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Autonomy of will and contractual freedom in professional sports

Gábriš, T.: Autonomy of will and contractual freedom in professional sports. Právny obzor, 104, 2021, special issue, pp. 3 -21

https://doi.org/10.31577/pravnyobzor.specialissue.2021.01

Autonomy of will and contractual freedom in professional sports. The paper explains routes through which legal limitations of contractual freedom were introduced into sports law, taking their premise from the employment law regulations applicable in Slovakia. The main aim was to legally compensate the actual (mostly economic) inequality of contracting parties, similarly as it is accepted in labour law and in the consumer protection law. However, an amendment to the Act on Sports, introduced in 2020, changed this trajectory by allowing the sports entities a broader contractual freedom as to their choice between an employment contract and contract for services. On the other hand, however, the amendment thereby introduced a limitation of contractual freedom in the case of opting for the contract for services (concluded between entrepreneurs) – newly, these contracts generally concluded under the Commercial Code have to observe minimum standards reserved previously only for the sporting employment contracts.

Keywords: autonomy of will, contractual freedom, professional sports, sports law, labour law, commercial law

Introduction
Albeit in general, a shift from status to contract is being proclaimed with regard to evolution of labour law in Europe, there is still an important factor of "status" being present in modern labour law. This is namely the status of a weaker party, which makes it legitimate and acceptable to limit the general principles of contract law, being the principles of autonomy of will and freedom of contract as its manifestation. The status of a weaker party is namely used as an argument to limit these principles in order to protect the weaker party in their weaker negotiating position against the other party - being their employer mostly. This concept is nevertheless quickly expanding to other branches of law as well - from labour law (the employee as a weaker party) in civil law (consumer as a weaker party), up to business (commercial) law. With regard to the latter, we shall offer here an example concerning business relations between entrepreneurs in sports - namely between the players and clubs. Albeit the Slovak Act on Sports from 2015 (effective as of 2016) provided for the employment status of players performing dependent work in sports, and thus introduced largely limited contractual freedom in the field of sports law, the situation has drastically changed in 2020. An amendment to the Act on Sports namely allowed the clubs and the players to conclude instead of employment contracts, contracts on the provision of services, based on the Commercial Code. Hence, the amendment allowed for circumventing the labour law standards introduced through the Act on Sports. In this paper, it is being suggested that what might seem to be a return to the ideals of autonomy of will and contracting freedom via the amendment to the Act on Sports, should, in contrast, be seen as a twofold limitation of autonomy of will and contractual freedom in sports. First of all, the so-called freedom to decide between the labour protection and the commercial relationship will certainly allow for the exploitation of the weaker position of the players in the negotiating process. Secondly, the amendment has introduced an obligation for the parties to the commercial players' contract to observe certain mandatory rules laid down in the Act on Sports. The amendment is thus expanding the limitations of contractual freedom onto all the sporting contracts concluded under the Commercial Code - introducing thereby unintentionally the concept of a "the sporting weaker party" into commercial law.
1. Concept of autonomy in law
In private law, in general, a relatively high degree of autonomy (freedom) is considered to be one of its philosophical backbones - at least since the times of the victory of liberal political and legal thought.
1)
From a broader historical perspective, however, the recognition of "private autonomy" in law is all but a modern element. In fact, it can be rather perceived as a relic of a much older historical concept of autonomous rule-making, which was very much characteristic of the pre-modern and pre-liberal era, when the state and state-made law played only a minor role in regulating various aspects of everyday life. It was only with the emergence of the legislative monopoly of the state that autonomous rule-making has shrunk to what we know nowadays mostly as contractual autonomy in the law of obligations.
The current situation is thereby a heritage of the 19th century legal scholarship, in Central Europe being mostly influenced and inspired by German pandectist legal thought, refusing autonomous law-making and limiting autonomy to an element of law of obligations - to the extent that it is recognized and allowed for by the state. It was specifically Carl Friedrich von Gerber (1823-1891) and Paul Laband (1838-1918) who embraced this concept. Gerber explicitly rejected autonomy as the source of law, claiming there is a difference between law-making and law enforcement - and autonomy thereby only means the power to act legally, but not to create law.
2)
Autonomy should thus not be considered a separate source of "non-state law", but rather only a source of contractual relations and legal activities, and therefore, a part of the law of contracts, Gerber claimed.
3)
Otherwise, according to Laband, normative autonomy would necessarily conflict with the sovereignty of the state. Laband also quoted Savigny, who claimed that legal acts of private entities are only sources of subjective rights, but not of objective law.
4)
In this spirit, Wilhelm Eduard Wilda (1800-1856) in 1842 finally transferred the notion of "
Privatautonomie
" from the legislative and law-creating process into the law of contracts
