Islj 2009 3-4 - TMC Asser Instituut

letes in any form, even including a complete ban on participation by
foreigners in Russian competitions (as, for example, already occurred
in the second-division of the Professional Football League, PFL).
Moreover, according to paragraph 5, article 18.1 of the Federal Law
on the Legal Status of Foreign Citizens in the Russian Federation, the
government of the RF retains the right, annually and making provisions
for regional labour market factors, as well as the need for priority
placement of RF citizens in jobs, to establish the legal proportion
of foreign workers, deployed in various sectors of the economy by
commercial entities, which perform activities both on the territory of
one or several constituent members of the Russian Federation, and on
the entire territory of the Russian Federation. In other words, this federal
law specifically awards the government of the Russian Federation
the right to set quotas and restrict the use of foreign workers in various
sectors of the economy, including activities related to sport.
It was as a part of the implementation of these provisions of the
federal law, that on 31 December 2008 the RF government adopted
the order ‘On Establishing for 2009 the Legal Proportion of Foreign
Workers Employed in Commercial Entities Active in the Retail
Industry and Sport on the Territory of the RF’. This document establishes
the legal proportion of foreign workers employed in activities
related to sport, as 25% of the total number of employees used by the
above commercial entities.
In this way, the government also established a, somewhat idiosyncratic,
form of limiting the number of competing foreign athletes.
However, this was done in an extremely ineffective fashion: the unit
of measurement was taken as the total number of employees in a
sporting organization, and not the actual athletes, and so in order to
dodge this limit, a sport club has merely to increase the number of
full-time cleaners, formally boosting the total number of employees,
and in so doing thus also increasing the number of foreign employees
that can be hired by the club. In addition, as far as is known, nothing
is actually done to verify and ensure conformance with this governmental
order.
Nevertheless, it is clear that in the question of limiting the number
of foreigners in sport, there is a clear dualism: according to the Federal
Law On Physical Culture and Sport in the Russian Federation, a limit
may be established by a pan-Russian social organization, while the
Federal Law On the Legal Status of Foreign Citizens delegates these
authorities to the RF government.
In our opinion such important issues must be resolved at the state
level, or at least remain under governmental control, although the
legal formalization, presentation and execution of these authorities
must be afforded a far higher level of legal detail than is evident in the
government order mentioned above.
5 Case C-265/03 Igor Simutenkov v.
Ministerio de Educación y Cultura, Real
Federación Española de Fútbol [2005]
ECR I-5961
6 Zakon, No. 1, January 2008, P. A.
Kalinichenko. The ruling on the
Simutenkov case and its consequences.
3. International treaties regulating the labour rights of foreign
workers on the territory of the Russian Federation.
According to the provisions of article 15 of the RF constitution, universally-recognized
principles and norms of international law and
international treaties of the RF are an integral part of the RF law system.
If international treaties of the RF establish other rules than are
stipulated by law, then the rules of the international treaty are applied.
At the time of writing this article, the RF has a ratified agreement
with the European Union and a treaty with the Republic of Belarus,
regulating the labour rights of citizens of the party countries.
For example, according to article 23 of the Agreement on partnership
and cooperation establishing a partnership between the
European communities and their Member States, of one part and the
Russian Federation, or the other part, of 24 June 1994 (hereafter the
RF-EU agreement) “Subject to the laws, conditions and procedures
applicable in each Member State, the Community and its Member States
shall ensure that the treatment accorded to Russian nationals, legally
employed in the territory of a Member State shall be free from any discrimination
based on nationality, as regards working conditions, remuneration
or dismissal, as compared to its own nationals.”
Moreover, the above rule is valid for both parties to the agreement,
and therefore Russia, by observing the terms and rules current in
Russia, provides the regime discussed above to citizens of any EU
member state, who is legally hired to work on Russian territory.
In addition to the agreement with the EU, Russia has also ratified
a treaty with the Republic of Belarus, on Equal Rights of Citizens,
dated 25 December, 1998. According to article 7 of this treaty, “the
Parties will provide to citizens of Russia and Belarus equal rights to
employment, remuneration and the extension of other social and legal
guarantees on the territories of Russia and Belarus. Citizens of Russia and
Belarus have equal rights with respect to remuneration for labour, work
and rest schedules, labour protection and the terms of employment, and
other labour relations issues.”
Thus, if a citizen of an EU country is legally hired in Russia, i.e. in
observation of all the necessary procedures in section two of this article
- if the employer obtains permission to recruit a foreign worker
and the employee himself procures a work permit - then discrimination
against that employee, on grounds of citizenship and with respect
to the terms of employment, remuneration or termination, is banned.
The same is true for citizens of Belarus, working in Russian legally,
with the sole difference that according to Resolution No. 4 of the
Supreme Council of the Belarus-Russia Community, dated 22 June
1996, the procedure for regulating the recruitment and use of foreign
workers with respect to citizens of the Republic of Belarus and the
Russian Federation and citizens of the Russian Federation in the
Republic of Belarus, which is based on national legislation, is not
applicable. That is, a citizen of Belarus, in case of employment on
Russian territory, need not obtain a work permit, and his employer
need not obtain permission to recruit him as a foreign worker.
Thus, it is clear that for sporting federations, according to the
Federal Law On Physical Culture and Sport in the Russian
Federation, establishing restrictions on participation by foreigners in
Russian sporting competitions is a violation of the above international
treaties, ratified by Russia, as such restrictions clearly discriminate
against citizens of EU member states and Belarus. There are no such
restrictions with respect to citizens of the Russian Federation.
Therefore the limits, current in Russian sporting competitions, cannot
be applied to the citizens of EU member states, or citizens of the
Republic of Belarus.
These conclusions are indirectly confirmed by the records of a
court case, won by the Russian footballer Igor Simutenkov, against
the Spanish Royal Football Federation (RFEF) in the Spanish
Supreme Court.
4. The Simutenkov Case 5
In 2001 Russian footballer Igor Simutenkov, playing for the Spanish
club Tenerife, submitted to RFEF a request for a cessation of discrimination
with respect to his labour rights, based on article 23 of the RF-
EU agreement.
The discriminatory rules, in his opinion, were the result of the text
of an agreement between the RFEF, the National Professional
Football League and the Association of Spanish Footballers, dated 28
May 1999, which introduced a limit on foreign players, and according
to which no more than three footballers, who are not citizens of EU
states, can play at any one time in any one first-division match in the
2000/2001-2004/2005 seasons; in the second division the rule is no
more than three footballers simultaneously in matches in the
2000/2001-2001/2002 seasons, and no more than two footballers at
any one time in matches of subsequent seasons. Simutenkov’s request
was rejected by a decision of the RFEF 6 .
Then Simutenkov filed a lawsuit with Central Court No. 3 for
administrative disputes, against the decision of RFEF, challenging the
rejection of his appeal against discrimination. The lawsuit was denied
in a legal ruling on 22 October 2002, and Simutenkov filed an appeal
against this court ruling, with the National Appeals Assembly, which
ruled in favour of a suspension of hearings on the case, pending resolution
of the following question:
A RT I C L E S
2009/3-4 35