CC BY
5812.00.03-Civil law. Business law. Family right.
International private law. Rakhmatov Anvar,
Director of the Lawyers' Training Center under the Ministry of Justice of the Republic of Uzbekistan
ORCID 0000-0002-2843-1203 E-mail: [email protected]
ISSUES OF CONTRACTUAL AND LEGAL REGULATION OF SPORTS RELATIONS WITHIN THE LEGAL NORMS
A R T I C L E I N F O
A B S T R A C T
Keywords:
Sports, contract, athlete, coach, personal non-property rights, sponsorship, professional athlete,
compensation,
sports agent,
national team,
advertising
market,
insurance
agency.
In this article, the issues related to the contractual and legal regulation of sports relations within the legal norms, including sponsorship in the sports area, specific regulation of contracts with professional athletes by competent authorities, paying compensation to the organization which trained the athlete in concluding a contract on professional sports activities with the athlete, as well as the contractual basis for the activity of sports agents are examined taking into account scientific, theoretical and practical aspects and drawing on national and foreign experience.
A complex interplay between the actors of the sports industry - athletes, coaches, agents, sponsors, sports organizations, advertising and television companies - are discussed. Relevant provisions of national law on sports and physical culture are analyzed along with their correlation with sports contracts; a parallel is drawn between the national law on the subject and respective provisions of the corresponding laws and case law of foreign countries. A distinction is drawn between contracts on provision of services in the field of sports by athletes
and employment contracts with athletes; individual characteristics of such contracts are analyzed. Further analysis of the general legislative norms related to contracts has been presented, along with a discussion of property and personal non-property rights of athletes, followed by a discussion of problems in the area.
The paper further discusses the correlation between sponsorship and advertisement, and potential gains for its participants, athletes' protection, agents' status, and specifics of their activity. Scholarly works of foreign researchers are considered with regard to contract terms, interpretation, and freedom of contract. The paper concludes with proposals and recommendations aiming at legislative development and improving contract regulation.
Introduction
It is known that the regulation of existing legal relations in society is one of the most pressing problems not only for government agencies responsible for lawmaking but also for the actors involved in the legal system in society as a whole.
The analysis of the general legislative norms related to contracts reveals that legal norms in property regulation and personal non-property relations are characterized by a wide range of possibilities that the parties of such relations enjoy. In particular, the participants of such relations are provided with the right to conclude contracts,
formalize agreements with the inclusion of any terms and conditions not limited by law. After the parties have clarified what kind of contract they are entering, they are under a duty to analyze the legislative norms stipulated for contracts of this type. It is also worthwhile to understand that the analysis of the contractual legislation will be carried out before determining exactly what kind of contract will be concluded. However, at the pre-contractual stage, the analysis of the norms of the Civil Code, for the most part, is of central importance with particular focus on contractual terms. The next step will require a thorough analysis of the legal norms for
the selected type of contract, which will help the parties to accurately and fully express the terms when entering into the contract.
Results and discussions
In the process of analyzing the legislation related to contracts, it is necessary not only to study the norms of the conclusion of the contract but also to know the normative legal acts regulating the relations arising in the processes after the conclusion of the contract. The analysis of the research carried out in this regard reveals the legal regulation of social relations related to sports as a separate sphere in scientific-theoretical and practical aspects; we can see that the sphere of lawmaking is lagging behind relative to other areas of legal relations. In particular, in the fourth chapter of the dissertation for the Doctor of Legal Sciences (PhDs) by A. Sh. Ismailov on "Features of legal regulation of the labor activity of certain categories of employees", titled "Issues of determination of the features of legal regulation of labor activity
in industry and networks", which is devoted to the analysis of the features of legal regulation of the labor activity in the transport area, we can see that the researcher has put forward an opinion on the exercise of the right to work of athletes and coaches. However, it has not been clarified precisely as it will be highlighted that the individual characteristics of the employment contracts
concluded with the athletes and coaches do not constitute the object of the study" [1].
Also, the flawed mechanisms of contractual regulation of protecting personal and non-property rights of athletes and coaches in our country, correlation with the value of their image can be attributed to the lack of comprehensive research in this area.
Although the Civil Code of the Republic of Uzbekistan does not provide for a directly applicable norm on contracts related to sports or physical culture, Article 1 of the Civil Code states that "the civil legislation is based on the
recognition of the equality of participants of the relations regulated by it, the inviolability of property, the freedom of the contract, the inadmissibility of any arbitrary interference". This rule serves to ensure the equality of the parties in contractual relations.
It should be noted that "Citizens (natural persons) and legal entities shall have their civil rights and shall exercise these rights in their own will and interest. They are free to determine their rights and duties under the contract and to determine the terms of any contract that do not contradict the legislation".
