Chapter 8. Emerging Issues in Commonwealth Caribbean Sports Law

• Pages: 317-358

8.1 INTRODUCTION

Sports law is a dynamic and ever-evolving field of specialism that has increasingly been char-

acterized by disputes over a range of ‘emerging’ issues. Among the main issues that currently

confront Sports Lawyers across the globe and, indeed, in the Caribbean, is the question of

whether the ‘no disrepute’ clause typically found in sport contracts unduly circumscribes the

rights and interests of sportspeople. This question not only raises legal issues, but also ethical

and philosophical issues, which are addressed in this chapter. Aside from this question, the

chapter also addresses the question of whether, and to what extent, discrimination exists in

sports today, and the likely impact that said discrimination on the grounds of race, sex and

disability, among other things, has on players, in particular. Further, the chapter addresses the

important question of free movement of sportspeople, by not only examining the importance

of this right in modern Sports Law, but also by assessing the increasing juridification of this

right following several ground-breaking decisions delivered by supranational courts, including

the Court of Justice of the European Union (CJEU). The chapter concludes by exploring the

issue of Sports Law education, and the long-term implications that this recent development is

likely to have on the sporting landscape in the region.

In short, this chapter intends to provide a nuanced analysis of some of the more interest-

ing and, indeed, controversial developments in Commonwealth Caribbean Sports Law today,

thereby creating the space for reimagining Sports Law in both a practical and philosophical light.

8.2 BRINGING THE PLAYER/SPORT INTO DISREPUTE

The ‘no disrepute’ or ‘morality’ clause, as it is sometimes called, is arguably one of the main,

and perhaps most contentious, clauses found in sports contracts today.1 This should come as

no surprise however as, increasingly, sponsors, marketing agents and the public in general have

attached considerable good will to clubs, leagues, athletes and their coaches, all of whom now

have a moral and legal obligation to maintain a practically unscathed reputation. Notwith-

standing the axiomatic value of including such a clause in a sports contract, however, the inter-

pretation and application of this clause has proven to be a tremendously debatable issue, raising

financial, legal, ethical and even cultural considerations.

8.2.1 Dierent formulations

There are many dierent formulations of the ‘no disrepute’ clause. These varied formulations

are found not only in contracts between clubs and players, but also between clubs and leagues

1 See Patrick George, ‘Sport in disrepute’ (2009) 4(1) Australian and New Zealand Sports Law Journal 24; Paul

Jonson, Sandra Lynch and Daryl Adair, ‘The contractual and ethical duty for a professional athlete to be an

exemplary role model: Bringing the sport and sportsperson into unreasonable and unfair disrepute’ (2013) 8(1)

Australian and New Zealand Sports Law Journal 55; Daniel Auerbach, ‘Morals clauses as corporate protec-

tion in athlete endorsement contracts’ (2005) 3 DePaul Journal of Sports Law and Contemporary Problems 1.

CHAPTER 8

EMERGING ISSUES IN COMMONWEALTH

CARIBBEAN SPORTS LAW

318 Emerging issues in Commonwealth Caribbean Sports Law

and leagues and governing bodies, and, more recently, even between coaches and clubs. The

‘no disrepute’ clause can be expressed as requiring the athlete not to bring himself into disrepute

or the sport or game into disrepute.

In contrast to these generic formulations, clubs, leagues or governing bodies may wish to

specify the types of conduct that they consider to be disreputable. Disreputable conduct, in

this context, could include engaging in discriminatory behaviour, such as public disparage-

ment of, discrimination against, or vilification of, a person on account of a particular attribute;

harassment, whether of a sexual, verbal or physical nature; oensive behaviour, such as the use

of oensive, obscene, provocative or insulting gestures, language or chanting; provocation or

incitement of hatred or violence; violence; intimidation; corruption; abuse of one’s position

to obtain personal benefits; and the commission of, or being charged with, a criminal oence.

Regardless of which formulation is included in a sports contract, the burden rests on the

party seeking to enforce the ‘no disrepute’ clause to prove that the athlete has brought himself

or the sport into disrepute or has committed one or more of the specified acts mentioned above.

8.2.2 The test

Tribunals have to date developed a specific test for determining whether a player has engaged in

disreputable conduct. In D’Arcy v Australia Olympic Committee (AOC)2 the CAS stated that the test

is whether the person has lowered his reputation in the eyes of ordinary members of the public

to a sucient extent as a result of his behaviour,3 though some questions remain following the

decision of Mikhaylo Zubkov v Fédération Internationale de Natation (FINA)4 as to whether this test can

be applied to cases in which the relevant clause prohibits conduct bringing the sport into disrepute

(as in Zubkov) as opposed to the player himself (as in D’Arcy). In D’Arcy, the Australian Olympic

