'Football is not a matter of life or death. It is far more important than that.'
The immortal words of the late Liverpool manager Bill Shankley, apply not only to soccer but to most sporting codes. The fanatical support that sport( engenders is being harnessed by business and sport is becoming a multi-billion- dollar enterprise. "These days football is big business and news of the comings and goings of football managers - as well as player trades and match results - has become required reading for the movers and shakers in the City (of London).... Football is the newest emerging market.... It is huge now and it is going to be even bigger." (Time magazine, 17 March, 1997). The distinctions between sport as a social pastime and the full-time business of sport is becoming more and more blurred.
The fanatical support for sporting codes and sports-men and sports-women within those codes has resulted in the development of cult sporting figures. From boxing's Holyfield through to swimming's Heyns, instantly recognisable personalities have emerged in the sporting codes. Corporations have realised that it can be extremely profitable to associate their goods with these widely popular sporting figures. Similarly, in so far as major sporting events are concerned, exciting commercial and marketing opportunities arise.
The role of an attorney within the sporting milieu is vast. The traditional and, probably, primary role for attorneys has been the drawing up of contracts between the various participants, be they teams, sporting bodies or players within the sporting fold. This area, whilst remaining an important area, is only one aspect in which the attorney is involved. Other areas are:
The traditional sporting structure in South Africa prior to 1990 was that each sporting code would have a number of bodies operating within that code for various racial classifications. South Africa's readmission to the sporting fold came about as a result of the unification of these codes.
Each sporting body, traditionally, is run as an association governed in terms of its own constitution. The constitution of a sporting body is not a static document but, rather, is regularly adjusted to reflect the changing circumstances within that particular body and the sporting code itself. With the development of professional sport in South Africa, it is our view that the traditional association route followed by sporting bodies will become untenable and, of necessity, the sporting codes may be required to register as companies in terms of the Company's Act No. 61 of 1973.
Litigation ensues both as a result of causing damages and traditional delictual actions. In so far as the breach of contract is concerned, the basic principles of the law of contract will apply. In so far as injuries to sports people are concerned, the traditional response to litigation is that the injured party voluntarily accepted the assumption of risk and, accordingly, no action lies.
South African precedent in this regard is rather paltry and regard would have to be had to, generally speaking, English precedents where the Courts have acknowledged the basic principle that, should an injured sports-person be able to prove the commission of a delict, that person will be able to recover damages incurred as a result of the delict. With vast sums of money involved in sport, the amounts claimed could be extremely high.
INTELLECTUAL PROPERTY CONSIDERATIONS
The various sporting bodies, federations and teams will, generally, have their own identifying mark. The right to use that mark can, at times, prove to be an extremely valuable commodity. The Olympic rings, for example, attract major interest from international and multinational corporations who spend millions of dollars annually to secure the rights to make use of the Olympic rings in their advertising campaigns. The protection of these marks by the various sporting codes is a necessary function of the sporting bodies in order to protect their integrity, the rights of their sponsors and to ensure that any commercial use of those marks results in an income to that particular body.
The principles of employment law find their way into the sports arena as well. The various employees of the sporting codes, unions and teams will fall within the definition of employees and we have noticed, particularly in the international sporting fold, that players' unions have been developed. At this stage, no player union has been developed in South Africa. Perhaps the closest we have come to that was the representations made by the South African squad shortly after the Rugby World Cup to negotiate their wages.
Law has an important role to play within the sporting arena and the examples cited above are merely a few aspects. It is essential for an individual getting involved in a sports practice to be very familiar with the needs of the various sporting codes and sporting bodies within the sporting milieu as well as a sound knowledge of the principles of South African law. Of primary importance, and as a result of the various forces at play within the sporting arena, a sports lawyer requires sound negotiating skills in order to reconcile these forces.
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Webber Wentzel Bowens
The material contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. We accept no responsibility for any loss or damage, which may arise from reliance on information contained in this article.
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