Contracts, IPL and McCullum exploiting loopholes

[zaremba]

Do you seriously, honestly, genuinely believe any sportsman can under any circumstances file a lawsuit for non-selection in a team?

They could in England if they felt it was based on some sort of discrimination, I would imagine.

Spot on, GIMH.

Imagine if a racist manager took over a County side, and decided that he would only select white players. The black players remained on the books but were simply excluded from selection. Would they have an enforceable claim for race discrimination? You ****ing bet they would.

To take another example, imagine if the manager and a particular player fell out with each other and the manager, acting out of spite or dislike, unreasonably excluded him from selection for, say, a Lord's final (but it could be for any game or series of games). The player could then resign from the club. Again, he would have a valid claim, this time for unfair constructive dismissal.

In both cases the court or tribunal would take into account the fact that the best-placed person to select the team will be the coach. But that doesn't make the case unwinnable for the player by any means. From an employment lawyer's perspective, I wouldn't expect it to be much more difficult than any other similar dispute in a different area of work.

 

[Richard]

I presume the outcome would be some form of compensation claim, or the dismissal of any single person who was found to be selecting via use of discrimination, though.

Not an instruction on who to pick in your teams.

 

[GIMH]

Yeah but it would set a useful precedent for future issues

 

[zaremba]

You seriously believe any court would tell a cricket board "you must pick <name player> in your team"?

That's a different question. Courts are very reluctant to order specific performance of an employment contract. So an injunction to require the player's selection would be unlikely. The employee's remedy is usually restricted to a claim for damages.

In a discrimination claim, the Tribunal can additionally make a formal recommendation that the player be selected (which they might do, although this will depend on the specific facts of the case), but this does not actually force the employer to comply. However there would be financial consequences for the club if they didn't comply.

 

[zaremba]

Yeah but it would set a useful precedent for future issues

And the very possibility of such a claim being brought is an important deterrent against such behaviour in the first place.

 

[Richard]

That's a different question. Courts are very reluctant to order specific performance of an employment contract. So an injunction to require the player's selection would be unlikely. The employee's remedy is usually restricted to a claim for damages.

Yeah, that's precisely what I'm saying. IOW, "trapol"'s claim that

If he wanted the hassle of a lawsuit he couldve taken NZC to court and made them pick him for NZ whilst he was playing in the ICL.

is essentially stuff and nonsense.

 

[BoyBrumby]

Hypothetically then, say Pietersen turns down a central contract and the ECB then denies him a notice of permission to play in the IPL. Would he have a case against the ECB for restraint?

 

[zaremba]

Yeah, that's precisely what I'm saying. IOW, "trapol"'s claim that is essentially stuff and nonsense.

Probably. It depends, I suppose, on the facts of the case (and the law in NZ, about which I know little). I can imagine circumstances where a Court would be tempted to make that kind of order. For instance: KP plays ICL and is excluded from an England tour as a result, despite a season of heavy scoring for England and Hampshire; and, when called to give evidence (as he surely would be) the chairman of the England selectors admitted in the witness box that the only reason KP wasn't a certain selection for every game England played was because of his ICL connections.

Anyhow I should point out that my earlier posts were in response to your rather broader propositions that
(a) the law doesn't govern the selection of sporting sides,
(b) that no sportsman could ever successfully bring a lawsuit for non-selection in a team, and
(c) that a cricketer's "trade" is having a contract rather than playing cricket.

 

[GIMH]

If KP was ever dropped for non-cricketing reasons I'd run for parliament on the promise of introducing a Pietersen Bill decreeing that he should always play tbh

 

[Richard]

Probably. It depends, I suppose, on the facts of the case (and the law in NZ, about which I know little). I can imagine circumstances where a Court would be tempted to make that kind of order. For instance: KP plays ICL and is excluded from an England tour as a result, despite a season of heavy scoring for England and Hampshire; and, when called to give evidence (as he surely would be) the chairman of the England selectors admitted in the witness box that the only reason KP wasn't a certain selection for every game England played was because of his ICL connections.

Anyhow I should point out that my earlier posts were in response to your rather broader propositions that
(a) the law doesn't govern the selection of sporting sides,
(b) that no sportsman could ever successfully bring a lawsuit for non-selection in a team, and
(c) that a cricketer's "trade" is having a contract rather than playing cricket.

All of which sound a bit iffy TSTL when you put them like that - and my implication was not to imply what they sound as if they're implying when you quote them like that. Each statement was made, rather, in the context that no court is remotely likely to make a specific order to a cricket board to order their selection panel to pick a certain player.

 

[GIMH]

All of which sound a bit iffy TSTL when you put them like that - and my implication was not to imply what they sound as if they're implying when you quote them like that. Each statement was made, rather, in the context that no court is remotely likely to make a specific order to a cricket board to order their selection panel to pick a certain player.

While this is true, as zaremba said if a player filed a case successfully for restraint of trade on the basis of non-selection for 'political' reasons, it would in all likelihood ensure that the same thing didn't happen again and therefore ensure that effectively the board did pick certain players.

 

[Richard]

If KP was ever dropped for non-cricketing reasons I'd run for parliament on the promise of introducing a Pietersen Bill decreeing that he should always play tbh

The ICL isn't a non-cricketing reason TBH. But I can't help but think that you might be in favour of his non-selection should he take a gun and massacre several hundred people before turning himself in and being arrested and remanded in custody.

