THE FRAMEWORK OF MENTAL HEALTH MANAGEMENT , PROSPECTIVE

CLAUSES TO BE INCLUDED AS PART OF AN ATHLETE’S CONTRACT &

CHALLENGES FACED BY ATHLETHES (in other countries)

To date there are no published frameworks regarding how best to support the mental
health needs of elite athlete in general. In addition to the International
Olympic(IOC) Consensus Statement, recent position statements have emphasized
the need to build awareness of mental health problems and increase help-seeking
behaviours.The issue with this mentality is that it presents athletes as potentially
problematic entities. The need to build awarness of mental health could mean that the
contracts or clauses in the athelete’s agreement could comprise implicit bias that
privileges sport organizations and the power they yield in the contractual negotiation
process. This is referred to as the doctrine of unconscionability meaning the inequality
of bargaining power.

The emphasis within unconscionability, and indeed what matters in legally

determining the grounds of the doctrine, is essentially on evidencing the exploitation
of weakness (as a result of the age or limited experience of the lesser party, absence of
prior knowledge, diminished mental capacity, and inability/limited opportunities for
negotiation, inequitable resources, or severe external pressures). Such a situation
creates an imbalanced relationship that runs contrary to good conscience and faith,
mutual understanding, and reasonable expectation. As such, to enforce the contract
could be considered unfair. In sport, the unconscionability doctrine has received only
limited attention, primarily from sport law scholars working in the United States
investigating inequalities of negotiation and representation between the National
Collegiate Athletic Association (NCAA) which affiliated with countries like Canada
and Puerto Rico.

One predominant area of concern or challenge within sports has been the imposition
of the World Anti-Doping Agency’s (WADA) Programme. As the clauses indicate,
the athletes must comply with the full disclosure of their medical histories. However,
there appears to be some scope for the athlete to judge and determine what he or she
chooses to reveal or conceal. The concern here, is that the contracts and
organization’s intentions transcend the conventional privacy of the doctor–patient
privilege. Point here is to highlight that sensitivities and subjectivities surrounding
athletes’ health no longer are exclusively theirs alone. Health knowledge in this case
has become divorced from the individual and subsumed as another facet of the
organization’s authority and becomes a tool in maintaining the inherent power bias in
their athlete relations .The clauses regarding body control and organization
intervention do not stop rather the clauses extend to manage athlete’s lives and
behaviors outside of sport. Although the intention of the clauses might be
performance-orientated (by ensuring the athletes’ peak performance), they raise
concerns about where the remit of the organization ends and the athlete may be
separated from his or her sporting obligations and work. An additional part of the
organization’s ways of protecting its image, and maintaining its influence over
athletes’ non-sporting lives, has been the development of clauses relating to
institutional philosophies, often alternatively couched as “moral codes,” “values,”
“ideals,” “mission,” “culture,” and “ethos . By complying with the organization’s
philosophy, athletes are also accepting their roles in the maintenance and development
of the business and its brand. Here, it appears that participation at the elite level asks
more of athletes and their lives than merely performative perfection; rather, they
expect athletes to fulfill organizational obligations. Clauses that specify athletes
undertake organizational “work” require that they “buy into” the organizational
philosophies, willingly accept the institution’s ways, while silencing any potential
opinions they may have to the contrary.

Social Media and Publicity Constraints clauses are designed to ensure athletes
appropriately serve the best interests of the organizations they represent. The potential
for athletes to “misuse” social media represents a considerable liability that warrants
proactive mitigation. Such clauses aim to circumvent infringements and
legal/economic damage to the organization. Thus, we revert to an institutionalized
mentality whereby athletes are considered volatile, problematic, “risky,” and
unpredictable entities whose lives, in and beyond the performative sport context,
necessitate manipulation and control.
Challenges in applying said clauses
 Whether workable /applicable in Malaysia

In Malaysia,the laws governing sports employment are not only based on the Contract
Act and Sports Development Act but include provisions in labour laws. The claim that
the labour laws in Malaysia are still not adequate and effective to protect newly
growing sports professions such as football may be wrong due to the finding that the
athletes themselves are not aware of their union rights.This not only suggests the re-
evaluation of unilaterally drafted athlete agreements in terms of employment freedom
and contractual relationship but also an additional policy with respect to any potential
intervention from the national sports association and government.

The issue here in Malaysia revolves around reconstructed contractual terms in the
clauses of athletes’agreement which is same as challenges faced by athletes in other
countries in general. The terms are not spelled out clearly but implied and binding to
both parties. The issuance of a general order on an athlete agreement draft normally
incorporates terms relating to taxation, insurance and transfer. Section 15 of Sports
Development Act (Act 576) requires every sports body shall apply to the
Commissioner to be registered under this Act to carry out any sporting activity.Some
key athletes may also agree to additional terms relating to marketing; promotion and
publicity; sponsorship and scholarship but usually athletes sign an agreement
containing the standard clauses. The difference appears on the last page of the
Appendix (Athlete Agreement) which lists the amount of salary; competition benefits,
medical and hospitalization and insurance coverage. Despite the differences, all
clauses are clearly defined and explained by sports agents and solicitors. Athletes
needed merely to identify these terms and avoid contractual breach. However, there
are some implied terms in the clauses that are regularly breached. Athletes generally
end up breaching these terms simply because absence of mental health clauses or been
misinterpreted by the clauses due to mental health related issues.

I have examined the general knowledge of professional atheletes have on respect to

the terms of the employment contract as drafted in the clauses of athlete agreement.
This understanding is correlated with the respective employment policy adopted by
the sports club. The question of whether the constructed clauses in agreements have
achieved the conscionable bargain between athletes and their clubs can only be
successfully answered though unionism. In spite of the generally high level of
awareness of implied terms and hidden elements, contractual breaches of clauses in
athletes agreement continue. As such, the success of the professional athlete labour
market depends on the collective power of a union which would also put an end to
mental health related issues