Georgi Gradev Sport Counsel GRADEV SPORTS EOOD -...
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LEGAL SPORT Seminar MOSCOW 24 April 2015 Georgi Gradev Sport Counsel GRADEV SPORTS EOOD
Transcript of Georgi Gradev Sport Counsel GRADEV SPORTS EOOD -...
LEGAL SPORT Seminar
MOSCOW 24 April 2015
Georgi Gradev
Sport Counsel
GRADEV SPORTS EOOD
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“Traditionally this duty applied only to those whowere paid on a commission or piecework basis, or anexceptional category of employee who needed towork in order to establish and enhance a professionalreputation, for example, an actor or a singer”.
(cf. Sports Law, Third Edition, Gardiner, James,O’Leary, Welch and others, p. 489)
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“One cannot ignore that the worker may have alegitimate interest to actually provide the benefitprovided for in the contract; an employee who nolonger works is depreciating on the labour marketand his professional future is compromised. Thedoctrine acknowledged, especially for artists,professional athletes or surgeons, a legitimateinterest in be actually occupied by the employer ”.
(cf. Judgment 4A_53/2011 of 28 April 2011 c. 2.1.2)
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The Head Coach and his assistants were relievedfrom training and coaching activities of the firstteam. The Head Coach was deprived of the powerof direction and decision.
The Club announced with regard to the HeadCoach: “Though he will not coach the team or haveany say in tactics, he will sit on the bench for thefinal four matches of the season”.
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CAS: The employer has under Swiss Law theobligation to protect the employee's personality(Art. 328 CO). The case law has deduced thereof aright for some categories of employees to beemployed, in particular for employees whoseinoccupation can prejudice their future carrierdevelopment. The employer has to provide theseemployees with the activity they have beenemployed for and for which they are qualified. Theemployer is therefore not authorized to employthem at a different or less interesting position thanthe one they have been employed for.
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If the employer breaches this obligation theemployee has the right to immediately terminatethe agreement. Since such a termination isattributable to the employer's behavior, theliterature is the opinion that it is to be consideredas an unjustified immediate termination from theemployer.
The Coaches were responsible for the first teamand had a right to be employed as such. Theexclusion from their position seriously prejudicedtheir careers development. They were thereforeentitled to immediately terminate their agreements.
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The Head Coach was prevented by the Club fromleading the trainings and was given unsolicitedleave, to which he opposed in writing.
After the period of leave, the Club ordered theHead Coach to return only to recruit players and todo analysis. He refused, considering such order tobe alternation of the main working conditions, anddeclared the contract unilaterally terminated by theClub without justification.
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CAS: According to Swiss Law, the employer has theobligation to protect the employee's personality(Art. 328 CO), obligation which is not fulfilled if theemployee is employed in an inadequate position.
The attitude of the Club, granting to the HeadCoach leave without cause, preventing him fromperforming the basic and main task for which hewas hired for, and disregarding his warnings on thesituation created, shall be interpreted as anunilateral termination of the Employment Contractprovoked by the Club.
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The Head Coach was replaced with a new coach by theClub and offered a new position as sports directorinstead. All his assistants were dismissed.
FIFA: The contractual relationship between the HeadCoach and the Club was de facto terminated by the Clubwithout just cause.
The termination of the contractual relationship betweenthe Club and both assistant coaches of the Head Coachwas a clear indication that the Club had decided tochange its entire coaching team and had therefore alsoproceeded to dismiss the Head Coach.
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SFT: It is obvious that a professional football playerplaying in the premier division must, in order toretain his value on the market, not only trainregularly with players of his level but also competein matches with teams of the highest possiblelevel.
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CAS: The Player’s right to an effective occupationand to participate actively in competitions, to histechnical, tactical and physical development cannotlimit the freedom of action of clubs’ technicaldepartments, i.e. the club manager, in each game,to put on the field the players, which, in hisopinion, as best suited to obtaining a positiveresult.
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Having players not registered or deregisteredwithout their consent.
Having players train separately in order to pressthem to accept alternation or termination of theircontracts.
Having players relegated to the second or youthteam for reasons not related to their sportingcondition and sometimes even against contractualobligations to field them in the first team only.
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CAS: Professional freedom, in particular forprofessional athletes, includes a legitimate interestin being actually employed by their employer.Indeed, an athlete who is not actively participatingin competitions depreciates on the market andreduces his future career opportunities. It is thuswidely accepted in jurisprudence and among legalscholars that athletes have a right to activelypractice their profession (ATF 137 III 303).
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Among a player’s fundamental rights under anemployment contract is his right to access training andto be given the possibility to compete with his fellowteammates in the team’s official matches.
By deregistering a player, even for a limited time period,a club is effectively barring, in an absolute manner, thepotential access of a player to competition and, as such,is violating one of his fundamental rights as a footballplayer and therefore, the deregistration of a playercould in principle constitute a breach of contract since itde facto prevents a player from being eligible to play forhis club, unless he has consented to that act.
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The Club deregistered the Player and separatedhim from the first team for two weeks in July 2011.
Also in July 2011, the Club covered the foreign-player registration quota by registering five foreignplayers other than the Player and putting them intothe line-up for the first match of the season.
The Player considered that the Club breached thecontract by excluding him form the first teamwithout registering him, regardless the deadline forregistration until 5 September 2011.
The Player terminated the contract on 26 July 2011.
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FIFA: By refusing to register a player, a club iseffectively barring, in an absolute manner, thepotential access of a player to competition and, assuch, violating one of his fundamental rights as afootball player.
At the time of the termination, despite thearguments of the Club that the deregistration wasnot definitive and that the Player could still beregistered until September 2011, the Player hadgood reasons to believe that his registration wouldnot occur. The Chamber was of the opinion that theobjective circumstances at the time did provide thePlayer with just cause to terminate the contract.
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CAS: Separating the Player from the team andimposing his return to Chisinau in January (whenthe whole team was in Turkey for pre-season), toundertake an individual training regime which wasnot properly monitored or supervised, togetherwith the refusal to address the Player’s notices andadding his name to the transfer list are, incombination, sufficient breaches of contract by theClub to justify the Player terminating the contractwith just cause.
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CAS: The Club could have put the Player on aprogram of individual training in Turkey, where theweather was more conducive to running outdoorsand if the Player had improved quicker than twoweeks, he would have been with the other players.The Panel did not believe the actual trainingprogram set seemed likely to achieve the reasongiven for setting it.
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CAS: Many clubs seem to banish players to thereserves as a way to “persuade” them to leave theclub. These types of clubs tend to disguise theeconomic reason for dropping the player behindsporting or medical grounds that can be legitimate.As with most rights, there is a line that can becrossed or not and any judging body has to lookcarefully at the facts before it to determine whetherthat line has been crossed.
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Key factors drawn from case law:
- Why was the player dropped to the reserve team?
- Was the player still being paid his full wage?
- Was it a permanent or temporary measure?
- Were there adequate training facilities for theplayer with the reserve team?
- Was there an express right in the contract for theclub to drop the player to the reserve team?
- Was the player training alone or with a team?
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The Panel does not consider labelling a player as a“professional” in his contract would be sufficientgrounds for interpreting that as meaning he couldonly play for the first team.
A measure to prevent a player from training withthe first team squad is potentially a much harshermeasure than assigning a player to play matcheswith the second team while being allowed to trainwith the first team squad. The former seriouslyprejudices the player’s future perspectives with thefirst team, since such measure is of a more definitenature than the latter.
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