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Recently, Ralph Thorne QC, contended that players who represent the West Indies in cricket are not employees of the WICB, a body corporate, which is sanctioned by the ICC to oversee the administration of cricket in the West Indies, but are instead independent contractors who from time to time may offer their services to the WICB for a fee. In its official capacity the WICB inter alia represents the region internationally with regard to administrative developments, and organises cricket tours with other nations. It is on an overseas tour to India that players because the WICB President refused to meet with them over a contract row withdrew their services and aborted the tour with still a few matches to a play in an ODI series.

At this juncture it ought to be pointed out that the issue over who caused the tour to be cut short is in dispute or so was until this week. A Taskforce convened by the WICB found the fact that players only saw the tour contracts when they arrived in India was the reason but the Taskforce apportioned blame equally to WIPA the players’ association, the WICB, and the players themselves particularly senior players. Against this backdrop the question of whether the players are employees of the WICB or are independent contractors occupied the QC’s mind. Offering his considered opinion he proclaimed the players to be independent contractors (“ICs”), or self- employed as the term implies. The reasons the QC wants this designation stipulated are obvious. If the players are ICs they can participate in the various T20 leagues around the globe without restrictions from the WICB.

Whether a player is an IC or an employee has far reaching employment law consequences. But how does the law determine an IC from an employee? There are several tests. The first that comes to mind is conventional control test. The degree of control the employer exerts over a worker decides whether he is an IC or employee. Typically an employee can be told what to do and how to do it and can be punished or fired. His is a contract of service.

The IC is highly skilled in his field, works without normal employer/employee constraints and is only obligated to produce an outcome as agreed. He provides his own tools and is responsible for his training, re-training and medical expenses. His is a contract for services. Sometimes a worker can be part of an agency. In that case he may be an employee of the agency's client. That was the position of the Employment Appeal Tribunal in Motorola Ltd v Davidson and Another [2001] which held that on the basis of day to day control a worker supplied to a client was effectively an employee of the client even though the worker was paid by the agency.

Most jobs, in recent times, attract technical expertise so that employers do not control a worker in the sense of telling the worker what to do and how to do it, e.g. an in- house IT employee or a doctor at a hospital. There is a question of whether the worker was a part of the organisation- often referred to as the integration or organisation test. In Cassidy v Minister of Health [1951] it was held that a hospital was liable for an injury to a patient because of the negligence of the full time medical staff because they were part of the permanent establishment and therefore subject to the standing orders of the hospital regarding the organisation of medical staff's work. And in Whittaker v Minister of Pensions [1967] where a trapeze artist who also helped out as an usher broke her wrist whilst performing her act, it was held that she was an integral part of the circus business and was therefore an employee for industrial injuries benefit not available to ICs.

Denning LJ is credited with developing this test in Stevenson Jordan & Harrison Ltd v MacDonald and Evans [1951] when he opined that, " Under a contract of services, a man is employed as part of the business, and his work is done as an integral part of the business; whereas under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it." However problems arose as to the meaning of the word integration in this context, which Lord Denning never explained.

Another issue is whether the obligation to perform is mutual or simply put, what is each party obliged to do. This is known as the mutuality obligation test. Following on from the control of the worker, if the worker has to perform any work set out by the employer and the employer has to pay for said performance then an employer/employee relationship exists. In Carmichael v National Power [1999] the House of Lords (now the Supreme Court) held that the employer must be bound to offer and the worker to accept work thus creating a "mutuality of obligation." Although there might not be a consistent workload, it is enough that the worker is obliged to perform and the employer to pay. This is often seen in retainer contracts. Accordingly it was held in Montgomery v Johnson Underwood Ltd [2001] that the "irreducible minimum" requirements for an employment contract were "control " and "mutuality of obligation."

