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‘Professional athletes, particularly in team sports, should be treated no differently than ordinary employees in other professional occupations with respect to their right of choosing their employer and the terms and conditions upon which they are employed. The sooner sports administrators realise this right, the sooner legal challenges to their rule will diminish’. Discuss. Professional sport today is most definitely considered a business, therefore its athletes should be considered as employee’s of this sport, and treated as such. This topic is based around the concept of restraint of trade and the impact it has on the sports of today and the athletes that play them. The general principal of Restraint of trade is; ‘any restraint on a persons ability to carry out his/her trade is premafacing and is void, unless it can be proven reasonable and in the public’s best interests’. However having said this it is the athletes obligation to prove a restraint of trade exists. There are two basic steps to follow when dealing with a restraint of trade; firstly the athlete must prove there has been a restraint, and if this is so, then it is up to the Sport Governing Body to prove that the restraint was reasonable and in the best interest of the public. A restraint can be placed in the athletes contract and can be found in the Sports Governing Bodies Rules and Regulations. Restraint of trade is very had to define in one simple explanation. The ever increasing professionalism and business like nature of Australian sport and world sport in general has sparked much debate on the issues of exposing the Australian sports organizations to restraint of trade principals and the extreme positions it takes. In the Case Foshini Vs VFL and South Melbourne Football Club it continues with the notion of the players having less control of the rights that a written in their contracts. A factor in which countries such as the United States and Europe have solved by introducing the approach of free market of free-agent players, where players can go to the club or franchise of their choosing without the consent of their former club. However in my opinion both systems have their positive and negative aspects, those I will go into greater depth later in the paper. The uncertainty of professional sports is indeed why we go to our favourite sports and watch the religiously, the notion of an even competition is one of if not the most important influences in having a successful sporting franchise. Without this restraint in some form or fashion, the more financially sound and profiled clubs and franchises with offerings of higher monetary value, intrinsic advantages such as jobs, sponsorship deals, prime locations, top facilities and a greater chance of winning would obtain the superior players, hence leading to a competitive imbalance within that sporting league. With these restraints teams across the whole league are able to protect their investment in its players, and that ‘without these restraints the equality of competition would decline because players frequently would jump from team to team and thereby destroy the teams existing harmony and coordination.’ In the High Court of Australia case Buckley Vs Tutty it was stated: ‘It is a legitimate object of the league and of the district clubs to ensure that the teams fielded in the competition are as strong and well matched as possible, for in that way the support of the public will be attracted and maintained, and players will be afforded the bet opportunity of developing and displaying their skill. It is therefore legitimate to aim to provide a system that will ensure sufficient stability of membership to permit those who play for a club to be trained as a team and to develop a team spirit, and that will prevent the stronger clubs obtaining all the best players, thus leaving the weaker clubs with teams that are unable effectively to compete with their stronger opponents…’ Thus the major notion around the restraint of trade is to make these professional competitions as unpredictable as possible for the public. As stated above any restraint must be in the public’s best interest if it is going to survive a challenge. The public’s interest pre-requisite is fulfilled if the restraint itself brings a benefit to the public at the same time making sure there is no detriment towards the public. The notion of satisfying and looking after the public’s interest should be a major purpose of any elite sport. Within the sporting world, looking out for the public’s interest could include things such as benefiting competitors, clubs, spectators, sponsors and the actual sports governing body itself. With such interests as promoting and/or fostering of sport, and fostering fitness and reaction, not to mention the notion of restraint of trade becoming an integral part of benefiting the public. The question of whether or not the doctrine of Restraint of Trade should apply to sport? Has been debated often with the pro’s and con’s being fairly wide spread and varied. The argument against the doctrine being applied to professional team sports is the notion that it is in favour for the sporting leagues, clubs, players and spectators that player talent is indeed spread evenly across the league as much as it can to produce an even, far and competitive competition with that air of uncertainty that the public has come to love.
Approximate Word count = 3403
Approximate Pages = 13.6
(250 words per page double spaced)
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