Professional athlete as an employee or self-employed? The dispute continues

Members of the Slovak National Council submitted a bill opposed by the Ministry of Education and the Slovak Financial Directorate

"The change in the legal status of professional athletes, aimed at achieving the intended goal, is seen as a negative step, which ultimately will not improve the economic situation of sports clubs and, on the contrary, will significantly worsen the status of professional athletes and the enforceability of their rights guaranteed by the existing status of a professional athlete performing dependent work," reads an open letter from the ice hockey and football players' associations addressed to the Members of Parliament.

The reason for this letter is the fact that MPs Dušan Tittel and Tibor Jančula (both from the SNS party) have submitted an amendment to the Sports Act for parliamentary debate. This amendment would eliminate the legal requirement that professional sport in team sports must be carried out under an employment (dependent work) relationship.

Both associations – the Union of Professional Footballers (ÚFP) and the Slovak Ice Hockey Players’ Association (SIHP), along with about a dozen top-level basketball and volleyball players (including Nenad Milošević, Radoslav Rančík, Matej Kubš, Richard Nemec) – state in the letter: "We disagree with the proposed method of change. We are prepared to contribute to the approval of a solution that is systematic and respects the protection of the rights of players in team sports in Slovakia."

Backroom maneuvering again
The amendment was submitted by both MPs without prior consultation with representatives of the two most important players’ associations. Once again, they plan to address major issues in sports via a parliamentary proposal – a method often used to push through partial interests without substantive discussion – this time favoring some sports clubs and working against the interests of professional athletes.

Any informed observer of the life of sports clubs understands that their financial conditions are far from ideal – and that the state has long failed to fulfill its promises to improve the conditions for the private sector to more effectively and advantageously participate in funding private sports clubs.

So when two MPs submit a proposal that would significantly worsen the position of professional athletes, it’s no surprise that the players’ associations responded critically and backed their objections with serious arguments. Whether that will be enough is unclear, but an open letter to all MPs in the run-up to elections could have an impact – who among the MPs wants to be held responsible for worsening the situation of elite athletes in key sports competitions in Slovakia?

Objections from the associations
In their rationale, both MPs explained their motivation by claiming that "the inability to perform professional team sports as a self-employed person is undesirable, as it unduly restricts the contractual freedom of athletes in team sports." According to them, under their proposal, a professional athlete could perform sports activities either as an employee or as a self-employed person.

What’s bizarre is that even if passed, the proposal would likely not achieve its declared aims – which, according to the associations, would be confirmed by the first court decision in a dispute between a player and a club. According to the associations, "the proposed amendment will not change the fact that the relationship between a professional athlete in a team sport and a sports club is one of employment, even if a contract is concluded under the Civil Code. However, it will make it harder to exercise the rights of professional athletes, and a substantial part of the provisions of the Sports Act will become inapplicable."

The associations also argue that "the submitted proposal is unsystematic because since January 1, 2019, regardless of the type of contract a club signs with an athlete, if the relationship bears the characteristics of dependent work, it will be considered a contract for the professional performance of sport under this law. This means that athletes in team sports must be employees, one way or another."

The absurdity of the Tittel/Jančula initiative is further highlighted by the fact that "sports clubs were exempt from social contributions during the transition period until December 31, 2021, and the employee status of professional athletes does not currently impose any additional financial costs on clubs that would justify introducing the option of self-employment."

According to Oliver Pravda, president of SIHPA, the amendment proposal is poorly thought out and "was written in two minutes with one goal – to legitimize the actions of those clubs that everyone knows are not complying with the Sports Act."

Jozef Tokos, an advisor to the ÚFP who also contributed to the open letter, adds that "if the amendment were to take effect, clubs would undoubtedly try to use their position as the so-called stronger contractual party to get players to sign Civil Code contracts."

But Tokos stresses that even in such cases, "it would still be a so-called disguised employment relationship. The first court decision evaluating such a contract would demonstrate the invalidity of this amendment."

Despite strong objections to the proposed amendment, Tokos does not hide his concern that – unlike in football – "in other team sports... the rights of professional athletes could be significantly undermined."

He is also convinced that since the state is currently not enforcing the Sports Act in terms of the legal status of professional athletes, the situation likely wouldn’t improve even if the amendment were adopted.

The legal arguments against the proposal appear watertight. But will they be enough?