Then there is the multiple test, which looks at the economic reality present in the circumstances at hand. The court will examine matters such as where and when the person works, the degree of control, how the contract defines the worker's status, how payment is made and how and who pays taxes. In other words, the Court considers a number of issues, hence the term, multiple. As Mummery J declared in Hall v Lorrimer [1992], "...there is no single satisfactory test governing the question whether a person is an employee or is self-employed."

The multiple test had its origins in Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] which concerned the status of a lorry driver for the purposes of national insurance. The employment contract stated that he had to buy his lorry from the company, maintain it but he could choose his work hours, vacation, and he could even employ someone to do his hours. However, he had to paint the lorry in company time, obey reasonable orders by the company and use the lorry only on company business. Considering the multiple issues involved, the held that he was an IC- the power to delegate work being the decisive factor- whether the worker has to do the job himself or could hire someone else to do the job. If the main factor is that the job gets done and not by whom then the relationship is not an employer/employee one.

However in Ferguson v John Dawson and Partners (Contractors) Ltd [1976] a claimant fell off a roof and claimed compensation from the company as an employee even though he was paid on ‘the lump’ meaning he was paid a lump sum and agreed to work as a self- employed labourer- a tax device benefitting both parties. The court found that he was entitled to compensation as their agreement did not reflect the reality of the situation which was an employer/employee relationship. Contrast this with Massey v Crown Life INS Co [1978] another Court of Appeal matter. To save taxes, on the advice of his accountant, a manager working for Crown Life changed his job status from employee to self -employed. His duties, though, remained the same. He was dismissed and he brought an action for unfair dismissal. The CoA held that he was not an employee and his action failed.

Those two cases illustrate a few points. Although the terms of a contract may delineate status, that in itself does not confer employee or self- employed rights. Ferguson had little control over the terms of his contract so it would have been unfair to deny him compensation whilst Massey had professional advice and made a conscious decision to become an IC. He claimed unfair dismissal which by law is not available to the self- employed or IC. His claim thus failed.

An agreed contract between parties brings no clarity to the situation either. A contract seems the natural way to define the employer/ employee relationship but it does not take into account collective bargaining which significantly impacts workers' terms. Equally, statutory provisions place so many duties on the parties especially the employer that it is difficult sometimes to argue that an agreement existed between the parties.

S230 (1) Employment Rights Act 1996 (comparable laws exist in the Caribbean) defines an employee as, " an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment." Easy enough to understand but the Act provides no definition of what a contract of employment is. It is left to the courts to decide. Most workers have a contract of employment / service in some form or the other wherein they are covered by statutory provisions available to an employee who has a contract of service as opposed to a contract for services which is not covered statutorily. Those who work under contract for services are ICs or the self-employed.

Two Caribbean cases have relevance here. In Sagicor Ins Co v Carter, Ishmael, Hill and Audain [2007] Simmons CJ opined that despite a written agreement between the parties, Carter et al from all the circumstances of the case were an integral part of the company, were employees and in reality did not behave like not agents as the agreement had stated. They had been provided with office space and secretarial staff like any another employee of that calibre. Another is V. G. Rose v Jamaica Times Ltd [1984] where Rose worked for the company for over 40 years without a contract in writing and was dismissed with a month's notice and brought an action for greater benefit on the strength that he was an employee and not an IC as Jamaica Times had argued. He prevailed. Rose had been treated like an employee, having been given training by the company and even a long service award. How the parties dealt with each other was the determining factor. The Sagicor and Rose matters broke no new ground and reaffirmed the judgement in the above cited cases.

In 1910 a matter concerning a sportsman and his club went before the courts. In Walker v Crystal Palace Football Club the CoA was asked to consider whether Walker’s contract with the club was a contract of service or a contract for services- an employee or an IC. At issue was the degree of control the club could exercise over the player. The court held that he was under a contract of employment as the club had control over his method of play, training, and discipline. In other words, he was an employee.

