sport

Bowman Gilfillan provides high-quality sport law advice to local and international sports players, agents, corporate investors, clubs, associations and other sporting institutions. Our sports lawyers are integrated in to the Bowman Gilfillan’s offices in Johannesburg and Cape Town. Because our firm has been involved in sports law for many years, we ensure that our keen understanding of the sports industry matches our legal expertise.

the language of sport

“The language of sport is the language of war, love, politics, religion and of life itself. Sport also has its own unique dialect, which includes sign and body language that everybody understands. Its goals are recognised universally. Sport is about commitment and compassion, pressure and participation, highs and lows and the everyday. Sport provides role models and examples to inspire and deter, and these are some of the most powerful parables of modern life, and through the medium of television in particular, they reach the far corners of the globe, with force and immediacy.” The Sporting Word, Desmond Lyman and David Teasdale, BBC Books, 1994

sport law and history

During the days of apartheid, South Africans often sought refuge in sport and the opportunities it created to celebrate achievements. Of course, South African sport was divided and became increasingly isolated in the country and the world as apartheid drew to a close. Sell-out crowds at cup and league finals in rugby and football often masked the underlying reality that South African sport was on the wane - as a result of policies that went against everything sport stands for, or should.

Perhaps that is the South African parable: When the everyday is filled with horror, sport cannot escape unscathed. As the activists used to say, normal sport was not possible in an abnormal society.

The demise of apartheid heralded an explosion of interest in sport throughout South Africa. South Africa has since hosted a large number of events, and it is clear that the tip of Africa has become a venue of choice for organisers.

When the effects of apartheid are factored into the equation, the achievements of South African sportspersons at leading events defy belief. But success of this sort does not mean that we do not have a lot of catching up to do to ensure that we also enjoy the commercial and developmental benefits that sport can bring. Quite apart from the obvious consequences of apartheid (such as the underdevelopment of certain communities), isolation also meant a tendency to focus inwardly and to ignore developments elsewhere.

In addition to understanding modern training methods, we need to understand the commercial environment in which sport now operates. Sport is now a valuable industry that has changed almost beyond recognition from the amateur endeavour most South Africans grew up understanding. Concepts such as image rights, transfer fees, free agency and prohibited substances are relatively new to us and have to be understood if they are to be applied or challenged.

commercial involvement

South Africans missed much of the development that caused modern sport to take centre stage in the world of entertainment. In many respects we remained in an era that was amateurish, if not amateur. Our sportspersons have caught up extremely quickly, but success on the field, court, track, or pool is no longer enough.

To benefit fully and sustain our success, we require commercial advancement of at least even measure. Only those with a clear understanding of their rights and the skill of leveraging their abilities will succeed in the modern sporting environment.

For every David Beckham there is a George Best. Talent is not enough for the modern sportsperson and the same is true for associations and commercial partners seeking ongoing and sustainable involvement in, and benefit from, sport.

The search for commercial success is pursued and protected at least as passionately as the sport itself. Winning and losing is a part of any sport, but losing out on commercial opportunity is certain in the absence of excellent advice and a deep knowledge of the sports industry.

Without expert advice regarding law in sport, the prospects of securing meaningful benefits from large events are remote. Owing to bigger competition for broadcast rights, increasingly valuable sponsorship contracts, greater involvement of sports agents and the growth of player’s associations, the amateur age of sport has ended.

There are now frequent disputes - from challenges to the nature of associations governing particular sports and the sponsorship and broadcast agreements they include - to litigation involving individual contracts, collective agreements, tax issues and disciplinary issues. Events such as the FIFA World Cup bring conflict over marketing rights between corporate behemoths, changes to local legislation at the insistence of organisers and rights holders, massive investment on the part of government and the private sector, opportunities for trade unions and civil society groups to mobilise, and much more.

new rules in sport law

As the 1995 European Court’s Bosman Ruling and the 2002 Cape High Court’s Coetzee Ruling have shown, sportspersons, associations, clubs and other stakeholders ignore sport law at their peril. In these two cases the compensation rules then applicable to professional footballers were challenged, and the end result was that almost the entire body of rules regulating professional football was set aside.

New rules had to be promulgated, which took cognisance of sport and law, and particularly the fundamental rights of professional footballers. Apart from the effects on the specific issues in dispute one can only imagine the effects these decisions could have had in a World Cup year for commercial partners who had no say in the rules under attack.

No-one involved in sport at any level can afford to conduct his or her affairs without a clear understanding of the nature of sporting associations, the interface with law in sport, and the policy questions which drive legislative change and decisions of courts.

