Islj 2009 3-4 - TMC Asser Instituut

On the other hand, individual sports are those sports that do not fulfil
the criteria by which team sports are described. In these branches
of sport competitions are organized for individuals. In our opinion,
individual competitions should be considered as competitions in
which athletes compete as physical entities in their own name and on
their own responsibility and as such enter into an individual legal relationship
with the event organizer.
By contrast, in team sports athletes do not enter competitions in
their own name, but in the name of and on the responsibility of
another entity, for example a sport club or association. At the same
time, the deciding factor should not be whether in a particular competition
the team is represented by only one athlete or several athletes.
This is why sports like tennis, table tennis, boxing, wrestling, etc. can
still be considered to be team sports when the athletes compete in the
name of their teams, but can also be considered to be individual
sports when the athletes compete in their own name, e.g. like in the
case of the professional tennis competitions organized by ATP and
WTA.
As a defining criterion it should not be decisive whether in a given
sport there is a competition of individuals from the point of view of
the number of athletes acting as one participant in the competition.
The criterion should instead be the fact whether individuals or teams
take part in a particular branch of sport.
In this way, it could be concluded that there are no purely individual
sports, as all sports include a team competition (and by this we do
not mean representation teams, where the situation is more complicated).
It would be better not to speak of individual and team sports, but
of individual and team competitions, because the differences in the
legal relationship and the legal consequences derive from the fact
whether athletes compete in the name of the team or in their own
name and not from how many athletes make up for one participant
in the competition.
3.3.Professional sport contract
Another issue leading to potential controversy was the fact that
according to the proposal for the Sports Act an employment contract
was established by a professional sport contract. This followed from
an amendment of the sport contract under Article 57 of the proposal
- elements that were amended were especially certain issues regarding
the conclusion of such a contract, its duration, the rights and
responsibilities of the parties to the contract, and the consequences
of breach and termination of the contract. Relevant provisions of the
Labour Code were declared applicable to the legal relationship thus
established between the sport club and the athlete, even if this subsidiary
part was absent from the Labour Code, as it followed logically
therefrom and also from a terminological point of view. The proposal
for a Sports Act stated that an employment relationship is
formed between an athlete and a sport club and that this relationship
is established by a contract of employment as stated in the Labour
Code. However, if the subject of the contract of employment was
engagement in sport activity, provisions of special law in this area
(sports law) which regulates contracts of employment would then
also have to be applied to this contract. The amendment of the sportspecific
employment contract made it only slightly different from a
general contract of employment. The amendments were necessary to
follow the relationship between sport clubs and athletes having
5 The definition of the individual nature
of the performed activity may be
ambiguous in some individual sports,
which is caused by the fact that there are
no criteria to distinguish between individual
and team sports under current
law and the definition in the prepared
amendment of the law is dubious. It is
not always possible to make a clear distinction
between individual and nonindividual
sports on the basis of this definition.
Also, in some branches of sport
that appear to be individual, the athletes
perform for the benefit of their sport
club and their individuality or performance
in their own name is not fully
‘guaranteed’ (for example in shooting or
tennis).
6 There can be no doubt that one of the
aims of professional athletes is the financial
reward which they receive, as their
salary and other financial rewards are
their main sources of income.
regard to the special character of sports activity and specific issues
that arise in the field of sports. The appropriateness of the involvement
of these discrepancies in the proposal could be the subject of a
lengthy discussion here. However, that is not the aim of this article.
The aim of this article is to take a closer look at the present amendment.
The abovementioned provisions were received rather sceptically by
the representatives of sport administration and management. For the
sport clubs (and from the point of view of taxation and social security,
also for some athletes) it is more convenient to regulate the relationship
with their athletes by means of company law or private law
contracts. In my opinion, the legislator applied the aforementioned
usual EĆJ rules which state that there is an employment relationship
between the sport club and the athlete. This conclusion is confirmed
by the legal definition of the term dependent labour according to Act
no. 311/2001 under the Labour Code. The element of dependency is
apparent for example in the case of professional footballers.
Footballers cannot decide themselves whether they will take part in a
match on Saturday, or choose the position they would like to play on,
or the team’s strategy. These choices all depend on the instructions
given by the club, or, alternatively, by the coach acting as the athlete’s
supervisor.
The proposal attempted to shed more light on the position of individual
athletes as well. It may be concluded that an individual athlete
performs a sport activity continually, individually, 5 in his own name
and on his own responsibility, and for profit, 6 Therefore, they act as
trade licence holders. The Trade Licence Code does not exclude sports
activity from the definition of the term ‘trade’ in Article 3 of Trade
Licence Code and so sport activity is not excluded from trade licence
business.
However, no trade licences or any other business concessions are
issued for the performance of sport activities and individual athletes
are considered to be a type of freelancers sui generis. It was stated in
the proposal for a Sport Act that a professional athlete who performs
sports activities in a professional or open competition and acts in his
own name and on his own responsibility is considered to be a freelance
worker according to special regulations. These special regulations,
as was explained in a footnote, were intended to be the provisions
of the Trade Licence Code. Such athletes would then be considered
entrepreneurs under Article 2(2)(b) of the Commercial Code.
The explanatory memorandum that went with the proposal for a
Sports Act in connection with this stated that if the performance of a
sport activity does not involve any elements of dependency this means
that the athlete acts on his own behalf, in his own name and on his
own responsibility, and that from an institutional point of view such
athletes have the status of freelance workers. As a result, the amendments
to the law on sport activities performed individually fall under
the scope of the Commercial Code.
It is certainly necessary to define accurately whether a person is
considered an entrepreneur or a freelance worker as this determines
their obligations in their relationship with sport event organizers,
sport equipment manufacturers or TV broadcasting corporations. It
also determines the applicability of the Commercial Code or the Civil
Code. The proposal for a Sports Act can be accused of inconsistency
in relation to the solution of this problem.
4. Act on the organization and support of sport
The proposal for a Sports Act that was analysed above did not even
reach the stage of first reading in the Slovak parliament, as the parliamentary
elections in 2006 led to a new government and a rearrangement
of the political forces in parliament. The new government did
not, however, drop the issue of the adoption of a new Sports Act as
the basic regulation for sport from its agenda. Moreover, the composition
of the working group that prepared the first proposal for a
Sports Act remained unchanged. However, anyone thinking that in
the continued work on the preparation of the proposal the mistakes
inherent in the previous draft as analysed above would be remedied
would be in for an unpleasant surprise.
A RT I C L E S
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