Therefore, it seems settled to me that the West Indies players are employees of the WICB and are not self-employed or independent contractors. If the QC wants them to be so designated he and the players ought to understand that that tag has not the same effect on the WICB as an employee. The importance of the employer/employee relationship is the fallout that flows from the relationship should a breach occur. As seen in Massey, an IC loses some protection available via the Employment Act. However, an employee can only be dismissed for just cause, in such cases such as incapability, misconduct or redundancy. That notwithstanding, certain conditions with respect to strict procedures and notices to the employee must be followed to the letter. Otherwise an employee who loses his employment contract can claim wrong or unfair dismissal as the circumstances dictate. See Sarwan’s case against the WICB. Were Sarwan designated an IC, like Massey, he would have been unable to bring any action. Regarding taxes, it is my understanding that the players as employees of a regionally recognised body pay no taxes on income or on imported items when they pass through regional ports of entry. If they were ICs that would change or be revisited. Let the players beware.

Please note that I am not a lawyer and the above was written by a good friend. He wants no fees and would like any person benefitting from the above opinion to donate all fees to the person known on the site as sudden.

In reply to sudden

The players are independent contractors. As such they are not entitled to the protections that employees typically enjoy.

If the strikers counsel wants to go down that road that is a slippery surface that Super Dave would be happy to play on..





Question for you...the contractors played half the India tour then withdrew their services - what contract terms did they play the completed segment of the tour under?

In reply to sudden

Ralph and Gregory Nicholls had that debate on Line and length program. Gregory cautioned Ralph that he was on dangerous ground by insisting that players were ICs

In reply to FanAttick

Was sammy not contracted til 2015?

Since he was let go.

Does he qualify for money until any such date?

In reply to FuzzyWuzzy

I agreed, you can terminate IC for convenient every day of the week, guys like Larro,. If You really want to screw wid them ask them to sign in / out.
it all depends on the contractual agreement.

Do the players and their dependents receive benefits like medical, dental, life insurance, etc?

Are they presented with a record of earnings from the WICBC at year end?

In reply to FanAttick

As far as I know the players are considered employees unless changed recently

Companies breaks contract with subcontractors all the time...that is why they have stipulations in a contract for subcontractors.

Where I agree with the players is to have more than one employer because if the rug is pulled from under you by an employer, you still have two to three more to ply your craft...


That is why all this bullcrap by Ralph Thorne is just that, bull crap. He has to use the victimization bit to show these little "heathens" he is doing his job. He should know that it is hard to prove this in a court of law when it comes to subcontracting...

I am sure Lemonade Dave will use this "subcontracting" wording or he should.



BTW, they mashup federation and now them go mashup WICB cricket...

In reply to sudden

Are the players who signed retainer contracts employees or independent contractors?

If I sought to explain the difference between an independent contractor and an employee I would make sure to note that there are many factors which determine whether one qualifies as an independent contractor or an employee. Overtime three essential requirements have been formulated as tests to determine whether one qualifies as an independent contractor or an employee in the UK and Caribbean jurisdictions which consider UK law persuasive.

To qualify as an employee the contracted person needs to satisfy all the various tests and then satisfy an assessment that what he/she is contracted to do is consistent with the employer/employee relationship.

On the other hand once the contracted person fails to satisfy any of the various tests he/she is deemed to be an independent contractor.

I would also have used the Barbados Mutual case because of its relevance and cogency.

I am not an attorney-at-law in practice but my legal friend who wrote the above is not inclined to throw cases about like a law student in desperate need of a raft.

In reply to Headley



Its an interesting situ.

In reply to Headley

hahaha. boy yuh does try hard. with respect to Sagicor Ins Co v Carter, Ishmael, Hill and Audain [2007] Simmons CJ opined that despite the written agreement between the parties Carter et al from all the circumstances of the case were an integral part of the company and were employees and in reality did not behave like not agents as the agreement stated. they were given office space and provided with office staff like any another employee of that calibre. another is V. G. Rose v Jamaica Times Ltd [1984] where Rose worked for the company for over 40 years without a contract in writing and was dismissed with a months notice and sued for greater benefit on the strength that he was an employee and not an IC. He prevailed. Rose had been treated like an employee, having been given training and a long service award. how the parties dealt with each other was the determining factor. My friend says to tell you that both cases were decided on the economic reality / multiple test so no new ground was broken.

