Non-compete/restrictive football contract clauses

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In 7th Heaven Bistro Limited v Amit Desphande, judgment delivered on September 27, 2018; per Peters J.), the court declared as ‘inhuman and stifling’, and consequently found to constitute an unfair labour practice, the restrictive covenant that ‘for whatever reason even if his employment is terminated [the employee] shall not accept employment with any other employer in Nigeria … for a period of (3) years from the date of termination or resignation as the case may be’.

In Infinity Tyres Limited v Sanjay Kumar, the ‘non-compete clause’ restricting the 1st defendant from joining ‘any other company in Nigeria for one year’ upon cessation of work employment with the claimant company was considered too wide and consequently unreasonable and unenforceable when the economic activity sought to be restricted was extended to cover “any other company in Nigeria”.

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Discriminatory Treatment

In Darlington Eriseye Lawson v Keystone Bank Limited and Jacob Folarin v Union Assurance Co. Ltd, it was found that the practice of an employer paying ex-gratia to some of its ex-employees whose employments were determined in the same or similar circumstances with that of the claimant (without making same payment to the claimant) was discriminatory and amounted to unfair labour practice.

Irregular Termination/Dismissal of Employment

The purported disengagement of an employee not following laid down process, coupled with an unlawful denial of earned promotion was frowned at in Dr. Kayode Afolayan v UNILORIN; decision made on November 27, 2018, per Adewemimo J.)

What may be categorized as ‘unfair labour practice’ is not closed and much would depend on the facts of each case but regard would be had to the disparities in bargaining power between the parties.

The curious case of Plateau United

Finally, as indicated previously, Plateau United Football Club put out a statement on its official twitter handle confirming that the entire first team and coaching staff have been placed on half salary following the team’s dismal start to the season.

While the author acknowledges that he is not privy to the terms of Plateau United players’ contract, the reports around this development suggest that the club is invoking a clause in the employment contract which empowers it to sack, suspend or deduct the salaries of the players in the event of poor performance. If this hypothesis is correct, it is pertinent to briefly analyze the relative strengths and weaknesses of the club’s position.

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While the club may well be within its rights to rely on this provision, particularly regarding the fact that there are no vitiating factors to set aside the contract, other considerations such as the disparity in bargaining powers of the parties may well become of utmost importance. It is the responsibility of the lawyer who drafts the contract to ensure that such conditions are fulfilled.

Nothing should be uncertain when it comes to these contract clauses; all roles must be well defined along with remedies and adverse ramifications if necessary. Though sports and its values can be persuasive but just like any other industry, it is risk prone and must be dealt with a stern attitude.

This point is illustrated by the case of Manchester City Football Club Plc v Royle, the case concerned the interpretation of ambiguous expressions in a liquidated damages clause that provided for different termination payments that were to be paid to Joe Royle, which was dependent on whether the club was in the Premier League or the First Division at the date of the termination of the employment.

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