DEEP DIVE | Legal Take Part 2: Can 2015 match-fixing sanction agreements be overturned?

This piece was first published by News24, in three parts, on 30 November, 1 December and 2 December 2020.

In his interview on the Marawa Sports Worldwide (MSW) radio show, Thami Tsolekile said the South African Cricketers' Association (SACA) forced him and other players to use the services of lawyers assigned to them by it, failing which they would need to foot their own legal bills.

Lonwabo Tsotsobe subsequently echoed Tsolekile's comments, saying unlike him, he refused to use a lawyer appointed to him and that SACA would not cover the costs.

Alviro Petersen said he chose to use his own legal representative, rejecting the lawyer provided by SACA, and that it had nonetheless agreed to pay part of his legal fees.

Tsolekile complained on the show about the conduct of his lawyer during the investigation process.

Tsolekile said: "SACA … convinced us to accept the charges."

He also told Marawa that according to the lawyer he was assigned, it would have been too expensive for SACA to go through with a hearing at CSA's Anti-Corruption Tribunal (the Tribunal).

In a similar vein, Tsotsobe said: "The investigators told my lawyers to take the sanction agreement and they will not pursue criminal charges. Now I'm getting threats from the Hawks. So, basically, they misled us."

He added: "I have everything on email and it's something that we will be challenging."

Legal representation and the conclusion of the sanction agreements

On the matter of legal representation, CSA stated that each of the players was represented by their own attorneys, who had the opportunity of sitting in on every meeting and assisted them in evaluating the evidence and concluding the sanction agreements.

CSA stated the agreements were entered into willingly and that neither any of the players nor their attorneys submitted they had been coerced into admitting guilt or signing the agreements.

CSA also reaffirmed the players were consulted on, and provided input on, the press releases announcing their sanctions.

During Tsolekile's appearance on the show, there was a suggestion he was not presented with any evidence and did not receive charges. In response, CSA quoted the overseer of the investigation, Justice Bernard Ngoepe, who said the ex-player received a formal charge sheet and "was presented with extensive evidence in the presence of his lawyer".

Petersen said he ultimately entered into a sanction agreement, because he and former CSA CEO Haroon Lorgat had verbally agreed that Lorgat would incorporate him back into the CSA structures within a year of the commencement of his ban.

However, Lorgat was no longer CEO a year later and Petersen said CSA had subsequently denied the existence of such an agreement.

Pertinent legal principles

At the outset of considering the legal factors at play, it is important to note that in hearings before the Tribunal, the burden of proving a player's guilt would rest on CSA. This means it would be required to present sufficient evidence to prove a player is "guilty" as alleged.

In terms of the CSA's Anti-Corruption Code (the Code), the standard of proof in hearings is whether the Tribunal is "comfortably satisfied" the alleged offence has been committed, bearing in mind the seriousness of the allegations. This is described as "greater than a mere balance of probability but less than proof beyond reasonable doubt".

This is a more stringent standard of proof than is applied in ordinary employment-related disputes and civil disputes, in which findings are made on a balance of probabilities.

This means that, generally, it would be more difficult for CSA to prove a case at the Tribunal than in, for example, an unfair dismissal arbitration.

These principles are not directly applicable in the case of an agreed sanction, which relies on all material facts being admitted by the player. But they would come into the reckoning in legal proceedings if a court or arbitrator - in a challenge to a sanction agreement - were required to determine whether a player is guilty of an offence, or the level of seriousness of an offence of which a player is guilty.

In terms of South African contract law, a contracting party may have a basis on which to argue that they are not, or should not be, bound to a contract where there is a unilateral or mutual mistake, where there is a common mistake or where consensus has been improperly obtained.

These arguments are, essentially, based on the absence of consensus - technically, except for common mistake.

In these circumstances, there is no true "meeting of the minds" on the conclusion of a contract or on the terms of a contract and, therefore, the validity of an agreement is called into question.

Contractual principles: Improperly obtained consensus

Where consensus has been reached for the conclusion of a contract, but the consent of a party has been improperly obtained, the innocent party can elect to either have the agreement set aside, i.e. declared invalid, or continue to be bound by its terms. This is referred to as the contract being "voidable", i.e. rescindable, at the election of the innocent party.

