Sports Law

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 10^th of January for delivery of the clothes one month after date of order. After placing the final order on the 10^th 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. 1^st  ed.pp.20-45

Prepared by:

 Mr. Dennis Mark A. Dela Cruz

 MPES