Academic journal article The International Sports Law Journal

The Employment Bond in the Area of Sports

Academic journal article The International Sports Law Journal

The Employment Bond in the Area of Sports

Article excerpt

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? …

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