5)
where it is mostly found today, being denoted as autonomy of will and its immanent part-freedom of contract.
2. Autonomy of will and contractual freedom in private law
Autonomy of will (individual autonomy) of entities of private law is perceived as a principle guaranteeing that no one can find themselves in any legal position against their will, and also as a natural desire to be free, to express this freedom and to implement it freely. In other words, it is an indicative of the possibility of "auto-determination" and "self-regulation" of own interests.
6)
Autonomy of will in a broader respect jointly includes:
(a) freedom to own, to acquire and enjoy property (ownership freedom)
(b) freedom of use of property values and rights (freedom of contract) and
(c) freedom of development of human personality and of its creative intellectual activity (freedom of creation).
7)
Moreover, some other authors also distinguish
(d) the possibility to decide freely on property upon one's death.
8)
At this point we shall only concentrate on the freedom of contract in labour law and in sports law, which basically implies:
(a) liberty and freedom in the choice of legal instrument, type of contract and of contracting partners, and
(b) discretion in determining the content of the act, the content of the contract.
9)
Freedom of contract (contractual freedom) thus means that parties are free to choose a contracting partner, the form of the contract, the contents of the contract and the fact whether they conclude any contract at all. To what extent this is applicable and in fact applied in professional sports is the basic question to be answered in this paper. Namely, while both parties dispose of the freedom of contract, in practice one may sometimes question whether the bargaining position of both sides is really equal and their freedom of contract is actually present in full.
10)
This is the situation well known in consumer relations and employment relations. In these situations one of the parties is a "weaker party" who mostly cannot influence the content of the contract. The weaker party only has a choice to sign or not to sign, which may later prove to be detrimental to their interests. To compensate for this factual inequality, the legal fiction of being a weaker party was introduced, together with some compensating mechanisms such as public law instruments expressed in mandatory rules serving to protect the interests of the weaker party.
In fact, this is being done by limiting the freedom of contract again. However, this time it is with the intention to protect the weaker party against misuse and abuse of the dominance of the other contracting party (entrepreneur, or employer).
With regard to labour law and sports law, this is also manifested in the so-called
numerus clausus
(limited number) of contract types allowed to be used in sports and in the employment relations, with strictly regulated content of the contract and high standards of protection of the weaker party - the (sports)employee. Albeit this is clearly in conflict with the contractual freedom and autonomy of will to a great extent, still, it is being accepted as the legitimate aim to protect the employee.
Finally, in both the legislation and in case law, the interpretative principle of
in dubio contra proferentem
is being invoked in this respect additionally, which means that the conflicting interpretation of the contract is to favour the weaker party. This principlehas been already confirmed by the Constitutional Court of the Slovak Republic in its decision of 19 June 2008 (I. ÚS 243/07). According to the Court, the vague term is to be interpreted against the party who used it, and this is to be applied as a general method of interpretation of all legal acts. This rule is also expressly provided for in § 266 (4) of the Slovak Commercial Code and § 54 (2) of the Slovak Civil Code - in the latter case in favour of consumers.
3. Contractual freedom in labour law
The discipline of law where the limitation of contractual freedom and autonomy of will can be witnessed to its greatest extent, is probably the branch of law known as labour law or employment law. Originally, legal scholarship of the 19th Century considered the employment relationship to be an immanent part of law of obligations without any major deviations being applicable and necessary. It was traditionally perceived as being based on the Roman law model - contract of lease. A term
locatio conductio operis faciendi
was used.
11)
Thus, classical bourgeois theory considered employment relationship to be governed by the general law of obligations, without any attention being paid to the "weaker" status of the employee. The contract was more important than the status.
On the other hand, since the 18th Century, labour relations were treated by scholars separately for various kinds of jobs and works performed, recognizing the differences in their nature and regulatory tools - e.g., regulations were different for domestic servants and agricultural workers.
12)
Such atomization of labour law regulations for various sectors of the economy and types of work performed survived in Central Europe, including the territory of Slovakia, until the mid 20th Century, and in many countries it survives up to these days. In Czechoslovakia, however, a unified Labour Code was enacted in 1965, introducing common rules for all the types of employment relations. Albeit this move was criticized at that point of time as failing to take into account the important differences between various sectors of the economy, the situation has not changed since then and even nowadays this general regulation (currently in the form of Labour Code from 2001) is applicable to almost all types of employment relations in a unified manner. Thus, apparently, more than anywhere else one can agree that a shift from status to contract has taken place in this branch of law, as the contractualists in labour law suggest.
13)
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