The employment bond in the area of sports.

• Author: Martinez, Jose Maria Sabat

1-Introduction

This paper seeks to highlight the solutions offered by Argentine courts in cases of disputes on whether athletes, referees or coaches are subject to the rules governing the employment contract.

It is clear that both amateurs and professionals perform a determined activity or discipline from the time they become sportsmen. That conduct can be qualified as an employment relationship. This will imply the need to differentiate this concept from that of the employment contract, and to define the assumptions that govern this matter and the characteristics inherent to the relationship of dependency.

Subsequently, the fundamental differences between amateur and professional sportsmen will be discussed and the issues debated will be described. To do this, a classification will be made of the different types of subordination under the employment contract.

2-Employment contract and relationship

To familiarise ourselves with the subject, we will begin with an elementary distinction between employment law, insofar as it refers to the employment contract, and the employment relationship.

The employment contract is defined in Art. 21 of the Employment Contract Act (hereinafter, LCT), which provides that "An employment contract shall exist, irrespective of its form or denomination, whenever a natural person undertakes to perform acts, execute works, or provide services to another and reporting thereto, for a determined or undetermined period of time, in exchange for the payment of remuneration ..."

Here, doctrine understands that the essential characteristic of the employment contract is the relationship of dependency. This is defined as "The legal situation in which the worker must agree that his will is replaced by that of the employer, insofar as performance of the relationship, and this attributes the power of management to the employer and the duty of obedience to the worker" (1)

Accordingly, the employment contract is characterised by subordination of the employee, which includes three aspects a) economic b) technical c) legal.

Economic subordination implies that remuneration represents the livelihood of the worker. Legal subordination is determined by the power of management and organisation. This indicates the duties to be performed, while technical reporting determines that it is the employer who will issue guidelines for the performance of duties. Legal and technical reporting must not be confused, according to Pozzo (2), quoting Borsi and Pergolesi, because the power of management is one thing, consisting in determining the time, the place and modus operandi, and determination of the content of each individual service provision is another.

The contract is different from the employment relationship, which is composed of the service provision itself. This is why the employment relationship is the object of an employment contract. The employment relationship is defined in Art. 22 LCT "An employment relationship will exist when a person perform acts, executes works or provides service to another, and dependent on the former, voluntarily and in exchange for a remuneration, irrespective of the act on which it is based".

In an employment relationship, the existence of an employment contract is presumed, as provided in Art. 23 LCT "the fact of service provision presumes the existence of an employment contract, unless the circumstances, relationships or causes on which it is based evidence otherwise. This presumption will also apply when non-labour related figures are used to characterise the employment contract and insofar as circumstances do not qualify the employer as a service provider"

We should also bear in mind the provisions of Art. 115 LCT , which provides that "Work shall not be presumed to be gratuitous"

How are these provisions articulated? This is clearly explained by Martinez Vivot (3), who says that whoever pretends that a relationship does not constitute an employment contract to avert its legal consequences "must duly prove and evidence this, and accredit the circumstances, relationships or causes on which it is based and that are not included in outside labour law"

At the same time, according to Lopez, Centeno and Fernandez Madrid (4), although gratuity is not presumed, there are circumstances that exclude onerousness, among which are amateur sports.

This criterion has been accepted by jurisprudence, whereby "relationships exist that coincide externally with those inherent to a subordinate contract but which, inasmuch as there are characteristics that exclude their onerousness (e.g.: family business, charity, amateur, training, etc.), are not typical of an employment contract" (5). That verdict transcribes the opinion of Vazquez Vialard (6), in the sense that "in practice, situations arise that are similar to regulated employment and which, however, based on the cause that led to the relationship whereby the parties are bound, attributes them a non-employment nature".

3--Different types of sportsmen

The amateur sportsman is one who performs his activity for the love of sport, i.e., in a totally disinterested manner, without expecting any remuneration in exchange. On the other hand, a professional sportsman is one who acts professionally for profit, seeking to obtain an economic gain for his performance, and that remuneration is part of his income.

Among professionals we can find those subject to an employment contract and, at the same time, those whose activity is governed by the rules of common law (e.g., under a service hiring contract).

In the latter case, the service provision will presume the existence of an employment contract, based on the assumption made in Art. 23 LCT, which can only be discredited if an allegation is made to the contrary.

In the case of footballers, plenary jurisprudence has said that "The professional football player, and the enterprise that uses his services, are bound under an employment contract" (7), and it cannot therefore be considered that there is any bond other than employment in these cases.

The case of football referees is different. In this regard, it has been discussed whether service hiring contracts entered into between the Argentine Football Association and referees, with the expectation that they would be acknowledged this possibility under a collective bargaining agreement, were valid, or whether, on the contrary, this was an employment fraud, addressed at avoiding the application of rules on the employment contract.

Some verdicts accepted the validity of this form of contracting. Thus, for example, it was said that "within the scope of the Argentine Football Association, two types of bond with referees coexist: some have a relationship of dependency and, therefore, enjoy all benefits that derive from the rules on employment law--job security, unpaid leave for non-culpable illness, work accident cover, annual paid holidays, complementary annual salary, employer's contributions to social security and welfare institutions--and others have a bond governed by the rules of common law, who do not enjoy those benefits, with the exception of a higher remuneration for each match refereed, as can be deduced from clauses six and twelve of the contract provided hereto as a separate exhibit (this chamber in "Ronzitti Cesareo vs Asociacion de Futbol Argentino on Dismissal" SD 84.478 of 30/12/02 and "Cavagnaro Miguel Angel vs Asociacion de Futbol Argentino on Dismissal" SD 85.626 of 26/2/04)." (8)

A contrary position, with which the undersigned agrees, was accepted in the case of "Moscoso Rafael Eduardo vs Asociacion del Futbol Argentino on Dismissal" (9). The court said that irrespective of the qualification given to the contract, what matters is the...