A.M. Aguzarov, postgraduate
Kutafin Moscow state law university, Moscow

Key words: athletes’ and trainers’ labour, remuneration, assignment allowance, maximum monthly wage.

Introduction. In anticipation of the XXII Olympic Winter Games and XI Paralympic Winter Games of 2014 in Sochi, XXVII Summer Universiade of 2013 in Kazan, the 16th FINA World Championship of 2015, the 2016 IIHF World Championship, the 2018 FIFA World Cup close attention is paid to law making and legislative initiatives in the sphere of physical culture and sports in Russia. At the same time, motivation and remuneration of athletes and trainers are the most relevant and scarcely explored matters in the science of the labour law.

Law enforcement practice identifies gaps in the legal regulation of the respective relations. The specificity of athletes and trainers' professional activity requires taking into account the peculiarities of legal regulation of labour relations with these workers.

The purpose of the study was to allocate the specifics of legal salary and wage administration for athletes and trainers in the course of professional activity.

Results and discussion. With the introduction into the structure of the Labour Code of the Russian Federation (hereinafter - the LC RF) Chapter 54.1 "Features of labour regulation of athletes and trainers", it became possible to talk about the special nature of the legal labour regulation of athletes and trainers in general and the matters of their remuneration in particular.

Certain provisions of the mentioned chapter exist in a blanket form, which enables specifying and filling with content the relevant legal norms at the level of procedural regulation. Such acts include regulations of sport organizations like sport federations and leagues.

The whole set of legal norms that governs athletes and trainers' labour relations, can be divided into two major sections:

- General rules, that apply to all employees without exception and to athletes and trainers as subjects of labour law;

- Special rules, that secure labour relations features of athletes and trainers only.

The same way we can classify the rules governing remuneration of athletes and trainers.

According to general requirements of the LC RF, salary is determined by the employer in accordance with its established system of remuneration and it is set in an employment contract, depending on the employee's qualifications, complexity of work, quantity and quality of labour and its maximum size is not limited.

The remuneration system, including wage rates, salaries, surcharges and compensations, including work in conditions that deviate from the normal, system of incentive-based surcharges and allowances and bonus system are established by collective agreements, contracts, local normative acts in accordance with the labour laws and other normative legal acts containing norms of labour law.

Thus, we see that the labour law in this case is based on the method of optionality, admitting the considerable scope for wage regulation of athletes and trainers in the local and corporate acts and, therefore, reconciling the interests of each party of the employment relationship[1].

Speaking of the contractual regulation of wages of athletes and trainers, the provisions of the Sectoral Agreement on organizations of the Ministry of Sport, Tourism and Youth Policy  of the Russian Federation for 2012-2014[2]^2 should be considered. The Agreement duplicates the rules of the Labour Code in many ways, but it also sets the additional guarantees, rights and obligations in respect to wages. Thus, according to § 4.2 of the Agreement, the parties contribute to ensure the payment guarantees, including the following:

- The minimum salary of the lowest paid professional qualificational group (or 1 category ETCS) cannot be lower than the minimum wage (SMIC) established in the Russian Federation;

- If the employer breaches the due date of wage payment, vacation payment, severance payment or other payments owed to the employee, the employer must pay it along with interest payments (the compensation) in an amount not less than one three-hundredth of current at the time refinancing rate of the Central Bank of the Russian Federation from unpaid amount for each day of delay, starting from the day after the due date until the date of actual payment, inclusive. The size of paid compensation can be increased by a collective agreement or a contract of employment. The obligation to pay a specified compensation occurs regardless of whether there is an employer's fault.

Besides, the participants of the agreement contribute to ensure the average wage is not less than the amount of the subsistence minimum in the Russian Federation multiplied by 4, that corresponds to consumption necessary for simple reproduction of the labour force.

Additionally, the employer can set the following multiplying factors: multiplying factor to the basic salary for the position; personal multiplying factor to the basic salary. Multiplying factors include the assessment of the importance and complexity of the work, the level of professional training, the independence and responsibility.

In order to encourage the employees for their work, the organizations of physical culture and sports can set the following payments:

- Bonuses on the work results (quarter, half, 9 months, financial and (or) academic year);

- Payments for the high intensity and results;

- Payment for the quality of work performed;

- Payment for the length of continuous work, long service and others.

An important position is 4.13, according to which the conditions of remuneration, the salary, the multiplying factors to salaries and other payments, including incentive-based and compensatory are mandatory to be included in the employment contract.

