Islj 2009 3-4 - TMC Asser Instituut

4.1. The relationship between sport club and athlete
Under pressure from the representatives of sport management, who
categorically refused the option of regulating the relationship between
sport clubs and athletes on the basis of employment law (with exceptions
under specific sport law), the legislator simply chose not to regulate
the position of amateur and professional athletes. Therefore, the
new law failed to regulate precisely that which was expected by the
entire legal profession. For this reason, the resulting legislative product
cannot be considered a Sports Act and its authors have qualified
it as merely an Act on the organization and support of sport. The Act
that came into force on 1 September 2008 7 is limited to regulating the
role of public bodies in supporting sport, the organization of sport
events, the fight against doping, dispute resolution in sport, issues of
sports representation and an information system.
The new Act therefore only partially accomplishes the goal which
was set by the government. In comparison to the brief Act no.
288/1997, which was not repealed when the new Act came into force
and is therefore still valid, steps forward were only made in relation to
the fight against doping and the more accurate definition of the competences
of sport associations in resolving conflicts that arise during
the organization or the course of sport competitions.
The new Act fails to define the legal position of athletes as well as
failing to regulate the relationship between athletes and sport clubs.
Sport clubs will continue to conclude various hybrid contracts of
sport activity pretending that athletes are not employed by their clubs,
that athletes have to pay their own taxes and insurance premiums,
that they are not entitled to compensation of travel costs when travelling
to meet their sporting opponents, etc.
4.2. Sport clubs
In accordance with the policy of the present government, the Act on
the organization and support of sport represents a step back with
regard to the position of sport clubs. According to Article 9(2) of the
Act, sport clubs can only be established as private law associations or
as commercial law companies established for a different purpose than
engaging in business. At the same time, the Act determines in the provision
that follows which payments represent the sport club’s own
income. The government’s intention was for the sport clubs to be
involved in sport only and not to engage in any other business activities
or generate a profit, but to invest all their income in further
sporting activity. In my opinion, this restriction may prove counterproductive.
At a time when it is understood in surrounding countries
that sport is an economic activity which can be profitable and that
sport clubs behave as enterprises 8 on the market, Slovakia seems to
have taken the opposite direction and is involved in lengthy discussions
concerning a legal regime that could be applied to so-called nonbusiness
commercial companies
4.3. National sport associations
The new Act has in a way strengthened the position of some sport
associations. These are in particular the associations which according
to the new Act can be considered national sport associations.
The first condition laid down by the Act for national sport associations
to fulfil is that they must be established as private law associations.
This seems a little restrictive and it is unclear why it was necessary
to exclude different types of legal personality, although it is true
that sport associations are in most cases private law associations
already.
Another criterion is the recognition of such a sport association by
the Slovak Olympic Committee, which has to recognize it as the representative
of a sport that is acknowledged by the International
Olympic Committee or by the International Federation of Sports at
Schools or the International Federation of Sports at Universities. If a
7 Act no. 300/2008 on the organization
and support of sport and the amendment
and completion of certain other
provisions.
8 Di Pietro, D.: The Dual Nature of
Football Clubs and the Need for Special
Legislation, The International Sports
Law Journal, 2003, c. 2, s. 24 and following.
9 Article 1.01 UEFA rules for European
Football Championshi 2006/8 available
at www.uefa.com/newsfiles/19079.pdf.
sport association is not recognized by any of these organizations it can
still acquire the status of national sport association if it is a member
of an international sport association which unites at least 10 national
sport associations as members. At the same time, a national sport
association must have at least ten active sport clubs (possibly as their
members - the meaning of the verb ‘to have’ is not specified in this
definition) and at least 200 certified athletes, it has to organize regular
national sport competition for at least three consecutive years, has
to ensure the selection and preparation of athletes for representation,
has to rear new sport talent and has to create conditions for out-ofschool
sport activities for children.
Sport associations which fulfil these criteria become authorized
partners in the dialogue with the public bodies involved in sport,
meaning more specifically that they may represent the interests of a
given sport in relations with ministries and other public bodies and
that they are authorized to ensure the preparation of sport representation
and participation in international sports events, which enhances
the dominant position and status of these associations.
The Act further determines the possible sources of income of
national sport associations, which as becomes clear from the explanatory
memorandum should apparently be limited. What would happen
if a national sport association enjoys other types of income is not
clear. The Act makes it possible for national sport associations to
establish commercial companies. However, if these involve business in
state representation, the national sport association can be the only
partner in such a commercial company and the profits can only be
used to carry out the tasks listed in the Act on the organization and
support of sport or to finance its own operation.
It is possible that the legislator’s intention was to prevent the leaking
of finances which are intended to further develop sport into the
private income of certain individuals. What is the real ratio legis of
such restrictions does not become clear either from the Act itself, or
from the explanatory memorandum. In fact, if it is possible to regard
the rewarding of the association’s top management as part of financing
the association’s operation, this restriction is useless.
In connection with these provisions, the explanatory memorandum
calls for transparency in the financing of national sport associations.
It is however our opinion that there are other legal institutions
which sufficiently ensure the transparency of the financial relationships
with private persons and of the acknowledgment and utilization
of grants from the public budget and that to restrict the activities and
freedom in decision making of national sport associations does not
help reinforce transparency.
4.3.1. National sport associations and national representation
The Act defines the representation of the state in sport by explicitly
stating that an athlete who is a member of the national sport representation
does not represent the corresponding national sport association,
but directly represents the Slovak Republic and that this representation
is delegated to the Slovak Olympic Committee, the Slovak
Paralympic Committee or the national sport association. The Act
considers the Slovak Republic as the participant in international sport
competitions, not the particular sport association which is a member
of the particular international sport association organizing the competition.
However, this perspective does not always correspond with
the rules of international sport associations. For instance, according
to the rules of UEFA concerning the organization of the European
Football Championship, the Championship is intended not for individual
countries, but for the teams of the member associations. 9
It remains unclear also who authorizes representation in sports that
are not Olympic sports and where there is no active association which
has the status of national sport association.
4.3.2. Normative authorization of national sport associations
The national sport association organizes or authorizes the organization
of national sport competitions. According to the Act on the
organization and support of sport the entity which organizes a sport
competition is authorized to determine the conditions for participation,
the rules of competition, supervision of the course of the com-
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