How often does it happen that we’re up in arms when our favourite sports player just goes off and signs a new contract with a new club or team? To most of us, it seems disloyal. Aren’t these players bound to their teams by some form of contract? Why do the clubs not enforce these contracts, or are these players ‘above the law’? The short answer is, yes players are subject to their sport contracts, but these contracts may not always be as legally binding as one would generally expect of a contract.

Firstly, sports contracts are unlike any other contract. In fact in law, this type of contract has actually been described as a sui generis contract of employment, which is Latin for “of its own kind”. Yet, the public tend to regard sports contracts as similar to a contract of employment. A contract of employment consists of two parties, the employer and employee, and is formally defined as “a mutual agreement in terms of which an employee, for a specific period and remuneration, places his services under the authority of an employer.”

On the other hand there is unfortunately no universal legal definition for a sports contract, and although a sports contract does entertain the above definition of a contract of employment, it is also much wider than just that.

When considering the nature of a sports contract, there are three things to remember:

• the personal nature of the sports player’s ‘services’;
• the number of simultaneous contracts a sports player can be part of; and
• the often quite limited lifetime of a sports career.

In the case of Troskie en ‘n Ander v Van der Walt the personal nature of a player’s services to a team was touched upon when the court highlighted that the said ‘services’ not only depend on the personal enthusiasm, willingness and drive of player, but also on the ability, proficiency and skill of the player which would also be dependent upon player's relationship with club. The court therefore viewed the possibility of enforcing performance under a sports contract from a player as being limited. For example, is it reasonable to expect a rugby player to keep on playing when an existing injury is bound to happen again?

A player may also at any given time be party to several contracts at the same time, for exactly the same ‘services.’ For example, a player can play for his home club, whilst performing for his province and also for his national team, all under different contracts. It’s unheard of in a normal employment situation to have several ‘employers’ exercising control over the services of one employee at the same time, as the definition for an employment contract only implies a single employer.

In addition, the lifetime of a sports contract is much shorter compared to any other employment contract. Any other profession takes up the majority of a person’s life, whereas a sports contract generally does not come close to the same amount of time. Other factors may also be taken into account when considering whether to hold a sports player bound to a sports contract. For example in the case of Golden Lions Rugby Union v Venter, the court decided that while the one rugby union could match the offer of the other rugby union in financial terms, they could not match other terms offered, such as superior coaching and being able to train on the beach and swim in the sea, and given the limited lifetime of the particular player’s rugby career, it was enough reason to terminate the player’s existing contract and allow him to conclude a new contract with the other rugby union. This will most certainly not be the case with a contract of employment, especially where the remuneration is exactly the same.

The above provides some examples of why in South African Law our courts assume a different approach when it comes to players and their sui generis sport contracts. Sports stars are in fact bound by the contracts they sign, but as the criteria for such is “of its own kind” it may often be a lot less fixed than just working for a boss like the rest of us.