The significant guaranty for athletes and trainers is a general provision stating that the conditions of payment defined by the employment contract cannot be worsened, compared to established labour laws and other normative legal acts containing norms of labour law, collective agreements and local normative acts.

Local normative acts that establish the wage system are accepted by the employer, considering the opinion of employees representatives.

Conditions of payment, defined by collective agreement, other agreements, local normative acts, cannot be worsened also, in comparison with the established labour laws and other normative legal acts, containing norms of labour law[3].

Usually an athlete's wage consists of base salary and incentive payments. Among the general provisions, two important points should be added.

Firstly, the employer must pay the wage to the athlete in rubles (article 131 of the LC RF). The Federal Service for Labour and Employment in a letter of 10.10.2006 № 1688-6-1 explained, that the existing lobour legislation does not provide the payment of wages in foreign currency on the territory of the Russian Federation. In this regard, the wage in the employment contracts with athletes and trainers should be set in rubles.

Secondly, it is impossible not to pay the bonus to the athlete, who has committed a disciplinary offense, if he had achieved certain results in sportsmanship, since the list of disciplinary sanctions is set forth exhaustively in the article 192 of the LC RF and there can be no expansion at the local level.

With the occurrence of professional sport leagues in our country the leading foreign countries' experience of introducing the maximum monthly wage has been replicated. Such limitation should be determined at the level of local normative acts and it hasn't yet found its legislative consolidation.

The maximum monthly wage, which is a wage limitation depending on the league income, causes the most heated disputes, during the negotiations on a new collective agreement[4].

To justify the necessity of establishing the maximum monthly wage, let's consider, for example, different types of payment provided to the athletes of the Continental Hockey League. In determining the maximum monthly wage, there are used the incomes of players, who are  in the application of the first team on the settlement date and who are announced in a club team, including those who are sent to the Major Hockey League (VHL) / club team. Records are maintained at the rate stipulated for the first team of the CHL club.

When calculating the maximum monthly wage of hockey players, the wage specified in the employment contract for the current season, the supplements, the bonuses and other incentives are considered at its maximum size specified in the contract.

Income types needed in determining the maximum monthly wage include:

- Wages;

- Allowances and supplements to wages and salaries, including those related with the mode of work and working conditions;

- Incentive payments and compensations, including premiums and bonuses;

- financial aid;

- One-time payments of any kind;

- Revenues (fully) in accordance with the standard CHL contract "The Evaluation Contract", if the club signed another standard CHL contract with  a player, based on the results of the preseason gathering;

- Revenues (fully) when the hockey player is on the list of injured athletes with the date of recovery no later than 30 April, according to the notification of the League;

- Revenues as compensation for contract termination by mutual agreement;

- Revenues as compensation for contract termination on the initiative of the club in the case of further employment during season in the same club[5].

Speaking of the possibility of limiting the wages of athletes and trainers, the fact cannot be ignored, that the federal regulation of a maximum monthly wage level for a particular sport is not consistent with applicable law. Thus, art. 132 LC RF stipulates that the wage of each employee depends on his skills, the complexity of the work, the quantity and quality of labour and its maximum size is not limited. Therefore, we believe that in this case a routine norm conflicts with a peremptory norm of the LC RF.

However, it should be recognized that the social nature of sport must be preserved, in order to maintain a competitive component, which brings the entertainment and the popularity of sport. In this regard, it is advisable to legally allow sport federations to set the maximum monthly wage by the routine norms.

So, there is a need for wage limitation for athletes and trainers, based on standards approved by the All-Russian sport federations. It is proposed to supplement the Labour Code with a new article 348.9.1 " Remuneration of athletes’ and trainers’ labour." This article should fix the provision allowing sport federations to set the maximum monthly wage, which will be mandatory for individual employment contracts with athletes and trainers.

The suggested approach will consolidate the special norm, which will be an exception to the general rule. This will avoid any conflict between a peremptory norm and a routine norm.

This article of the LC RF can be formulated as follows:

"Wages of athletes and trainers can depend on the qualifications of employees, the result of the competitions and it is determined by the employment contract.

All-Russian sport federation for the specified sport has the right to set the maximum monthly wage for athletes and trainers."

There is another problem causing difficulty in practice. It is related to the lack of legislatively formulated concept of "assignment allowance", which is paid to athletes and trainers.

