When the Sports Law meets the Fundamental Rights Case L a specificity of sport is often invoked in international fora (WTO) and European justify derogations. These are reduced to a trickle when they try to pass the test of judicial confrontation. We remember especially Bosman and Malaya that changed, not surprisingly, the sports economy.
The law Sport is no exception application of fundamental rights, this is not new. The judicial news offers us two striking examples, that amaze the sports movement even though they are highly predictable.
1 / disciplinary vicariously is unconstitutional
It resembles, in criminal law, a truism Both the principle of exclusion of liability is purely vicarious applied. Criminal responsibility vicariously is only very rarely used, only when required by law: direct responsibility of the entrepreneur hygiene and safety of workers, direct responsibility of managing editor in for press offenses and indirect responsibility of the holder of the registration card on payment of fines related to traffic.
In other cases, one is criminally responsible for the perpetrator targeted and banned by law.
the purposes of European law, an administrative penalty if it involves a monetary consequence or loss of a right is treated as a criminal penalty taken by a judicial authority. Thus a law, such as a regulation of sports federation, when it plans a penalty by a Disciplinary Committee must apply the general principles found in criminal proceedings. A disciplinary commission will not make sport of punishment without the person concerned has been heard, has had time to prepare his defense and be able to appeal the decision.
As regards liability for sports events, the Court has recognized consistently that the organizer of a sporting event is held to a duty to ensure safety of persons attending a show, especially when it pays. The club must and, with his staff ensure peaceful conduct of the matches and check with a company for all the risks it poses to others or to his "clients", the audience. The regulations of the Sports Federations usually go much further in the constraints imposed on clubs to ensure the smooth running of meetings.
Thus Article 129.1 of the General Regulation of the FFF " Clubs that receive are responsible for policing the land and are responsible for disorders that might arise before, during or after the match because of the attitude of the public, players and officials or lack of organization.
However, clubs visitors or playing on neutral ground are liable when the disorders are caused by their players, officials or supporters . "
The final Cup de France 2004 between PSG in Chateauroux, was beset by serious incidents involving fans in Paris. These have engaged in many degradations and throwing smoke bombs PSG was sentenced initially to 20,000 € fine and one game behind closed doors suspended (sentence revoked after other incidents) on the basis of paragraph 2 of section 129.1 of the General Regulation of the FFF , stating that " visiting clubs or playing on neutral ground are liable when the disorders are caused by their players, officials or supporters .
PSG, referred to the Paris Administrative Court to challenge the merits of that decision.
On 16 March 2007 the Paris Administrative Court ruled unconstitutional section 129.1 of the General Regulation of the FFF visitor makes a club responsible for his supporters. At the root of this decision: the lack of knowledge "principle of personality sentences. The administrative judge keeps in effect, that " By stating that visiting clubs or playing on neutral ground are liable when the disorders are caused by their supporters, Article 129.1. (...), Even inspired ( ...) with the objective of ensuring a satisfactory conduct of meetings, infringes the principle of personality of sentences and is therefore unconstitutional . "
PSG has consistently pleased with the decision and National League Football represented by Frederic Thiriez said that the ruling was "a very bad signal sent to all those working to combat against violence in stadiums, "adding that" this decision was made contrary to the position of the Olympic committee and contrary to the position of commissioner of the government. " On the merits, the president of the LFP said that such a ruling, if upheld on appeal, "would have many adverse effects. Thus, the visiting club would most interest to guide its supporters because it would be more accountable for their conduct. The host club would be forced to refuse the club's supporters to avoid visitor to liability. In short, everyone would flee its responsibilities to rely on the police alone. "
The LFP has expressed his intention to appeal the Administrative Court of Appeal, hoping to see reform of the ruling March 16, 2007.
Without prejudice to the position of the Administrative Court of Appeal , this first trial recalls once more the French sports movement, he can not escape the fundamental principles recognized by our legal system. In this case the principles of personality and personal responsibility sentences are from sections 121-21 of the Penal Code by which " no one is criminally liable for his own conduct " and was elevated to constitutional by the Constitutional Council by its Decision No. 70 DC 19 and January 20, 1981.
2 / The requirement for a student athlete to sign an employment contract with his club trainer is contrary to the principle of free exercise of a profession.
Small palace revolution: in all major professional sports clubs trainers seek to protect themselves against the appetites of the big clubs. Federations and leagues have adopted regulations forcing the student athlete who trained in a club to sign his first contract with his club trainer for a period minimum. Depending on the sport this time is fixed by the Statute of the Intern from three to five years. He is trainer for the Club to collect the fruits of its efforts on training as an incentive to training, rather than shop at a competitor. If the young athlete refuses the contract, it generally can not exercise for a period of two to three years. Suffice to say that this perspective is very dissuasive. But we remember a few cons-examples: the case of Laurent Sciarra, playmaker Team France Basketball medalist in Sydney agent who refused to sign his first professional contract with his club trainer Hyeres-Toulon ProB then to engage with PSG, Club ProA (PBR now and then Paris-Levallois from 2007/2008). He had been rejected prosecutors' offices for a full season.
Forcing a young athlete to work for a particular employer may seem from the perspective of the latter, like a medieval layout, especially that given the constraints, the faculty bargaining financial arrangements of the young athlete is very limited. Thus, the footballer, basketball player (...) the end of training will be offered a contract by his club trainer minimum collective agreement, while its value on the market, especially internationally, can be a hundred times or much more if we take into account NBA , the Champions League and the Euroleague . Note that in the NBA, players entering the League did not choose their employer and the choice is determined by the position in the draft itself determined by the classification of the franchise. NBA franchises can trade round picks, as an exchange. Running NBA franchise contracts can trade players according to the value of contracts without the latter have their say. This is the price of an economic model that has proven ...
response to requests from competitors Clubs and headhunters, the professional sports with high potential approaching the end of his training there really a choice and can refuse to sign the contract which is practically imposed?
The Administrative Court of Appeal of Lyon gives us an initial response by a decree, February 26, 2007. In this case Olympique Lyonnais had on the basis of Article 261 of the Charter of professional football, to the liability of Olivier Bernard, trained player at the club, alleging that it had signed its first contract professional with Newcastle United. The trial decision was vindicated with Olympique Lyonnais. The Court of Appeal has reform the first decision holding that such a requirement is contrary to the fundamental principle of free exercise of a profession, invalidating the requirement to sign a such contract. The State Council has received the Supreme Court.
Without prejudging the decision of the Council of State it is certain that when the player end of training does not wish to proceed with the contract offered to him, the autonomy implies that the contract can be imposed and, as such regulations federations are contrary to the principle of freedom of exercising a professional activity. The Players' Status intern if he can not contain such a constraint could instead contain a clause that would require training forfeit the player reimburse the actual cost of training. Compensation above the actual cost of training would be against freedom of exercise as a deterrent for athletes and speculative for the club trainer.
Yet if the legal issue is quite clear, the economic model can dispense with speculation on potential youth, whose sale to big foreign clubs can pay for training generations and part of the revenues of the Clubs? The answer is not legal, it is political.
Finally, the question remains for the case where a young athlete has signed his first professional contract and seek to quash for lack of consent, since consent is limited to: work for the club trainer or be unemployed for three years and jeopardize his career.
© Xavier Cerf - lawyer
