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SPORTS LAW – WHAT IS IT?

slamatattorneys — Tue, 13 Jul 2021 12:39:39 +0000

It is often asked, what is Sports law? Well the answer is quite elementary.

Sport(s) law is the body of law which prescribes the laws pertaining to sports in general and the various aspects of business and society’s interaction with sports and sporting events.

Sports law includes the law such as the law of contracts, the law of delict, the law of damages, international law, public law involving government departments, such as municipalities and indeed the law pertaining to the interaction of participants in sports which are regulated by the national, provincial and local sports bodies themselves in terms of their own constitutions and membership contracts or agreements. Sports lawyers deal with these and many other related matters.

Other personal and commercial aspects of the law relevant to Sports law include, namely, personality rights such as image rights, labour law, advertising and marketing legal principles applicable to a particular sports persons, an event, tournament or sport as a whole.

For major international sports events such as the FIFA World Cup and the Olympic Games, host countries are obliged to enact domestic legislation for the hosting of such events, as occurred in South Africa for the 2010 FIFA World Cup. The purpose of such legislation is to guarantee the rights of the events to be staged and also, inter alia, for the guaranteeing and security of performance of obligations by governments for international sporting events and the sponsors investments therein.

With sport being such an important aspect of contemporary society, it follows that the law should regulate sport and so it does.

In South Africa, Sports law is of course subject to the Constitution (Act 108 of 1996) incorporating the Bill of Rights, and the rule of law. In this context, various cases have come before the Higher Courts, notably such as SARFU v President of the Republic of South Africa (1998) 1 BCLR 1256 (T).

Individual sports disciplines including kids sports (such as football or soccer, cricket, tennis, athletics, horse-racing, motorsports, Formula 1, rugby, gymnastics, equestrian, aquatics, bowls, squash etc) have their own ‘laws’ or rules which are applicable to participation therein. These laws consist of the rules of the sports which include collateral aspects such as participation or attendance of fans, the media coverage, the use of drugs and enhancing substances and illegal performance-enhancing substances. These laws also include the rules of clubs, voluntary associations, provincial or state sports bodies, national sports bodies, international sports bodies known as federations or confederations all of which exist in terms of their own rules agreed to by their members (rf FIFA, UEFA, CONMEBOL, CONCACAF, ITF, ATPTOUR, IRB, ICC, WADA, NBA, NFL, FA Premier League to name a few).

Sport is of course subject to the general law of the country which includes all municipal by-laws such as provisions pertaining to the sale of alcohol and the protection of minor children at sporting events and sports clubs. In addition, the various laws in regard to promotion of equality, non-discrimination, freedom of association and the rules of natural justice pertaining to equality and equity of choice and selection for participation are applicable to all sports.

In light of the fact that sport is also a major business in many respects, the laws of trademarks, passing-off, unlawful competition, logos, contracts, broadcasting rights, copyright, employer-employee relationships, media rights, rights of spectators, law of defamation, criminal law in regard to unruly crowd behaviour, riots, assault and various other common laws are all applicable to sports and sporting events (rf Moroka Swallows Football Club Ltd v The Birds Football Club and others 1987 2 SA 511 (W) in regard to passing-off).

Sports law contracts

Typically, the following contracts are utilised daily in Sports law:

Commercial rights agreements;
Stadium use agreements;
Stadium naming rights agreements;
Broadcasting, web-streaming and photography agreements;
Licensing agreements;
Sponsorship & Merchandising agreements;
Players employment or participation agreements;
Appearance fee agreements for marquee players;
Management agreements;
Lease agreements for sports facilities;
Clubs and sponsors agreements;
Clubs and service provider agreements;
Event management agreements;
Catering service agreements;
Security service agreements.

Common law

One of the most important common law principles applicable to participation in sporting events is that of volenti non fit iniuria, which essentially means that no injury is committed against one who consents to injury.

The law has recognised that certain sports carry with them an inherent danger and risk of injury to protagonists and spectators and thus volenti non fit iniuria finds regular application. However, there are exceptions particularly in the law of England where injuries sustained in sport where found to be committed intentionally, negligently and not in the spirit of the game, and damages were awarded in such matters in addition to other punitive measures.

