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Sport law
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INTRODUCTION
The definition of ‘Employment’ and an ‘Employer – Employee relationship’ is one that has puzzled most commentators to the extent that there have been growing calls for shelving of the entire distinction between an ‘Employee’ and an ‘Independent Contractor’ through a broad understanding of ‘Employment’.
The question of whether a footballer could be considered an employee of the club he plays for is a tricky one enmeshed in a number of technical intricacies, such as the distinction in the nature of a ‘contract of service’ and a ‘contract for service’. Given that a fair amount of murkiness surrounds the understanding of the ‘normal’ constitution of a relationship of ‘Employment’, an even greater uncertainty is expected when an anomalous relationship such as that between a footballer and his club are considered .
Through the course of this article, the author aims to arrive at a considerably clearer stance regarding the exclusive relationship between these two entities. In doing so, the author relies on Guy Davidov’s understanding of what kind of a definition truly befits the enigma that is an ‘Employment relationship’, and how exactly is it that a footballer’s activities would fall under a ‘contract of service’ rather than a ‘contract for service’. For this purpose the author shall also analyse the understanding of an Employment relationship under various complementary branches of the law and try to arrive at a suitable definition that adequately addresses the major concerns of all such branches.
Once this concern of a single broad understanding of ‘Employment’ is addressed, the author would look to provide reference to some of the case law and legal thought that has emerged in the field of sport in general and foo...
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Gardiner, op. cit. p. 491 – 493; and DG Jones and AB Smith, Law and the Business of Sport, Butterworths, London, 1997, p. 173-177.
Gardiner, op. cit., p. 369
Blanpain, op. cit., p. 90.
FIFA, Commentary on the Regulations for the Status of Transfer and Players , available at
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Id. and Anonymous, ‘Club-vs.-country dispute in football; questions regarding liability for player injuries whilst on international duty’, viewed on 20th Feb 2011,
< http://www.law.ed.ac.uk/courses/blogs/sportandthelaw/blogentry.aspx?blogentryref=8430#_ftn2>.
J Palmer, ‘FA to compensate Liverpool for Gerrard injury’, modified on 19th Nov, 2010, viewed on 18th Feb, 2011,
< http://uk.reuters.com/article/2010/11/19/uk-soccer-england-gerrard-idUKTRE6AI25N20101119>.
6) Clark, Liz. “Athletes Say They Deserve to Be Paid.” Charlotte Observer. (Charlotte, N.C.). April 3, 1994: pg. 4G. Sports. Eleanor Goldstein. Vol. 4. Boca Raton: SIRS, 1994. Art. 65.
De Varona, D. (2003). ‘M’s’ in football: Myths, management, marketing, media and money. A reprise. Soccer & Society, 4, 7-13.
According to the NCAA regulations an athlete will lose his/her eligibility if they are paid to play; sign a contract with an agent; receive a salary, incentive payment, award, gratuity educational expenses or allowances; or play on a professional team. The word amateur in sports has stood for positive values compared to professional, which has had just the opposite. The professional sport has meant bad and degrading; while the amateur sport has meant good and elevating. William Geoghegan, Flyer News sports editor writes, “Would paying athletes tarnish the ideal of amateurism? Maybe, but being fair is far more important than upholding an ideal” (Geoghehan 1).
Recently college athletes have been granted permission to work, from the NCAA. Even with this permission, their jobs are still regulated. One regulation to the athletes working is that they cannot work for alumni of the school. The NCAA has this rule because they feel if athletes work for people with close ties to the school then they will be receiving special benefits while working. These special benefits include, (but are not limited to), athletes being paid while not at work and higher salaries then other workers doing the same job (Anstine 4).
Zimbalist, Andrew S. Unpaid Professionals: Commercialism And Conflict In Big-Time College Sports. Princeton, N.J.: Princeton University Press, 1999. eBook Collection (EBSCOhost). Web. 27 Mar. 2014.
Ferguson, J. (1997), Casual Employment Contracts: Continuing Confusion when Protection and Free Market Clash, New Zealand Journal of Industrial Relations, 22(1): 123-142
Sports transformed into a business where profit was the main concern. “As the pecuniary returns of the game increased, the value of the individual player was enhanced: the strength or weakness of one position made a difference in thousands in receipts, and this set the astute managerial mind at work” (Ward 315). This pertains to baseball, football, basketball and any other sport today. The more money a person could make off the game, the more significant the players became. The players were the ones making the money for the owners or the gamblers, and so many of these people no longer saw the person in the player, only the prowess in the player. The players soon began to be thought of as property and were often coerced into giving their permission to be traded to another club. “[T]he buying club bought not only the player’s services for the unexpired term of the contract, but the right to reserve or sell him again” ( Ward 315). Clubs claimed that this right to the player’s prowess was necessary to conserve the game and so many clubs abused this idea and ignored getting the player’s
John Mills, a moral philosopher, “feared state intervention into private affairs because he thought that “some projects are more worthy than others, and liberty is needed precisely to find out what is valuable in life, to question, re-examine, and revise our beliefs about value”” (Leclerc & Herrera, 1999, p. 427). When given the choice to participate in boxing, athletes have the right
Watson, T. (2008) The Meaning of Work. The Sociology of Work and Industry. London: Routledge.
In an article named Should college athletes be paid to play? By Kenneth J. Copper. He says “New dimension to long debate over paying athletes by arguing they are “employed” under federal labor laws and entitled to form unions and negotiate wages, hours and working conditions” (Copper 1). Now there are people fighting to say that college athletes under the law from the federal government shows that these athletes are labeled as being employed. This should mean that they should get paid like a regular employed person and be able to spend that money how they want. He also goes on to say “Dolald Remy, the NCAA general counsel and vice president for legal affairs, says that court precedents and tax laws have upheld the status of college athletes as students” (Copper, 1). Now they are saying that this money that they would be getting will make it so these college athletes would no longer just be students but they also would be employed under the University as like a professor or a
"Football | TSM PLUG - Tickets Sports Highlights." TSM PLUG Tickets Sports Highlights. N.p., n.d. Web. 04 Nov. 2013. .
Based on common law and precedent, the English law of contract has been formulated and developed over a number of years with it’s primary purpose to provide a regulated framework within which individuals can contract freely. In order to ensure a contract is enforceable there are certain elements which must be satisfied, one of which is the doctrine of consideration. Lord Denning famously professed; “the doctrine of consideration is too firmly fixed to be overthrown by a side wind” . This is a crucial indication that consideration has long been regarded as the cardinal ‘badge of enforceability’ in the formulation and variation of contracts in English common law.
Eitzen, D. Stanley. (1999). "Sport Is Fair, Sport Is Foul." Fir and Foul: Beyond the Myths and Paradoxes of Sport.
Møller, Verner. The Ethics of Doping and Anti-Doping: Redeeming the Soul of Sport?Milton Park, Abingdon, Oxon: Routledge, 2009. Print.
Robinson defines employment based on productivity rather than occupation. Every person, in a sense, is always occupied by activities of various value, thus “employment can be said to increase when part of a man's time is transferred from an occupation in which its