Labour Law, the Provision of Services, Transfer Rights and Social Dialogue in Professional Football in Europe *

By Siekmann, Robert | The International Sports Law Journal, January-April 2006 | Go to article overview

Labour Law, the Provision of Services, Transfer Rights and Social Dialogue in Professional Football in Europe *


Siekmann, Robert, The International Sports Law Journal


From the study "Promoting the Social Dialogue in European Professional Football (Candidate EU Member States)" which was carried out by the T.M.C. Asser Institute on behalf of the European Commission in 2004 (see ISLJ 2004/3 pp. 31-33) it emerged that in many new or candidate Member States contracts for the performance of certain services are used between clubs and their players in addition to or even instead of regular employment contracts. One of these candidate Member States was Bulgaria whose entry into the European Union is anticipated for 2007. During a seminar in November 2005 that was organised in Sofia by SENSE in cooperation with the Asser Institute and on behalf of Ernst & Young Bulgaria and which dealt with "Players' Contracts in Professional Football: EU Law and the Challenge for Bulgaria" it became clear that a complete shift had occurred from employment contracts back to performance of services contracts under civil law. This is a remarkable development, as by this, Bulgaria, only a little over a year before it is set to accede to the EU, has drifted away from the "EU sports acquis" towards which it should in fact be heading! The main reason that countries prefer to use service contracts in professional football is the fact that in this situation clubs do not need to contribute to the players' pensions or pay social security contributions. From a financial point of view these contracts are therefore net contracts and the player simply has to take care of insurance and building up a pension himself. The player is regarded as an artist, because football is a special branch of industry which simply cannot be compared with ordinary business and industry. The illusion persists that if a contract is not called an employment contract, it cannot be an employment contract. The same applies for the contract's contents: if the contract says that the player performs services, then that is what the player does, according to this line of reasoning. But this is simply pulling the wool over one's own eyes at the detriment of the players. It is setting the cart before the horse.

It is not the format, but the facts which are decisive. A player may give a brilliant acting performance like Dennis Bergkamp or follow his instincts as if he were a ballet dancer, the coach--in Bergkamp's case: Arsene Wenger--decides whether and where (what position) he plays. This is clearly a relationship of authority, which is a characteristic which the EC Treaty links with the free movement of workers, whereas the freedom to perform services is something completely different. Services are not performed on the basis of instructions of the client or under the authority of the client. Furthermore, there can be multiple clients at any one time or a succession of clients. This would imply that a player during one single season would first play for this club and then for the other and then for the next, whereas this is never the case with such frequency. There are in fact too few transfer periods to make this possible. Or rather: transfer periods inherently conflict with the notion of service contracts; if they were service contracts, there would not be any transfer periods at all! In any case, most players are not Dennis Bergkamp, but hard-working folk who follow the coach's instructions to the letter and most ballet dancers are not self-employed, but are employees of a ballet company. Typical service providers are tennis pros who hire and fire their own trainers, organise their own team of supporting staff and are contracted per tournament by the tournaments' organisers. Service providers can be found in individual sports like tennis, not in team sports like football!

There is another aspect to this case. In Bulgaria a system of competition rights, also known as federation rights, operates. This involves the registration, the admission of players, more particularly: the player's pass, which is the embodiment of the right of a player to compete in a competition. …

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