Autonomy of will and contractual freedom in professional sports

prof. JUDr. PhDr. Tomáš Gábriš PhD., LL.M, MA

Vydáno: 42 minút čítania

Gábriš, T.: Autonomy of will and contractual freedom in professional sports. Právny obzor, 104, 2021, special issue, pp. 3 -21

https://doi.org/10.31577/pravnyobzor.specialissue.2021.01

Autonomy of will and contractual freedom in professional sports. The paper explains routes through which legal limitations of contractual freedom were introduced into sports law, taking their premise from the employment law regulations applicable in Slovakia. The main aim was to legally compensate the actual (mostly economic) inequality of contracting parties, similarly as it is accepted in labour law and in the consumer protection law. However, an amendment to the Act on Sports, introduced in 2020, changed this trajectory by allowing the sports entities a broader contractual freedom as to their choice between an employment contract and contract for services. On the other hand, however, the amendment thereby introduced a limitation of contractual freedom in the case of opting for the contract for services (concluded between entrepreneurs) – newly, these contracts generally concluded under the Commercial Code have to observe minimum standards reserved previously only for the sporting employment contracts.

Keywords: autonomy of will, contractual freedom, professional sports, sports law, labour law, commercial law

Introduction
Albeit in general, a shift from status to contract is being proclaimed with regard to evolution of labour law in Europe, there is still an important factor of "status" being present in modern labour law. This is namely the status of a weaker party, which makes it legitimate and acceptable to limit the general principles of contract law, being the principles of autonomy of will and freedom of contract as its manifestation. The status of a weaker party is namely used as an argument to limit these principles in order to protect the weaker party in their weaker negotiating position against the other party - being their employer mostly. This concept is nevertheless quickly expanding to other branches of law as well - from labour law (the employee as a weaker party) in civil law (consumer as a weaker party), up to business (commercial) law. With regard to the latter, we shall offer here an example concerning business relations between entrepreneurs in sports - namely between the players and clubs. Albeit the Slovak Act on Sports from 2015 (effective as of 2016) provided for the employment status of players performing dependent work in sports, and thus introduced largely limited contractual freedom in the field of sports law, the situation has drastically changed in 2020. An amendment to the Act on Sports namely allowed the clubs and the players to conclude instead of employment contracts, contracts on the provision of services, based on the Commercial Code. Hence, the amendment allowed for circumventing the labour law standards introduced through the Act on Sports. In this paper, it is being suggested that what might seem to be a return to the ideals of autonomy of will and contracting freedom via the amendment to the Act on Sports, should, in contrast, be seen as a twofold limitation of autonomy of will and contractual freedom in sports. First of all, the so-called freedom to decide between the labour protection and the commercial relationship will certainly allow for the exploitation of the weaker position of the players in the negotiating process. Secondly, the amendment has introduced an obligation for the parties to the commercial players' contract to observe certain mandatory rules laid down in the Act on Sports. The amendment is thus expanding the limitations of contractual freedom onto all the sporting contracts concluded under the Commercial Code - introducing thereby unintentionally the concept of a "the sporting weaker party" into commercial law.
 
1. Concept of autonomy in law
In private law, in general, a relatively high degree of autonomy (freedom) is considered to be one of its philosophical backbones - at least since the times of the victory of liberal political and legal thought. 1) From a broader historical perspective, however, the recognition of "private autonomy" in law is all but a modern element. In fact, it can be rather perceived as a relic of a much older historical concept of autonomous rule-making, which was very much characteristic of the pre-modern and pre-liberal era, when the state and state-made law played only a minor role in regulating various aspects of everyday life. It was only with the emergence of the legislative monopoly of the state that autonomous rule-making has shrunk to what we know nowadays mostly as contractual autonomy in the law of obligations.
The current situation is thereby a heritage of the 19th century legal scholarship, in Central Europe being mostly influenced and inspired by German pandectist legal thought, refusing autonomous law-making and limiting autonomy to an element of law of obligations - to the extent that it is recognized and allowed for by the state. It was specifically Carl Friedrich von Gerber (1823-1891) and Paul Laband (1838-1918) who embraced this concept. Gerber explicitly rejected autonomy as the source of law, claiming there is a difference between law-making and law enforcement - and autonomy thereby only means the power to act legally, but not to create law. 2) Autonomy should thus not be considered a separate source of "non-state law", but rather only a source of contractual relations and legal activities, and therefore, a part of the law of contracts, Gerber claimed. 3)
Otherwise, according to Laband, normative autonomy would necessarily conflict with the sovereignty of the state. Laband also quoted Savigny, who claimed that legal acts of private entities are only sources of subjective rights, but not of objective law. 4) In this spirit, Wilhelm Eduard Wilda (1800-1856) in 1842 finally transferred the notion of "
Privatautonomie
" from the legislative and law-creating process into the law of contracts 5) where it is mostly found today, being denoted as autonomy of will and its immanent part-freedom of contract.
 
2. Autonomy of will and contractual freedom in private law