseys, if he delivers blue jerseys
it will result in positive malperformance.
➢Positive
malperformance also occurs where a party acts contrary to the terms of a
contract which requires that a party should refrain from certain conduct, for
example a soccer player who plays a match for another club on a weekend.
4.
Repudiation
➢Repudiation
takes place when a party gives a clear indication that he no longer intends to
be bound by the contract.
➢Example,
a soccer player concludes a
contract to play for a certain club. Two days later, the same soccer player
also concludes a contract to play for another club. The conclusion of the
latter contract results in a repudiation of the earlier contract.
TERMINATION
OF CONTRACT
Any decision to dismiss must also be preceded by a
fair procedure, e.g. a disciplinary, counseling or consultation process. The
employer bears the onus of providing that the dismissal was both substantively
and procedurally fair. If the employer is unable to prove that a fair reason
existed for the dismissal, the employee is in principle entitled to
reinstatement, alternatively, compensation not exceeding twelve months’
remuneration.
Reasons for
terminating a contract
➢ Term
expired
➢
Agreement between parties to
terminate the contract
➢
Notice - period of termination are determined in the contract
➢
Impossibility to perform, for example the soccer player injured his
back and may not
play soccer any longer.
➢
Insolvency
➢
Breach of contract
➢
Misconduct – assault, dishonesty, drunkenness, fraud
➢
Dismissal on account of incompetence
➢
Dismissal on account of operational requirements such as letting
staff members go.
➢ The
death of one of the parties involved with the contract
Ways to terminate a contract
i) Termination with or without notice
➢ If
an employee is guilty of breach of contract, then the employer may terminate
the contract with immediate effect, for example a soccer player that signs a
contract with another club in the
middle of the season, before his contract with his current club has expired.
ii) Period contract is not renewed
iii) Pregnancy
iv) Selective reinstatement
➢ The
employer undertakes to reinstate the employees whose contracts have been terminated because of economic circumstances, as soon
as these circumstances are improved.
v) Constructive dismissal
➢
Employee terminates his or her contract because of the employer who makes it
difficult for the employee to perform, for example a soccer player who ends his contract because the coach
dislikes him and therefore he does not play a lot of games.
vi) Unsatisfied conditions after transfer of
business
➢ The
employee can terminate his or her contract if the new owners of the business
offer less favorable benefits
than the previous employers.
SPORT AND THE LAW OF EMPLOYMENT
The Contract Of Employment
Employment usually commence on the date of
conclusion of the contract of employment unless it is subject to a suspensive
condition. If the employee is a player or coach, the contract will normally be
a fixed period as opposed to an indefinite period.
PLAYER CONTRACT
The player contract usually regulates issues
such as:
➢
Training
➢
Physical condition
➢
Participation
➢ Team
meetings
➢ Medical aid
➢
Income protection
➢
Discipline
➢
Injuries
➢
Doping
➢
Sponsorships
➢ Code
of conduct
➢Performance
requirements
COACH’S CONTRACT
The coach’s contract would normally regulate
the following:
➢
Period of appointment
➢ Remuneration
➢
Powers regarding selection issues
➢
Powers of the coach in respect of supporting personnel such as
fitness
trainers and assistant managers
➢
Management duties
➢
Reporting duties
➢
Obligations regarding
transformation
➢
Performance requirements
Reference:
Eksteen,
Elriena &bookboon.com.2012. Sports Development, Law and
Commercialization.
1st ed.pp.20-45
Prepared by:
Mr. Dennis Mark A. Dela Cruz
MPES