Italian regulation of sports and its law n. 91 of 1981 - a solution for sports-related problems in the Netherlands?

• Author: Foppen, Thomas Geukes

1 - Introduction

Unlike several other European countries, the Dutch legal system does not have a specific Sports Act. The development of a body of sports-related law therefore mainly depends on civil judgments and decisions of the many judicial sports bodies. During such proceedings the question often arises to what extent the 'normal' law that in such cases is considered to be applicable, is able to resolve these sports matters (1).

In December 2001 two members of the Dutch Parliament, Jan Rijpstra and Bert Middel, presented a motion in which they posed the question whether a national Sports Act would be desirable (2). As a consequence of this motion the Ministry of Health, Welfare and Sport requested Professor Heiko van Staveren (3) to investigate the desirability of such an Act. Van Staveren concluded that there was no need for a Dutch Sports Act (4). His main arguments were that a Sports Act would isolate the sport sector from other public sectors and that the special rules of law that refer to sport are already sufficiently effective.

The Italian sports sector has been regulated by a specific Sports Act since 1981. This law n. 91 of 1981 is intended to provide the legal authorization for the regulation of the relationship between the participants in the sports sector and the clubs and federations to which these participants are affiliated. The law also pays attention to the practice of sport in the context of an employment relationship.

From a legal point of view many differences exist between the Dutch and Italian regulation of sports with Italy having several decades more experience than the Netherlands with respect to sports law. In this article I will describe to what extent the Netherlands could draw lessons from the Italian regulation of sports.

The second chapter of this article starts out by giving a detailed overview of the Italian sports legislation. Attention will be paid to the provisions of the Italian Constitution and to what extent they are applicable to the sports sector. Subsequently, the legislative history and the content of the various provisions of law n. 91 of 1981 will be discussed in detail.

The third chapter will discuss the role of the Italian Olympic Committee (CONI). The CONI occupies a prominent position within the Italian sports sector and is frequently mentioned in law n. 91 of 1981.

In his abovementioned research, Professor Van Staveren observes that a Dutch Sports Act would only be useful when "the current laws provide insufficient possibilities to resolve the perceived problems" (5). This statement brings us to chapters 4 and 5 of this article, in which three current Dutch sports situations will be discussed. Which solutions would the Italian sports legislation provide to these problems?

2. Sports legislation in Italy

   2.1. The Italian Constitution

   When adopting the new Constitution in 1947 (6), the Italian legislator did not yet find it necessary to include any provisions referring to sports. However, the remarkable growth of the sports sector in the following decades and the important role that sport played in Italy moved the Italian legislator to insert a provision on sport in the Constitution in 2001. In a constitutional amendment (7) which reallocated the legislative competence of the Italian state and the regions the ordinamento sportivo was added to Article 117. This reallocation of competences took place in accordance with the principle of subsidiarity which intends to bring decision making and the execution of public tasks in closer proximity to the citizen. Article 117 stipulates that the regulation of sporting activities must be carried out by both the Italian state and the regional authorities (8). Legislative powers regarding sports issues now mainly reside with the many regional authorities. However, rules that are drafted by the national government will have priority over regional rules at all times.

   Article 117 is the only provision of the Italian Constitution specifically mentioning the term 'sport'. It nevertheless goes without saying that certain other provisions of the Constitution may also apply to the sports sector. For example, the freedom of association laid down in Article 39 provides employees with the right to join a union that looks after their collective interests. As many sportsmen are considered to be employees, this Article also applies to sportsmen.

   According to Article 40 sportsmen have the right to strike. In the history of the Italian sports sector however sportsmen have only rarely made use of this freedom. Announcing a strike was often already sufficient in itself to bring about the aimed for response obliterating the need to go on an actual strike. It further needs to be pointed out that the right to strike has never found full applicability in the sports sector given that, for example, sports federations have in many cases determined that if a team refuses to play it will be handed a forfeit loss (9).

   In a more general sense, Articles 2, 3, 4 and 32 of the Constitution also apply to the sports sector. Article 2 guarantees inviolable human rights to individuals and their freedom to develop themselves individually or as a collective (10). The general prohibition of discrimination as laid down in Article 3 also applies to sports. Nearly all of the sports federations and sports organizations have made the elimination of and the fight against discrimination one of their primary goals. Article 4 of the Constitution includes the freedom of labour, which in the Italian sports sector mainly applies to professional sportsmen due to the fact that only professionals have an employment contract with a sports club as opposed to amateur sportsmen who generally practice sport as a means of recreation. Article 32 applies to the sports sector because of the important role of sports for health purposes. The health of people as individuals or as a collective is considered a fundamental right according to this Article.

   2.2. Law n. 91 of 1981

   2.2.1 - History

   Sport in Italy was initially regulated by law n. 426 of 16 February 1942 (11) which over the years was amended several times (12). This law gave the CONI (Comitato Olimpico Nazionale Italiano) legal personality and placed it under the supervision of the Ministry of Tourism and Entertainment (13).

   In the course of the evolvement of Italian sports effective legal measures were being sought that would create a situation whereby a balance would be guaranteed between government regulation on the one hand and sports regulation on the other hand. Until the 1980s, the relationship between a (professional) sportsman and a sports club used to be regulated by the analogous application of the many provisions of the Codice Civile. This was by many considered to be "an indifference on behalf of the government towards the requirement of having regulations regarding sport" (14).

   These relationships were further regulated by the statutes and rules of the various sports federations which themselves had to be recognized by the CONI. Sportsmen who were registered with a sports club were automatically linked to a sports federation and thereby to its rules (15). In this way the sportsman acquired the status of professional.

   As a consequence of registration a commitment (for an indefinite period of time) was thus created between the sportsman and the sports club: the so-called vincolo sportivo (16). Because of this commitment the sports club could freely and exclusively dispose of the sporting performance of the sportsman and could therefore also transfer the sportsman to another club without his prior approval. This situation deprived the sportsman of his freedom to make certain decisions that he considered necessary for the optimal development of his sporting career.

   The growing socio-economic importance of sport in the 1970s evoked the interest of the legislator in this sector which until that moment had remained mainly under the competence of the sports federations (17).

   In 1978 the public prosecutor approached the subdistrict court of Milan for a judgment concerning the fact that the presidents of many football clubs in his opinion had acted contrary to labour laws during the summer transfer period (18). The subdistrict court consequently decided that all negotiations and contract talks regarding the summer transfers had to cease, as a result of which the CONI and the Federazione Italiana Giuoco Calcio (FIGC) were compelled to put pressure on the Italian government to finally regulate the relationship between sportsmen and the various national sports federations. At that moment the Italian Supreme Court had already decided that - due to amongst other things the aforementioned vincolo sportivo - the labour laws could not be considered applicable to the purchase and sale of football players. The Italian government responded by promulgating a law that declared this decision not applicable to the transfer of football players. The government next appointed a commission that had the task of drafting a law that would define sportsmen as self-employed persons and that would guarantee "discipline and security, which are necessary for the regular practice of every sporting competitive activity" (19). After much intense political debate, this draft finally led to the entry into force of a law that derogates from the 'normal' labour law rules (20): the legge n. 91 del 1981 (21).

   2.2.2 - Structure

   Law n. 91 entered into force on 23 March 1981. The key elements of this law are the qualification of the sportsman's working activity as subordinato (subordinate) and the abolishment of the vincolo sportivo. Although this law originated in a football setting, it was declared applicable to sports in general. The purpose of this law can be considered as the "complete regulation of the phenomenon of 'sport'" (22).

   Law n. 91 of 1981 consists of provisions regarding the relationship between clubs and professional sportsmen and...