Compensation of professional sportsmen and sportswomen for contract termination

In this article we will analyze what is the compensation for professional athletes in the event of termination of their contract at the end of the agreed term. 

Beforehand, we should mention that Article 2 of the Workers' Statute lists the special labor relationships existing in our labor law, among which is that of professional sportsmen and women. 

The conceptualization of this relationship as special, derives from the peculiarities of the relationship itself, which is mainly characterized by its short working life, unlike what happens in an ordinary employment relationship, since the duration of an athlete's professional career will correlate with his or her physical condition. 

The brevity of their working life means that the wealth to be generated during their professional life is of particular importance, since they have to maximize and increase their assets to the maximum in order to be able to face the following years after their retirement as sportsmen. 

In view of the above, the compensation to be received by professional sportsmen and women after the end of their employment relationship is of notorious relevance. 

Legal framework of the employment relationship of professional sportsmen and sportswomen

Article 6 of Royal Decree 1006/1985 establishes that the employment relationship of professional sportsmen and women will always be for a fixed term; therefore, it is not possible to enter into an employment contract for an indefinite term with a professional sportsman or woman. Proof of this can be found in the Judgment of the Superior Court of Justice of Catalonia (Social Court) of July 22, 1997, where it was stated: "the general principle of indefinite duration does not apply to this type of contract, given that one of the nuances of its uniqueness is, specifically, its temporary nature".

Bearing in mind that we are dealing with a necessarily temporary relationship, it is essential to ask whether sportsmen and women are entitled to an indemnity for termination of the temporary contract. The answer to this question is based on Article 14 of Royal Decree 1006/1985. 

The problem is that the aforementioned legal provision is silent on this point, unlike Article 49.1.c) of the Workers' Statute, which establishes a severance payment of 12 days per year of service in the event of termination of the contract due to expiration of the agreed term. 

In light of the above, it could be understood that this absence of regulation by our legislator in RD 1006/1985 is an intentional silence on his part, i.e., he has expressly decided to exclude the right of sportsmen and women to compensation for the expiration of their contract. However, Article 21 of RD 1006/1985 establishes that the Workers' Statute and other generally applicable labor legislation will apply to all matters not regulated by the Royal Decree. 

Thus, the doctrine raised the possibility of applying Article 49.1.c) of the Workers' Statute on a supplementary basis, by virtue of the provisions of Article 21 of Royal Decree 1006/1985.

What the courts have endorsed in recent years with regard to the compensation of professional athletes

It should be noted that, this possibility has been confirmed and endorsed by our courts, the Judgment of the Supreme Court (Social Chamber) of May 14, 2019 stated that the compensation provided for in Article 49.1.c) of the ET is extrapolable to the special employment relationship of professional sportsmen and sportswomen, in the words of the Supreme Court itself "there are no obstacles derived from the peculiarities of the sports activity that oppose the game of Article 49.1.c) ET". Likewise, as was pointed out in the Judgment of the Supreme Court (Social Chamber) of January 23, 2020, the supplementary application of the indemnity provided for in Article 49.1.c) of the ET reduces the possible existence of discrimination between ordinary temporary workers and temporary workers in special relationships. 

In view of the foregoing, it is clear professional sportsmen and women are entitled to an indemnity for termination of the temporary contract of 12 days per year of service, by the supplementary application of Article 49.1.c) ET. 

At this point, however, the question arises as to whether this right always applies. It is obvious that many professional sportsmen and sportswomen enjoy a manifestly high remuneration, a clear example of this being first division soccer players. For this reason, the doctrine has raised the possibility of excluding this indemnity when the professional sportman or sportwoman has a notoriously high remuneration, since it was understood that these athletes had generated such a large amount of assets that once their contracts ended, it was not necessary to protect them, since their economic status would continue to be high, thanks to the income generated.

A priori, the conclusions set out above make sense and have a certain logic, since they could give rise to disproportionate compensation, however, it should be noted that this thesis directly confronts Article 14 of the Spanish Constitution - principle of equality before the law and non-discrimination - since the courts would be given the possibility of applying or excluding this compensation based on the salary received by the sportsmen or women, when there is no express legal provision that allows it. 

In view of this, our Courts quickly rejected this position. In this regard, it is worth mentioning the Judgment of the Supreme Court (Social Chamber) of July 23, 2020, where it is established that the supplementary application of Article 49.1.c) ET can be extrapolated to all professional sportsmen and sportswomen, regardless of their level of remuneration: "the Labor Law does not differentiate those who receive high salaries from those at the other end of the remuneration range. It does not do so either with respect to common contracts or with respect to special employment relationships".

As a corollary of the foregoing, professional sportsmen and women will be entitled to the 12 days' severance pay per year of service of Article 49.1.c) ET for expiration of the agreed time, regardless of their economic status. 

In a case of compensation of professional athletes, we have a team of lawyers who are experts in the management of the end of the employment relationship and termination of contracts of these profiles, whose regulation requires specific knowledge and experience because they are more complex matters than usual. Contact them here.

Tomás Achabal

Labor Area