Severance for professional sportspersons on temporary contracts?
Whether disastrous or otherwise, the Judgment by the Labor Chamber of the Supreme Court, of March 26, 2014, upholding the ruling by the National Appellate Court, has declared the right of professional sportspersons to receive the severance provided for under article 49 of the Workers’ Statute (WS) for termination of fixed-term contracts.
The view taken by the Supreme Court is based on the following aspects:
a) that at the time Royal Decree 1006/1985 was drafted, there was no obligation to pay severance to workers whose temporary contracts had come to the end of their term.
b) that there is no specific legislation preventing the recognition of such severance to professional sportspersons, since Law 12/2001 only excludes (i) initial professional training and apprenticeship relationships and (ii) employment contracts or relationships in the context of a specific public or publicly supported training, integration or vocational retraining program.
c) that the reform introduced by the lawmakers, in including severance for temporary workers whose contract has come to an end, was designed to (i) offer greater job stability and (ii) improve the quality of temporary employment by recognizing this severance mechanism.
d) that the recognition of this severance, under article 49 WS, is perfectly compatible with the special nature of the special employment relationship of professional sportspersons, since the Supreme Court has previously recognized other special relationships, such as the relationship of teachers of the catholic religion.
e) that to rule otherwise could be construed to be a breach of the constitutional right of equality, arguing that (i) the severance is also “aimed at the immense majority of professionals who pursue their activity with more humble results”, without prejudice to the fact that there are elite sportspersons who “are not affected by the issue being addressed” and (ii) the severance is only recognized when the contractual termination is entirely at the will of the sporting entity and not in other cases.
In any event, this ruling was predated by another which set a precedent that went largely unnoticed in sport-related labor law circles, namely, the Rubén Lobato case, in which severance was also recognized under the ruling issued by the Castilla-La Mancha High Court of Justice on September 14, 2011.
Be that as it may, we consider that the ruling by the Supreme Court must be taken and interpreted in the context of its exact terms, since it restricts the recognition of the severance to cases in which the failure to extend the employment relationship is as a result of unilateral action by the employer.
However, since the ruling was issued in an ordinary cassation appeal, it cannot be ruled out that, if these kinds of disputes start to be litigated in court, (i) a study for the purposes of a definitive ruling on this point could reach a different conclusion, based on special criteria, particularly in cases where workers receive higher remuneration or (ii) legislative changes could be made to Royal Decree 1006/1985, which retains its original wording, to bring it into line with the reality and, at the same time, to limit the recognition of severance, whether in terms of quantity or to certain situations, excluding cases in which the salary exceeds a specific amount.
Garrigues Labor and Employment and Sports & Entertainment Departments
