Clause 1K: The Arbitrator's Ruling

The following is the text of the ruling issued by Caricom arbitrator Justice Adrian Saunders to help resolve the dispute between the WICB and WIPA:

My task simply is to give the clause in question its proper legal interpretation. In my opinion, Clause 1(k) applies only during the currency of the relevant contracts of which it forms a part. And secondly, Clause 1(k) imposes an obligation on the player to seek the Board?s approval for engaging in the precluded acts only when the player undertakes those acts in his capacity as a member of the West Indies cricket team.

The essence of the precluded acts is the entering into contracts which oblige a player to endorse the goods or services of a third party. This can be done before a player has been selected on the West Indies team or indeed after he has been dropped from the team. The endorsement can also be done by the player in any of several different capacities. It is a course of action that need not be undertaken in the context of the cricketer's membership on the West Indies team.

The phrase "Not at any time after his selection and during the Series undertake, participate in or endorse any advertising" is sufficient to convey the wide meaning contended for by the Board, that is, a meaning that embraces every conceivable capacity in which the precluded acts can be undertaken.

The phrase following, "as a member of the team", narrows the scope of that meaning. The latter phrase qualifies the nature of the precluded acts by describing the precise capacity in which a player is barred from undertaking that which is prohibited. The player is, without prior approval, prevented from engaging in the precluded acts as a member of the team. Implicit in this, in my view, is the sense that, otherwise than as a member of the team, the player is free to engage in the precluded acts.

It seems to me that the construction I have preferred is the only way to give effect to the impugned phrase. The interpretation advanced by the Board is one that is consistent with the omission, and not the inclusion in the clause, of the phrase in question.

Agreement with the Board's view would render the phrase "as a member of the team" redundant. The interpretation advanced by WIPA, on the other hand, gives meaning and purpose to the phrase.

The distinction between the two concepts - endorsement of goods or products by the player as a member of the team and endorsement by the player in some other capacity - is admittedly very subtle but there is indeed a distinction. How does one draw the line? The WIPA representative answers this by asserting that "the phrase 'as a member of the team' connotes some passing off by the player of his connection with the West Indies team either by attribution or by defining himself as a member of the team or by the use of the intellectual property of the team such as team clothing and insignia". I agree with this submission and accept it as an appropriate manner of drawing that line.

I accordingly hold that the plain and literal interpretation of Clause 1(k) leaves intact the right of a contracted player to endorse goods and products in some capacity otherwise than as a member of the West Indies cricket team. He may do so for example in his capacity as a member of a national team or in his individual capacity. But in any of those instances he will not come under the purview of clause 1(k).

In their submissions to me, WIPA stated that they were: "...aware that the WICB has a legitimate interest in making arrangements to obtain sponsors for West Indies cricket and the West Indies cricket team...[T]hat interest is better protected...in negotiations between the WICB and WIPA wherein the legitimate interests of both parties can be accommodated".

In my respectful view, save that WIPA surely must recognize that it has an equally legitimate interest in the Board being successful in their (the Board's) endeavours, I endorse the above as an appropriate statement of principle. Like the entire cricket loving public of the region I trust that, in the interest of the game, with dialogue, goodwill and compromise on the part of all affected parties, this current impasse can be resolved to the mutual benefit of everyone.

- Hon. Adrian D. Saunders

EDITOR's NOTE:
Clause 1K of the previous WICB tour contract reads:

"Not at any time after his selection and during the Tour undertake, participate or in endorse any advertising as a member of the Team without permission of the Board, such permission not be unreasonable withheld;"