Pursuant to Kelsen’s famous pyramid, the authority of norms may be ranked according to their sources: Constitution is above the Law, which is in turn superior to the Regulations, which themselves stand higher to the Collective Agreement etc…Under French labour law, this ranking can however be challenged by a “principle of favourable treatment” which allows a norm from a lower rank to validly derogate from a superior norm, if (and only if) this derogation benefits to the workers.

On 2 April 2014, the Cour de Cassation (the French Highest Civil Court) considered that these principles apply in all fields of labour law, regardless of the specificity of sport[1].  In this case, Mr. Orene Ai’i, a professional rugby player, had signed on 13 July  2007 an employment contract with the Rugby Club Toulonnais (RCT) for two sport seasons with effect on 1 July 2007.

Yet, article L. 1242-13 of the French Labour Code states that a fixed term employment contract must be handed to the worker within a maximal period of two days after the beginning of the contract. Should this period of two days not be respected the worker is entitled to claim for a requalification of his fixed term contract into permanent contract[2]. Mr. Ai’i relied on this article to argue for the requalification of his contract.

It must be noted that the requalification of the initial two seasons contract in a permanent contract, implies that it can be terminated by the employer with a cause. Therefore, a termination at the occurrence of the term of the contract, i.e. after the 2 years, may be regarded as a “dismissal without genuine and serious cause” which in turn would allow the player to seek compensation.  

The RCT argued on the other hand that article L. 1242-13 and the potential requalification is inapplicable to professional rugby players whose employments relationships can never be for an indefinite time period. Indeed, according to article 1.3 of the collective agreement of professional Rugby, an employment contract with a professional rugby player can last for a maximum of 5 sport seasons.

The Cour de Cassation reminds however that a collective agreement cannot depart unfavourably for the worker to the imperative provisions of the law and therefore states that the provisions of article 1.3 of the collective agreement of professional Rugby shall not impede the requalification of a fixed term contract between a professional rugby player and his club, into a permanent contract.

This solution is not limited to Rugby and may be extended to all fields of professional sports. Indeed, like the collective agreement of professional Rugby, article 12.3.2.3 of the national collective agreement of sports, which is applicable for every professional athlete, also provides that “the duration of a same contract cannot be superior as 5 sport seasons (60 month)”.

Based on the above mentioned decision it is fair to conclude that any French professional athlete can claim for a requalification of his fixed term employment contract if he hasn’t received a copy of his employment contract within the 2 days of its beginning. Potential consequences could be significant considering that a professional athlete can terminate a permanent contract, without cause or compensation[3]. In this regard it will be interesting to see if the requalification of fixed term sport contract into a permanent contract will facilitate their termination and allow some professional athlete to change Club without any transfer fee…

This decision could have wider implications for sporting labour relationships in general. Indeed, the Cour de Cassation rejected the specificity argument put forward by the Rugby Club. The legal reasoning on which the decision is grounded could, therefore, easily be transposed to other instances, where core labour rights of athletes are at stake. 

Patrick Millot, Avocat à la Cour

[1] Cass. Soc. 2 April 2014 n° 11-25442 (cf. concurring; CA Aix-en-Provence,  17 May  2013 R.G. n° 12/06543).

[2] Cass. Soc. 6 December, 2011 n° 16-16454 ; Cass. Soc. 4 April, 2012 n° 11-10986; Cass. 11 March, 2013 n° 11-28687.

[3] In opposition to a fixed term employment contract, which could only be terminated for a serious cause (i.e. serious misconduct, force majeure or medical inability to work)