On 5 December 2014, the world’s most influential player association leaders met in Cape Town, South Africa, to formally complete three years of cooperative discussions and establish UNI World Athletes as the exclusive global association of organised players and athletes across professional sport.
The group gathered as part of the quadrennial congress of the UNI Global Union (“UNI”),1 the Swiss based labour organisation that represents more than 20 million workers from over 900 trade unions in the fastest growing sectors in the world – skills and services, including media and sport. DeMaurice Smith, the Executive Director of the National Football League Players Association (“NFLPA”) in the United States, addressed the 2,000 congress delegates, and urged UNI affiliates to help athletes reclaim the spirit of sport:
“Our athletes, and the men and women who provide services, deserve to be more than just by-products of a commercial enterprise! We need to be the moral voice in the wilderness - the voice that reclaims what was once ours. We need to take back the beauty and the humanity of sport. There can be no beauty in sport when greed is the biggest winner. We need to move to a world where the integrity of sport does not tolerate migrant workers in Qatar who die building stadiums.”2
Smith is among ten player union leaders elected to the inaugural Executive Committee of UNI World Athletes, with Donald Fehr, the Executive Director of the National Hockey League Players Association (“NHLPA”) and former long serving Executive Director of the Major League Baseball Players Association (“MLBPA”), elected founding President. They have taken office to ensure that, for the first time, the global voice of the athletes is properly heeded in the governance, conduct and playing of sport.
This article provides an insight into the move by the collective representatives of the world’s elite professional athletes to globalise their movement in an era when the playing careers, business and politics of sport are all truly global. The article will also explain the development of UNI World Athletes in the context of the historical and contemporary challenges to the organising of an independent collective voice for professional athletes. It will conclude by touching on the mission and initial priorities of the organisation and how the collective weight of the unions and athletes it represents can be harnessed for the greater good of both those athletes and sport in general.
How and why was UNI World Athletes established?
UNI World Athletes is a global collective of 85,000 elite professional athletes, organised primarily through major player associations including FIFPro (the world footballers’ association), the Federation of International Cricketers’ Associations (“FICA”), the International Rugby Players’ Association (“IRPA”), the European Elite Athletes Association (“EU Athletes”), the NFLPA, the NHLPA, the National Basketball Players’ Association (“NBPA”), the Japanese Professional Baseball Players Association (“JPBPA”) and the Australian Athletes’ Alliance (“AAA”).
The development and emergence of UNI World Athletes comes at a critical time for sport, as it, like the society it reflects, undergoes fundamental change. At least five profound forces presently dominate professional sport and the role played within it by professional athletes:
- there is an unprecedented crisis of confidence in the governance of sport;
- there are increasing concerns over the unbridled commercialisation and politicisation of sport;
- the threats to the integrity of sport are ever increasing, especially through corrupted governance, the involvement of organised crime in match manipulation, ineffective anti-doping regimes and the reemergence of racism as well as a failure to eradicate other discriminatory behaviour;
- a pessimism exists that sport has lost its way, and no longer serves the greater good or purveys the values that make sport such an important social and cultural institution. The lack of respect for human rights in and around sport’s so-called mega events particularly suggests that its function as an institutional role model has been forgotten; and
- there is an increasing understanding on the part of the general public that the athletes, who make the very activity of sport possible, are being subject to unacceptable risks, demands and dangers to their physical and mental health as well as their social wellbeing.
The profound nature of the challenges now facing sport calls for a strong, independent, professional and well-resourced response on behalf of sport’s most significant stakeholder, the athletes.