And they are other cases but they don't differ from the basic tenets of the cases and law stated in the lead post

In reply to sudden

So, should we believe what Thorne QC says, or your interpretation that the players are indeed employees?

In reply to sudden

Front page it.....

In reply to sudden

Thank you for the expansion. Your facts are good. Statement of the legal principle is okish. I can now put it in the top pile.

Guys, in order to know if one is an employee or IC. , it depends on the contract.

This dichotomy offers a very simplistic, watered-down model for describing the relationship between the players and their pay masters. It is based almost entirely on how corporate entities operate. This model ignores the many of the socio-political and developmental elements involved, including the very development of one of the key stakeholders; the players, and the relationship between all stakeholders at that level and the west indian people.

In reply to doosra

What are the socio-political and developmental elements that would have an impact? My friend asks this just for argument sake

In reply to doosra

The distinction is not straightforward but it is critical for a number of areas including foreign investment agreements, international trade, industrial relations, etc. Not only is it relevant to lawyers, but is a distinction that gives economists, trade negotiators, and statisticians a great deal of headache....so they turn to lawyers!



In fact, all entities including governments,NGOS, etc. as well as individuals.



Sorry, but this sounds like typical UWI gibberish.

In reply to sudden

the employees in this model are not purely independent entities[not sure they ever are] - but they would have come thru a system of development that is different from say a corporate system. While the resources for early development of anyone comes from entities other than personal/family, in this case, cricketers development is sustained for much longer than say someone going thru formal compulsory schooling. Much actual development goes into the development of the potential employee by the employer and its various related entities. This is not exactly so in the corporate system in most cases.

The socio-political is more from a historical perspective and the nature of the institution called West Indies Cricket.

In reply to doosra

This last part makes more sense.

In reply to Commie

i was about to give you a shout.

what happens in sports like Formula 1, English footie etc , where youngsters are literally groomed for 'employment' by the said organizations.

In reply to doosra

What you just put forward is the reason why it is so difficult to come up with a clear-cut distinction between employees and ICs. the lack of clarity is not unique to the region or West Indies cricketers. This is why a distinction is usually arrived at by examining and weighting a range of criteria. For example, one such criterion may be control--what is the extent and how is it exercised.

I am also thinking - in a typical employer/employee contract/relationship the issue of accountability is almost always discussed and clearly outlined - what are the expected outcomes, by when, what are likely consequences if results/targets are not achieved etc

but it seems to me that this side of the deal [when compared to traditional employer/employee [ic or otherwise] is hardly outlined in concrete terms. perhaps it is not that simple to say - give me 2-1 for x dollars or y benefits.

In reply to JOJO

i am only thinking aloud Jo.

also see my above post about results/expectations and the way it may influence matters such as payments/renewals, etc

In reply to doosra

In that case the person is an employee. WI courts are very conservative and as my friend says they will tend to decide in favor of the person being an employee becos the outcome will benefit the person. What you have cited is a long term commitment where the club is in control. That relationship is an employer/ employee one contract or no contract

In reply to doosra

In football the kids are a commodity. They get registered before they are 15 and signed on their first contracts after 16.

Its complex because they are under contract but the agents have a lock on them.

In other words any player can be bought even after a club invests zillions in them. The club can put them to rot in their second teams etc, and there are examples of that, but then, noone gains and they still have to be paid every week.

In reply to sudden

Read the contract

IMO Sport is a special type of contractual relationship and cannot be grouped with, or compared to, the traditional business model because:

1) In sport, performance is the key to being SELECTED or EMPLOYED. A player can be benched or dropped after one poor performance regardless of tour contract. Tour contracts only bind a Board to pay a retainer, and a player to turn up. If a player is benched because of performance or team rebalancing, how did he/she contribute to the success of the team? Did he perform the same workload required in a business environment?

