Ph.D., Associate Professor O.A. Shevchenko
Kutafin Moscow State Law University (MSAL), Moscow

Keywords: professional sport, employment contract, athlete, nature of contract, international experience, court practice

As for now, modern scientists have not come to a common opinion on the nature of a professional athlete’s employment contract and on whether or not it is expedient to unite in the same legal document different provisions to regulate both the legal labour relationship and the civil relationship – having concern in one or another way to the labour responsibilities of the worker – or it is more appropriate to consider these domains of relationship as two separate juridical facts.

V.V. Glazyrin, for instance, has good reason to state the following: “Notwithstanding the fact that the legislation in effect makes no direct provisions for contracts of that kind that integrate and regulate both the civil and labour rights and liabilities of the parties, there are no restrictions for such contracts being formed for the reason that parties may, as provided by the Civil Code of the Russian Federation (CCRF), enter into contracts in the forms both provided and non-provided by the legislation in effect”. Later on he offers to refer to such covenants as ‘mixed contracts’ subject to provisions of the CCRF Clause 421 item 2^[1].

Some other authors, unsupportive of the above position, have their good reasons to question how then courts should consider disputes and disagreements in case that either party to such mixed contract fails to meet its contractual obligations; and what should be the right title for such a contract (in view of the fact that only an employment contract provides a legal basis for labour relationship)?^[2]

Of special interest in this context may be the concept by L.Y. Bugrov who believes that an employment contract may have a nature of a compound contract. Such a compound contract may include some elements of a civil legal contract without prejudice to its legal power i.e. may not be recognized invalid for this reason^[3].

We tend to believe that contracting parties and courts in such situations could be governed by the Supreme Court of the RF Plenum Regulation #2 of March 17, 2004 item 2 “On the Civil Code of the Russian Federation Application by Courts of the Russian Federation” that sets forth the following: “In case of a dispute over non-fulfilment or undue fulfilment of some provisions of a civil legal nature under an employment contract (e.g. on the employee being provided with a housing space, or being paid a contractual amount to purchase such housing space etc.), these provisions shall be qualified as the civil legal liabilities of the employer, notwithstanding the fact that they are under an employment contract”[4].

Therefore, the issue may be solved through an inter-areal nature of such contract being recognized.

At the same time we believe that it is undesirable to widely apply the civil-and-labour rights regulating contracts for the reason that such practice may result in the boundaries between these areas of law being diluted. The problem may be solved by the employment relationship being documented by a formal employment contract supported by the relevant civil-labour contract, since such solution will protect the application domain of the employment contract and provide due guarantees for the contractual liabilities being met.

It may be pertinent to make resort for comparisons to the best international experience of the employment contract contents being set forth on an inclusive basis.

In the member states of the European Union, employment contract content has been standardized by the European Council Directive 91533EEC “On the employers’ obligation to inform the employees on the conditions applicable in contracts and labour relations”[5]. Clause 2 of the Directive, for instance, provides a list of working conditions including: identification of the parties, place of work or, if non-applicable, title, kind, character and/or category of the work and its brief description; contract effectuation date; contract duration, in case of a fixed-term contract; paid vacation duration; time limits of a notice of dismissal; initial base amount payable, and other labour remuneration conditions including its components and adjustments; normal business day/ week duration; and cases when the working conditions are additionally provided by the relevant collective agreements.

A few issues with concern to the conditions left beyond the above list are still being debated in special foreign literature. It is assumed by the current court practice that parties to an employment contract may negotiate some employment conditions when the latter are not obligatory under the valid formal procedure.

Now let us give a few cases in point from the Russian court practice.

Players and coaches of the Dynamo Basketball Club entered into formal civil-labour contracts where these players and coaches acted as formally registered individual entrepreneurs that assumed the liability to provide services to the Club in the preparatory training for and participation in competitions. However, the players and coaches received no remuneration from the Club at the end of the season and filed a suit in court.

The Moscow City Arbitration Court had to consider the question of how these contracts need to be qualified and what is their nature: labour or civil? Having considered the issue, the court decided that the applicants could not have their legitimate rights defended by a court of general jurisdiction for the reason that they acted as formally registered individual entrepreneurs under the contract. This was the reason for the court to accept the case for consideration in the arbitration process[6].