Accordingly, UNI World Athletes brings together a diverse range of athlete unions that operate at the international, continental and national levels. The organisation has necessarily and proactively adopted a robust, democratic and accountable governance structure. Established as an autonomous sector of UNI, UNI World Athletes is an international federation of independent player and athlete associations.3
FIFPro, FICA and IRPA are the peak global bodies of national player associations in football, cricket and rugby respectively. EU Athletes is the regional peak body for associations in sports as diverse as handball, basketball, volleyball, cycling, skiing and the Gaelic sports, with its membership also overlapping into football, rugby and cricket. Strong national unions are also involved where a global or regional association does not exist. This enables national peak bodies such as the AAA, which represents eight Australian player unions including Australian rules football, netball, rugby league and horse racing (jockeys) and the Israeli Union of Clerical, Administrative and Public Service Employees, which covers professional footballers and basketballers, to belong.4 Powerful national and sport specific unions such as the NFLPA, NHLPA, NBPA and the JPBPA have directly affiliated with UNI World Athletes as they are not members of an international, regional or national peak body. Taken together, over 100 player and athlete associations fall under the umbrella of UNI World Athletes, operating in over 60 countries and on all continents.
The ten member Executive Committee of UNI World Athletes includes representatives from Europe, the Americas, Africa and Asia/Oceania. Together with Messrs. Fehr and Smith, its composition is completed by:
- Theo van Seggelen (The Netherlands), the Secretary General of FIFPro (First Vice President);
- Jeff Reymond (France), the General Secretary of EU Athletes (Vice President);
- Tony Irish (South Africa), the Executive Chairman of FICA;
- Paul Marsh (Australia), the Chief Executive Officer of the Australian Football League Players’ Association and a Board member of the AAA;
- Toru Matsubara (Japan), the Executive Director of the JPBPA;
- Rob Nichol (New Zealand), the Executive Director of IRPA;
- Dejan Stefanovic (Slovenia), FIFPro Board member; and
- Frederique Winia (The Netherlands), the Director of International Relations of FIFPro.
The voice of the athlete
Former National Football League linebacker Scott Fujita, also a past member of the executive committee of the NFLPA, has spoken eloquently on the importance of the voice of the athlete being heard for the good of his or her fellow professionals, his or her sport and, indeed, society as a whole. Writing on the issue of the legalisation of same sex marriage in March 2013, as the issue was being considered by the United States Supreme Court, he wrote:
“My three young daughters, like most kids, are curious and ask a lot of questions. My wife and I are as open and honest with them as possible. But there’s one question I’m not prepared to answer: “Why aren’t Clare and Lesa married? I don’t know how to explain to them what “inferior” means or why their country treats our friends as such."
“…Sometimes, people ask me what any of this has to do with football. Some think football players like me should just keep our mouths shut and focus on the game. But we’re people first, and football players a distant second. Football is a big part of what we do, but a very small part of who we are. And historically, sports figures like Jackie Robinson, Billie Jean King and Muhammad Ali have been powerful agents for social change. That’s why the messages athletes send — including the way they treat others and the words they use — can influence many people, especially children.”5
The recent 2015 FIFA Women’s World Cup saw a number of key issues come together in Canada which would have been avoided had the voice of the athlete been heeded. World class professional athletes played on artificial pitches, in extreme heat, without access to satisfactory concussion protocols and, because the athletes were women, for a fraction of the prize pool made available only a year earlier to men’s teams at the 2014 FIFA World Cup in Brazil, with women’s teams playing for a combined prize pool of US$15,000,000 in comparison with the US$576,000,000 set aside for the men’s teams and their clubs.6 A sport, built on universal values, elected to showcase some of its most important games in inferior conditions whilst discriminating on the basis of gender. Even in Brazil, the prize pool accounted for only a fraction of the billions generated by the national teams and their players for FIFA, the controlling body, with the players’ share likely to be less than 3%.
The athletes in Canada responded in two ways, which says much about the immediate future of sport. First, they, despite the conditions and their treatment, provided incredible performances on the field, and conducted themselves as ambassadors off it. Second, they organized themselves. On the eve of the 2015 FIFA Women’s World Cup Final, FIFPro announced, together with champion players from both the men’s and women’s professional arena, such as Verónica Boquete (Spain, Bayern Munich), Karina LeBlanc (Canada), Lydia Williams (Australia) and Sone Aluko (Nigeria, Hull City), that it would be organising women professional footballers on a global scale to “usher in a new era of gender equity in world football” and conducting “a global mobilization and outreach campaign to secure the fundamental rights of female players.”7
If the champions of the stature of Robinson, King and Ali as cited by Fujita are to provide a prescient example for today’s women footballers, they can be sure to find resistance in their time. However, if they are to prevail, their legacy for future generations of players, their sport and, indeed, society, will be immense.
