A sports employment contract is one in which the sportsperson undertakes, for a fee, to provide a sports activity to a natural or legal person who promotes or participates in sports activities, within the organization and under the authority and direction of the latter. This is the definition set out in article 2 a) of Law no. 54/2017, of July 14, which regulates the legal framework of the sportsperson’s employment contract.
The rules on the form and content of this type of contract are set out in article 6 of the aforementioned law, and it is important to mention that article 19 stipulates that any clauses inserted in a sports employment contract aimed at conditioning or limiting the freedom of work of the sportsperson after the end of the contractual relationship are null and void.
Are anti-rival clauses a way of limiting/restricting the freedom of work of the sportsperson?
Anti-rivalry clauses are contractual stipulations between a sportsperson and his or her employer within the scope of a sports employment contract in which a period of time is defined during which the sportsperson cannot be employed by certain clubs belonging to the same sports competition.
These clauses act as a limitation on the player’s freedom to work and should be considered null and void under the terms of the RJCTPD.
However, reference should also be made to Article 136 of the Labor Code, which establishes the lawfulness of non-competition pacts, which are clauses limiting the employee’s activity, provided that the conditions set out in paragraph 2 are met and that this limitation has a maximum term of 2 years.
Are anti-competition clauses comparable to the non-competition pacts provided for in the Labor Code?
Although the Labor Code mentions the lawfulness of limiting an employee’s activity, this regime cannot be applied to sports employment contracts because, contrary to what the general rule establishes, admitting the possibility in certain cases, article 136 of the Labor Code, the special rule, article 19 of the RJCTPD, is exhaustive and establishes that in no case is it permissible to have a clause limiting the sportsperson’s activity.
In fact, the content of article 19 of the RJCTPD is peremptory regarding the possibility of such a clause in sports employment contracts. What about cases where there is no written agreement in the employment contract, but rather an agreement to revoke the sports employment contract? Are they admissible?
The law does not answer this question and there is a loophole. In these cases, it seems to us that within the scope of the autonomy of the parties and contractual freedom, the parties may contract a clause limiting the exercise of the worker’s activity, provided that the rules set out in Article 136(2) of the Labor Code are observed, adapting this regime by analogy.
If this clause is breached, the new employer could be obliged to compensate the previous employer for the breach of the “non-compete” agreement.
Despite being a recurring practice not only in Portugal, but also internationally, anti-rivalry clauses in sports employment contracts are invalid because they are null and void.
Gonçalo Rodeia Gomes @ DCM | Littler
