How to view the position of a professional athlete in the performance of his profession, i.e. sports activities, from the point of view of legal theory, i.e. practice? This question has already been asked by the lay or professional public several times, while the topics related to the above repeatedly resonate in the social space, unfortunately so far without a clearly declared summary. Efforts to clearly define and standardize the legal relations arising between individual sports entities have so far in the vast majority of cases ended in the phase of formulating theoretical starting points without a real possibility of implementation into the sphere of practical use. The aim of this article is to point out the existence of the so-called triad of status as a professional athlete, outlined by court jurisprudence, with an outline of possible ways of solving de lege ferenda.
According to the basic criteria, a large group of natural persons operating one of the forms of sports activity can be divided into a subset amateurs, semi-professionals and professionals. There is no legal definition of the term athlete in the legal system of the Czech Republic, so it is necessary to start from the definitions recognized in professional circles or within national or transnational sports organizations. So, for example, he is a professional athlete "a person for whom the paid performance of sports activities, usually according to the coach's instructions, is the main object of his activity (and usually also his livelihood) and interest, i.e. for him, the performance of sports activities is not only an interest activity, while following the nature and type of sports activities, professional athletes, if they are organized, regularly participate in official sports events (matches, races, competitions, etc.) for a not insignificant fee, during which is subject to competition and sports rules, in this context it is registered with the relevant sports association and, due to the nature of the sports industry, it is generally unable, as a result of the agreement with the sports club and the competition rules, to provide its (sports) services to other clubs[1]". FIFA then considers a professional player anyone who has a written contract with a club and whose income from sports activity is higher than the purposefully spent expenses associated with it[2]. All others are then considered amateur players.
It can be stated that a professional athlete can appear in legal relations in a position employee, self-employed person or entrepreneur.
Athlete as an employee
According to § 6 Act No. 262/2006 Coll., Labor Code, as amended, can be considered employees a natural person who has committed to performing dependent work in the basic labor law relationship. Dependent work is then work that is performed in the relationship between the employer's superior and the employee's subordinate, on behalf of the employer, according to the employer's instructions, and the employee performs it personally for the employer. This must be performed for a wage, salary or remuneration for work, at the expense and responsibility of the employer, during working hours at the employer's workplace, or at another agreed place[3].
After comparing the above presumed signs of dependent labor with the realities of performing professional sports activities, for example, in the case of a professional soccer player, it can be declared that the performance of his profession corresponds to the above, i.e. he should be considered an employee of his club. However, this is not the case in the territory of the Czech Republic.
Athlete as self-employed, self-employed
The vast majority of professional athletes working in team sports are in practice self-employed, i.e. self-employed, and contracts are concluded between them and the relevant sports clubs in order to negotiate the conditions associated with the performance of sports activities business contracts in the form of innominate contracts in the sense of § 1746 paragraph 2 Act No. 89/2012 Coll., Civil Code, as amended.
The existence of the so-called double-track system was supported in its rich jurisprudence by the Supreme Administrative Court, which dealt with the issue from the point of view of tax law, specifically in the payment of personal income tax, when it ruled[4], that "According to the Labor Code, this relationship would have to be governed if its nature would clearly correspond to the legal definition of a dependent activity and possibly not even allow the performance of this activity by a self-employed person. However, if the nature of the activity made it possible to choose several alternative contractual arrangements at the level of private law, then it was up to the contracting parties to make this choice, taking into account the advantages and disadvantages of one or another type of contract, including taking into account tax effects. The nature of the player's activity for a sports club definitely does not exclude its contractual anchoring in the form of self-employment. (...) that the activity of an athlete is very close to the conceptual definition of an addictive activity, but it does not reach its intensity."
A large group of professional athletes then, above all in relation to the administrative authorities, acted and are acting, in the sense of § 7 paragraph 1 letter b) Act No. 586/1992 Coll., on income taxes, as amended, in the position of self-employed person. Act No. 455/1991 Coll., on commercial enterprise (Trade Act), as amended, then defines a trade as a continuous activity carried out independently, in one's own name, on one's own responsibility, for the purpose of achieving profit and under the conditions set by this Act[5]. The relevance of such a procedure was then confirmed again by the Supreme Administrative Court when it issued a norm[6], that "is of the opinion that if, in view of the lack of clarity of the legal regulation, it is in principle possible to carry out the independent activity of a professional athlete according to § 7 of the Income Tax Act either as a trade business or as an independent profession, under the given legal situation the tax subject cannot be forced to chose the method that is more suitable from the point of view of the fiscal interests of the state. If the complainant performed the activities of a professional football player as a trade on the basis of the relevant trade authorization, the income from this activity represents the income from the trade according to § 7 paragraph 1 letter b) of the Income Tax Act." The Supreme Administrative Court thus completed the process of extensive interpretation of the relevant legal regulations and thus created space for the existence of the so-called three-track system, which was not foreseen by the legal order, when a specific a professional athlete can choose, at his discretion, in what capacity he will appear in the relevant legal relations.
záver
Even in view of the above, it can be stated that the issue of the legal status of professional athletes in the performance of sports activities is a topic still largely unanchored. The ambiguity of the related legal regulations creates doubts about their certainty in newly emerging or already existing legal relationships, completely contrary to the principle of legal certainty and predictability of court decisions. A possible solution and clarification of the athlete's legal status may be the creation of a special law on sports, inspired by foreign legislation, within the framework of which there would be a clear definition of hitherto undefined legal concepts and the establishment of a boundary between the amateur and professional way of performing sports activities or the declaration of the status of individual professional athletes in specific types of sports industries so that in the future the performance of such sports activities by professionals does not bear the hallmarks of the schwarz system, and therefore, the potential application of various sanctioning measures by international sports organizations could not occur. Due to the current legislative efforts aimed at the creation of a comprehensive sports codification, better times may already be starting to shine.
Source: epravo.cz
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JUDr. Miroslav Různar, attorney
[1] Compare with PICHRT, Jan, ed. Sports and (not only) labor law. Prague: Wolters Kluwer, 2014. ISBN 978-80-7478-655-6. p. 87.
[2] See Commentary on the Regulations on the Status and Transfer of Players (2023 edition) [online].
[feeling. 2024-04-10]. Available from: https://digitalhub.fifa.com/m/40da0f707efdd011/original/FIFA-Commentary-on-the-FIFA-Regulations-for-the-Status-and-Transfer-of-Players-2023-edition.pdf .
[3] Compare with Section 2 of Act No. 262/2006 Coll., Labor Code, as amended.
[4] See the judgment of the Supreme Administrative Court of 29 November 11, No. 2011 Afs 2/16-2011.
[5] See § 2 of Act No. 455/1991 Coll., on trade, as amended.
[6] See the judgment of the Supreme Administrative Court of 13 July 7, No. 2017 Afs 6/278-2016