It is also noted in Article 354 of the Code that "The parties may conclude a contract not provided for by legislation".
Accordingly, the general norms of civil law, including contracts, are also fully applicable to contractual relations in the sports sphere. The main principle of the norm is that the parties are free to enter into a contract and that the contract may stipulate any rights and obligations that do not contradict the legislation.
Article 354 of the Code stipulates that "The terms of the contract shall be determined at the discretion of the parties except for cases when the content of the respective term is prescribed by legislation". This indicates that in the area of civil relations when the content of certain types of contractual terms is determined by legislation, the parties are obliged to abide by the requirements of the legislation in concluding the contract.
Although the primary law regulating relations in the field of sports is the Law of the Republic of Uzbekistan "On physical culture and sports" [2], this law does not contain a separate article on sports contracts. At the same time, although the word "contract" is used in Article 3 of the Law, it does not indicate the specificity of contracts in the field of sports. In other words, the provisions of the Law of the Republic of Uzbekistan "On physical culture and sports" cannot be directly applied in determining the contractual rules in relations in the field of sports.
It can be seen that in the laws of many states aimed at regulating the sphere of physical culture and sports, there are specific norms related to sports contracts.
In particular, Article 28 of the Law of the Kyrgyz Republic "On physical culture and sports" [3] (Article 28. Agreements on sports activities in Kyrgyzstan), Article 57 of the Law of the Republic of Belarus "On physical culture and sports" [4] (Article 57), Article 34.2 of the Law of the Russian Federation "On physical culture and sports" [5] provide that employment of professional coaches,
professional referees, and other professionals in the field of sports (or conclusion of civil law contracts) is the administration of sports training in the field of sports organizations. This article relates to the content of the contract for the provision of services in the field of training of athletes and is a separate piece of work dedicated exclusively to sports contracts.
In some developed countries, reforms aimed at overcoming the problems in contractual relations are
promoted through factors such as the priority of the national legal system in the legal regulation of relations in the field of sports. In particular, in accordance with Article 222-6 of the French Sports Code and with the consent of the French National Court, each sports contract is concluded to ensure the professional development of young athletes and to protect them from illegal actions of foreign and national agents so that they do not conflict with national interests [6, P.149].
The labor legislation of the country, including the Law of the Republic of Uzbekistan "On physical culture and sports" provides for the conclusion of an employment contract with the athlete and does not provide for the conclusion of an agreement on activities in the field of sports. However, the employment contract is very different from the contract concluded with the athlete and does not express at all the specific aspects of the contractual regulation of the athlete's activities. Analyzing the legislation of the CIS countries, the agreement on
sports activities is provided for in the legislation of Kazakhstan, Kyrgyzstan and Russia, while the laws of Turkmenistan and Belarus stipulate that employment and civil contracts may be concluded in the field of sports.
M.A. Lebedeva, a researcher at Lomonosov Moscow State University, in her dissertation on "Comparative analysis of the legal regulation of the work of athletes in the Russian Federation and the Federal Republic of Germany" states that "in contrast to the Federal Republic of Germany, employment contracts with athletes in the Russian Federation are formalized in accordance with the requirements of labor legislation, the charter and regulations of sports federations but represent the specific features of such industries as entertainment and performance. Due to the need to train on holidays and weekends, in most cases during international
competitions the provisions on remuneration for their work are clearly spelled out in the
legislation. In the absence of criteria, they should be rewarded only in case of victory, otherwise, the payment of their labor only in accordance with the terms of the employment contract is a violation of the constitutional rights of the individual" [7, PP.274, 142-188.].
In our opinion, the inclusion of such conditions in the employment contracts of all athletes and coaches can certainly justify the independent financial exercise of amateur and professional sports independent of state sports policy, its advertising market and contracts with insurance agencies in a timely manner. However, in countries where sports are funded from the state budget, such a situation eliminates the incentive among athletes and coaches to compete and win, which requires some caution in applying this practice. In our opinion, in order to regulate such cases in the national legislation, first of all, it is necessary to stipulate additional benefits and incentives for athletes and
coaches in collective agreements of sports federations, set the scene for the legal regulation of participation of athletes and coaches in non-sporting activities and legal regulation of paid services contracts concluded with the sports federation-coach-athlete.
The Law "On physical culture and sports" does not provide for the sponsorship in the field of sports and the contractual basis of relations in this regard.
We all know that sports is an industry dominated by high costs, and at the same time, it allows one to make huge profits. This is probably the reason why big businesses are very interested in financing sports-related events.
