The proof of constantly growing role of the law in sport lies undoubtedly in the fact that….
The proof of constantly growing role of the law in sport lies undoubtedly in the fact that this issue is, among others, included in the agenda of this year’s International Bar Association conference, held in Prague on 25 – 30 September. Considering the broad complex of legal relations arising in the scope of sporting activities, regardless to mass, performance or top level, the issue of the professional sportsmen and sportswomen position usually is one of the most attractive questions drawing attention of laic and professional public. In dealing with this issue the Czech Republic is not behind the advanced European or other countries, although historically the professionalism in sports has not been official for a long period. Before 1989 a “professional” sportsperson felt a difficult position; being employed in a state enterprise he or she visited the enterprise on paydays only and in fact substituted the work of a turner or other with equally hard work on the football field or other sporting arena. Except for tennis players, who had always stood off the official doctrine, other sportspersons had been professional in fact or de facto, although not de iure.
This rather long-term unbearable situation was before 1989, with silent approval of the political elite, officially overcome in football and ice-hockey by applying the legal institute of a long-term release of an employee for the purpose of performing activities in a social organization – therefore the activity of a professional football or ice-hockey player.
After 1989 completely new possibilities of legal solution of a professional sportsperson’s position opened up and concurrently certain new issues have arisen, the solution of which was not, is not and will not be a simple and feasible task. The same suggest the situations in other economically and sportingly advanced countries.
The existing legal regulations consider all professional sportspersons, with no exception, as persons undertaking an independent gainful activity (explicitly so for instance in regulations governing social security and health insurance), despite such activity requires no statutory license, trade license or other. Thus a sportsperson is granted the right to sell his or her sporting activity (frequently together with so-called personal rights for promotion purposes) to an organizer of some sporting event or contest or to a sports club. This is reflected in usual so-called professional contracts (or sporting activity performance contracts, respectively), drafted on the grounds of untitled contract specified in Section 51 of the Civil Code. There is no problem with this concept in individual sports, in which the sportsperson acts in his or her name. However, there appears to be problem in collective sports, in which each player represent a team (or club) and acts in the name of such team; the club pays the player, provides him or her with clothing, food, transports the player to the match places and provides him or her with many other agreed contractual performances, which later reflect in the revenue statements submitted by the player. The player, reciprocally, in ideal case performs a professional performance and gives the club the chance to use his or her name for promotion purpose, particularly in respect to sponsors financing the club. If the professional sports clubs are unincorporated associations (which means non-profit organisation) under the Public Association Act, the position of sportspersons in the clubs would not be so paradox as it is in situation, in which some clubs adopted the form of business companies or even joint-stock companies. Transparent book-keeping of audited joint-stock company and unambiguous rules applying to their business conduct, legal liability of the authorized representatives etc., these all are aspects for which the business companies constitute a welcome element in the sports. However, there are certain cracks appearing in the civil-law concept of a professional sportsperson. If the company’s business activities include sporting and promotion activities, then pursuant to the valid legal employment regulations such club shall undertake its activities through employment, i.e. labour-law, relationships. Moreover, the sportsperson’s relation to the club is in fact a dependent relation of an employer and employee, rather than a client and supplier or independent “free” sportsperson. Also the sportsperson’s remuneration consists mostly of a “regular pay” character. Accordingly, all would lead to the notion that a sportsperson should be considered an employee also in legal context, such as it is in some countries. However, the sticking point lies in the fact that it is absolutely impossible to draft a professional contract as an employment contract on the grounds of the Labour Code. The chance to sign a definite-period contract for maximum 2 year and once only foils any and all attempts to apply the Labour Code. Not speaking about the impossibility to limit the player’s termination of the contract without any compensation.
With certain hopes we had awaited the current re-codifying work on the Labour Code, whether the new concept would free the contractual relationships and clear the path to the professionalism in sports on the grounds of employment contracts. However, it appears not to be the case. Although the new concept indents to introduce certain contractual freedom in civil-law agreement, the contents and purpose thereof shall always respect the limit imposed by rather strict labour-law framework.
There is only one possible way left then, already considered by our Slovak colleagues – to draft a special act (the Sports Act) and regulate so the whole segment of professionalism. The question is whether, in the period of many other acts waiting for approval within the atmosphere of obligatory implementation of EU regulations, there will be any will to issue such regulation. Consequently, the position of a professional sportsperson seems to gain no more solid legal grounds now than before. Let’s believe it will not substantially affect the quality of the sporting performance.
JUDr. Karel Zuska
Holec, Zuska & PARTNERS Law Offices
and a member of Czech Bar Association Supervisory Board