Graphic: John McCann
In late March 2015 Cricket South Africa announced that the six franchises would be required to field at least six players of colour, of whom at least three had to be black for the upcoming domestic season. During the 2014/2015 season, the franchises were required to select at least five players of colour, including at least two black players. The decision was met with criticism by the South African Cricketers Association (Saca).
Shortly after the announcement, allegations surfaced that the inclusion of Vernon Philander in the team that played against New Zealand in the World Cup Semi-Final was motivated by a need to meet a quota of players of colour in the national team. From an employment law perspective, the idea of a “quota system” in sport is peculiar. It cannot be denied that the ideal underlying a quota system is egalitarian.
A team that does not reflect the demographics of a particular province or, indeed, the country could hardly be said to show the extent to which South Africa has transformed or is representative of its populace. Providing a legal framework for the implementation of measures to ensure that every team is comprised of persons from “designated groups” (to use the terminology of the Employment Equity Act) is laudable and one that should be pursued.
The Employment Equity Act (the EEA) introduced the concept of affirmative action into South Africa’s workplaces in 1998. It is around this time that rumblings of quotas for the national rugby and cricket teams began to emerge. The EEA provides, among other things, for designated employers (as the EEA calls them) to prepare and implement an employment equity plan that will achieve “reasonable progress towards employment equity in that employer’s workforce” through the use of various measures, which include numerical targets and preferential treatment.
Sport is big business and sports teams in the professional age, whether at national or provincial level, are all part and parcel of an organisation. The players who play for those teams are, generally, employed by those organisations. Those organisations may be, in terms of the net cast by the EEA, classified as “designated employers” and if so, would be required to prepare employment equity plans for the teams that they administer or which form part of their organisation.
Many cases have come before the courts, seeking clarity on the interpretation of the EEA. What is very clear, 17 years after the promulgation of the EEA, is that a difference exists in regard to “quotas” and “targets”. The difference lies in the flexibility of those two mechanisms. As the Labour Appeal Court recently held in Solidarity & Others v Department of Correctional Services & Others, numerical targets which create an absolute bar, such as a quota, are not permitted by the EEA.
In other words, an organisation that imposes a rule on the coach or selectors of a national or provincial team to select a certain number of players from a “designated group” will fall foul of the EEA. The reason for this is because such a rule is inflexible and does not take account of various factors, which may be relevant to the consideration. Employment equity plans must therefore be reasonable and flexible.
There is no reason why the same principles should not be applicable to sports teams and the organisations that they form part of.
Neil Coetzer is a senior associate at Cowan-Harper Attorneys.
Nils Braatvedt is candidate attorney at Cowan-Harper Attorneys.