Sport’s global ‘monolithic’ front
The development of UNI World Athletes is the logical consequence of the sustained effort of athletes to organise at the national, regional and global levels. Whilst the Professional Footballers’ Association of England (“PFA”) is the world’s oldest athlete body, having been founded in 1907, the first successful drive to ensure that players enjoy the same rights as all working people gained momentum about 50 years ago. Indeed, 15 December 2015 will see FIFPro celebrate its golden anniversary. Two years before FIFPro’s founders from England, Scotland, Spain, The Netherlands, Italy and France established FIFPro in Paris, the PFA, under the leadership of then Secretary Cliff Lloyd and Chairman Jimmy Hill, won two landmark battles:
- the abolition of English football’s maximum wage – then set at £20 per week – following a strong campaign by the players and the threat of industrial action under English labour law; and
- the abolition of English football’s retain system – akin to US baseball’s reserve clause – in a PFA backed restraint of trade case run by English international George Eastham, who had sought, after his employment contract had expired, to transfer from Newcastle United to Arsenal.
Today, all player and athlete associations continue to fight these twin challenges – direct economic regulation over the right of their members to earn an income and share in the wealth that they create – and direct regulation of the labour market, including even where members are out of work or after their contracts have expired.8
The judgment of Mr Justice Wilberforce in Eastham’s case also remains poignant in its description of the system that Eastham and the PFA sought to challenge. He said the retain system was:
“…an employers’ system, set up in an industry where the employers have succeeded in establishing a monolithic front all over the world, and where it is clear that for the purpose of negotiation the employers are vastly more strongly organised than the employees. No doubt the employers all over the world consider the system a good system, but this does not prevent the court from considering whether it goes further than is reasonably necessary to protect their legitimate interests.”9
Only a year after the establishment of FIFPro, the Major League Baseball Players Association appointed economist Marvin Miller as its Executive Director. Miller, who had worked with the United Steelworkers of America, convinced initially skeptical players of the strength they could wield through solidarity and collective bargaining. By seeking to entrench within the sport the key methods of labour relations including the application of competition law, collective bargaining, grievance arbitration and the right to strike, the MLBPA not only delivered great advances for professional baseball players, but also a new era of revenue growth and business acumen among the MLB and its teams.
In 1995, with the backing of FIFPro, Jean Marc Bosman won a legal victory over football’s transfer and training compensation system with the clear statement that professional footballers, like all workers within the European Union, have the right to move freely within the Union. In the opinion of Advocate General Lenz, the right of a club to claim financial compensation for the loss of the services of a player:
“…presupposes precisely that a player can be regarded as a sort of merchandise for which a price is to be paid. Such an attitude may correspond to today’s reality, as characterized by the transfer rules, in which the ‘buying’ and ‘selling’ of players is indeed spoken of. That reality must not blind us to the fact that this is an attitude which has no legal basis and is not compatible with the right to freedom of movement ... I also have considerable doubt as to whether a system which ultimately amounts to treating players as merchandise is liable to promote the sporting ethos…”10
Through two difficult negotiations and legal processes, one in 2001 and another in 2006, the legal and sporting consequences of the Bosman ruling were bargained by FIFPro, resulting in a global agreement signed in November 2006 that saw FIFPro formally recognised as the exclusive global representative body of the world’s professional footballers and accepted within all of professional football fundamental principles of international labour law such as freedom of movement, binding minimum terms of employment and grievance arbitration.11
Across the Atlantic, Major League Baseball continues to enjoy, with its players, two decades of labour peace, an enhanced on field product and record salaries, revenues and profits.12
The processes have had their difficulties, but the rewards for sport and its stakeholders are now immense. Indeed, they are not confined to football and baseball, but are now lessons of general application. In the words of leading US attorney Jeffrey Kessler, who has extensive experience in representing the NFLPA and the NBPA:
“What history has taught us is that there’s no inconsistency between having a fair system for players and having a healthy sport. Quite the contrary. What we’ve seen is that when sports have given players more freedom and have compensated them better the entire sport has grown on the revenue side. The players and the clubs can work together to build the sport much more easily in a fair system than in an unfair system.”13
The achievements of organised players over the last 50 years have helped inspire a myriad of organising efforts among players and athletes in nearly all parts of the world in which professional sport is conducted. Many of those efforts now fall under the umbrella of UNI World Athletes. Informed by them, today’s athletes can now be content that their negotiations for greater freedom will not only advance their own rights, but also the wellbeing of their sport. As noted industrial relations academic Braham Dabscheck writes in his review of the literature:
“Cairns, Jennett and Sloane, in a survey of the economics of professional team sports, have said ‘it is relatively uncontroversial that labour market controls have not given equality of performance’. The benefits of labour market controls are negligible or illusory and hardly justify the denial of players’ human rights. Moreover, there are alternative methods, consistent with employment freedom and/or human rights’ instruments, in which sporting equality can be achieved – namely revenue sharing or redistributing income between clubs.”14
Yet, despite the great contribution of organised players and athletes to their sports, the monolithic front so eloquently described by Wilberforce J in 1963 is, today, arguably as strong as it ever has been. It may be further extended by international instruments such as the October 2014 declaration of the United Nations regarding the autonomy of sports, which was adopted despite the widespread concerns of corruption and poor governance among international sporting bodies and without considering the voice of the athletes.15 Athlete unions continue to condemn the ineffectiveness and unfairness of the internationally and unilaterally imposed World Anti-Doping Code,16 and the lack of choice, procedural unfairness and consistently questionable rulings of the Court of Arbitration for Sport (“CAS”) have united in a common legal cause a German speed skater and the world’s professional footballers.17
The athletes of the NFL, rugby, rugby league, football and Australian rules all strive for essential health and safety measures, including recognition of the basic fact that an on-field concussion is not a sporting incident but a workplace injury that requires immediate assessment by an independent medical practitioner.18 The risks associated with the work of professional athletes were recently highlighted by a number of tragedies in cricket. According to Tony Irish, the Executive Chairman of FICA:
“The recent tragic deaths of professional cricketers Phillip Hughes and Ankit Keshri, both on the field of play, have twice united the cricket world in grief. The loss of two such young talents has been a sharp reminder that playing competitive sport at any level carries with it inherent risks. Furthermore, recent career ending injuries received on the field of play to Mark Boucher and Craig Kieswetter, the passing of Richie Benaud from skin cancer (directly linked to a lack of sunscreen and appropriate headwear protection throughout his career) and the decision of Zimbabwe to tour Pakistan against high-level security advice, all serve to remind everyone in cricket that the health, safety and security of its players and participants is one of the most important issues the game’s administrators should address.”19
Indeed, the economic and labour restraints the subject of many legal challenges by athletes are now joined by compulsory and often around the clock regulation imposed by the ‘monolithic front’ that covers almost all aspects of an athlete’s life including discipline, dispute resolution, integrity, health and safety, marketing, control of intellectual property rights and even how the athletes are to be collectively represented and heard within a sport. United States 800m track runner, Nick Symmonds, was recently required to withdraw from the 2015 IAAF World Championships in Beijing because he was unable to agree to the commercial conditions imposed by USA Track and Field. His choice sums up that faced by too many athletes in sport today: agree to the conditions imposed or forfeit the right to work.20 The only reasonable way in which such a choice can be addressed is through the organisation of the athletes and collective bargaining in accordance with international labour standards. His post on Twitter that he was, “Proud to have stood my ground and fought another battle for athletes' rights”, suggests he is aware of not only the personal cost of his stance, but its historic impact and collective relevance.21 It is a stand that no athlete should have to make.
