By Dr. Jason Haynes, Senior Lecturer in Sports Law, University of the West Indies, Cave Hill Campus, Barbados
On 19 February 2022, Australian cricketer, James Faulkner, took to Twitter to express concern that, contrary to the terms of his contract with the Quetta Gladiators, a Pakistan Super League (PSL) franchise team, he had not been paid for his services.
He contended that the Quetta Gladiators’ officials lied to him by assuring him that his remuneration would be paid, but this had not materialized. Faulkner’s Tweet read:
“I apologise to the Pakistan cricket fans. But unfortunately, I’ve had to withdraw from the last 2 matches and leave the @thePSLt20 due to the @TheRealPCB not honouring my contractual agreement/payments. I’ve been here the whole duration and they have continued to lie to me. It hurts to leave as I wanted to help to get international cricket back in Pakistan as there is so much young talent and the fans are amazing. But the treatment I have received has been a disgrace from the @TheRealPCB and @thePSLt20 I’m sure you all understand my position.”
In the immediate aftermath of Faulkner’s indication that he would no longer be participating in the PSL on account of the alleged breach of contract, the Pakistan Cricket Board (PCB) issued a release, which, amongst other things, indicated that the Quetta Gladiators had honoured 70% of its financial obligations to Faulkner (transferred to his UK offshore bank account), and that the remaining 30% was payable upon the conclusion of the tournament.
The PCB and Quetta Gladiators, in a joint statement, expressed that they were “disappointed and dismayed with the reprehensible behavior of Mr James Faulkner.”
The PCB and Quetta Gladiators were especially concerned by Faulkner’s alleged continued insistence that a second duplicate payment of the 70% of his fee be transferred to his account in Australia. In their view, this would amount to him being paid twice. Moreover, they were concerned by the fact that Faulkner had refused to participate in his team’s match against Multan Sultans until his demands for payment were met.
The PCB ultimately took the decision, in light of the foregoing, and having regard to his allegedly “reprehensible and insulting behavior” during their conversation with him, to impose a permanent ban on his future participation in the PSL. The PSL considered that Faulkner’s behavior brought the PCB, Pakistan cricket and the HBL PSL into disrepute.
While contractual disputes of this nature are not uncommon in the sporting world, Faulkner’s criticism of the PCB and Quetta Gladiators on social media is quite uncommon. In the normal course of things, a player, who alleges that he has not been paid remuneration due to him, would typically seek to negotiate, mediate or, as a last resort, arbitrate the matter. In this case, however, Faulkner clearly did not have confidence in the utility of these alternative methods of dispute resolution, and, therefore, sought to use his Twitter handle, in relation to which he has some 710,000 followers, to air his grievance. Liked by over 38,000 followers, and retweeted over 7,000 times, Faulkner’s tweets have the real potential to seriously prejudice the legitimacy of the PSL.
Whilst Faulkner’s dispute over outstanding remuneration is not unique in the sporting world, it raises the broader question as to what constitutes a breach of a sports contract. As a matter of law, the Court of Arbitration for Sport (CAS) has repeatedly ruled that a sports contract may be breached where one party engages in an act or omission that is so serious that it results in the irretrievable breakdown of the contractual relationship. In other words, the impugned conduct must be such that the trust and confidence reposed in the relationship can no longer be salvaged, thereby allowing the injured party to repudiate the contract, and claim for damages.
Whilst the non-payment of remuneration may represent a situation in which a contractual relationship may be treated as having irretrievably broken down, it is instructive to note that not every such situation will give rise to a breach of contract claim. Rather, as the CAS has itself affirmed, non-payment must be for a prolonged period (for example, two or three months), and must not have been remedied, despite requests by the injured party to do so, before it can properly be regarded as a breach of a fundamental term of the contract in question.
Although the details of Faulkner’s saga are still emerging, such that it is yet still too early to speculate as to who might be in the wrong, this case illustrates both the need for proper legal advice on the circumstances in which termination of a sports contract would be apposite, as well as the fact that, through social media, the balance of power between sportsmen/women and their clubs is quickly shifting.
Whereas, in the past, clubs could engage in prejudicial conduct vis-a-vis their players without significant public scrutiny, today, the use of social media, in an age characterized by the ‘cancel culture’, allows sportsmen/women to obtain what can properly be described as ‘digital vigilante justice.’
Whilst sportsmen/women may not have the balance of power in terms of negotiating favourable contractual terms or even in their choice of the legal avenues available to vindicate their rights, social media allows for a decision to be made by the court of public opinion. Evident by how quickly the PCB responded to Faulkner’s allegations, it is clear thar we are heading in the direction of open digital justice which involves, amongst other things, unfollowing or cancelling parties that engage in seemingly unfair (even if not unlawful) conduct.
Cancellation amongst the public has significant financial and reputational consequences, which are best avoided, as the Faulkner saga demonstrates!
 CAS 2015/A/4055 Victor Javier Añino Bermudez v. Club Elazigspor Kulübü, Award of 27 June 2016.
 CAS 2014/A/3584 Elaziğspor Kulübü Derneği v. Hervé Germain Tum, Award of 29 January 2015.