Islj 2009 3-4 - TMC Asser Instituut

to the amount of regulations in the field of sport that result from their
own legislation: on the one hand, there are states with a liberal model
of interference in the field of sport and on the other hand, states
which use an interventionist model. The interventionist model,
which he considers to be dominant in the Slovak Republic, is characterized
by a situation where the state is the main sponsor of sport,
usually through government institutions. The state in this model is
also responsible for the development and support of sport and cooperates
with sports organizations. 1
Although the abovementioned Act no. 288/1997 is not particularly
voluminous and does not have a complex character, it does indeed
still contain the elements of state intervention in the field of sports.
The Act lists the public bodies in charge of physical culture and
defines their competence. One of the tasks so defined by this Act is to
support the preparation and participation of athletes in representing
the Slovak Republic. Certain public bodies are obliged to co-operate
to secure the conditions and facilities necessary for the preparation of
athletes and their medical care, as well as the exemption of athletes
from military service. In particular, the Act determines the amount of
financial support allocated to sport from the annual state budget, of
which a minimum of 0,5 % is to be spent on physical education. It
also includes the resources from the national budget determined by
the special Act on state support of sport.
The Act on physical culture provided for the adoption of the Act
on state support of sport. The legislator realized however that in practice,
sport includes many more issues than just state support of sport
and faced the more demanding task of creating a Sports Act which
would comprehensively regulate all the legal relationships that stem
from involvement in sport activities.
3. Original proposal of the Sport Act
It has been claimed that especially the professionalization of sport
brought with it a plethora of ambiguities, legislative gaps, and other
problems and questions which resonate throughout the entire legal
system. 2 Many of these problems were determined by the decisions of
the EĆJ in the cases mentioned above which mainly concerned the
legal position of professional athletes in team sports and individual
sports, the legal nature of contractual relations between professional
athletes and sport clubs, the status and degree of autonomy of sport
organizations, the question of broadcasting concessions for sport
events, sponsorship, etc.
In the previous electoral term, the Government of the Slovak
Republic already prepared a bold and ground-breaking proposal for a
Sport Act, 3 in which solutions for many of these problems were determined.
The proposal was bold in that it would quite radically change
the position of athletes and their relationship to sport clubs.
The proposal started from two distinctions that can be made within
sport that influence the position of athletes, namely the distinction
between amateur and professional sports and the distinction between
team and individual sports. Although the legislator hereby chose the
correct approach, it did not, in my opinion, reach the aspired goal, as
the criteria used to make the distinctions were unsuitable.
3.1. Professional and amateur sport
Article 2(2)(b) of the proposal defined a professional athlete as a person
who performs sport as part of an employment relationship based
on a sport contract or on a freelance basis, while Article 2(2)(c) defined
an amateur athlete as a person who performs sport on the basis of a
contract for the performance of sport activities.
However, this latter definition of amateur athlete did not match the
general idea of what was considered the essence of amateur sport as it
contradicts the present understanding of amateur sport as an activity
1 Králík, M.: Právo ve sportu. Praha: C.
H. Beck, 2001, s. 179.
2 Králík, M.: Zamyšlení nad tzv.
sportovním právem. Právní rozhledy, vi,
1998, c. 10, s. 491.
3 The full wording of this Act can be
found at www.rokovania.sk/appl/
material.nsf/0/FE52238C945CF595C1257
1060048FC41/$FILE/Zdroj.html (d’alej
len “návrh zákona o športe”).
4 Sobczak, J.: Prawo sportowe (wybór
aktów normatywnych), Toruń:
Towarzystwo Naukowe Organizacji i
Kierownictwa, 1998, s. 16.
performed without any financial reward. For example, Article 1.29(11)
of the Rules of transfer of amateur footballers, which were adopted by
the Slovak Football Association on 10 July 1993, defines an amateur
(in accordance with the FIFA provisions for the status and transfer of
players) as a player who has never received a financial reward for their
football performance above the amount of real expense following
from their performance.
Similarly, the Polish Act on physical culture perceives the receipt of
a financial reward for the performance of sport as the criterion distinguishing
professional sport from amateur sport. It further also states
in Article 3 that professional sport is performed for the purpose of a
financial reward. 4
There are of course cases where amateur athletes receive a certain
reward for performing a sport activity, but generally this is restricted
to a reward intended to compensate them for any expenses resulting
from taking part in the competition. However, such a reward must
not constitute a reward for their actual participation in a sport competition.
Payment of compensation for the expenses of amateur athletes is
based on the legal relationship between the sports club or association
and the athlete who is a member of this club or association. It is not
based on a service contract other than an employment contract as this
would mean that the athlete should be granted a reward in addition
to compensation of expenses.
3.2. Team and individual sport
The proposal for the Sports Act contained two ways in which to
define professional athletes, namely professional athletes who perform
their activity on the basis of a sport contract and professional athletes
who perform their activity on a freelance basis. The main difference is
whether the athlete performs a team sport or an individual sport. If
they perform a team sport, they act on behalf of a club to which they
are tied by means of a sports contract, while in the case of an individual
sport the athlete performs the sport independently.
Article 1(2)(c) of the proposal defines a team sport as a branch of
sport that is performed by at least two persons who act as one participant
in a sport competition, provided there is no competition of
individuals in this competition.
The proposal offers no definition of individual sport, which may be
presumed to mean that all other sports are considered individual
sports.
The phrase ‘provided there is no competition of individuals in this
competition’ may give rise to certain problems. If the legislator
intended it to mean that collective sports are only those which exclusively
include competitions of teams and do not include competitions
of individuals, a problem may arise in the classification of certain
sports, such as for example tennis, boxing, swimming and athletics,
which may include both team competitions and individual competitions.
At the same time, if athletes compete on behalf of a sports club,
their performance in these sports should be considered according to
the rules applying to team sports given that they have entered into a
relationship with the sports club which contains the same elements as
in a ‘purely’ team sport. However, this interpretation would be more
acceptable if the definition contained the wording ‘provided there is
no competition of individuals in this sport’.
However, the legislator chose to use the words ‘provided there is no
competition of individuals in this competition’ by which it probably
meant ‘competition of teams’. In this sense, some branches of sport
where both teams and individuals take part in competition should
then be considered to be both individual and team sports.
A problem with interpretation could emerge for example in cases
such as the Formula 1 competition, where two kinds of evaluation
exist within one and the same competition - the award for individual
pilots and the award for teams (Constructors’ Championship). This
would imply that car racing, or at least Formula1, is an individual
sport, although the relationship between individual Formula 1 pilots
and their teams is evidently built on principles that are similar to the
principles at work in the relationship between athletes and sports club
in team sports.
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