The case was further complicated by the coaches and players having to prove that their services had been actually provided for every month of their work under the civil-labour contracts, albeit such proof is never required under the labour legislation in effect. The Arbitration Court ruling on the case was in favour of the players and coaches, although there were certain problems in the process in substantiating the following: amounts receivable claimed; coaching services and players’ services that were actually provided to the Club; and the state tax amount paid in the case (that is non-applicable when the employee’s rights are protected by an employment contract).

One more striking case in point is the sport service contract of basketball player P. Samoylenko.

It was on August 01, 2007 that a Paid Service Contract was formed by and between P. Samoylenko and Dynamo-Moscow Men’s Basketball Club with P. Samoylenko; whereby the latter, acting as a formally registered individual entrepreneur, assumed the liability to provide sport services to the Dynamo-Moscow MBC main team, including the Club’s colours defending services in the seasons of 2007–2008 and 2008–2009. The Dynamo-Moscow MBC, of its part, assumed the relevant liabilities, including the liability to pay remuneration for the P. Samoylenko’s services.

It was further on August 28, 2008 that P. Samoylenko received from the Club a notice of the Contract being cancelled on the initiative of the Club management based on provisions of the Contract item 5.3.1, i.e. due to the sport injury received by the player. The player filed a claim to the Court of Arbitration for Sport under the Sport Arbitration Chamber (an autonomous non-commercial organization hereinafter referred to as “CAS”) seeking to obtain compensation from the Club for the Contract being cancelled early on initiative of the latter. The Club at the same time filed a counter claim to the Moscow City Arbitration Court, and the latter in its Verdict on Case #А40-113006/10-68-967 recognized the Paid Service Contract invalid with concern to the compensatory payment claimed by P. Samoylenko who disagreed with the early Contract cancellation by the Club.

The Court of Arbitration for Sport, in its turn, made, without prejudice for the above, a final decision on recognizing the early cancellation of the Contract groundless and awarding the monetary compensation from the Club to the claimant^[7].

The above case is of special interest in the sense that the Court of Arbitration for Sport, first of all, applied the principles of the valid sport law and the relevant regulations of the national Basketball Federation with due consideration for the fair play rules and sport stability norms in making the decision that run counter to the verdict of the Moscow City Arbitration Court; and, second, was the first to define the nature of a sport contract regulating relationship in a professional sport discipline.

The above cases demonstrate how an employment contract being substituted by a civil-labour contract may facilitate violations of lawful rights of athletes and coaches and complicate the efforts to defend and reinstate these rights.

Therefore, we have good grounds to outline the following key aspects of the professional athlete’s employment contract with due account of the unique legal nature of such contract, its format and content critical for the professional sport as such.

A professional athlete employment contract will make special (and exclusive for this type of contracts) provisions spelling out the labour/ engagement conditions and liabilities of the professional athlete in compliance with the relevant provisions of the relevant sport federation regulations, including, among other things, the following:

1. Provisions on the athlete assuming the liability to achieve the relevant sport objectives through due diligence in the training process and competitions, including the liability to play for the club in a most efficient and dedicated manner.

2. Provisions on the professional athlete assuming the liability to maintain his/her physical and mental sport fitness (due sport form) at the relevant contractual level.

Law of Argentine #20.160 of 15.02.1973 “Professional football player’s status” Clause 19 item ‘b’, for instance, sets forth that a professional football player must “maintain and excel his skills and psychosomatic functions for the benefit of the sport performance since any detriment or loss of such skills and functions through a fault of the player will be considered a serious violation of his liabilities”.

Labour Code of the RF Article 348.2 sets forth similar provision the athlete’s liability to comply with the sport code of conduct established by the employer and duly perform the preparatory training programs to be fit for the sport competitions.

The Russian legislation in effect, however, gives no definition for a sport code of conduct. Such code may be spelled out by a standard employment contract or by special regulatory provisions of the employer with the relevant limitations for the athlete behaviour (including diet and weight limitations, home physical conditioning practices etc.). Some clubs establish their own codes of conduct that set forth not only the training process and diet limitations, but certain ethical norms of the specific sport, fair play rules, drugs-excluding requirement to the sport procedures and practices, respect to the common social moral standards and traditions in personal and public life etc.[8].

