LEGAL SPORT Seminar MOSCOW 24 April Georgi Gradev Sport Counsel GRADEV SPORTS EOOD

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1 LEGAL SPORT Seminar MOSCOW 24 April 2015 Georgi Gradev Sport Counsel GRADEV SPORTS EOOD

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3 Traditionally this duty applied only to those who were paid on a commission or piecework basis, or an exceptional category of employee who needed to work in order to establish and enhance a professional reputation, for example, an actor or a singer. (cf. Sports Law, Third Edition, Gardiner, James, O Leary, Welch and others, p. 489) 3

4 One cannot ignore that the worker may have a legitimate interest to actually provide the benefit provided for in the contract; an employee who no longer works is depreciating on the labour market and his professional future is compromised. The doctrine acknowledged, especially for artists, professional athletes or surgeons, a legitimate interest in be actually occupied by the employer. (cf. Judgment 4A_53/2011 of 28 April 2011 c ) 4

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6 The Head Coach and his assistants were relieved from training and coaching activities of the first team. The Head Coach was deprived of the power of direction and decision. The Club announced with regard to the Head Coach: Though he will not coach the team or have any say in tactics, he will sit on the bench for the final four matches of the season. 6

7 CAS: The employer has under Swiss Law the obligation to protect the employee's personality (Art. 328 CO). The case law has deduced thereof a right for some categories of employees to be employed, in particular for employees whose inoccupation can prejudice their future carrier development. The employer has to provide these employees with the activity they have been employed for and for which they are qualified. The employer is therefore not authorized to employ them at a different or less interesting position than the one they have been employed for. 7

8 If the employer breaches this obligation the employee has the right to immediately terminate the agreement. Since such a termination is attributable to the employer's behavior, the literature is the opinion that it is to be considered as an unjustified immediate termination from the employer. The Coaches were responsible for the first team and had a right to be employed as such. The exclusion from their position seriously prejudiced their careers development. They were therefore entitled to immediately terminate their agreements. 8

9 The Head Coach was prevented by the Club from leading the trainings and was given unsolicited leave, to which he opposed in writing. After the period of leave, the Club ordered the Head Coach to return only to recruit players and to do analysis. He refused, considering such order to be alternation of the main working conditions, and declared the contract unilaterally terminated by the Club without justification. 9

10 CAS: According to Swiss Law, the employer has the obligation to protect the employee's personality (Art. 328 CO), obligation which is not fulfilled if the employee is employed in an inadequate position. The attitude of the Club, granting to the Head Coach leave without cause, preventing him from performing the basic and main task for which he was hired for, and disregarding his warnings on the situation created, shall be interpreted as an unilateral termination of the Employment Contract provoked by the Club. 10

11 The Head Coach was replaced with a new coach by the Club and offered a new position as sports director instead. All his assistants were dismissed. FIFA: The contractual relationship between the Head Coach and the Club was de facto terminated by the Club without just cause. The termination of the contractual relationship between the Club and both assistant coaches of the Head Coach was a clear indication that the Club had decided to change its entire coaching team and had therefore also proceeded to dismiss the Head Coach. 11

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13 SFT: It is obvious that a professional football player playing in the premier division must, in order to retain his value on the market, not only train regularly with players of his level but also compete in matches with teams of the highest possible level. 13

14 CAS: The Player s right to an effective occupation and to participate actively in competitions, to his technical, tactical and physical development cannot limit the freedom of action of clubs technical departments, i.e. the club manager, in each game, to put on the field the players, which, in his opinion, as best suited to obtaining a positive result. 14

15 Having players not registered or deregistered without their consent. Having players train separately in order to press them to accept alternation or termination of their contracts. Having players relegated to the second or youth team for reasons not related to their sporting condition and sometimes even against contractual obligations to field them in the first team only. 15

16 CAS: Professional freedom, in particular for professional athletes, includes a legitimate interest in being actually employed by their employer. Indeed, an athlete who is not actively participating in competitions depreciates on the market and reduces his future career opportunities. It is thus widely accepted in jurisprudence and among legal scholars that athletes have a right to actively practice their profession (ATF 137 III 303). 16

17 Among a player s fundamental rights under an employment contract is his right to access training and to be given the possibility to compete with his fellow teammates 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, the potential access of a player to competition and, as such, is violating one of his fundamental rights as a football player and therefore, the deregistration of a player could in principle constitute a breach of contract since it de facto prevents a player from being eligible to play for his club, unless he has consented to that act. 17

18 The Club deregistered the Player and separated him from the first team for two weeks in July Also in July 2011, the Club covered the foreignplayer registration quota by registering five foreign players other than the Player and putting them into the line-up for the first match of the season. The Player considered that the Club breached the contract by excluding him form the first team without registering him, regardless the deadline for registration until 5 September The Player terminated the contract on 26 July

19 FIFA: By refusing to register a player, a club is effectively barring, in an absolute manner, the potential access of a player to competition and, as such, violating one of his fundamental rights as a football player. At the time of the termination, despite the arguments of the Club that the deregistration was not definitive and that the Player could still be registered until September 2011, the Player had good reasons to believe that his registration would not occur. The Chamber was of the opinion that the objective circumstances at the time did provide the Player with just cause to terminate the contract. 19

20 CAS: Separating the Player from the team and imposing his return to Chisinau in January (when the whole team was in Turkey for pre-season), to undertake an individual training regime which was not properly monitored or supervised, together with the refusal to address the Player s notices and adding his name to the transfer list are, in combination, sufficient breaches of contract by the Club to justify the Player terminating the contract with just cause. 20

21 CAS: The Club could have put the Player on a program of individual training in Turkey, where the weather was more conducive to running outdoors and if the Player had improved quicker than two weeks, he would have been with the other players. The Panel did not believe the actual training program set seemed likely to achieve the reason given for setting it. 21

22 CAS: Many clubs seem to banish players to the reserves as a way to persuade them to leave the club. These types of clubs tend to disguise the economic reason for dropping the player behind sporting or medical grounds that can be legitimate. As with most rights, there is a line that can be crossed or not and any judging body has to look carefully at the facts before it to determine whether that line has been crossed. 22

23 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 the player with the reserve team? - Was there an express right in the contract for the club to drop the player to the reserve team? - Was the player training alone or with a team? 23

24 The Panel does not consider labelling a player as a professional in his contract would be sufficient grounds for interpreting that as meaning he could only play for the first team. A measure to prevent a player from training with the first team squad is potentially a much harsher measure than assigning a player to play matches with the second team while being allowed to train with the first team squad. The former seriously prejudices the player s future perspectives with the first team, since such measure is of a more definite nature than the latter. 24

25 Georgi Gradev GRADEV SPORTS EOOD M: E: 25