The Rights of Athletes
24 September 2013
The Rights of Athletes
1
The Rights of Athletes
Castan Centre for Human Rights Law
Monash University Law School
Monday 23 September 2013
24 September 2013
The Rights of Athletes
Slide 2
Brendan Schwab LL.B MBA
• Director, International Player Relations
• Board Member, FIFPro, the world professional footballers’
association
• Chairman, FIFPro Division (Asia/Oceania)
• Judge, FIFA Dispute Resolution Chamber
• Member, Steering Committee, UNI Sport Pro (world athletes’
association)
• General Secretary, Australian Athletes’ Alliance, the peak body for
Australia’s nine major players’ associations which represents more
than 3,000 athletes
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The Rights of Athletes
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Contents
1. Fans and Players: Perception and Reality.
2. The Mystique of Sport.
3. The Most Important Right: Freedom
4. Collective Bargaining, Grievance Arbitration and Revenue
Sharing
5. The Challenges of Corruption and Cheating:
(a)
Anti-Doping
(b)
Match Fixing
6. When Athletes’ Rights Transform Sport
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1. Fans and Players
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1. Fans and Players
Scott Fujita (left)
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1. Fans and Players
Marvin Miller
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Greatest Achievements
of the Player Rights Movement
1. Freedom of Movement
2. Collective Bargaining
3. Independent Grievance Arbitration
4. Revenue Sharing
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2. The mystique of Sport
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3. The Most Important Right:
Freedom
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Historic Control Over Players
Since the 19th century and professionalism:
the retain and transfer system;
the reserve clause;
player drafts;
zoning;
permit rules;
training compensation;
home grown player rules;
points systems, whereby players are nominally allocated
points and clubs must not contract above that nominal limit;
and
• salary caps.
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“Freedom is Never Given”
“Freedom is never given to
anybody.
Privileged classes never
give up their privileges
without strong resistance.”
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Curt Flood
“I am not a piece
of property to be
bought and sold
irrespective of my
wishes.”
https://www.youtube.com/
watch?v=3D_8-BKlgy8
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John Mackey
“I was handed a piece of paper, a contract, and was told to sign it. Of
course I didn’t, and from that moment of youthful pique evolved the
fight by N.F.L. players to choose for whom they work.”
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George Eastham
Cliff Lloyd (PFA Secretary) and George Eastham (England International)
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George Eastham
“…an employers’ system, set up in an
industry where the employers have
succeeded in establishing a
monolithic front all over the world,
and where it is clear that for the
purpose of negotiation the employers
are vastly more strongly organised
than the employees. No doubt the
employers all over the world
consider the system a good system…”
Wilberforce J
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Dennis Tutty
“It is a legitimate object of the League and
of the district clubs to ensure that the
teams fielded in the competitions 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 best opportunity of
developing and displaying their skill…”
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Dennis Tutty
“A second objection to the rules in their
present form is in relation to the
question of transfer fees…(T)his is only
another way of saying that an
employer may restrain an employee
from working elsewhere unless he is
compensated for the loss of his
services.”
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Silvio Foschini
“If the desire is, as claimed to assist the
less successful sides by a better access
to talented players I should have
thought that the “draft” system ...
would ... be a preferable system to
zoning in Victoria…”
Crockett J
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Adamson
“…the right to choose between
prospective employers is a
fundamental element of a free
society. It is the existence of this
right which separates the free
person from the serf.’”
Wilcox J
[leave to appeal to the HCA denied]
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Taliadoros
The Compensation Fee System:
“operates in many instances
unfairly towards players, has little
or anything to do with the training
and development of a player’,
‘treats players as if they were the
property of their club’, and
impinges ‘on the freedom to choose
one’s employer’...The system in its
present form should be abolished…”
Full Bench of the Australian
Industrial Relations
Commission
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Bosman
“…a player can be regarded as a sort of
merchandise for which a price is to be
paid. Such an attitude may correspond
to today’s reality, as characterised by the
transfer rules...
That reality must not blind us to the fact
that this is an attitude which has no legal
basis …”
Advocate General Lenz
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4. Collective Bargaining, Grievance
Arbitration and Revenue Sharing
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Messersmith and McNally
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The Reserve Clause
• Section 10A of the Uniform Players’ Contract:
“... the Club may tender to the Player a contract for the term of that
year...
If … the Player and the Club have not agreed upon the terms of
such contract,
then on or before 10 days after said March 1, the Club shall have
the right ... to renew this contract … for the period of one year on
the same terms…”
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Freedom and the
Economics of Sports
http://www.youtube.com/watch
?v=B1NY5HfZg1I&feature=yout
u.be
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The FIFA Dispute Resolution
Chamber
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Revenue Sharing
League
Salary Cap/
Revenue Sharing
with Players
Industrial Tactics in Most Recent CBA
Negotiation
NFL
Yes/
Yes
Lockout (i.e. employer instigated work
stoppage to reduce the players’ share of
revenue)
NBA
Yes/
Yes
Lockout to reduce the players’ share of
revenue
MLB
No/
No
CBA without strike or lockout date set –
team revenue sharing, luxury tax and
strategic engagement for 3rd consecutive CBA
NHL
Yes/
Yes
3rd straight lockout to reduce the players’
share of revenue
MLS
Yes/
No
Strike/lockout narrowly avoided under
“single entity” structure
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“3 Men Forged 2 Decades
of Labor Peace”
Bud Selig, MLB Commissioner (L) and Mike
Weiner MLBPA Executive Director on the
announcement of the 2012-16 MLB/MLBPA
Basic Agreement
• “…Bud Selig’…wondered if the two sides had needed to go
through the pain of 1994 in order to achieve the peaceful
— and very profitable — coexistence they enjoy
today...(T)he answer to it is a most emphatic yes...”
• “Selig, whose single greatest achievement as baseball’s
commissioner is unifying the owners under the revenuesharing banner…”
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5. The Challenges of Corruption
and Cheating
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WADA Ineffectiveness
“Statistically the numbers of people being
caught is between one to two per cent,
that’s the numbers of positives against the
number of tests. But the number of people
doping are in the double digits.”
WADA Director General David
Howman
UNI Sport Pro research:
• of 277,928 tests conducted in 2009, 758 were positive (0.27%);
• of 258,267 tests in 2010, 1,393 were positive (0.53%); and
• 3 out of 2,216 out of competition tests were positive (0.13%).
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FIFPro Black Book
and Match Fixing
Professional footballers in Eastern Europe:
41.1% are not paid on time;
5% have to wait more than six months for their salaries;
every ninth player has been the victim of a violent act;
more than 10% of players are subjected to bullying and
harassment;
• almost one in ten report examples of racism and
discrimination, mainly by club supporters; and
• alarmingly, 11.9% stated they have been approached to
consider fixing the result of a match and more than
double that number – 23.6% - are aware that match
fixing has taken place in their league.
•
•
•
•
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6. When Athletes’ Rights
Transform Sport
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NHLPA
“You can play”
http://www.youtube.com/watch?v=SXoTRTAw6Dc
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Billie Jean King
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Peter Norman
1968 200m Olympic
Silver Medallist,
20.06 seconds
(current Australian
record)
http://www.youtube.com/wa
tch?v=qUrxBwa4Mfo
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Thank you
International Player Relations
Hughes Schwab Pty Ltd
ABN 62 076 558 015
Suite 112/757 Bourke Street,
Docklands, VIC, Australia, 3008
www.playerrelations.com.au
Twitter. @BrendanSchwab
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