A valid contract still comes into existence, but the innocent party can decide whether to be bound by it.

This can be the result of a misrepresentation, duress or the exertion of undue influence over the party, which inhibits their ability to exercise free and independent judgment.

This would include a person being coerced to enter into a contract, to their detriment, by someone exerting undue influence over them.

Tsolekile and Tsotsobe have both alleged or intimated they were coerced into entering into sanction agreements to their detriment.

Historically, this form of improper pressure has been known to come to bear in the context of the attorney and client relationship.

Proving undue influence is a significant hurdle to clear. A person seeking to set aside a contract on these grounds must establish that someone obtained an influence over them, weakening their powers of resistance and rendering their will compliant, and that this influence was unscrupulously used to convince them to enter into a prejudicial contract, which they would not have concluded with normal freedom of will.

Of course, the mere fact that there is an imbalance in bargaining power between parties to a contract - as is the case with an accused player, who is in a weak position relative to a sporting governing body - does not in itself render the contract invalid.

For the validity of a contract to be questionable, there would have to be evidence of a party taking unfair advantage of, or abusing, their stronger bargaining position.

By the same token, a player's mere unhappiness with services provided by their legal representative or trade union would not in itself be grounds for a sanction agreement to be set aside.

Contractual principles: Mistake

Where there has been a material mistake in contract, it would "vitiate", i.e. destroy, consent for the conclusion of a contract.

A material mistake means one or more parties to a contract acted under an incorrect impression regarding a fact which fundamentally affects the agreement between the parties.

A mistake must be vital to the agreement for it to affect a contract's validity. This would certainly be the case where the agreement would not have been entered into had a party, or the parties, been aware of the true position.

The mistaken party, or parties, may no longer be contractually liable, because the agreement lacks a legal basis.

A unilateral mistake occurs where one party is mistaken while the other is aware of the mistake, a mutual mistake means both parties are mistaken about each other's intention and a common mistake refers to an incorrect assumption made by both parties.

Examples of material mistake which could render a contract void include situations where a contracting party does not understand the legal consequences of an important provision in the agreement and where a party is unaware of a particular clause containing important terms.

The person seeking to escape the operation of the contract would need to prove that the mistake was reasonable in the circumstances.

This is no easy task considering the general difficulty of escaping contractual obligations, as a result of the weight that is attached to the pacta sunt servanda and caveat subscriptor principles, which are foundational to our law of contract, and were discussed in Part 1.

The relevance of contractual mistake in this matter

A reasonable mistake which could possibly render a sanction agreement void is where evidence comes to light which was unknown to the parties when the agreement was concluded.

It would be required that the player was not to blame for their own mistake and importantly, that the evidence in question was material. An example of this would be evidence which proves that the player is in fact not guilty of an offence that they have previously admitted to committing.

A further example of new, material evidence which could affect the validity and fairness of an agreed sanction is where the evidence shows that the ban which a player received is excessively strong, relative to the seriousness of the player's offences.

In terms of the Code, when agreeing to a sanction, CSA must consider the relative seriousness of the offence, all aggravating and mitigating factors and the range of sanctions prescribed by the Code, subject to the discretion to deviate from these for good reason.

The rationale behind plea-bargaining is based on the acceptance of a lighter sanction than may have been imposed at a hearing.

It follows that the question of whether the length of a ban is appropriate in the circumstances would be vitally important when parties are negotiating a sanction agreement.

A player's sanction agreement document, the record of the investigation and witness statements made by players and others would likely form part of the evidence used in any legal proceedings if a player sought to rely on contractual mistake as the basis for challenging their agreement.

Certain of the possible instances of material mistake which have come up in this matter and could affect the validity of sanction agreements will be discussed in Part 3.

These are: possible justification for players' conduct; a possible misunderstanding that the sanction agreements put an end to the prospect of criminal prosecution; and the possibility that other players are guilty of offences but have not been sanctioned.

- Edited by Sibusiso Mjikeliso.

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Sports lawMiles ChennellsMay 10, 2021