On 15 November 2005 SENSE, in cooperation with the ASSER International Sports Law Centre and Ernst & Young Bulgaria, organized a seminar on "Player's Contracts in Professional Football--EU Law and the Challenge for Bulgaria" in Sofia. Speakers were Dr Robert Siekmann, the Centre's Director, Roberto Branco Martins, lecturer on Labour and Sport at the Law Faculty of the University of Amsterdam and research fellow of the Centre, Milen Rusev, senior partner at the law firm of PI Partners Dinova & Rusev, Tzvetelin Simov, managing director of Bulwark Ltd., and Boris Kolev, associate in the law firm of Djingov, Gouginski, Kyutchukov, and Velichkov. The seminar's chairman was Julian Mihov, international tax manager at Ernst & Young Bulgaria. (1)
The practical purpose of the seminar was to respond to the then popular idea in Bulgarian football to shift players' contracts from the regime of employment law to that of private law. Bulgarian football officials and the Association of Bulgarian Football Players hereby sought to solve the difficulties of football clubs who were unable to pay their part of the social security contributions due for their players on time, which meant they risked losing their licence and the right to participate in the championship.
At the end of the 2004-2005 season the Bulgarian champion CSKA Sofia, for example, risked losing its license for the next championship due to unpaid debts to the National Social Security Institute (hereinafter: NSSI). CSKA managed to solve its problems and retain its license, not however as a result of paying its debt, but due to an agreement between CSKA and the NSSI allowing CSKA to pay off its debt in instalments. The debt was therefore not yet considered due at the time of licensing for the next season. Another football club from the Bulgarian A division, Pirin Blagoevgrad, attempted to apply the same strategy. However, it turned out that the repayment agreement submitted to the Licensing Commission was a forgery and the club was expelled from professional football.
The replacement of employment law contracts with private law contracts and equating football with a liberal profession and players with self-employed persons were considered suitable measures for addressing the problem concerning the payment of social security contributions. In order to find a legal basis for the adoption of these measures Bulgarian football officials relied on the provision in the Bulgarian Social Security Code authorizing the NSSI to propose to the Council of Ministers a procedure for dealing with the social security aspect of self-employment. They attempted to convince the Director of the NSSI to propose that football players be included in the list of persons pursuing a liberal profession by means of an amendment to the Ordinance of the Council of Ministers on the Social Security of Self-Employed Persons (hereinafter: the Ordinance).
More specifically, the seminar on 15 November was called upon to provide, inter alia, answers to the following questions:
1. May football be considered a liberal profession by nature, notwithstanding the legal possibilities for its treatment as such?
2. Are private law contracts and the status of self-employed person for Bulgarian football players compatible with Bulgarian law, FIFA Regulations and the European acquis in the field of sports with a view to the Bulgaria's accession to the EU as scheduled for the beginning of 2007?
A distinguishing feature of a liberal profession is that persons who practise such a profession do so at their own risk and expense. By contrast, employment is defined in EU case law and Bulgarian legal doctrine as a relationship, whereby a person for a certain period of time performs services for and under the direction of another person, in return for which he/she receives remuneration. Persons pursuing liberal professions enter into private law contracts and owe as consideration certain results agreed between the parties, unlike employees, whose main obligation is to provide labour to their employers. …