The 2011 ‘Nyon Declaration’
The effort to create UNI World Athletes formally started with the holding of the historic athletes’ summit held in Nyon, Switzerland in November 2011, which brought together the global, regional and national player and athlete associations that now constitute the membership of the body. Expertly coordinated on behalf of the UNI Global Union by its then head of sport, former professional basketball player Walter Palmer, the summit closed with the following declaration:
“We, the independent and democratically elected representatives of (thousands of) top athletes from around the world, today establish a federation of world player associations.
We take this action based on certain core principles and to address a crisis in governance at world sport organizations that have removed the athlete from the center of sport. There is no sport without athletes.
The societal role of sport is powerful, therefore it cannot be above the law and must respect principles of good governance.
We declare that world sport organizations, and governments, must respect national and international law as well as the fundamental rights of athletes as citizens and workers, including the right to organize collectively in player associations and unions.
Athletes and their collective representatives must play an integral role as stakeholders in all decision-making forums and structures that affect them.
We stand for the equal treatment of all athletes regardless of their ethnic background, religion, gender or sexual orientation.
For sport to thrive, it must be clean, fair, transparent and the unique nature of athletic careers must be taken into account.
We assert this mandate in the interest of sport and the athletes that play it.”22
The Nyon Declaration, which is a resolution of the player and athlete associations represented at the summit, draws on the 50-year struggle that, in many ways, began with George Eastham, Cliff Lloyd and the English PFA in 1963. A material lesson of that struggle has been the progress made by both athletes and their sports when the player associations have made the working conditions of the athletes subject to the rule of law, including employment and competition law. The Nyon Declaration, therefore, refers, for example, to the fundamental human rights of athletes, including the right to organise and collectively bargain, as enshrined in article 20 of the 1948 Universal Declaration of Human Rights23 and Conventions 87 and 98 of the International Labour Organization (“ILO”).24
Recognition and respect for the right to organise and collectively bargain involves an obligation on the part of employers and their representatives not to interfere with the independent pursuit and exercise of that right. Article 2 of the ‘Right to Organise and Collective Bargaining Convention, 1949 (No. 98)’ of the ILO provides:
- “Workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration.
- In particular, acts which are designed to promote the establishment of workers' organisations under the domination of employers or employers' organisations, or to support workers' organisations by financial or other means, with the object of placing such organisations under the control of employers or employers' organisations, shall be deemed to constitute acts of interference within the meaning of this Article.”25
The Australian Athletes’ Alliance has been among the first of the affiliates of UNI World Athletes to articulate the rights of athletes by reference to international law, adopting a 15-point Charter of Athletes’ Rights in 2014 and announcing that it will benchmark the regulation of the 3,500 athletes covered by the AAA by reference to the charter. The fundamental rights articulated by the charter include freedom of association, freedom of choice in employment and the right to share fairly in the economic activity of sport. The AAA’s announcement involved champions of the various sports covered by its affiliated unions.26 Its initiative is an inspiration for UNI World Athletes globally.