Point being that there are, believe it or not, a few things more important than cricket. By-and-large, though, cricketers aren't sufficiently "bad" to impair their on-field availability.

BTW were you against Glenn Hoddle being sacked, despite being England's best manager for yonks, purely because of comments he made which revealed him to be of dubious character, which had absolutely nothing whatsoever to do with football?

 

[Richard]

While this is true, as zaremba said if a player filed a case successfully for restraint of trade on the basis of non-selection for 'political' reasons, it would in all likelihood ensure that the same thing didn't happen again and therefore ensure that effectively the board did pick certain players.

Which is different to the notion that, right now, Bond (or any other player) would be able to get their cricket board given specific instruction by a court to pick them.

 

[GIMH]

The ICL isn't a non-cricketing reason TBH. But I can't help but think that you might be in favour of his non-selection should he take a gun and massacre several hundred people before turning himself in and being arrested and remanded in custody.

Point being that there are, believe it or not, a few things more important than cricket. By-and-large, though, cricketers aren't sufficiently "bad" to impair their on-field availability.

BTW were you against Glenn Hoddle being sacked, despite being England's best manager for yonks, purely because of comments he made which revealed him to be of dubious character, which had absolutely nothing whatsoever to do with football?

Haha come on man, way to take a completely silly tongue-in-cheek post and rip it apart

First up, ICL is a non-cricketing reason, it's political bull****, but we've argued the ICL plenty in the past and will never agree so I'll leave that there.

As for the murders, well it would depend on who he shot .

Hoddle obviously had to go, again when I said non-cricketing reason i think you took me a little bit too literally. But he definitely wasn't England's best manager for yonks as Venables was better.

Which is different to the notion that, right now, Bond (or any other player) would be able to get their cricket board given specific instruction by a court to pick them.

Indeed and I don't disagree

 

[zaremba]

I've been thinking about the KP example a bit more.

Even if the Court refused to order him to be selected for the tour, all the Court would need to do would be to make a declaration that the banning of ICL players was unlawful. I would imagine they could even make this order before the tour party was selected.

The result would be that the ECB would add him to the squad, for two reasons.

First, the ECB would be and feel free to pick him despite the misgivings of the BCCI.

Second, the ECB would be painfully aware that if they didn't pick him, he would sue them after the event for damages, and his claim at that point would include a claim for aggravated damages (and possibly misfeasance in a public office) for ploughing ahead with his non-selection even though they knew that it would be unlawful.

Interesting stuff. The legal geek in me says it's a pity that Shane Bond didn't test the point over the last few years.

 

[GIMH]

Could he not still go ahead and sue them for earnings lost these past couple of years?

 

[fredfertang]

Back in 1980 Bishen Bedi took Northants to an Industrial Tribunal for an unfair dismissal claim which effectively amounted to asserting that he was still good enough to merit a contract and therefore his fixed term contract (which had been honoured but had ended) should have been renewed - the IT decision, if I understood it correctly, was that the IT could, as a matter of law, have found for him and decided in effect that he should have had a new contract - of course they went on to say that that was a judgment they weren't able to make so Bish won the battle but lost the war.It was only an IT of course but I can't imagine the law has evolved

................. or I may have got that wrong - can you shed any light Mr Z?

 

[Richard]

Haha come on man, way to take a completely silly tongue-in-cheek post and rip it apart

Well much as it may have been tongue-in-cheek, and yes it was obvious enough, I can't help but get the feeling that you weren't completely sans-seriousness. I've always got the impression that England success in the immediate future means more to you than most things.

First up, ICL is a non-cricketing reason, it's political bull****, but we've argued the ICL plenty in the past and will never agree so I'll leave that there.

ICL is a tournament that made a massive impact on the cricket World for a time (mercifully, a relatively short one). How on Earth is it a non-cricketing reason?

Hoddle obviously had to go, again when I said non-cricketing reason i think you took me a little bit too literally. But he definitely wasn't England's best manager for yonks as Venables was better.

Disagree TBH, Vegetables only had competetive football for a very, very short time, at home, and did a decent job of something that was pretty easy. Hoddle on the other hand did a tricky-ish job well. And yes, he actually realised something that possibly only I else in the county realised - that after 1996, Nigel Martyn was actually a better goalkeeper than David Seaman.

If Hoddle had to go then surely you acknowledge that reasons related to your own sporting ability is not the only thing concerned with whether you play sport or not. More than ever when you're representing, by chain, your country.

 

[zaremba]

Could he not still go ahead and sue them for earnings lost these past couple of years?

Don't see why not. In England, you would have 6 years to bring this sort of claim.

Whether or not would want to, though, is a different matter. Litigation is a pretty messy business.

 

[zaremba]

Back in 1980 Bishen Bedi took Northants to an Industrial Tribunal for an unfair dismissal claim which effectively amounted to asserting that he was still good enough to merit a contract and therefore his fixed term contract (which had been honoured but had ended) should have been renewed - the IT decision, if I understood it correctly, was that the IT could, as a matter of law, have found for him and decided in effect that he should have had a new contract - of course they went on to say that that was a judgment they weren't able to make so Bish won the battle but lost the war.It was only an IT of course but I can't imagine the law has evolved

................. or I may have got that wrong - can you shed any light Mr Z?

I'll look it up. Might be worth a feature at some stage.