Creating a level playing field? Athletes turning to courts to protect their employment law rights

Friday, 11 December 2020 Author: Nick Marshall, Shubham Jain, Martin Zhou, Daniel Delimihalis, Marcelo Lopes, Andy Reynolds, Matthew Devey, Tim Werhann

Athletes are bringing claims to assert their statutory employment rights in courts and employment tribunals, from Australia to the United States (and many places in between). Cases show a global trend of athletes taking action to protect their non-contractual rights and using the protections and benefits conferred on them by general employment laws.

The English Employment Tribunal, in a recent case brought by former professional basketball player Will Hall against British Basketball League club, the London Lions, said that “…[The Club’s] position was that although the Claimant was an employee he was not entitled to holiday as professional basketball players did not take holiday. Unfortunately for the Respondent this was not the legal position.”[1] Ruling in favour of Hall on his claims for wrongful dismissal, holiday pay and other breaches of employment law, the Employment Tribunal’s message to sports teams, clubs (and federations) was clear – professional athletes can be employees, too, and as employers they need to play by the rules.

Many teams, clubs and federations (particularly those without sophisticated and well-resourced HR and legal departments) lack awareness of their employment law responsibilities and are ill-equipped to comply with their obligations. As the London Lions accepted in the Hall case, “[t]he area of employment rights… was not an area [the club] had great knowledge of…”.[2] Perhaps unsurprisingly, the club’s ambivalence to its obligations meant that Hall succeeded in all his claims before both the Employment Tribunal and the UK’s Employment Appeal Tribunal (the EAT)[3].

It is not only in the UK that athletes are taking action. While employment law varies across jurisdictions, cases throughout the world show both the common struggles athletes have in proving that they are workers or employees with employment law rights and protections in the first place, and also the high-profile way that disputes can play out (especially when involving allegations of discrimination, unequal pay and failure to pay statutory minimum wages).

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Tags: Australia | China | Discrimination | Employment law | Employment Tribunal | United Kingdom (UK) | United States (USA)

Written by

Nick Marshall

Managing Associate, Linklaters

Nick is an employment lawyer based in Linklaters’ London office. As part of a broad international practice, he has particular expertise in complex and high-value workplace disputes, as well as advising clients on disciplinary processes and investigations (both internal and regulatory). Nick writes for Linklaters’ sports law blog, SportingLinks, on the intersection between sport and employment law.

Shubham Jain

Shubham is a Research Associate at LawNK and a Fellow at the Sports Law and Policy Centre, India. He has completed his Masters degree in law from the University of Cambridge and has previously worked at Linklaters in London. His areas of interest and engagement include commercial, public law, and human rights issues in sports.

He can be found on Linkedin here: Shubham Jain

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Martin Zhou

Managing Associate, Zhao Sheng Law Firm

Martin is an employment lawyer at Zhao Sheng Law Firm, Linklaters’ joint operation
partner in Shanghai. Martin has solid experience in advising clients on a wide range of employment and incentive matters under PRC law. He is also sophisticated in
representing multi-national companies in contentious employment matters in front of labour arbitration tribunals and courts in mainland China.

Daniel Delimihalis

Managing Associate, Linklaters

Daniel is an employment lawyer based in Linklaters’ London office. As an Australian
qualified lawyer, Daniel has broad experience advising sophisticated clients within the Asia-Pacific region and within Europe on a broad range of employment issues. Daniel’s practice includes advising on executive employment issues including on-boarding senior executives, the enforcement of post-employment obligations, and employment issues arising from complex international merger and acquisition scenarios. In his spare time, Daniel fanatically follows the Australian cricket team.

Marcelo Lopes

Foreign Attorney, Linklaters

Marcelo is an associate in Linklaters’ global U.S. practice. He focuses his practice on M&A, banking and capital markets transactions, advising clients from multiple industries on M&A transactions, project finance and complex corporate transactions. Marcelo holds an LL.M. degree from Columbia Law School, where he was a Harlan Fiske Stone Scholar

Andy Reynolds

Law Clerk, Linklaters

Andy is a law clerk in Linklaters’ global U.S. practice, based in New York. She earned her Juris Doctor from The George Washington Law School, where she served as Editor-in-Chief for the Business and Finance Law Review.

Matthew Devey

Partner, Linklaters

Matthew leads the employment and benefits team in Linklaters’ Frankfurt office. He advises clients on all aspects of German and cross-border employment law issues,including advising on transfers of undertaking, staff changes and exits, and management SportingLinks.