Looking at the world of soccer, where, although there is a growing professionalization of the sector characterized by the high labour mobility of sportspeople, we can see that there are still many unresolved questions, such as.., when a certain soccer club decides to remove a player (who tends to be a “key-player” for the season) from training with the first team because he won’t agree to: (i) renew his contract; or, alternatively (ii) be sold during the current season, in order to avoid him leaving at “zero cost” and thereby damaging the club’s economic interests.
However, instead of focusing on the analysis of the decision to put the player in training with another secondary team (“B”) and the question of whether or not the right to effective occupation is violated, we will focus on the scope of ancillary or secondary duties, namely loyalty and information duties, as well as the possible infringement of the parties.
Practice has dictated a strategy (which is becoming more and more common) for clubs-employers: (i) to give players the choice of renewing their contract, counting on the desired (high) professional performance, achieving goals and objectives (sporting and financial); or, (ii) if they don’t, to reconcile the interests of the parties – by compensating the club-employer with a “transfer” (assuming that the destination club is to the player’s liking), thus guaranteeing a financial “income” as a safeguard. This is, in fact, a logical course of action for market agents and one that seeks to protect the interests and legitimate expectations of the parties.
However, there are situations on both sides that make this reasoning difficult. On the one hand, it is difficult to detect and combat situations in which the player has mental reservations (art. 244 of the Civil Code), or scenarios in which the player is economically stimulated by third parties (and therefore collaborates with them) not to renew the employment contract and to put a ” dead-end ” in the negotiations (internal or external) with the club-employer.
On the other hand, unilaterally determined conduct (e.g., “relegation to the B team” or “training apart from the first team”) is also questionable as a result of or reaction to a choice (freely) made by the professional. For further information on the latter, we recommend reading VICTOR HUGO VENTURA, “O regime do contrato de trabalho do praticante desportivo, Almedina, 2023”.
Depending on the specific case, the duties of loyalty (which naturally includes the duty of loyalty in the legal-ethical sense) and of information between the parties can provide important contributions and a more careful assessment. Although Law no. 54/2017, of July 14, does not expressly mention this, it is worth recalling art. 3, no. 1 of this Law and art. 9 of the Labor Code, which allow Section VII, on the rights, duties and guarantees
of the parties ( articles 126 et seq.), to be “called” to the issues presented, as long as they are compatible with this special employment relationship.
The interests of the club-employer and the interests of the sportsperson must be balanced, particularly in this “world of sport”, characterized by fixed-term contracts and high job mobility. Loyalty prescribes the mutual protection of the counterparty’s objective interests, while information requires the active provision of truthful, complete and up-to-date data, which better enables future action to be coordinated.
We’ll keep an eye on future developments.
Tiago Sequeira Mousinho | Marta Coelho Valente @ DCM | Littler
