Academic journal article The International Sports Law Journal

The Professional Athlete-Employee or Entrepreneur?

Academic journal article The International Sports Law Journal

The Professional Athlete-Employee or Entrepreneur?

Article excerpt

Introductory Remarks

Since the reestablishment of the Olympic Games of the modern era by Baron Pierre de Coubertin in 1896, sport has become highly competitive and business orientated. Amateurism has given way to professionalism. In fact, sport is now worth more than 3% of world trade and 2% of the combined GNP of the 25 Member States of the European Union. With so much to play for, it is not surprising that the Olympic Motto 'it's not the winning that counts but the taking part' has largely--and many would say sadly--gone by the board. Indeed, it is the winning that now counts and, in many cases, at any price (witness the continuing problem of doping, especially in new forms, for example, blood and gene doping). We no longer talk of amateur athletes but of elite athletes, by which we mean athletes that earn their livings through the practise of their sports. The funding of sports and sports persons through the public and private sectors nowadays is also big business. The race is on for gaining more medals. The question--and a tricky one at that--quite naturally arises: are athletes employees or entrepreneurs? And the answer to this question has significant financial and fiscal implications, as well, of course, as sporting ones.

In this Paper, I have interpreted my brief quite broadly and I shall look at the situation and certain legal issues and cases in the United Kingdom and also under EU Law; and then try to draw some general conclusions on the legal status of athletes. Not surprisingly, because it is the world's favourite game and the most lucrative sport in global commercial/financial terms, worth billions of dollars (and still counting!), association football, footballers and football clubs figure prominently in the text.

The first and logical question that needs to be posed and answered is: who is an employee under English Law?

Legal Definition of Employee under English Law

Under the Employment Rights Act of 1996, an employee is defined as a person who has entered into or works under a contract of employment. 1 Thus, there is no statutory definition of who is an employee and, therefore, one has to turn to case law (in other words, the Common Law) to answer this important question.

Traditionally, the Common Law applied the so-called 'control test' to determine whether a person was an employee or not. Under this test, a person was an employee if told what to do and how to do it by someone else, with little or any choice in the matter.

In the application of this test, claims that certain sports persons were not employees by reason of the particular skills they possessed which their 'employers' were not able to control were quickly dismissed. Thus, the then Master of the Rolls, Lord Cozens-Hardy, dealt with such arguments in the case of Walker v Crystal Palace Football Club (2) in the following terms:

"It has been argued before us ... that there is a certain difference between an ordinary workman and a man who contracts to exhibit and employ his skill where the employer would have no right to dictate to him in the exercise of that skill; e.g. the club in this case would have no right to dictate to him how he should play football. I am unable to follow that. He is bound according to the express terms of his contract to obey all general directions of the club, and I think in any particular game in which he was engaged he would also be bound to obey the particular instructions of the captain or whoever it might be who was the delegate of the authority of the club for the purpose of giving those instructions. In my judgment it cannot be that a man is taken out of the operation of the Act simply because in doing a particular kind of work which he is employed to do, and in doing which he obeys general instructions, he also exercises his own judgment uncontrolled by anybody." (3)

By the same token, cricketers are also considered to be employees. …

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