Why do professional athletes ＂have no right＂ to rest on holidays？ Reveal the contract disputes involving athletes and solve those things.

　　Athletes are always the protagonists in major sports events.

　　The just-concluded closing ceremony of the Beijing Winter Olympics focused on athletes. "This is a celebration party for athletes after hard training and competition." Yan Jiarong, spokesman of the Beijing Winter Olympics Organizing Committee, said.

　　In the fierce battle over the past 10 days, athletes have naturally attracted the most attention, and their every move may become the focus of news attention. In the field of sports dispute resolution, athletes’ related issues are also the focus.

　　"You are the protagonist of the case, and you can interrupt anyone at any time during the trial." This sentence impressed Gong Xiaoyan, a judge of the International Volleyball Federation and a member of the Legal Committee of the Asian Athletics Federation. In 2016, as an athlete’s agent, when she participated in a hearing of a sports dispute case, the chairman of the hearing made such an emphasis with the athletes before the court.

　　Gong Xiaoyan said that athletes are the most involved parties in sports disputes. Studying sports disputes can’t avoid paying attention to athletes’ related problems. What’s the difference between an athlete’s labor contract and an ordinary person’s labor contract? What should I do if I am owed wages? What are the rules for endorsement? Recently, China International Economic and Trade Arbitration Commission held the third activity of "Winter Olympics is around" in the live broadcast room of Trade Center, taking "athlete contract disputes" as the discussion theme.

　　Different from ordinary contracts.

　　Usually accompanied by a commercial agreement

　　What will happen to those who regard athletes as their profession when dealing with their "employers"? This is the beginning of the story that people always want to explore when observing those star athletes. Especially in the past two years, due to the impact of the epidemic and other environmental factors, the club’s arrears of wages and the resulting breach of contract disputes with athletes often appear in newspapers, which has increased people’s curiosity.

　　In fact, the work contract signed by athletes and clubs is really quite different from that of ordinary people. Pei Yang, a member of the hearing committee of China Anti-Doping Center and an associate professor of Beijing Normal University Law School, took the work of professional basketball and football players as an example to explain the significant differences: in practice, it conflicts with industry norms and labor laws and regulations.

　　For example, on the issue of working hours and rest and vacation, the labor law stipulates that the working hours of workers should not exceed 8 hours a day and 44 hours a week, and one day a week is needed for rest, and the national statutory holiday work units arrange for workers to take vacations. Professional leagues consider the rules of athletes’ competitive state and business arrangements. Generally speaking, they are all arranged before the start of the season. Most leagues are held on holidays, weekends or holidays, and at night. Besides competitions, athletes have to train almost every day.

　　For another example, on the issue of replacing the employer, the labor law stipulates that the employee shall notify the employer in writing to terminate the activity 30 days in advance, and the employee is not required to pay the employer liquidated damages except for a few exceptions. In professional leagues, professional players are highly scarce human resources, and their resignation will affect the operation of clubs and leagues, so athletes who unilaterally terminate their contracts without justifiable reasons will bear liquidated damages.

　　Also, on the issue of fixed term, the labor law stipulates that workers can sign an open-ended contract after the employer has signed two fixed-term employment contracts. However, in professional leagues, the career of professional players is very short, that is, more than ten years, and the peak period is a few years. Signing a long-term contract or an indefinite contract will affect the maximization of value, so the longest contract generally does not exceed five years, and an indefinite labor contract does not exist.

　　In the work contract signed between the athletes and the club, there is also a special feature that there will be commercial agreements between the athletes and the club, and the athletes and the club may also sign separate commercial contracts.

　　Liu Ying, a lawyer of King & Wood Law Firm, has handled many disputes between athletes and clubs. She summarized the commercial agreements between athletes and clubs into four aspects:

　　The first is the intellectual property agreement. For example, portraits and signatures of famous athletes and videos in competitions (such as goals and dunks) have high commercial value. When signing agreements, athletes often authorize the clubs to enjoy and use the corresponding rights and interests.

　　The second is the commercial development agreement. For example, what commercial activities athletes participate in outside training, even what clothes they wear and what brands of water they drink, are all developed by the club for athletes.

　　The third is the moral clause or the restrictive clause. The market influence and star effect of athletes, especially well-known athletes, make athletes themselves valuable assets of the club. The club will require athletes to pay attention to their personal safety and health, have to take part in dangerous activities without permission, maintain their good image, make inappropriate remarks at will, and do things that violate public morality.

　　The fourth is the agreement on the settlement of breach of contract disputes such as liquidated damages and the right to terminate the contract.

　　Improper termination of contracts is high

　　Poor dispute resolution channels

　　If there is a contract, there will naturally be contract disputes. Xue Tong, director of Sports Arbitration Research Center of Arbitration Institute of China University of Political Science and Law, observed that improper termination of contract disputes has been on the rise in recent years.

　　One typical example is that the club thinks that athletes don’t meet expectations and want to reduce their salaries, which leads to controversy. In this regard, Xue Tong believes that athletes can compete and train hard, even if they can’t meet the expectations of the club, it is not a breach of contract. "Because you can score goals, how many goals can you score every season? These are not guaranteed. It belongs to the business risk category of the club itself and cannot be passed on to athletes. Therefore, deducting wages is the club’s liability for breach of contract."

　　Pay cuts are not good, and dismissal is not good, so can athletes be "hard-pressed"? For example, the club should register the players but not register them, let them go to the reserve team and force them to leave voluntarily by circumventing the relevant agreements. "This is no good either." Xue Tong said that court of arbitration for sport had made it clear that it was not only an obligation but also a right for athletes to participate in training and competitions.