It will clearly be a challenge for sport’s international governing bodies to embrace the fundamental rights of athletes at the global level. The International Olympic Committee (“IOC”) and the World Anti-Doping Agency (“WADA”), for instance, officially engage with athletes through athlete commissions organised under the auspices of their respective organisations. The views expressed by the athletes on such commissions have conflicted with the views of the athlete unions, as the 2014 review of the WADA Code highlighted.27 As the experience of Major League Baseball illustrates, a better and more effective anti-doping regime will be established through collective bargaining. In the words of the late Michael Weiner, the former Executive Director of the MLBPA:
“The players are determined to do all they can to continually improve the sport’s Joint Drug Agreement. Players want a program that is tough, scientifically accurate, backed by the latest proven scientific methods, and fair; I believe these changes firmly support the players’ desires while protecting their legal rights.”28
IOC Vice President, Australia’s John Coates, who is the President of both the CAS and the International Council of Arbitration for Sport, the body responsible for financing and administering the CAS,29 has moved quickly to involve athlete commissions in some minor changes to the CAS in response to Claudia Pechstein’s case.30 This is clearly problematic. For example, the Charter of the Athletes’ Commission of the Australian Olympic Committee (“AOC”) provides that the commission’s role is to “advise” the executive of the AOC and obliges each member of the commission not to act in the best interests of the athletes or even sport, but “solely in the best interests of the Committee (i.e. the AOC) and its members as a whole” (emphasis added).31
The mission of UNI World Athletes
The mission of UNI World Athletes is to promote best practice in the collective representation of professional athletes, advance matters of common concern to those athletes and their unions, and to encourage athletes to organise. Central to this purpose is a clear commitment to ensure that the essence and integrity of sport are nurtured, and its social and cultural role in society are preserved.
The World Assembly of UNI World Athletes resolved in Cape Town to pursue six key policy areas as priorities.32 They are:
- to advance the good governance of sport reinforced by recognition of the role and rights of professional athletes and the application of international law;
- to promote the health and safety of professional athletes including their mental health, physical health and social wellbeing;
- to advance the integrity of sport, especially through effective anti-doping measures and empowering the athletes to help combat external threats to the integrity of sport such as corrupted governance, match manipulation, racism and discrimination;
- to protect the image rights and privacy of athletes, especially at a time of constantly emerging technologies and the proliferation of regulated and unregulated online sports betting;
- to enhance the development and wellbeing of athletes as people, acknowledging that the career of a professional is short-term and precarious; and
- to encourage the organisation of athletes throughout the world, to ensure they are intimately involved in the decision-making of sport. Indeed, a feature of the work of the world’s best player and athlete associations is the deep involvement33 of the players and athletes themselves within their unions, including direct attendance at bargaining sessions. This model needs to be extended further, especially by engaging professional women athletes and building player associations in the more difficult parts of the world, including Asia.
UNI World Athletes exists to ensure that, at the global level, the challenges to the wellbeing of professional sport are addressed through collective bargaining underpinned by the application of internationally recognised labour standards. Whilst history shows that sporting bodies are reluctant to embrace those standards, the long contribution made by organised athletes and the application of the rule of law have been fundamental to ensuring the sustainable growth and good governance of the world’s leading professional sports.
In a similar vein, sustainable economic growth within a globalised society can only be achieved on a platform that accepts the universal principles of human rights and the authority of international law.
The organisation of the world’s athletes shapes as the most important force through which the governance of sport can be held accountable, its responsible economic growth maximised, its standards advanced, the interests of its stakeholders fairly balanced and the essence of sport restored.
At long last, the opportunity is there for sport to move forward in partnership with its athletes.
- 1948 Universal Declaration of Human Rights 2015 FIFA Womens World Cup 2015 IAAF World Championships Australia Australian Athletes Alliance (AAA) Australian Olympic Committee (AOC) Baseball Basketball Brazil Canada China Court of Arbitration for Sport (CAS) Cricket European Elite Athletes Association (EU Athletes) Federation of International Cricketers' Associations (FICA) FIFA FIFPro Football Governance International Association of Athletics Federations (IAAF) International Labour Organization (ILO) International Rugby Players Association (IRPA) IOC Israeli Union of Clerical Administrative and Public Service Employees Japanese Professional Baseball Players Association (JPBPA) Major League Baseball (MLB) Major League Baseball Players Association (MLBPA) National Basketball Association (NBA) National Basketball Players Association (NBPA) National Football League (NFL) National Hockey League (NHL) National Hockey League Players Association (NHLPA) NFL Players Association (NFLPA) Nyon Declaration Olympic Professional Footballers’ Association (PFA) Regulation Rugby Switzerland UEFA UNI World Athletics United Kingdom (UK) United States of America (USA) UUNI Global Union World Anti-Doping Agency (WADA)