Introduction

"It is omelettes and eggs. No eggs - no omelettes!” The role of coaches in sports is best alluded to through this iconic quote of the inimitable José Mourinho. Coaches are the chef de cuisine of a sports team; the individual tasked with establishing a culture that brings all the ingredients together, which results in the best product being put out. But the critics and patrons are a tough crowd to please. From team owners to the media and fans, coaches have one of the most highly publicised and scrutinised jobs in the world. Their work is broadcast every weekend, and news headlines flooded with a litany of reported “sackings”.

But, at the end of the day, coaches are still employees like every other working individual and their rather glamorous status does not insulate them from basic employment law protections.

This article will look at the South African employment law implications in firing a sports coach for performance-related reasons. Practical considerations will also be laid out for sports teams to keep in mind when deciding whether to prematurely terminate a coach’s services.

Characterising a Coach’s Employment Contract

Coaches are usually appointed for a specific period, and for a specific purpose i.e., coaching the team/club, assisting in a rebuild phase etc. Because of this, teams routinely make use of  fixed-term contracts (“FTC”). FTC’s by their very nature envisage employment lasting for a set duration and with a set objective in mind. This affords teams greater flexibility in their hiring practices and avoids having them tied to coaches on a permanent basis. Fixed term contracts ordinarily expire with either the effluxion of an agreed upon time or date; the occurrence of a specified event; or by mutual agreement/termination.

Certain parameters of a coach’s contract and status may also be laid down by either an international or national sports governing body. The international body may devise regulations requiring all national federations to domestically implement rules aimed at protecting contractual stability between coaches and clubs or associations, while paying due respect to mandatory national law and existing collective bargaining agreements. These rules could, for example, impose restrictions upon the length of contracts, ability for coaches to be traded to other teams and possible sanctions for tampering with coaches who have existing contracts.

However, these rules will always remain subservient to any national legislation, particularly where the coach and team are from the same country.

As such, it is necessary to consult South African law in any instance where a South African team wants to dismiss a South African coach for poor performance.

Terminating a FTC

In terms of the common law, a FTC of employment cannot be prematurely terminated, unless there is repudiation or a material breach of the contract by either party (Nkopane & Others v Independent Electoral Commission (2007) 28 ILJ 670 (LC)).

In addition, the termination of a contract of employment (a dismissal), must be fair (both procedurally and substantively) in terms of the provisions of the Labour Relations Act, 66 of 1995 (the “LRA”), unless termination is through mutual agreement by the parties (Mahlamu v CCMA & others (2011) 4 BLLR 381 (LC)).

Schedule 8 to the LRA (the “Code”), titled The Code of Good Practice: Dismissal, recognises three lawful grounds upon which a dismissal may be made: conduct of the employee, the capacity of the employee, and the operational requirements of the employer’s business. The incapacity of an employee is a broad term which encompasses the idea of an employee who maintains a sub-standard level of quality in their work performance, i.e., poor performance. A coach who is “sacked” for performance-related reasons would fall within this category.

Procedural fairness considers the manner in which the termination was affected, namely, whether the employer engaged in a course of conduct aimed at investigating, identifying and remedying the reasons underlying an employee’s poor performance. This could include things like having discussions with the employee, affording a reasonable period within which to improve their performance and providing ongoing counselling and support to ensure that action plans are properly implemented.

On the other hand, substantive fairness considers the nexus between the alleged poor performance and eventual dismissal of the employee. The Code provides that: “[a]ny person determining whether a dismissal for poor work performance is unfair should consider—

(a) whether or not the employee failed to meet a performance standard; and

(b) if the employee did not meet a required performance standard whether or not—

(i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;

(ii) the employee was given a fair opportunity to meet the required performance standard; and

(iii) dismissal was an appropriate sanction for not meeting the required performance standard”.

Notwithstanding the above, there are instances in which it may be possible to prematurely terminate a FTC.

Premature Termination of a FTC

Benches of the Labour Court, High Courts and employment tribunals of South Africa, have handed down numerous rulings upholding the common law principle that a FTC of employment cannot be prematurely terminated, unless there is repudiation or a material breach of the contract by either party. Despite this protection it is important to note that a FTC can sometimes be prematurely terminated.

South African courts have ruled that if a FTC specifically makes provision for premature termination (i.e., on notice being given) even with an agreed-upon termination date, such termination will be found to be lawful (Joni v Kei Fresh Produce Market (936/2012) [2018] ZAECMHC 39 (14 August 2018).

The key proviso is that there must be a provision made for early termination permitting either party to terminate the contract before the agreed effluxion of time, for example on written notice of a certain number of months, prior to the expiration of the contract term.

If no such termination clause is present, the right of termination is restricted in terms of the common law as has been enforced by the courts.

In the absence of a valid termination clause, the actions of a team would be considered a repudiation of contract (i.e., failure to perform) and the coach would be entitled to either claim specific performance of his contract, alternatively damages for the loss of income.

What is more, even if a team terminates a contract in accordance with its termination clause (assuming one existed), but without complying with the LRA, the team may still be exposed to a claim for unfair dismissal, as the termination of employment must still be both procedurally and substantively fair.

Practical Considerations

Poor performance must be regarded as materially breaching the contract before it can be grounds for summary dismissal (Buthelezi v Municipal Demarcation Board 2004 25 ILJ 2317 (LAC)). An employee must be held to some form of objective performance criteria when performance is judged. In sports and coaching, this is often judged by success on the field (e.g., win percentage), tournament qualification targets or promotion to a higher level of competition.

The key principle to keep in mind is that coaches need to be made aware of these expectations and have them brought to their attention early on in the contractual relationship. The easiest route to achieve this is to memorialize it in the coach’s FTC, and then supplement, review and amend these objectives each season.

Additionally, by including these within the contract, the coach’s failure to meet the criteria may result in there being a material breach of the contract, and therefore, allowing premature termination.

However, caution should be had to always ensure that any dismissal is still procedurally and substantively fair. Accordingly, contracts should not seek to restrict the labour law protections provided to coaches. As the court in Mahlamu v CCMA & others (2011) 4 BLLR 381 (LC) noted: ““parties to an employment contract cannot contract out of the protection against unfair dismissal afforded to the employee whether through the device of automatic termination provisions or otherwise”.

Teams would be wise to develop and institute an organisational Performance Improvement Plan policy aligned to the Code’s requirements. This should be distributed to all relevant stakeholders and continually revised to align with the team’s status, needs and sporting goals. Doing so will help to afford teams greater protection should they wish to move on from a coach who is still under contract.

Conclusion

The merry-go-round that is the hiring and firing of coaches is an inescapable aspect of professional sports. However, despite the highly publicised nature and accompanying press releases, teams should always be cognisant of their employment law obligations.

Tightly drafted FTCs, observing principles of procedural and substantive fairness, should always be at the forefront of any decisions involving coaches. Failure to do so may result in teams unnecessarily exposing themselves to liability for wrongful dismissal.

While teams may try to ground firings in the proof of the pudding - whereby a coach is akin to a soufflé that flops - the law will inevitably provide recourse, particularly if the coach was unaware of the dish they were supposed to be making.

Javelin Sports has experience assisting coaches at all levels for performance-based dismissals, including before the National Soccer League Dispute Resolution Chamber  (NSL DRC) and the Court of Arbitration for Sport (CAS). Contact us at info@javelin-sports.co.za to hear more about how we can help you.