　　Regarding the breach of contract caused by the impact of the COVID-19 epidemic, Xue Tong said that organizations such as the Football Association have defined the epidemic as force majeure, and in case of force majeure, the contract can be continued by adjusting the contract. "The reason is very simple. Athletes and clubs are a community of interests. Cooperation between the two sides can achieve a win-win situation and professional leagues can continue. In this way, it is easy for both parties to reach a compromise on temporary wage deduction to promote the sustainability of labor relations and career development. "

　　However, if the club’s promises to athletes cannot be fulfilled due to poor management, the contractual obligations will not be exempted. "After the bankruptcy and liquidation of the club, it is also necessary to give priority to paying the players’ salaries." Xue Tong added.

　　How to solve the real dispute? Pei Yang mentioned that Article 32 of the Sports Law, which came into effect in 1995, stipulates that disputes arising from competitive sports shall be arbitrated and mediated by arbitration institutions, but at present, China’s sports arbitration institutions have not been established, and they are mainly solved in the following ways:

　　Professional sports leagues or sports industry associations should be solved internally. Both China Football Association and chinese basketball association have internal arbitration committees to handle disputes over players’ labor contracts, and their rulings are final. Most professional labor contracts are settled in this way. Pei Yang believes that the problem with this solution is that the above-mentioned institutions are not sports arbitration institutions stipulated in Article 32 of the Sports Law, nor are they independent arbitration institutions registered in the judicial administrative department according to other laws. "We still don’t really have a completely independent third-party dispute resolution mechanism in terms of setup and operation."

　　Labor arbitration. Theoretically, you can go to a labor arbitration institution for arbitration, but in fact, some labor arbitration institutions will accept it and some will not.

　　Litigation. There are also problems that some courts accept and some do not accept, and even if the court accepts, the long litigation procedure is not suitable for athletes with very short career to safeguard the relevant rights and interests.

　　"It can be said that the way professional athletes solve disputes is rather embarrassing at present. It is necessary to bring the disputes of athletes’ professional contracts into arbitrability in the revision of sports law or arbitration law. " Yan Yang said.

　　Endorsement contracts have limitations.

　　One’s rights are restricted

　　Different from general labor relations, for other industries, the government often sets the minimum wage standard, but in the field of sports, it often sets the maximum wage ceiling.

　　Liu Ying said that in terms of the protection of intellectual property rights such as athletes’ portraits and goal highlights, Chinese athletes have not yet reached the level of protection as some foreign athletes, and there are specialized brokerage companies or intellectual property operating companies to help athletes do systematic management such as unified external authorization. Athletes will also have intellectual property rights authorization disputes.

　　More common is the dispute over athletes’ endorsement. Liu Ying revealed that at the Tokyo Olympic Games and the Beijing Winter Olympics, many well-known or well-achieved athletes had endorsement agreements and disputes. The two sides often have disputes on these issues: for example, what is the authorization of athletes in the endorsement agreement, and whether the enterprises endorsed use the corresponding rights within the scope of authorization.

　　Pei Yang believes that it is normal for athletes to sign an agreement on the endorsement of image rights, which is also the embodiment of maximizing the value of athletes. In practice, there are operations that use endorsement contracts to circumvent the salary limit system. For example, the salary agreed in the contract between athletes and clubs is not high, but the salary stipulated in the so-called independent image right contract is very high, which is easy to form a "yin-yang contract".

　　The endorsement contract for athletes is different from that for movie stars. Liu Ying explained that, generally speaking, the film and television star endorsement contract is signed by the star’s brokerage company or the star’s own studio and enterprise, and the specific content can be independently agreed according to the star’s own situation. But this is not the case for athletes. For example, the corresponding development rights of national team athletes’ endorsements are generally authorized to the relevant management centers of the State Sports General Administration, and they are uniformly exercised. Athletes do not have complete rights to determine their own endorsements.

　　Liu Ying classified the common endorsement disputes into four categories:

　　The first is the dispute over liability for breach of contract. For example, the merchant fails to pay the endorsement fee or the athlete fails to perform the contract.

　　The second is infringement disputes. It mainly refers to the fact that merchants and athletes directly use the names or portraits of athletes without signing an endorsement agreement. This kind of dispute is more obvious. Another kind of infringement dispute is more subtle. For example, athletes and enterprises have a cooperation agreement on attending commercial marketing, but the merchants go beyond the agreed scope and make images of portraits and trade names without the authorization of athletes for external release.

　　The third is the dispute over the right to terminate the contract. Around the realization of the purpose of the endorsement contract, there is a dispute whether both parties have the right to terminate the contract. For example, a well-known athlete died suddenly, and the endorsement agreement that he was fulfilling seemed to be unable to be fulfilled, so the merchants demanded to cancel the endorsement agreement.

　　Fourth, false advertising disputes. If an athlete endorses a product, the product will affect the personal safety and health of consumers, should the athlete bear the responsibility? Liu Ying pointed out that according to the advertising law, athletes and businesses should bear joint and several liability. It may also be responsible for the administration, and athletes may be punished by the market supervision department, which means that athletes may not be able to make corresponding endorsements in the next three years.

　　"It is suggested that when the athletes receive endorsements, they should not only pay attention to the return on income, but also carefully review and pay more attention to the quality of the products themselves." Liu Ying said. (Reporter Zhang Wei)