Rule of Law Daily: Professional players are a highly scarce resource Club bankruptcy liquidation needs to repay salaries first

Live bar On February 22, the "Rule of Law Daily" published an article about the contract disputes of athletes, which also paid attention to the current situation of domestic clubs in wage arrears disputes.

The following is an excerpt from the article:

Unlike general contracts, commercial agreements are usually accompanied by commercial agreements

In the past two years, due to the epidemic and other major environmental impacts, clubs owe wages and therefore have breaches of contract disputes with athletes are often reported in the news, in fact, the work contracts signed by athletes and clubs are indeed very different from the labor contracts of ordinary people.

For example, on the issue of working hours and rest and leave, the labor law stipulates that workers should work no more than 8 hours a day, no more than 44 hours per week, and one day a week requires rest. Professional leagues, on the other hand, consider the rules of athletes' competitive status and commercial arrangements, and generally arrange them all before the start of the season, and most leagues are carried out on holidays, weekends or holidays, and at night. In addition to competitions, athletes train almost every day.

For another example, on the issue of changing the employer, the Labor Law stipulates that the employee shall notify the employer in writing 30 days in advance to terminate the activity, and with a few exceptions, the employee shall not be required to pay the employer liquidated damages. In professional leagues, professional players are highly scarce human resources, and leaving the club will affect the operation of the club and the league, so athletes who unilaterally terminate the contract without a legitimate reason will have to bear liquidated damages.

In addition, on the issue of years, the Labor Law stipulates that after the employer signs two fixed-term employment contracts, the employee can sign a contract with no fixed term. However, in professional leagues, the career of professional players is very short, that is, more than ten years, the peak period is a few years, signing a long-term contract or an indefinite contract will affect the maximization of value, so the longest contract generally does not exceed 5 years, and the indefinite labor contract does not exist.

Another special feature of the work contract signed by the athlete and the club is that there will be a commercial agreement between the athlete and the club, and the athlete and the club may also sign a separate commercial contract. There are four main aspects: intellectual property agreements, commercial development agreements, ethical clauses or restrictive clauses, and agreements on the handling of breach of contract disputes such as liquidated damages and the right to rescind the contract.

The incidence of improper termination of contracts is high, and dispute resolution channels are not smooth

If there is a contract, there will naturally be a contract dispute. Xue Tong, director of the Sports Arbitration Research Center of the Arbitration Research Institute of China University of Political Science and Law, observed that disputes over improper termination of contracts have shown a high incidence in recent years.

One typical example is that clubs believe that athletes are not meeting expectations and want to take a pay cut, which has caused controversy. In this regard, Xue Tong believes that as long as the athletes work hard to play and train, even if they do not meet the expectations of the club, it is not a breach of contract, "because whether they can score goals, score several goals per season, these are not guaranteed, it belongs to the category of business risks of the club itself, it cannot be transferred to the athletes, so the deduction of wages is the club's breach of contract liability."

Salary cuts are not OK, expulsions are not OK, so can athletes "wear small shoes"? For example, clubs should register players but not register, let players go to the reserve team, and force players to leave on their own initiative by circumventing relevant agreements. "It's not okay either." Xue Tong said that the Court of Arbitration for International Sports has made it clear that athletes participating in training and competitions are not only obligations, but also rights.

Regarding the breach of contract caused by the impact of the new crown pneumonia epidemic, Xue Tong said that institutions such as the Football Federation have positioned the epidemic as force majeure, and force majeure can be continued to perform the contract by adjusting the contract. "The reason is simple, athletes and clubs are a community of interests, and only by cooperating with both sides can they win-win and professional leagues can continue." In this way, it is easy for both parties to reach a compromise on temporary wage deductions to promote the sustainability of labor relations and career development. ”

If poor management results in a club's commitment to athletes not being fulfilled, contractual obligations are not waived. "After the club goes bankrupt and liquidates, it also needs to pay the player's salary first." Xue Tong added.

How do you resolve a dispute after it really occurs? Pei Yang mentioned that Article 32 of the Sports Law, which came into effect in 1995, stipulates that arbitration institutions shall be responsible for arbitration and mediation of disputes arising from competitive sports, but at present, the mainland sports arbitration institutions have not yet been established, and are currently mainly resolved through the following methods:

Internal settlement of professional sports leagues or sports industry associations. Both the Chinese Football Association and the Chinese Basketball Association have internal arbitration committees to specifically accept disputes over players' labor contracts, and the rulings made by them are final. The vast majority of occupational labor contracts are resolved in this way. Pei Yang believes that the problem with this solution is that the above-mentioned institutions are not sports arbitration institutions stipulated in Article 32 of the Sports Law, nor are they independent arbitration institutions registered with the judicial administrative departments in accordance with other laws, "We still do not have a completely independent third-party dispute resolution mechanism in terms of establishment and operation."

Labor Arbitration. In theory, it is possible to go to labor arbitration institutions for arbitration, but in fact, some labor arbitration institutions will accept it, and some will not accept it.

lawsuit. There are also some courts that accept and some do not accept, and even if the court accepts it, the lengthy litigation process is not suitable for athletes with very short careers to defend the relevant rights and interests.

"Arguably, the way professional athletes resolve disputes is currently awkward. It is necessary to bring athletes' professional contract disputes into the scope of arbitration in the sports law or the arbitration law and to resolve them. Pei Yang said.

Endorsement contracts have limitations and their rights are limited

Unlike general labor relations, for other industries, the government tends to set the minimum wage, but in the field of sports, it is often the case that the maximum wage is capped.

Pei Yang, an associate professor at the Law School of Beijing Normal University, believes that it is normal for athletes to sign an endorsement agreement for image rights, which is also the embodiment of maximizing the value of athletes. In practice, there are operations that use endorsement contracts to circumvent the salary limit system, for example, the salary agreed upon in the contract between athletes and clubs is not high, but the salary stipulated in the so-called independent image rights contract is very high, and it is easy to form a "yin and yang contract".

"It is recommended that when the majority of athletes receive endorsements, they should not only focus on the return on revenue, but also carefully review and pay more attention to the quality of the product itself." Lawyer Liu Ying said.