A lawyer says the clause used by the Badminton Association of Malaysia (BAM) for not registering Lee Zii Jia and Goh Jin Wei for international tournaments for two years is against the Malaysian Contracts Act 1950.
However, Nik Erman Nik Roseli of Amir Khusyairi & Associates was quick to add that sports contracts might be subject to rules of the international federation and that the agreements may not be bound to Malaysian law.
The international federation, in this case, Badminton World Federation (BWF), allows a maximum suspension of 12 months if a player wishes to switch allegiance to another member. Lee and Goh, however, have stated they want to continue playing for Malaysia.
On Friday, BAM said it would not enter the two players for any tournaments for two years as they had walked out of the national stable.
BAM deputy president and legal advisory committee chairman, Datuk Seri Jahaberdeen Mohamed Yunoos, had then said: “Clause 7 of their contract allows BAM not to register them for tournaments if they leave us.”
Clause 7 reads: “In the event you withdraw from the National Training Centre but continue or intent to continue to participate in international competitions, then BAM shall be at liberty to take any punitive actions against you as it may deem appropriate to protect BAM’s interest as the governing body of badminton in Malaysia.”
Nik Erman, who specialises in commercial and sports law, said the clause was against Section 28 of the Malaysian Contracts Act 1950, which states that every agreement, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, is to that extent void.
In common law, post-employment restraints of trade are, unless reasonable, void.
“Reading the clause, it is a restriction of trade and a breach of the Malaysian Contracts Act 1950,” said Nik Erman.
“But sports contracts could be subject to the laws of the international federation.
“So, while I agree there is a breach of Malaysian law, their contracts may not be subject to local law and instead comply with BWF rules.”
“If you read the clause in isolation, I do not think what BAM is doing complies with that clause. Because that clause states they can take any punitive action to protect BAM’s interest.
“I fail to see how not registering the players for two years is protecting BAM’s interest.”
Nik Erman disagreed with the argument that allowing Lee and Goh to go unpunished would make sponsors jittery and give ideas to other players to follow suit, thus hurting the association.
“I understand where BAM is coming from when they talk about sponsors. They have also invested (a lot of time and money) in the players,” he said.
“But my interpretation (of Clause 7) is that this action is not protecting BAM’s interest.”
He said the wording of the clause is vague but pointed out that when it comes to employment of service, you cannot force anybody to work at a place if they do not want to.
“More or less BAM is saying ‘you are forced to stay with us even though you hate it’. Under the law, that is not right,” he added.
When contacted, BWF secretary general Thomas Lund said: “We have equal concern for the parties involved, but this is a matter between the individual and the member association.
“BWF does not have sufficient information from each of the two sides to make a comment at this moment.”