The courts recognize that power disparities arise in an employment relationship and are relevant to the enforceability of a contract or contractual clause. Weaker bargaining power may undermine a party’s ability to consent meaningfully to a contractual term.
As earlier stated, freedom of contract is a fundamental tenet of contract law and the courts are usually reluctant to intervene in private contractual relations. But the principle is not absolute and for reasons of public policy the courts have on occasion intervened to prevent an abuse of private power.
The nature of the intervention depends on the contractual terms and the context in which the power is being exercised. Much would, therefore, depend on the peculiar fact pattern of each case.
The employment relationship represents one area where the court has been extremely circumspect in upholding certain provisions in an employment contract and in which power disparities have led the court to intervene to stop a wily employer from invoking certain overreaching provisions in an employment contract. The sports industry is replete with cases where this commendable judicial attitude has been demonstrated.
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Now, even though sports and football contracts in particular, contain internal remedial mechanisms for the resolution of sports disputes, the National Industrial Court of Nigeria reserves the exclusive jurisdiction for the resolution of employment disputes between the player and his club.
The court has, accordingly, developed commendable labour law principles that have ameliorated the plight of the employee. Though these principles have not been applied in a sporting sense, these principles nonetheless apply to sports.
This milestone has been achieved with the advent of what is usually termed “unfair labour practices”. Unfair Labour Practices are practices that do not conform with best practice in labour circles as may be stipulated by domestic or international legislations and practices.
It can also be described as any improper practice that relate to remuneration, job security, health and safety, social security and working hours amongst others. There is no end as to what the court may hold to constitute unfair labour practice. The test appears to be whether such act is in tandem with international best practice.
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There have been instances where the Courts have held certain acts or conducts to be unfair labour practices. In Mr. Olabode Ogunyale & ors v. Globacom Nigeria Ltd, the NIC held that it is unfair labour practice for an employer to compel an employee to bank with a specified bank chosen by the employer.
It is unfair labour practice for an employer to dictate to an employee where to invest his/her computed gratuity benefit-see Aghata N. Onuorah v. Access Bank Plc.
In Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor, the NIC again held, to be unfair labour practice, an employer’s act of holding the certificates of an employee as security for the employment of the employee on terms that it will not be released until the employer no longer desires the services of the employee. A vindictive suspension and/or vindictive denial of promotion will also amount to unfair labour practice.
In Mix and Baker Flour Mills Industries Ltd v. NUFBTE, the NIC whilst holding an employer’s dislike for trade unionism to amount to unfair labour practice stated that “To be unfair, it must be established that the practice does not conform with best practice in labour circles, as may be enjoined by local and international experience”.
