02/02/2014 - Author: Ramon Font
One of the specificities introduced in Spain by Royal Decree 1006/85, was the so-called termination clauses stipulated in the case of unilateral termination of the employment contract by the player. In principle this provision was greeted with obvious signs of approval from all members agents - sport legal , professional relationship because, theoretically , came to establish a balance between maintaining the inalienable right to resign "ad natum " worker referred to in art. 49.1 d) of the Statute of Workers and at the same time, the right club or sports organization to recover from any damages arising from the early progress of the player. However practice shown by the parties in the daily development of suitable provision has been to establish more shadows than light on the appropriateness of it and are no longer few voices cry if not a repeal, if at least one new regulation of that, to avoid substantially abuses in his name being committed, especially with young players whose contracts stipulated salaries or wages do not correspond at all with the proportionality should be rigged established termination clauses. In this regard it is first noted that there is not even an agreement between the own doctrine on the legal nature of these termination clauses. So some authors (Manuel Sarrión Fernández) come in stating that such covenants lack even minimally effective for being contrary to the law . Others insist to qualify them as penalty clauses , while the majority sector with better success considers that this is mere compensation or indemnity clauses, if it is true that in certain cases be described some contractual clauses laid down in the case of abandonment of the athlete as authentic protection clauses included in the contract with the sole intention of preventing the progress of the players or having to renegotiate contracts up to the club or sport organization for which has been providing services (Miguel Cardenal Carro and others). At first these clauses, whatever its wording or amount were accepted without opposition. However in recent times each day more claims of some existing players and new clubs regarding payment of the amount of clauses alleging the invalidity of such agreements or at least trying to negotiate lower amounts in their day stipulated in the event of resignation of the athlete. When this happened to and negotiations have not borne fruit, it has resorted to the courts urging the court to fix the amount in the absence of an agreement referred to in art. 16.1 of Royal Decree 1006 /85. In this sense the line taken by the courts have been hesitant because, to our knowledge, neither the two judgments that seemed definitive, the “Tellez case" and “Perera case," called, have established a line that can be considered unambiguous, so the debate is still open and highly topical. In our opinion it is desirable to clarify new regulations and set limits to legal arrangement that, today, no longer meets the same criteria and principles existing at the time of its formulation, given the substantial change that has been specially produced in some professional (read soccer), and the new orientation of these with the entry of big money contributed mainly by the media, who have been in a few years, to overturn all existing sports scene in 1985. But while this is not done, it will remain with the Courts in interpreting a law for the alien reality. And for that the courts should always take into account the complexity of the sport, its principles and interests and, finally, the peculiarities of the labour market, in particular , the degree of involvement unwarranted legitimacy to the freedom of resignation professional athlete as a worker because of a disproportionate clause and the possible detriment of the right to effective occupation or, more specifically , to promotion , which might be associated with not having been taken into account when usually effective competition matches in the club or sport organization in providing services to come . In both these cases it will be legal, moral and athletically requires adequate restraint of the sum originally stipulated between the parties. Similarly, despite its undoubted evidentiary difficulties in the case of players trained in the quarry of a club or sports club, also be taken into consideration for the home entrepreneur estimated cost of the training received by the athlete during the term the contract, like the regime for breach of the covenant to remain in the company as well as the estimation of possible sports injuries and those caused to the image of the club or sports organization. And finally and perhaps this is the most important, we must take into account the existence of proportionality between the salary level of the player and the amount stipulated as termination clause, without letting go of absolute freedom of contracting between parties, attending to this, the different position of the parties in the negotiation. And maybe this is the key to the future. As coach said F.C. Mr. Barcelona Carles Rexach , the solution is not that difficult: just set a percentage limit , those who want to , to link the remuneration of the player and the amount of his buyout clause , so that the more higher copper can clause be and vice versa. This surely would eliminate both imbalances that today seem as fashionable, even as some facts that could be described as grotesque. Ramon Font Lawyer One of the specificities introduced in Spain by Royal Decree 1006/85, was the so-called termination clauses stipulated in the case of unilateral termination of the employment contract by the player. >