Asser International Sports Law Blog | Opening - Managing Editor of the International Sports Law Journal

Nearly twenty years after the European Court of Justice declared in the Bosman case that all professional athletes within the EU were given the right to a free transfer at the end of their contracts, the Spanish Tribunal Supremo[1] provided a judgment on 26 March 2014 that will heighten a new debate on the rights of professional athletes once their contract expires.

This case originates in a dispute between the Spanish Association of Professional Cycling Teams (Asociación de Equipos de Ciclismo Profesional) and the Spanish Association for Professional Cyclists (Asociación de Ciclistas Profesionales). The two parties had concluded a collective agreement for professional cycling in 2010. Even though it is common practice that cyclists would never sign employment contracts for an indefinite period of time, nor would cycling teams compensate their cyclists merely for contract expiration, article 15(2) of the agreement established that, at the end of the contract, the team is obliged to compensate the cyclist with the amount that is due to him based on the employment contract[2].

On 14 May 2012 the Association of Professional Cycling Teams, as applicant, requested from the Spanish Audiencia Nacional to pronounce itself on the correct interpretation of article 15.2 of the collective agreement, taking into account the Real Decreto 1006/1985 on the special employment relationship of professional athletes and article 49.1.c) of the Workers Statute (Disposición Transitoria Decimotercera del Estatuto de los Trabajadores). According to article 49.1.c) of the Workers Statute, after expiration of the contract, a worker shall have the right to receive a compensation of an amount equal to 12 days of salary for every year of service. One of the goals of this article was to promote indefinite contracts.

The applicant argued that, due to the nature of contracts of professional athletes, for which the duration is never indefinite, article 49.1.c) is not applicable to professional athletes. By contrast, article 6 of Real Decreto 1006/1985, which states that the duration of sporting contracts are always fix-term contracts, should be used for the interpretation of the collective agreement between the two cyclist associations.

In its judgment of 16 July 2012, the Social Chamber of la Audiencia Nacional[3] confirmed that professional athletes are not to be treated differently than regular employees, and should therefore be compensated at the end of their contract. However, the Audiencia Nacional recognized the specific nature of the employment contracts of professional athletes, whose employment conditions are specifically regulated in Real Decreto 1006/1985. Hence, it declared article 49.1.c) of the Workers Statute inapplicable to professional athletes.

The decision of the Audiencia Nacional being appealed, the Spanish Supreme Court was in turn confronted with the question whether a professional athlete is entitled to the compensation as stipulated in Article 49.1.c of the Workers Statute after expiration of the employment contract. In other words, are the general labour rules regarding the end of the employment contracts also applicable to professional athletes?

The Court answered this question affirmatively, seeing no reason whatsoever for the Workers Statute, including article 49.1.c) not to be equally applicable to professional athletes. Moreover, by applying the Workers Statute, the compensation will become an instrument for the promotion of contract extensions, thereby improving the employment stability of athletes. Lastly, and referring to point 6 of the preamble of Council Directive 1999/70/EC concerning the framework agreement on fixed-term work, the Court argued that indefinite contracts contribute to the quality of life of the affected workers[4], and is therefore in line with the original goals of article 49.1.c) of Workers Statute.

The consequences of this judgment are simple enough: A professional athlete who had a five year contract with a specific club or team for 100,000 Euros a year will, at the end of his contract, receive a compensation of approximately 16,438.36 Euros (100,000 / 365 x 12 x 5), or 16.4% of his yearly salary.

This ruling is an important step forward on the long and tangled road towards the full recognition of professional athletes as true workers deserving the same rights and duties as their peers.

[1] El Tribunal Supremo is the highest court in Spain for all matters not relating to the Spanish Constitution

[2] Article 15(2) …Al finalizar la relación laboral se liquidará el finiquito que contendrá todos los conceptos económicos que regule la legislación vigente.

[3] The Audiencia Nacional is a special and exceptional high court in Spain

[4] Sentencia del Tribunal Supremo de 26 de Marzo de 2014 (CASACION 61/2013), part 7, §1

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

The Headlines

For the world of Sport, the elsewhere known “sleepy month” of August turned out to be the total opposite. Having only just recuperated from this year’s Tour de France, including a spectacular uphill sprint on bicycle shoes by later ‘Yellow Jersey’ winner Chris Froome, August brought another feast of marvellous sport (and subsequent legal drama): The 2016 Olympic Games in Rio de Janeiro.

The Olympic Games

Amongst those athletes that stood out in Rio were, of course, the “most decorated Olympian of all time” Michael Phelps and the “fastest man on earth” Usain Bolt. However, standing out can also happen for the wrong reasons. One sad example of this is the downfall of former “Lord of the Rings”, gymnast Yuri van Gelder. The Dutchman reached the Olympic finals for the rings, but was sent home by the Dutch National Olympic Committee after a night out in Rio de Janeiro. He subsequently unsuccessfully launched legal proceedings before a Dutch court in an attempt to reclaim his place in the finals. For an in depth legal analysis of the case see the blog by Guido Hahn.

Yet, the Van Gelder case is certainly not THE legal highlight of the Rio Games. In this regard, the CAS ad hoc Division (for a good overview of the procedure at the division, click here) was the court to watch in Rio. The CAS Ad Hoc Division was installed to resolve legal disputes arising during the Olympic Games. These disputes can relate to, for instance, matters of qualification, disciplinary sanctions or doping (on appeal). During the three weeks of the Games, it dealt with a caseload of 26 cases, 16 of which were linked with the Russian doping scandal. For the first time, a CAS anti-doping division was also active in Rio (with a caseload of 8 cases). The CAS Anti-doping Division, was aimed specifically at resolving doping cases. Through this office, the CAS handles (potential) doping cases in first instance. It can organize hearings of the parties concerned and impose provisional suspensions pending the conclusion of the procedure. The final decisions could be appealed before the CAS ad hoc Division or the CAS in Lausanne after the Olympic Games have ended. The links to all the published Rio awards can be found below under case law.

Much controversy arose during the Games regarding the debate over the divide between male and female athletes. In the centre of attention stood South African runner Caster Semenya and Indian track-and-field athlete Dutee Chand. Both are at the centre of an on-going medical, ethical and legal discussion about the policies regulating hyperandrogenism in sport. Our blog hosted two posts on the matter one by Marjolaine Viret and Emily Wisnosky on “Regulating the human body in sports: Lessons learned from the Dutee Chand case” and a more personal point of view by Marjolaine Viret, “Why we should stop focusing on Caster Semenya”.

Finally, this Olympic summer of legal disputes would not be complete without a brief discussion of the Paralympics ban of the Russian Paralympic Committee (RPC). Indeed, this week marked the kick-off of the Paralympic Games, which will take place from 7 to 18 September. Exactly a month before the start of the games, on 7 August, the International Paralympic Committee (IPC) Governing Board decided unanimously to suspend the RPC with immediate effect. In a statement on its website the IPC explained that it regarded the RPC unable to “fulfil its IPC membership responsibilities and obligations”, in particular those under the IPC and WADA doping rules. On 30 August the CAS delivered a much-expected award in which it dismissed the appeal by the RPC and confirmed the decision rendered by the Governing Board of the IPC. In particular, the CAS Panel found that the ban did not violate procedural rules and amounted to a proportionate measures considering the circumstances.

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