Committee’s team membership agreement provided that players should not engage in conduct

which, if publicly known, would be likely to bring the player into disrepute, which the CAS found

was rightly relied upon by the President of the AOC when he, by letter, indicated to D’Arcy that

he would not be selected for the 2008 Beijing Olympic Games on account of the fact that he had

got into an altercation, while intoxicated, with former Olympian Simon Cowley. The altercation

resulted in Cowley sustaining serious injuries to his face, in consequence of which D’Arcy was

charged with inflicting grievous bodily harm, and ultimately convicted in ensuing criminal pro-

ceedings. The CAS was of the view that given that the public had heard that D’Arcy had only

recently been selected for the Olympics, but had already caused serious injury to another person

while intoxicated at a pub early in the morning, his estimation in the eyes of ordinary members of

the public had been lowered to a sucient degree. In fact, the extent of the disrepute was shown

by the voluminous media reports which pointed to the unpleasant details of the incident, and the

likely impact that this would have had on how he was viewed by ordinary members of the public.

By contrast, in Zubkov v FINA, where FINA’s constitution spoke of sanctions ‘for bringing

the sport into disrepute’, the CAS considered that it actually had to be shown, to the comfortable

satisfaction of the panel, that Zubkov, a swimming coach who was physically aggressive to his

daughter, a swimmer selected to represent the team he coached, had brought the sport of swim-

ming into disrepute. As FINA was unable to establish that the sport (as opposed to the coach

himself) had been brought into disrepute, Zubkov’s six-year ban from coaching was set aside.

The CAS went even further by stating that if the provision that a party is seeking to invoke

2 CAS 2008/A/1539 Nicholas D’Arcy v AOC, award of 27 May2008.

3 Ibid [8].

4 CAS 2007/A/1291, award of 21 December2007.

Emerging issues in Commonwealth Caribbean Sports Law 319

speaks to ‘bringing the sport into disrepute’, evidence of potential disrepute is not sucient; it

must be proved that the sport was actually brought into disrepute.

More generally, it must be borne in mind that the reputation of the person or sport/game

in question must be lowered to a sucient extent in the eyes of ordinary members of the public.

Although this notion of a ‘sucient extent’ has not been commented upon by courts/tribunals to

date, it would appear from the decision of Jongewaard v Australian Olympic Committee (AOC)5 that the

conduct in question must cause or be likely to cause a reasonable member of the public to ‘think

considerably less’6 of the person. In Jongewaard, Cycling Australia had nominated the appellant for

selection to the Australian Olympic team for the 2008 Beijing Olympics. However, following the

exercise of the AOC President’s discretion under clause 7.2(3) of the AOC’s Selection By-Laws,

the AOC Selection Committee declined to select the appellant as a member of the Australian

Olympic team on account of the fact that he was involved in an accident with a fellow cyclist

while driving a car in circumstances where he was drinking alcohol during the course of the day

before driving the car. His fellow cyclist, Matthew Rex, who had also been drinking alcohol, was

very seriously injured in the accident. The conduct relating to the accident was such as to cause

members of the South Australian police to reasonably believe that Jongewaard was guilty of seri-

ous criminal charges, as it was alleged that his blood alcohol level at the time of the accident was

.094, or at least in excess of .08. It was also alleged that Jongewaard did not stop at the scene of

the accident. For these reasons, the AOC had considered that members of the public, being aware

of Jongewaard’s conduct and the charges relating thereto through various media reports, formed

the view that his conduct was likely to and did bring himself into disrepute. In other words, ‘a rea-

sonable member of the public would or would be likely to think considerably less of [Jongewaard]

on account of the conduct’,7 albeit that the AOC recognized that he might very well have had a

defence to the criminal proceedings and might even have been acquitted at trial.

On appeal before the CAS, it was found that the AOC correctly exercised its discretion to

refuse to select the appellant to be part of the team, since the appellant’s adverse conduct was

publicly known. In this context, the CAS considered that:

An athlete nominated for the Australian Olympic Team is presumed to be a person of good

repute. He/she is perceived as both a leader and a role model within the Australian community.

The Appellant ha[d] to answer two serious criminal charges. He face[d] severe statutory penal-

ties if found guilty. The presumption of innocence is no answer to a determination by an AOC

Selection Committee that the Appellant ha[d], by particular conduct, brought himself into dis-

repute and therefore was found not eligible for selection to the Australian Olympic Team.8

Although this decision appears to suggest that the person’s adverse conduct must result in a

reasonable member of the public thinking ‘considerably less’ of the person, it would become

immediately apparent from the discussion hereafter that players are often sanctioned even

when it is arguable that members of the public do not think considerably less of them as a

result of engaging in alleged misconduct.

8.2.3 Which public?

The test enunciated in D’Arcy requires that that there is public exposure of the adverse conduct

on the part of the athlete in question. In theory, this should mean that if an incident occurs that

5 CAS 2008/A/1605, award of 19 September2008.

6 Ibid [14].

7 Ibid.

8 Ibid [19].