South African lawyers from other sports law firms were wont to argue until recently that there was no such thing as sports law. If pressed, they might have conceded that there is a little quasi administrative and employment law involved, but that it was certainly not a specialist endeavour.

Perhaps in a very general sense the above is true, but it is of course a brave sports lawyer that proceeds without a full appreciation of the way in which sporting regulations impact upon contracts and dispute resolution.

Quite apart from the fact that there is specific legislation in place in many sporting codes (boxing is an obvious example), almost every negotiation or difference in the sports field is affected by complex interlinking association regulations as well as the growing jurisprudence of local and international sporting tribunals and courts of law. For example:

• These rules can visit invalidity upon contracts or provisions, which might otherwise seem perfectly in order, or call for misconduct proceedings as a result of their conclusion.
• They may also require that disputes must be resolved by the application of particular rules in agreed tribunals.

If the result of a contract which ignores these rules or a badly managed dispute is to lose a player to a competitor shortly before a derby match or cause misconduct proceedings to be brought, embarrassment would be the least of the lawyer’s concerns.

football and sports law

That sport has specific requirements has also been appreciated by South African courts. In a 2003 decision of the Labour Court, Judge Waglay had the following to say regarding the nature of employment in professional football,

“This Court must be mindful that, unlike any other employees, professional footballers only have a short period within which to practise their profession, a profession which is inherently risky as they may suffer injuries which may ruin their careers; they are subjected to the vagaries of selection not faced by other employees; they are required to earn sufficient to sustain themselves and their families in a relatively short period and cannot simply, like any other employee, decide to move from one employer to another. Here we have a class of employees who face restrictions in carrying out the trade, which can have an effect on their earnings that cannot be calculated with any degree of certainty.”

Sporting associations also benefit from an improved understanding of the way in which rights, and particularly fundamental rights, can improve the game for all stakeholders. When Dr Irvin Khoza recently accepted the chairmanship of the Premier Soccer League for another term, he said that South African football should be proud of the dispute resolution tribunals the League had brought into being. These tribunals are a direct result of the Coetzee Ruling.

The recent decision of the Court of Arbitration for Sport (the CAS) in Lausanne, involving South African sprinter, Oscar Pistorius, is another good example of the benefits of applying well-developed rights-based principles. Pistorius’s exclusion from able-bodied sprinting was overturned as a result of the correct application of the onus to the facts.

The CAS adopted the position that the party seeking to exclude or limit must prove the facts necessary to justify the exclusion. That is surely the correct approach and is in line with rights-based jurisprudence around the world. However, it is not the way many sporting associations deal with issues such as these.

The decision, although primarily limited to the facts, holds out the prospect of a better future for many participants. Sports clubs and associations are often extremely valuable businesses, and corporate governance and tax are now issues of real concern. If the business is not to be put at risk, these issues require proper attention and advice.

sporting dispute resolution

Lawyers also benefit (and learn) from the need to ensure justice in expedited proceedings where short time periods are driven by the need to ensure that the game goes on. There is sometimes extra time (an expedited appeal or arbitration may follow the initial inquiry), but generally every effort is made before the final whistle is blown. Decisions handed down are final and binding upon the parties and bring an end to the dispute.

Disputes are generally resolved far more quickly than in the normal courts and this is essential if seasons and competitions are to be completed and also because a delay can often be disastrous for the sportsperson concerned. It might be better to lose than to be in limbo. In this sense lawyers who take part in the sport of law need to understand that justice remains just as important, but it must be achieved within time constraints imposed by the sporting environment rather than within the needs of lawyers and courts.

bowman gilfillan sport lawyers for keen industry insight

At Bowman Gilfillan we accept and relish the challenges that the new sporting environment brings. We have been at the forefront of developments in sports law in South Africa for many years. We have invested significantly in training and development to ensure that our understanding of the sports industry matches our legal expertise and that we have lawyers with real and significant experience and expertise, who have taken the time to acquire the knowledge and skills necessary to practice in this fast moving and exciting industry.

We are fortunate in representing large corporate clients with an interest in the commercial and development opportunities that have emerged, as well as a great many associations, clubs and other institutions, sports agents and sportspersons across the world of sport. Most importantly, our sports lawyers have embraced the requirements of the sports environment and are proven in their work at every level.

Our sports law team is able to draw upon the specialist skills and experience of lawyers who have been involved in the growth of this area of the law over many years. Michael Murphy leads the sports law group, and was the lead attorney in the Coetzee Ruling as well as in a range of other disputes that have shaped South African football rules and other sporting codes. Michael is supported by a team of lawyers at our Sandton and Cape Town offices. Our team includes specialists in almost all areas of the law as it applies to sport.