My late father loved nothing better than to take to me to watch Western Province take on Transvaal or Northern Transvaal at rugby at Newlands.
I cherish these memories. We went almost every Saturday to Newlands to watch club rugby and loved watching provincial cricket at Newlands as well. When I took my oldest son to the 3rd Proteas/Australia Test last week my memory went back to my dad taking me as a small boy to two days of the 1970 Cricket Test between South Africa and Australia.
As amateur sport in South Africa during the 80s and 90s became professional in the era of Naas Botha and the du Plessis brothers (Micheal and Carel) the stakes for the players, fans, sponsors and all others became exponentially higher and more intense. No national or provincial player could perform his or her sport satisfactorily and at the same time hold a full time decent job. Livelihoods were stake. The pressure to perform and win, always powerful became overwhelming.
As South African sport developed and ‘caught up’ to American sports culture clubs, franchises, unions, sponsors and players began to employ lawyers on a regular basis. I remember my dad querying why a sportsman should ever need a lawyer in relation to his sport. He would understand that a player may need a lawyer for his or her divorce or motor vehicle collision. But not for the playing of sport. I often wonder about his musings. As my law practice developed, I was briefed in a number of sports cases. In Coetzee v Comitis a young player, Coetzee, had a limited term contract to play for a particular soccer team. He was injured and his potential was not realised, but the club had already made its investment. After his contract expired he was offered a new contract by another club, Hellenic. But his first club demanded a fee to ‘release’ Coetzee. Hellenic refused to pay the first club a fee for a player “out of contract.” Coetzee approached the High Court in Cape Town. He asked for and obtained an order that the league rules which permitted him to be dealt with as chattel, and not as a free dignified human being were unconstitutional and unlawful. The league rules unjustifiably violated his dignity, the court ruled. He could join Hellenic without his prior club having to pay a cent. The case is now a precedent in restraint of trade cases.
In Santos v Igesund, Santos employed a successful and in-demand coach on a two year contract. He coached brilliantly and in his first year Santos won the league. At the end of his first year another wealthier club approached coach Igesund with a better and far more lucrative coaching contract. He accepted the “better” contract, and tried to break his Santos contract. The Court accepted Santos’s argument that it had an election to accept the cancellation or it could enforce the contract and effectively compel the coach to continue coaching Santos for the remaining year. The case is now the leading case on specific performance. Quite apart from these unusual cases sports generate contractual issues on a daily basis.
Interestingly, following South Africa successfully hosting the rugby world cup in 1995, in 1997 President Mandela established a commission of enquiry into rugby affairs, including possible mismanagement and corruption. The rugby authorities complained to the courts that the President had acted unlawfully on numerous of bases. The case ended up in the Constitutional Court. One of the arguments was that rugby was not of a “public concern”, and therefore the President was not entitled to establish a commission of enquiry because his powers were limited to matters of public concerns. The SARFU (South African Rugby Football Union) case has set many precedents concerning the powers of the President and administrative law in general. What is of interest is the Constitutional Court’s analysis of rugby in South Africa. It held: “The game of rugby is a national sport and that, like other sports in South Africa, the playing of rugby was deeply affected by apartheid law and policy. Black South Africans were prevented from representing South Africa in the national team and few facilities were provided for the playing of rugby in those areas in which black people were required to live. The policy of apartheid attracted international condemnation and protest and resulted in many foreign teams refusing to play against the South African team.
The conflict-ridden nature of sport in South Africa and, in particular, the racist manner in which national sports were managed and funded in the past, is a legacy which has direct implications for the conduct of sport today. The evidence shows that there was indeed concern expressed in both rugby circles and the media on various matters of importance which affected the image of rugby and its potential for promoting national reconciliation.”
The rugby authorities did not dispute the fact that the game of rugby is a matter of great public interest. They disputed, however, that there was any legitimate interest in the internal affairs, financial and others, of SARFU and its affiliates on the ground that they were private institutions. The Constitutional Court rejected the contention and stated: “There can be no doubt that the administration and management of the game of rugby is a matter of great public concern.”
Turning to the Australian cricket cheats, the ghost of Hansie Cronje, the Protea’s cricket captain looms large. He admitted to cheating in matches for money. His fraud extended to providing information to book makers so that more money could be made. He did this for a hefty price. He also manipulated matches; so for example he would tell his corruptors before and during matches who would be bowling in which order and for how many overs in a spell. The United Cricket Board of South Africa banned him from all cricket related activities for life. He challenged the ban in court and lost, rightly in my view. The court ruled that as long as he was given a fair process in his disciplinary proceedings the court would not interfere. In the recent Test series between South Africa and Australia all manner of ill-discipline, cheating and indeed criminal fraud crept in. Kagiso Rabada’s passion landed him in hot water and he copped a two match suspension, which was overturned on appeal. Australia’s captain and vice-captain have been banned for some time. They have lost huge sponsorships resulting from their ball tampering cheating.
Sport is all about fair play – or, at least, it should be. But with so much money involved in sport today, is it at all not surprising that sport has become a victim of corruption.
Turning back to my Dad’s sweet comment about the need for lawyers in sport, I think of Hansie Cronje, Lance Armstrong and all those like them. We need the law and courts because humans require regulation in our dealings with each other.
Sport is a healthy instance of our interaction, but players are often best served by being represented by lawyers and so it is that sports lawyers exist.