Updated: Jan 28, 2020
In the wake of prominent disputes involving player behaviour and actions taken by sports to protect their commercial relationships, I ask if a new approach incorporating concepts from visual contracting will better manage expectations and obligations.
Sports Participation Agreements and Standard Player Contracts
Athlete and Player contracts contain complex terms and conditions, often set out in long standardised documents that refer to and incorporate other lengthy documents. For example, the National Rugby League Playing Contract, including schedules, is around 40 pages long, and incorporates volumes of rules, codes, the NRL operations manual and policies.
As such, many athletes, eager to obtain their dream of being a professional sportsperson or to represent their country, may be unaware of their obligations and their rights due to complex legal concepts and contractual wording. This gap in awareness and understanding may lead to instances where actions (including off the sporting 'field') result in unintended sanctions (including termination) and/or damage to 'the game' and its commercial partners. To mitigate these awareness and understanding gaps, and accepting that some people learn and think visually (disregarding level of schooling or cultural background), perhaps sporting codes and player associations should explore the benefits of incorporating elements from innovative approaches in visual contracts.
What are Visual Contracts?
Visual contracts are an emerging format of contract that use images, cartoons and illustrations, rather than slabs of text, to communicate the fundamental terms and concepts of an agreement between parties. Using visuals makes information easier to convey, process, and remember. Visual contracts simplify the language of contract to ensure better communication of the terms of agreement for parties vulnerable to misunderstanding the legal terminology often found in traditional text-based contracts.
Are visual contracts valid and binding, legally?
In Australia, the binding enforceability of visual contracts remains a moot point, awaiting official judicial pronouncement. However, former Chief Justice French recently said the following at a conference held in December 2017:
“There is no reason in principle why pictorial contracts explained orally or supplemented textually or contextually could not be enforceable in the same way as any other contract.”
In South Africa, a country with very high rates of illiteracy, visual contracts have been upheld as valid. Leading pioneer of visual contracts in South Africa, lawyer Robert de Rooy, believes the jurisprudential basis for visual contracts’ validity would be applicable in any common law country. Visual contracts have also been upheld as binding in non-common law countries, such as Switzerland.
Back in Australia, global engineering firm Aurecon, supported by leading visual contract expert, Professor Camilla Andersen of University of Western Australia, have implemented visual contracts. This move did raise concern expressed by The Australian Council of Trade Unions and the Australian Industry Group, who cautioned that visual agreements do not offer employers or employees certainty about their respective rights and responsibilities. Additionally, French CJ (retd.) warned that visual contracts may produce difficulty in the negotiation process if “parties are required to draw pictures on the spot to suggest variation of terms.”
Visual Contracts & Sports Law
Focusing on the benefits, the relationship between visual contracts and sports law remains an unexplored area with great potential.
Without stereotyping sportspeople or casting athletes in a negative light, a sports participation agreement and playing contract incorporating visuals to better explain and communicate core legal rights and responsibilities in the sports context could benefit athletes as a group – certainly for young and easily exploitable athletes signing their first professional playing and agent representation agreements.
During an October 2016 episode of ABC Radio National’s Law Report, visual contracts expert Robert de Rooy reflected on the value of visual contracts when dealing with parties vulnerable to misunderstanding complex legal language:
“[for employers] it is important for their workers to understand what they are committing too. It’s beneficial for both parties to understand their rights and obligations. If [employees] sign agreements and do not understand, then misunderstandings arise.”
If adopted, sports and esports organisations could drive better contractual communication with their athlete and player stakeholder group by avoiding complex legal jargon, relying instead on clear imagery to communicate the concepts, obligations and rights of a particular contractual arrangement. In reducing such misunderstandings, visual contracts can help sports organisations avoid the costs – both financial and in terms of valuable reputations – that arise when athletes breach their contract, and incorporated codes, rules, and policies.
If the leap to visual contracts is a leap too far, sporting organisations should look to an interim measure of presenting core contractual terms and conditions in visual learning formats to ensure athletes are aware, understand, and fully consent to what they sign on for.
What's in it for sports (and esports)?
By making contract law more approachable and clear, visual contracts can reduce conflict. Additionally, visual contracts (or the interim step of providing visual learning programs for core contractual terms and conditions) focus more on driving good behaviour rather than purely focusing on the enforceability of rights in the case of future breach. In so doing, visual contracts present a way forward for sports organisations to better communicate their contracts, reduce the chances and costs of breach, and drive the good behaviour and compliance of their sportspeople.
To discuss applications of visual contracts to your sports agreements, including collective bargaining agreements, or if you require further information or have any queries in relation to this idea, please Contact Us.
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