Professional Interpretation

Abstract: As the peak year of sports events, various sports competitions have become the hot topics at present. But what is the relationship between athletes and clubs? Are labour laws applicable? Such issues have been controversial in the industry. Based on the characteristics between professional athletes and clubs and the practice of resolving disputes in China, Sports Business Team of Beijing Docvit Law Firm will discuss the legal relationship between professional athletes and clubs.

I. Summary

1. The relationship between professional athletes and workers

Internationally, athletes are divided into two types according to whether they are commercialized or not: amateurs and professionals. Under the current system of our country, athletes are also divided into two types according to the different management methods: one is the athletes who are trained, managed and paid by the country uniformly; the other is the professional athletes who are managed by commercial clubs and make the sport as a profession. The characteristics of professional athletes are as follows:

(1)Take sports as a profession;

(2)Get paid by attending sports competition;

(3)Register at the management center of the relevant project;

(4)Sign a contract with a professional club.

The worker in the Labour Law of the People's Republic of China refers to the natural person who has reached a certain age and has the ability to work and act. However, in special fields, natural persons engaged in sports, arts and other special industries may not be subject to the above age restrictions. Professional athletes are engaged in the sports industry, so they may not be restricted by age. Therefore, professional athletes meet the elements of workers.

2. The legal attributes of sports clubs

In western countries, sports clubs are the products of market economy and realize their commercial and cultural values through the market. Professional sports follow the basic laws of the market economy, with professional clubs and leagues as the operating entities, and the professional athletes' competitive ability and competition as the basic commodities to obtain the greatest economic benefits.

China's professional sports started relatively late. Since 1999, Chinese football clubs have been reformed one after another. At present, China's professional sports clubs must be independent legal entities and implement a corporate system.

Sports clubs aim to obtain maximum economic benefits. The usual income channels include tickets, advertisements, television broadcasts, commercial competitions and sales of peripheral products, etc. Although many clubs in our country have not yet achieved true independence, this is a deficiency in their management system and cannot change the fact that they are independent legal persons under the market economy system.

According to the Labour Law of the People's Republic of China and the Labour Contract Law of the People’s Republic of China, enterprises in our country, individual economic organizations, private non-enterprise units are all employers. It can be seen from this that the sports clubs in our country meet the requirements of the employers in the labor law.

Ⅱ. A legal analysis on whether the labor law is applicable to labor disputes of the professional athletes

1. The relationship between professional athletes and clubs is a labour relationship

According to the Notice on Issues relating to Confirmation of Labour Relationship, there are three standards for the establishment of labor relations:

(1) the employer and the worker possess the entity qualification stipulated by the laws and regulations;

(2) the employer has, in accordance with the law, formulated such labour regulations and systems which apply to the worker; the worker is subject to labour management by the employer and engages in remunerated labour work arranged by the employer; and

(3) the labour provided by the worker is a component of the employer's business.

At present, professional clubs in our country are all independent corporations, which can be regarded as the main body of labor relations. The training, competitions and public activities of the athletes are arranged by clubs, and clubs pay the athletes wages, bonuses and social insurance in accordance with contract. Athletes participate in training and competitions, which constitute the club's main business. To sum up, the relationship between professional athletes and clubs fully conforms to the standards of labor relations, and should be adjusted by labor law.

2. Labour law does not exclude the application of professional athletes

There are some labor relations that meet the above criteria, but because of the particularity of certain industries or occupations, they are excluded from the application of labor law. However, labor law does not exclude the application of athletes. According to the second paragraph of Article 15 of the Labour Law of the People's Republic of China, “Where it is especially necessary in such fields as culture and the arts, sports and special arts and crafts, persons under sixteen (16) years of age may be recruited, with the procedures for examination and approval being carried out pursuant to relevant State regulations and such employees being ensured the right to receive a compulsory education.” Also, Article 13 of Provisions on Prohibition of Child Labour provides, “The measures for recruitment of professional artists and sportsmen under the age of 16 by the artistic or sports units shall be formulated by the labour and social security administrative department of the State Council jointly with the culture administrative department and the physical culture and sports administrative department of the State Council.” It can be seen that athletes are protected by labour law.

3. The articles of associations have no right to exclude the application of labour law

Many professional sports in our country have their own professional associations and have statutes. Some of these articles of associations expressly exclude the jurisdiction of labor arbitration institutions or people's courts. However, the articles of associations are only internal regulations of the industry, so the provisions are not legally enforceable. In addition, Article 32 of the Law of the PRC on Physical Culture and Sports clearly states, “Disputes arising in competitive sports activities shall be mediated and arbitrated by sports arbitration institutions.” Disputes between athletes and clubs are clearly not disputes in competitive sports activities, so they should not be subject to the jurisdiction of sports arbitration institutions.

In fact, in the judicial practice of recent years, the labor arbitration institutions and the people's courts also think that the contracts between professional athletes and clubs belong to the labor contracts in nature. The labor law shall apply to disputes arising from professional athletes and clubs.

Ⅲ. Conclusion

The professional sports industry, the performing arts industry and the aviation industry belong to special trades. The provisions of labor contract law cannot be rigidly applied. The labor disputes of employees in these industries should not only apply labor law, but also take due account of industry rules.