2) Resource Allocation: The System, in this example the WICB and its affiliates, supplied all the resources (training and facilities) for a player to succeed, over a period of many years. Therefore, a player's first obligation should be to the entity that gave him that start. The Bravo's would not have left Couva for India and other parts of the world, if not for the TTCB and the WICB. Currently some players favor 'other employers' over their original benefactors. Shame! Shame!…

And lastly Mr Sudden, some advice that originally came from a revered history teacher; Brevity, Sudden brevity! Do not write 'War and Peace', learn to précis because it will give you more readers..

In reply to sunfish

I am not arguing for or against.....won't the contract stipulate that?

In reply to sunfish

My friend reminds you that lawyers get paid by the word

In reply to black

The contact Bro, the contract is the problem. The contract turns Sport into Business. And hence we get more conflict and less fun..

How did we move from ' two boiled eggs and a cup of tea' to a FOCAIN contract written by self-serving lawyers??

I agree that sports people should be paid adequately but, they should never forget who nutured them into existence.

Having read all the posts on this topic I have to conclude that there is no clear cut basis on which Thorne could depend on to have the players declared as independent contractors. The first thing necessary (I think) would be a cause of action or alleged breach or wrongful act for the matter if the court is decide. I think however the WICB and the players could mutually agree that it is so or not. Otherwise it only a moot point. He'll I don't believe that those with retainer contracts can be considered ICs when they have to get wavers to play for others but the WI team. There are too many elements to consider and I believe there is a stronger case to consider them as employees more than ICs. One other point, it is only when the players retire, or declare themselves unavailable that they can exercise any independence over their playing situation outside of the ICC/WICB.

The Lawyers will talk a lot of sh**t but in the end the WICB selects the team and the ICC will back them.

QED...

In reply to jelfew

How so?
Do they (the WICB) take out taxes and pension for income tax purposes when they are paying the players. Or is that WIPA's responsibility?

In reply to TheTrail

They don't pay Inc one tax I understand abd pension is not a requirement to determine employee or I Relationship as far as I can see from this post. I am thinking that there are some players that may well be considered as ICs but not those with retainer contracts. Note also that the cases cited above are individual cases. But then I am aware also that the unions in Jamaica have tried to get security guards declared as employees of security companies.

In reply to TheTrail

Sorry about the typo errors but I believe you will understand what I mean. I am using my smartphone which is not that smart.

In reply to jelfew

According to my friend this is a case of some relevance.

Dave Robinson and Sentry Service Co Ltd v Inez Brown [2003] a Jamaican case where the CoA had to decide whether Robinson was an employee or IC for vicarious liability purposes. Robinson had chased down and killed a man who hit him whilst he was working as security guard at a football match. The CoA found that although the company was not liable as the act was not deemed to have been committed during the course of his employment he was employed under a contract of service, i.e. he was an employee and not an IC. His written contract with the company stating that he was an IC was discounted because their relationship was employer/employee. They provided him with uniform, a gun and training and there was a written disciplinary code.

In reply to sudden

I must give your friend credit for trying to explain to your fellow posters that the law is not an optional institution which governs one's behaviour when one finds it convenient.

My layman's understanding of the law is that, the law governs one's behaviour continuously, whether one is informed or uninformed. Since there are only two possibilities, a WI cricketer must either be an employee or an independent contractor under the law. As you've noted the decision has significant implications.

It is a difficult matter to decide. Judges have said so from time to time. To suggest that there is some socio-political framework for making the decision outside of the law is the stuff of la-la land. There are many factors and three commonly accepted tests which are considered WITHIN the law. (Fellow laymen can read my adviser's statement in my earlier post.)

The directors of the WICB seem to share the prevailing uninformed view that they can put aside the law from time to time, since the law is too difficult or inconvenient or uninformed by socio-political considerations. Nothing else explains how a team could be sent on tour without the players signing contracts - when the WICB has legal counsel on staff.