Honored Lawyer of the Republic of Belarus, Ph.D., Prof. V.S.Kamenkov touched upon this issue in his scientific research work on the role of sports in the life of society and its legal regulation and stated: "Sports at first glance is such an activity, in which the scope of the subjects is wide, and it is a multi-subject process, with
the need to achieve as high result as possible. The main functions of modern sports are as follows: health promotion, discussion, education,
entertainment, advertising, political and social unification, and management,
strengthening the basic values of society and the formation of community, which, of course, require in its place legal regulation and clarification of the rights and obligations of the parties" [8, P.14].
In our opinion, the sponsorship in sports manifests itself as an economic, political and legal activity as a result of not only material income, but also spiritual gain due to the change in the attitude of the members of society themselves. Sponsorship in sports also allows parties to cooperate in a mutually beneficial way under the contract. In particular, the sponsor will have the opportunity to improve its image, advertise, and expand the market.
On the other hand, the other party strengthens its financial capacity, has access
to products produced by sponsors that can be used by athletes as well, and enjoys other benefits such as getting free consultations.
However, at the same time, all issues of this beneficial cooperation must be agreed upon in the contracts. The requirements for the content of the main terms of such contracts should be established by law.
Accordingly, the law needs to define the subjects of sports sponsorship, the contractual basis of sports sponsorship, and the general requirements for such contracts.
The_law should
introduce a norm providing that specific issues of regulation of contracts with professional athletes should be determined by the competent authorities.
Luis Soares de Souza, who has conducted research on the analysis of Portuguese sports legislation, points out that the development and profitability of sports in this country is determined by the freedom of sports organizations and entities and professional
athletes in contractual relations. First of all, the Law of this country "On physical activity and sports", adopted on January 16, 2007, No. 5, specifies the rules for appeals to the courts on disputes related to sports, i.e., the administrative management of sports and certain forms of sports activities. According to him, the inaction of the highest bodies of sports is attributable to the highest administrative courts of the country, and athletes and sports organizations can not appeal to state courts on the decisions of sports federations if these decisions are of an individual sporting nature (violation of sports ethics, violence, doping, corruption, racism and xenophobia). The Portuguese Court of Arbitration for Sport, established in Portugal by Act No. 74 of September 6, 2013, is authorized to consider all sports disputes at the discretion of the parties, except in cases provided for in the above law, in most cases between sports clubs, clubs and athletes, advertising companies and television; regulates relations
and serves to prevent state interference in their freedom in contractual relations [9, PP. 211-218].
If we take note of the Civil Code of our country, according to Article 354, the contents of some contractual terms can be specified in the legislation. Accordingly, obligations related to the specificity of contracts concluded in professional sports, i.e., performance, adherence to the established sports regime for a particular sport, the restriction of certain personal rights of the athlete under a contract for professional sports are determined by the competent authorities in sports. It is proposed to include the norm in the law.
The Law "On physical culture and sports" does not contain norms related to the payment of compensation in the conclusion of a contract for professional sports to the organization that trained the athlete.
It takes several steps to make an athlete. One of the most important stages is training, education and
formation of the athlete at the institution, which is directly involved in the sports process and prepares athletes for professional sports. In Uzbekistan, this task is performed mainly by state educational institutions
specializing in sports.
Not all graduates of state educational institutions
specializing in sports will be admitted to the national team of Uzbekistan. At the same time, some of them continue to operate professionally on the basis of contracts that are economically beneficial for them personally, allowing them to earn high incomes. In these cases, they are not obligated to pay any compensation to the sports facility where they trained. To this end, our present law and by-laws cannot be considered complete either. In our opinion, it is necessary to find a legal solution to this issue by introducing a clear norm in the law, taking into account that the state and the organizations which train the achieving athletes on a professional level incur significant expenses since
it is a resources-consuming process.
With this in mind, it is proposed to introduce in the Law of the Republic of Uzbekistan "On physical culture and sports" the norm that "legal entities or individuals concluding a contract with an athlete in the field of professional sports shall pay compensation to the organization that trains the athlete in the amount established by the Cabinet of Ministers of the Republic of Uzbekistan".
Sometimes the athlete may switch to a professional level by undertaking sports training at his own expense or sponsored by the athlete's legal representatives or sponsors. In this case, the national team does not have to pay compensation to the organization that trained the athlete at the time of the contract with the athlete. This also requires the inclusion of the norm on the non-payment of compensation when the national team of Uzbekistan has entered into an agreement
with the athlete and he/she trains using his own resources.
It is necessary to make an amendment to the legal norm, which regulates the activity of the sports agents on a contractual basis.
The institution of sports agency has a special place in developing sports industry, ensuring its attractiveness and interest. The legal support of their activities provides a more convenient way to establish social relations in this area, as well as a convenient and solid basis for resolving any legal issues that may arise.
