Towards a unanimous global remedy for breach of athlete contracts: A comparative analysis
| Jurisdiction | South Africa |
| Pages | 270-304 |
| Date | 20 August 2019 |
| Author | Kenneth Mould |
| Published date | 20 August 2019 |
TOWARDS A UNANIMOUS GLOBAL
REMEDY FOR BREACH OF ATHLETE-
CONTRACTS: A COMPARATIVE ANALYSIS
KENNETH MOULD*
University of the Free State
ABSTRACT
The problem of the repudiation of professional athlete-contracts is
significant not only in South Africa, but globally. One need only daily
media reports to confirm that while academics have raised the issue of
the repudiation of athlete-contracts, the problem persists and is increas-
ing. One of the primary reasons for this is that there is little or no
unanimity among jurisdictions across the world as to not only the most
suitable, but, more importantly, the most effective remedy for a breach
of athlete-contract. This article aims to address this ongoing problem
from a fresh perspective by analysing the approaches taken by different
jurisdictions to the most suitable remedy for breach of this type of
contract, in order finally to suggest the most effective single remedy that
is most likely to limit or reduce the prevalence of repudiation of an
athlete-contract not only in South Africa, but globally.
Keywords: athlete-contract, damages, interdict, negative injunction,
remedies, repudiation, restraint of trade, specific performance
I INTRODUCTION
The problem of the repudiation of professional athlete-contracts
1
is
significant both for South Africa and globally. One only has to read the
daily news to realise that while academics have raised the issue of the
repudiation of athlete-contracts, the problem persists and is increasing.
2
*LLB LLM BA (Hons) (UFS) LLD (UP). Senior Lecturer in Law of Contract in the
Department of Private Law, University of the Free State.
1
By ‘athlete-contracts’ is meant the contract of employment between a professional
sportsman or woman and the club, union, or other institution that employs him or her.
2
Some of the most recent include Mphahlele, ‘Cricket SA terminate Kyle Abbot’s contract
with immediate effect; Rossouw’s to follow’, available at http://www.timeslive.co.za/
sport/cricket/2017/01/05/Cricket-SA-terminate-Kyle-Abbotts-contract-with-immediate-effect-
Rossouws-to-follow, accessed on 1 June 2017; Rees, ‘Racing 92 launch legal action against Johan
Goosen over Springbok’s exit’, available at https://www.theguardian.com/sport/2017/jan/03/
johan-goosen-racing–92-legal-action, accessed on 1 June 2017; Wolohan & Keevy, ‘Breach of
contract debated in coach reassignment case’, available at http://
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One of the primary reasons for this is that there is little or no universal
agreement on the most suitable but, more importantly, on the most
effective remedy for the breach of athlete- contracts.
3
This article aims to
address this ongoing problem from a fresh perspective. By analysing the
approaches taken in various states to the most suitable remedy for
breach of this type of contract, I hope to suggest the most effective single
remedy best suited to limit or reduce the prevalence of the repudiation
of athlete-contracts worldwide.
The fact that the athlete-contract is a global legal tool, means that it is
viable to compare different jurisdictions governed by different systems
of law, each with its own point of view on the most suitable remedy for
breach of contract in general. Professional athletes currently ply their
trade in different countries regulated by different legal systems and
simultaneously governed by different individual contracts. It is therefore
essential to move towards a single global approach to the most effective
remedy for breach. This will create legal certainty.
The main objective of this article is to suggest to courts — based on an
analysis of different approaches in different jurisdictions — the most
effective remedy by which to limit or reduce the prevalence of breach of
athlete-contracts. Obviously, the fact that legal systems differ on the
most suitable remedy for breach of contract in general, cannot be
ignored. These doctrinal differences are an important consideration
when suggesting that different countries should adopt a joint remedy for
breach.
In the first part of this article, how South African courts treat
athlete-contracts is discussed. The focus is on relevant decisions which
have addressed the most effective remedy for breach of athlete-
contracts. Through this I aim to establish what contractual remedy is
currently preferred by South African courts, and whether it has made
any notable contribution in limiting repudiation of athlete-contracts in
South Africa.
The second part is a discussion of how courts in the United States of
America (‘USA’) address breach of athlete-contracts. The USA has a
www.athleticbusiness.com/contract-law/breach-of-contract-debated-in-coach-
reassignment-case.html, accessed on 1 June 2017; Chu, ‘Hong Kong pro football club sues
Brazilian footballer for breach of contract’, available at http://www.scmp.com/news/hong-
kong/law-crime/article/1868107/hong-kong-pro-football-club-sues-brazilian-footballer,
accessed on 1 June 2017, to name but a very few.
3
Haemmerle, ‘Choice of law in the court of arbitration for sport: overview, critical analysis
and potential improvements’ (2013) 13 (3 & 4) Int Sports Law J 299 has attempted to address
this problem, but only as regards the determination of jurisdiction within the European
Union.
TOWARDS A UNANIMOUS REMEDY FOR BREACH OF ATHLETE-CONTRACTS 271
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particularly rich history in sports litigation. Despite their dependence on
English jurisprudence as regards the most suitable remedy for breach of
contracts for personal services, USA academics have raised persuasive
arguments in favour of specific performance as the most effective remedy
for breach of athlete-contracts. This makes the comparison relevant.
In the third part, jurisdictions, which prefer damages as the primary
remedy for breach of athlete-contracts (or any contract involving
personal services), are examined. This includes discussions of relevant
decisions within the broader European Union (‘EU’), the United
Kingdom (‘UK’), and Australia. The lack of consensus across jurisdic-
tions as to the most effective (or even most suitable) remedy for breach
of athlete-contracts emerges clearly, despite sport being a global business
regulated by a global legal tool.
Fourthly, the article focuses, in particular, on the difficulty of
calculating damages in the event of a breach of athlete-contracts. This is
included because the EU, the UK and Australia appear to favour
damages as the primary remedy for breach.
Finally, suggestions are made to courts regarding the most effective
contractual remedy to realise the main objective of this article: to limit or
reduce the prevalence of repudiation of athlete-contracts.
II SOUTH AFRICAN COURTS’ TREATMENT OF BREACH
OF ATHLETE-CONTRACTS
South African case law on the most effective remedy for breach of
athlete-contracts is limited and contradictory. Furthermore, South
Africa’s Supreme Court of Appeal has not yet had an opportunity to rule
on the matter. The purpose of the following discussion is to establish
how South African courts perceive the athlete-contract. More specifi-
cally, it must be determined which remedy is currently preferred by
South African courts in case of breach of these contracts.
(a) Highlands Park Football Club Ltd v Viljoen and Another
The case of Highlands Park Football Club Ltd v Viljoen and Another
4
was
the first significant South African decision in which a court had to decide
on the enforceability of an athlete-contract. More specifically, the court
had to establish the legality of a covenant in restraint of trade in that
contract.
5
The applicant, a professional football club, employed the
4
1978 (3) SA 191 (W).
5
Highlands Park 194.
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