Assignment allowances are common payments in sport. The assignment allowance is a compensation to the employee for his and his family members relocation and property transportation (except those cases, where the employer gives the employee the appropriate vehicle), due to the necessity of working in another place, as well as the cost of arrangement[6].

Art. 169 LC RF provides the reimbursement when moving to work in another place. It should be noted that this article is included in Section VII «Guarantees and compensations». The Size of reimbursement to the employees, due to their relocation to work in another place, is carried out by the organizations financed from the federal budget, and it is approved by Government Resolution 02.04 .2003 № 1877[7].

With regard to athletes and trainers the regulation of these payments is detailed in the normative acts of sport organizations.

Thus, according to the CHL legal regulations[8], under an employment contract the club has the right to include a condition of payment of the signature bonus, with the obligatory indication of its size and its definition as the signature bonus. If a hockey player duly took up his employment duties, this bonus is to be paid in the time specified in the employment contract.

It is especially important to note that the signature bonus is a component of a wage for a season, and the condition of the signature bonus is a part of the employment agreement.

Thus, according to the routine norms, assignment allowances can be included in the wage, which is inconsistent with the norms of the LC RF.

In this regard, it is necessary to answer the question: is "assignment allowance" a part of the wage, or not?

To resolve the issue there is a need to consolidate in Art. 348.10 LC RF the definition of assignment allowance. Generalizing the provisions of labour and tax laws, the assignment allowance should be considered as a compensation to the employee for his and his family members relocation  and property transportation (except those cases, where the employer gives the employee the appropriate vehicle), due to the necessity of working in another place, as well as the cost of arrangement.

In accordance with the proposed definition, the assignment allowance is not a part of the wage of an athlete or a trainer.

Conclusions. The carried out analysis of the specifics of the athlete’s wage and salary administration promoted the following conclusions.

The regulation of the studied sphere of labour relations with athletes and trainers can be effective in case of enhancement of the combination of government and contractual wage and salary administration. The indicated combination should be based on the consolidation of specific limits for every level of regulation.

Thus, minimum monthly wage, basic rates and post salaries, wage system in case of rejection of standard working conditions, the procedure of calculating of the average salary and guarantees regarding remuneration of labour are determined at the government level.

The scheduled regulation is not to diminish the government rights and guarantees given athletes and trainers. However the scheduled standards are justified in regulating relations, influencing directly the remuneration of labour, specifying the government regulatory standards in respect to specific sport.

In view of the specifics of athletes’ and trainers’ work, legal regulation can be realized via introduction into the LC RF of omissions and definitions of rules taking into account the specifics of this type of professional activity.

The provision on the limitation of athletes’ salaries should be introduced into the LC RF as a special norm to make it spectacular and preserve competition in sport regardless of the amount of remuneration. For this purpose the Labour Code of the Russian Federation is to be supplemented by the new article 348.9.1 “Remuneration of athletes’ and trainers’ labour”, and the term “assignment allowances” to be added to the article 348.10 LC RF.

References

1. Acute issues of labour legislation within modernization of economy: monograph / E.S. Batusova, I.Ya. Belitskaya, E.N. Bondarenko et al.; ed. by Yu.P. Orlovsky. Moscow, 2012. (In Russian)
2. Alekseev, S.V. Sports law. Labour relations in sport / S.V. Alekseev. – Moscow, 2013. (In Russian)
3. Guzieva, A.I. Minimum monthly wage as one of government guarantees in the sphere of wage labour: abstract of Ph.D. thesis / A.I. Guzieva. – Moscow, 2012. (In Russian)
4. Gusov, K.N. Sports law. The legal status of athletes, trainers, sports referees and other experts in the sphere of physical culture and sport: study guide / K.N. Gusov, O.A. Shevchenko. – Moscow, 2012. (In Russian)
5. Zaytsev, Yu.V. Everyday work in the world of sport: Specifics of athletes’ and trainers’ labour regulation / Y.V. Zaytsev, D.I. Rogachev. – Moscow, 2012. (In Russian)
6. Leonov, A.S. Legal regulation of athletes’ and trainers’ labour: problems and perspectives of development: abstract of Ph.D. thesis / A.S. Leonov. – Moscow, 2009. – P. 12. (In Russian)
7. Petrov, A.Ya. Wage plans and their improvement of their legal regulation / A.Ya. Petrov //Voprosy trudovogo prava. – 2011. –№ 4. – P. 135. (In Russian)

Author’s contacts: fonmara@mail.ru