Today, it is difficult to imagine the professional sports industry without sports agents, and agents are emerging as an integral subject of almost all relations related to professional sports.
Given that the sports agency provides services in professional sports, and this service is provided for a fee, it is necessary to pay special attention to the fact that the sports agent is an independent subject of contractual and legal activity. Consequently, it is
impossible to imagine their activities without contracts.
In particular, in the Law of the Republic of Uzbekistan "On physical culture and sports", the sports agent is defined as a person acting on behalf of the athlete and in his interests on a contractual basis, ensuring compliance with the terms of concluded contracts and athlete's rights.
This norm also forms the basis for the activities of sports agents. However, given the importance of the sports agents' activity in the formation and development of sports relations today, it is necessary to improve some aspects of the above norms.
In particular, S.A. Ostroukhov, who conducted research in the field of socioeconomic and organizational management of sports organizations in the field of entrepreneurship, emphasizes that "it should be noted that sports as a socio-economic phenomenon is a combination of many sports organizations, more precisely, these organizations constitute the system of the sports industry....
These entities are divided into individual and collective organizations according to the number of participants. Individual subjects operate as an entrepreneur, a sports agent, or a lawyer. Also, sports organizations are divided into types that are organizationally and legally can be profit-driven or non-profit.... The effectiveness of the work carried out by sports agents is directly related to the prevention of unreasonable interference in their entrepreneurial activities and the exclusion of certain economic rules" [10, PP. 20-21, 73-74.].
The definition in the law provides that a sports agent can pursue his interests only in favour of a professional athlete. However, the sports agent can represent interests of not only the athlete but also the coach and the professional sports club. We know this from the experience of developed countries.
For example, sports agents for professional sports clubs:
• search for candidates to the club, conclude contracts with them;
• conduct a selection process for clubs in the field of sports;
• attract sponsors for the clubs;
• provide other services for the club, such as marketing, as is known to us from the widespread practice of countries where sports relations have developed.
Conclusion
Having analyzed the legislation of a number of other countries on the activities of the sports agents, we would like to propose amendments to the legislation, putting forward the following definition.
In particular, sports agents are legal or natural persons who enter into contracts for sports activities on a permanent or temporary basis for the purpose of making a profit.
Of course, we would like to note that the requirements for this activity should be set out in the legislation.
We also consider that the general issues related to the contractual rights and obligations of a sports agent, the specific features of concluding a sports agency contract with some athletes (for example, the sports agency's services involving minors in professional sports), should be provided for in the law.
References:
1. A.Sh. Ismailov. Abstract of the Dissertation of the Doctor of Legal Sciences (DSc) on "Features of legal regulation of labour activity of certain categories of employees". Tashkent. 2020.
2. "Xalq so'zi" 05.09.2015, No. 174 (6357).
3. The Law of the Kyrgyz Republic "On physical culture and sports". Available at: http: //cbd.minjust.gov. kg/act/view/ru -ru/441?cl=ru-ru. (accessed 20.08.2020)
4. The Law of the Republic of Belarus "On physical culture and sports". Available at: https://kodeksy-
by.com/zakon rb o fizicheskoj kulture i sporte.htm._(accessed
20.08.2020)
5. The Law of the Russian Federation "On physical culture and sports". Available at: https://www.oprf.ru/ru/about/structure/structurenews/newsitem/14089?PHP SESSID=8tt2u30u7ddkvaicplph6e5m56. (accessed 19.08.2020)
6. Cass., Criminal Division, January 24 2006, appeal no. 04-85.016, Dalloz 2006, jur. p. 2649, note Karaquillo J.-P. // STUDY ON SPORTS AGENTS IN THE EUROPEAN UNION. November 2009.
7. M.A. Lebedeva. "Comparative analysis of the legal regulation of the athletes' activity in the Russian Federation and the Federal Republic of Germany". Dissertation for the degree of candidate of legal sciences. Moscow. 2016.
8. V.S. Kamenkov. "Responsibility for violation of the legislation on sports (comparative analysis)" / Sports law in the Republic of Belarus. Digest of articles. Minsk Editorial office of the journal "Industrial and Commercial Law". 2014.
9. Lws Soares de Sousa. Judgment of the Regional Court in Bydgoszcz of August 9 2017. ORGANISATION OF SPORTS CLUBS AND SPORTS GOVERNING BODIESPORTUGAL. © 2017 Law Business Research Ltd.
10. S.A. Ostroukhov. "Management of the development of sports organizations as entrepreneurial-oriented structures"// Dissertation for the degree of candidate of economic sciences. Moscow 2017 L. 147.