Any violation of such code of conduct may be considered the reason for the athlete being penalized by the relevant disciplinary responsibility measures up to dismissal.

3. Provisions on limitations on the personal rights of the athlete for the benefit of the contractual labour responsibilities.

4. Provisions on contractual limitations (that have become traditional for the modern professional sports) for certain deliberate actions of the athlete, including prohibition of public interviews, marriage and childbirth during the contract validity period etc. Modern labour contracts in football and ice hockey game, for instance, make provisions for the athlete ceding to the club his exclusive rights for his own image, i.e. the exclusive rights to use his name, image, photo- , video- and graphical personality-related materials any other personal images. It should be noted in this context that, notwithstanding the fact that the Russian laws protect the personal non-proprietary rights as inalienable under whatever conditions (as provided by the CCRF Clause 1265 item 1), and any publication and/or other use of a citizen’s image is permitted only on a prior consent of such citizen (as provided by the CCRF Clause 152.1), Russian sport clubs and federations shall be governed in their activity by regulations and directives of the relevant international sport federations. Therefore, any cession of the personal-image-related rights of an athlete to the employer club or federation with the relevant limitations on the use of his/ her own name, image etc. will be recognized legitimate by the Russian sport community^[9].

5. Provisions on the athlete’s liability to pass necessary medical examinations/ treatments and meet the relevant health standards.

6. Provision on the validity term of the professional athlete employment contract.

7. Provisions on and specific conditions for termination of the professional athlete employment contract and the relevant labour relationship of the athlete and employer.

8. Contractual provisions on the code of conduct as a key element of the contract – that make the professional athlete employment contract so different in most cases from the traditional employment contracts – that regulate many aspects of the particular social and labour relationship.

9. List of contingency/ optional conditions regulating a wide variety of sport-specific labour relations of the employer sport club and professional athlete – that are also very typical for this kind of employment contracts.

References

1. Bugrov, L.Yu. Trudovoy dogovor v Rossii i za rubezhom (Employment contract in Russia and abroad) / L.Yu. Bugrov. – Perm: Perm state Research University, 2013.
2. Glazyrin, V.V. Grazhdanskiy kodeks i regulirovanie trudovykh pravootnosheniy (Civil Code and regulation of labour relations) / V.V. Glazyrin // Pravo i ekonomika. – 1995. – № 5–6. – P. 99.
3. Gusov, K.N. Sportivnoe pravo. Pravovoy status sportsmenov, trenerov, sportivnykh sudey i inykh spetsialistov v oblasti fizicheskoy kul'tury i sporta: ucheb. posobie. (Sport law. Legal status of athletes, trainers, sport judges and other experts in physical culture and sports sector: study guide, 2nd ed.) / K.N. Gusov, O.A. Shevchenko. – Moscow: Prospekt, 2012. – 189 p.
4. Nurtdinova, A.F. Sootnoshenie trudovogo i grazhdanskogo zakonodatel'stva (Ratio of labor and civil law) / A.F. Nurtdinova, L.A. Chikanova // New Russian Civil Code and sectoral legislation. Moscow, 1995. P. 29.
5. Ponkin, I.V. O korrelyatsii lexsportiva i sportivnogo prava (Correlation of lex sportiva and sports law) / I.V. Ponkin, A.I. Ponkina // Vestnik Rossiyskogo universiteta druzhby narodov. Ser. «Yuridicheskie nauki». – 2012. – № 3. – P. 109–118
6. Rogachev, D.I. Modernizatsiya pravovogo regulirovaniya truda sportsmenov i trenerov (Modernization of legal regulation of athletes' and trainers' labour) / D.I. Rogachev // Novoe sportivnoe zakonodatel'stvo i materialy Mezhdunar. nauch.-prakt. konf. «Sportivnoe pravo: perspektivy razvitiya» (New sports legislation and proc. of Intern. res.-pract. conf. "Sports Law: Development Prospects") / D.I. Rogachev. – Moscow, 2008. – P. 113–119.
7. Shevchenko, O.A. Imidzhevye prava sportsmenov v Rossii (Image rights of athletes in Russia) / O.A. Shevchenko // Sport: ekonomika, pravo, upravlenie. – 2011. – № 1. – P. 12–13.

Corresponding author: oashevchenko@msal.ru