A further aspect of the law in general which is applicable to sports and more particularly sports clubs, is that of sports-betting, sports pools, wagering and lotteries. These activities are very important in regard to the income and fund-raising for sports clubs, but have very particular laws regulating same and naturally there is always the question of sports tax and taxes to be paid to the receiver (rf Fund-raising Act 107 of 1998; Non-profit Organisations Act 71 of 1997; Lotteries Act 57 of 1997; Income Tax 58 of 1962).

Conduct in sports

Very germane to the issue of conduct and damages in Sports law is the issue of the fair conduct of participants in sport. Maliciously or recklessly injuring an opponent can result in damages and possible criminal action against the perpetrator.

In regard to civil damages, it is apposite to understand that as far as sport and the law is concerned the standard of conduct of the reasonable man[1] is expected in sports participation and more specifically, the standard of conduct of the knowing or professional sportsman or sportswoman, which places a higher threshold[2] on the participants.

Sports law – Clubs & Associations

In South Africa, as in most countries, organised sport is conducted by individuals typically in groups or associations. Associations themselves also engage in organised sports in leagues, competitions and in local, provincial and national sports events as unions, which recently take the form of non-profit companies.

There is no requirement in South African law for a sports club, country club or other voluntary associations or sports-minded people to take any particular legal form.

Voluntary associations are generically defined to be a voluntary relationship between three or more persons to achieve a common object or interest, which is usually not for profit making. The object or interest may be any lawful social, sports, scientific or otherwise object or interest. These associations do not have legal personality per se, but can derive the common law personality of a universitatis. (rf Malcomess and Co v Kuhn 1911 CPD 546)

Clubs, sports clubs, country clubs and other sporting entities bind their members to membership in furtherance of the object in terms of their constitutional documents. These are mutual agreements between the members and record, inter alia, the terms of membership, standards of behaviour, rules of the club, participation requirements and various other matters pertaining to the club and its administration.

On many occasions the agreements and rules of membership have been challenged in the higher courts in more ways than one. (rf Valkin and Another v Daggafontein Mines Ltd and other 1960 2 SA 507; Constantinides v Jockey Club of SA 1954 3 SA 35 (C); Turner v Jockey Club of South Africa 1974 3 SA 633 (A); Jockey Club of SA v Transvaal Racing Club 1959 1 SA 441 (AD); Garment Workers Union v De Vries 1949 1 SA 110 (W).

It is thus imperative that all sports clubs, country clubs, sports associations pay particular attention to Sports law (as it grows exponentially year on year) to ensure sound legal governance of their clubs and associations in compliance with the law.

www.slamatlaw.co.za ASHLEY SLAMAT ATTORNEYS – Copyright

[1] The average man of society who goes about his affairs in a reasonable fashion with ordinary prudence and thought.

[2] Therefore a higher standard of knowledge, skill and competence of a man professing to have same.

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THE CIVIL UNION ACT 17 OF 2006

slamatattorneys — Wed, 17 Mar 2021 07:11:44 +0000

The purpose of the Civil Union Act 17 of 2006 is for solemnization of all civil unions by either a marriage or civil partnership, the legal consequences of civil unions and to provide for matters incidental thereto.

The Civil Union Act 17 of 2006 is according to the following sections of the Constitution of the Republic of South Africa:

9(1) – The right to equality.
9(3) – The state may not unfairly discriminate directly or indirectly against anyone on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
10 – The right to dignity and the respect and protection of dignity.
15(1) – The right to freedom of conscience, religion, thought, belief and opinion.
The rights in the Bill of Rights may only be limited in terms of law and general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
The family law dispensation as it existed after the commencement of the Constitution did not provide for same-sex couples to enjoy the status and the benefits coupled with the responsibilities that marriage accords to opposite-sex couples.

Section 1: Definitions
“civil union” – the voluntary union of two persons who are both 18 years of age or older, which is solemnized and registered by way of either a marriage or a civil partnership, n accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others.

“civil union partner” – is a spouse in a marriage or a partner in a civil partnership, concluded in terms of this Act.

“marriage officer” – a marriage officer ex officio or so designated by virtue of section 2 of the marriage Act, or any minister of religion, or any person holding a responsible position in any religious denomination or organisation, designated as marriage officers under section 5 of this Act.

