Specific performance as remedy for breach of athletes’ contracts

Abstract

The aim and object of this thesis are to determine the most suitable, but more importantly, effective, remedy for breach of the athlete’s contract. Sport as a profession, but also a business, has never been more profitable. This has inevitably led to athletes’ contracts being repudiated on an alarming and global scale. Contractually-determined formulae for remunerating parties who have, or will be, suffering damages due to the repudiation of either a professional athlete or a professional sports club, union or franchise of the athlete’s contract between them, has failed to stem the ever-rising tide of breach of athletes’ contracts. Therefore, this thesis has set out not to suggest ways in or formulae by which a disadvantaged party may be remunerated if a professional athlete or his/her “employer” repudiates the professional athletes’ contract between them, but to determine and suggest to courts which contractual remedy would be most suitable in case of breach of said type of contract, but also most effective in ensuring that parties to an athlete’s contract respect the nature of the legal tool that binds them. Ultimately, the thesis aims to establish how the maxim pacta sunt servanda, which forms the cornerstone of the law of contract, may be protected. Specific performance is considered the primary contractual remedy in South African law. Current South African case law suggests that South African courts would have no objection to compelling a professional athlete who wishes to rescind his contract prematurely (that is, before the contract expires) to honour said contract through an order of specific performance. However, one of the unique challenges presented by this thesis is the fact that sport is a global profession. This means that athletes ply their trade in various jurisdictions in which they are not necessarily domiciled. Whereas, for example, specific performance is the primary contractual remedy in South African law, it is but a secondary one in English law, which would only be granted if equity so demands. Many professional South African athletes of several different sporting codes are under contract with English sports clubs, but represent South Africa at international level- often in terms of a totally different athlete’s contract. If one set of rules were to apply to breach of the former, and a different set of rules to the latter, it is rather obvious that no legal certainty would be created. Therefore, this thesis investigates the different contractual remedies available for breach of athletes’ contracts, but also the preferred remedies in different jurisdictions across the world. Ultimately, the thesis suggests a “common denominator” as far as remedies are concerned which is not only acceptable to various jurisdictions, but would also be effective in decreasing the regularity at which athletes’ contracts are repudiated.