Dahmane v KRC
Court of Labour
of Antwerp (Hasselt district) 6 May 2014
Algemeen rolnummer 2009/AH/199
signed with KRC GENK on 1 July 2007 for four years (till 30 June 2011). Dahmane
unilaterally terminated the contract January 2008.
- KRC GENK
demanded from Dahmane compensation of EUR 878.888,88 (36 months wages) at the
labour court of Tongeren. The demand was based on Article 5 § 2 of the Law for
Professional Sportsmen (24 February 1978) and the Royal Decree of 13 July 2004
that Determines the Amount of the Compensation based on the Law for
Professional Sportsmen. According to the Royal Decree (of 2004) the
compensation had to be equal to 36 months of salary in the case of Dahmane.
demanded EUR 250.000,00 from KRC GENK compensation calculated in accordance
with the Labour Agreements Law (03 July 1978). D. argued that according to
article 40 § 1 of this law, the severance pay can only amount to 12 months of
2009 - The Labour Court agreed with the demands of KRC GENK, whereas it disagreed
with Dahmane’s. Dahmane placed an appeal.
2010 – Court of Labour decided that Dahmane had unlawfully unilaterally terminated
the labour contract between him and KRC GENK. Dahmane had to reimburse KRC GENK
with a compensation equal to 36 months of salary, because Dahmane fell under
the Law regarding Labour Agreements of Professional Sportsmen of 24 February
1978. The Court rejected Dahmane’s request for damages.
of Labour turned to the Belgian Constitutional Court with the preliminary
question whether the Law for Professional Sportsmen of 24 February 1978 breaches
the Articles 10 and 11 of the Belgian Constitution on Equal Treatment, as there
was an inconsistency with the Labour Agreements Law of 03 July 1978 under which
the severance pay can only amount to 12 months of salary. Secondly, it was
questioned whether the rule in question infringed the freedom of employment.
2011 – the Belgian Constitutional Court declared itself incompetent to answer
the preliminary questions because the question whether a professional sportsmen
falls under either the Law for Professional Sportsmen or the Labour Agreements
Law solely depended on Royal Decree on Determining the Amount of the
Compensation based on the Law for Professional Sportsmen (13 July 2004). According
to Belgian law, the legality of the Royal Decree has to be decided by the Court
of Labour itself.
the judgment of 6 May 2014 was the second time the Court of Labour dealt with
the case regarding the unilateral termination of the player’s contract between
Dahmane and KRC GENK. This time it had to decide whether the Royal Decree breached
the Belgian Constitution.
demands by Dahmane:
Court of Labour rejects the Royal Decree on Determining the Amount of the
Compensation based on the Law for Professional Sportsmen (13 July 2004) because
it breaches the Belgian Constitution (part II, §1).
Court of Labour asks the CJEU the preliminary question whether the Royal Decree
of 2004 breaches Article 45 TFEU since the free movement of professional
sportsmen is unreasonably restricted by the Royal Decree (part II, §1).
has specific characteristics that can be summarized in:
difference between labour agreements of professional sportsmen on the one hand
“normal” labour agreements is based on the “specific character of labour
agreements of professional sportsmen en the specific character of sport in
of sport” forms a special statute for sport, whereby common law cannot be
applied unabridged (part III.b. §6).
to European Case Law, and the Commission’s White book on sport, KRC GENK
highlighted that to achieve the objectives inherent to sport, which include
avoiding competition distortions and the preservation of the stability of
participating sport clubs, certain specifics measures can be taken aimed at
guarantying legal certainty of labour relationships
in the sport sector (part III.b. §6).
The Court's holdings
that sport exhibits certain characteristics that can deviate from other labour
relationships between employer and employee, but held that since the Royal
Decree in question did not mention the specificity of sport, this exception is
inapplicable (part III.b. §5).
did not take the economic aspect of sport (e.g. the pursuit of economic
profits) into account in its arguments, and the importance of fair competition in
this regard. These economic objectives are not exclusive to the sport sector
but underlie the market economy in general. Therefore, the Court sees no valid
reason as to why a separate Royal Decree is necessary to achieve the objectives
of the sport sector when similar objectives are pursued by other economic
sectors. In other words, no separate laws should be applicable to sport when it
pursues economic objectives (part III.b. §6).
KRC GENK’s arguments that for football in particular certain legislative
deviations preventing richer clubs from buying all the good players from
smaller clubs, thereby distorting competition, are justifiable, the Court found
them to be incorrect. Even though football’s transfer system causes movement of
footballers to differ from the “normal” functioning of the labour market, in
this case it is important to draw a distinction between the buying and selling of
players between clubs on the one hand, and the unilateral termination of a
player’s contract by either club or player on the other. Yet again the Court
saw no reason why the specificity of football should enable the adoption of Royal
Decrees breaching article 10 and 11 of the Belgian Constitution (part III.b.
took into account that the average career of a professional sportsman is
relatively short (12 years according to RKC GENK and six to eight years
according to Dahmane). A compensation amounting to 36 months of salary would
for many professional sportsmen be equal to 1/3 of total career revenues and is
therefore not justified in the present case (part III.b. §7).
Decree applies to professional sports in general, not only to football, KRC
GENK’s can therefore not rely on the specificity of football to justify its
legality (part III.b. §6 and §7).
the Royal Decree is declared contrary to the Constitution, the Court sees no
reason to make a preliminary reference to the ECJ (part III.b. §12).
Court considered that a Royal Decree imposing a compensation of 36 months of
salary on a player breaching his contract is disproportionate. Furthermore, the
Court found the Royal Decree unjustifiable under the Constitutional principle
of equal treatment and non-discrimination (part III.b. §8).