Section 4:
A marriage officer has all the powers, responsibilities and powers according to the Marriage Act to solemnize a civil union.

Section 5: Designation of Ministers of religion and other persons attached to religious denomination or organisation as marriage officers by the Minister –

Any religious domination/organization may apply in writing,
The Minister may designate such religious denomination as religious institution that may solemnize marriages under the Act and must publish particulars of such religious dominations in the Gazette.
The Minister may revoke a request as above, and must also publish it in the Gazette.
The Minister will authorize such a written request for any Minister of a religion or person holding a responsible position in a designated religious institution.

Section 6:
Marriage officer not compelled to solemnize a civil union

A marriage officer, other than a marriage officer referred to in Section 5, may inform the Minister in writing that he/she objects on the grounds of conscience, religion and belief to solemnizing a civil union between persons of the same sex, whereupon that marriage officer shall not be compelled to solemnize such a civil union.

Section 7
Prohibition of solemnization of civil union without production of identity document or prescribed Affidavit.

A marriage officer may only solemnize a marriage if both the parties produce their identity documents or
Both the parties furnish him with the prescribed Affidavit or
One party offer an identity document and the other the prescribed affidavit.

Section 8: Requirements for solemnization and registration of a civil union –

- A person may only be a party in one marriage or civil partnership at any given time,
- A person must furnish proof to the marriage officer of a certified copy of the divorce order or death certificate of the previous spouse/partner before he/she may be solemnized into a civil partnership.

Two parties may only be solemnized into a civil union if, apart from the fact that they are of the same sex, not be prohibited by law from concluding a marriage under the Marriage Act or Customary Marriages Act.

Section 9: Objections to civil unions –

A person who wants to raise an objection against a civil union must do so in writing with the marriage officer whom is going to solemnize the proposed civil partnership.
The marriage officer may only solemnize the civil union if he/she is satisfied that there is no grounds in the objections

Section 10:

A marriage officer may solemnize a civil union at any time during any day of the week, but is not compelled to solemnize it outside working hours (between 8 and 4).
A civil union must be solemnized by the marriage officer in a public office, private dwelling-house or on the premises used for such purposes by the marriage officer, with open doors and in the presence of the parties themselves and at least two competent witnesses. Notwithstanding the above a civil union may be solemnized in any other place other than is mentioned above, if the reason for this is the serious or longstanding illness of, or serious bodily injury to, one or both of the parties.
No person may enter into a civil union by way of another person acting as his representative.

Section 11: Formula for solemnization of a marriage or civil partnership

This must be done according to the parties’ wishes to have a marriage or civil partnership.
The provisions of this section relating to the questions being put to each party separately or to the declaration whereby the marriage shall be declared to be solemnized, or the requirement that the arties must give each other the right hand, have not been strictly complied with owing toi. error, omission, or oversight committed in good faith by the marriage officer;
ii. an error, omission or oversight committed in good faith by the parties; or
iii. the physical disability of one or both of the partiesand such civil union has in every other respect been solemnized n accordance with the provisions of this Act, that the civil union shall, provided there was no other lawful impediment thereto, be valid and binding.

Section 12: Registration of a civil union

The prospective civil union partners must individually and in writing declare their willingness to enter into a civil union with one another by signing the prescribed document in the presence of two witnesses.
Then the marriage officer as well as the two witnesses must also sign the document to certify that the declaration was done in their presence.
The marriage officer must furnish the parties with a certificate stating that they are entered into a marriage or civil partnership under this Act.
The above certificate is prima facie proof of the validation of the civil union and the marriage officer must keep record of civil unions conducted by him/her.

Section 14: Offences under the Civil Union Act 17 of 2006 –

Any marriage officer who solemnizes a civil union which he/she is not authorised to solemnize or which is legally prohibited and a person who is not a marriage officer who purports to solemnize a civil union.
Any marriage officer who demands or receives any fee, gift or reward for or by any reason of anything done by him or her as a marriage officer in terms of this Act.
Any marriage officer who knowingly solemnize a civil union in contravention of the provisions of this Act.
Any person who, for the purposes of this Act, makes any false representation or false statement knowing t to be false.

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