Pursuant to Kelsen’s famous pyramid, the authority of norms may be
ranked according to their sources: Constitution is above the Law, which is in
turn superior to the Regulations, which themselves stand higher to the
Collective Agreement etc…Under French labour law, this ranking can however be
challenged by a “principle of favourable treatment” which allows a norm from a
lower rank to validly derogate from a superior norm, if (and only if) this
derogation benefits to the workers.
On 2
April 2014, the Cour de Cassation (the French Highest Civil Court) considered that
these principles apply in all fields of labour law, regardless of the
specificity of sport[1]. In this case, Mr. Orene Ai’i, a professional
rugby player, had signed on 13 July 2007
an employment contract with the Rugby Club Toulonnais (RCT) for two sport
seasons with effect on 1 July 2007.
Yet, article L.
1242-13 of the
French Labour Code states that a fixed term employment contract must be handed
to the worker within a maximal period of two days after the beginning of the
contract. Should this period of two days not be respected the worker is
entitled to claim for a requalification of his fixed term contract into
permanent contract[2].
Mr. Ai’i relied on this article to argue for the requalification of his
contract.
It must be noted that the requalification of the initial two seasons
contract in a permanent contract, implies that it can be terminated by the
employer with a cause. Therefore, a termination at the occurrence of the term
of the contract, i.e. after the 2 years, may be regarded as a “dismissal
without genuine and serious cause” which in turn would allow the player to seek
compensation.
The RCT argued on the other hand that article L. 1242-13 and the
potential requalification is inapplicable to professional rugby players whose
employments relationships can never be for an indefinite time period. Indeed,
according to article 1.3 of the collective agreement of professional Rugby, an
employment contract with a professional rugby player can last for a maximum of
5 sport seasons.
The Cour de Cassation reminds however that a collective agreement cannot
depart unfavourably for the worker to the imperative provisions of the law and
therefore states that the provisions of article 1.3 of the collective agreement
of professional Rugby shall not impede the requalification of a fixed term
contract between a professional rugby player and his club, into a permanent
contract.
This solution is not limited to Rugby and may be extended to all fields
of professional sports. Indeed, like the collective
agreement of professional Rugby, article 12.3.2.3 of the national collective
agreement of sports, which is applicable for every professional athlete, also provides that
“the duration of a same contract cannot
be superior as 5 sport seasons (60 month)”.
Based on the above mentioned decision it is fair to conclude that any
French professional athlete can claim for a requalification of his fixed term
employment contract if he hasn’t received a copy of his employment contract
within the 2 days of its beginning. Potential consequences could be significant
considering that a professional athlete can terminate a permanent contract, without
cause or compensation[3]. In
this regard it will be interesting to see if the requalification of fixed term
sport contract into a permanent contract will facilitate their termination and
allow some professional athlete to change Club without any transfer fee…
This decision could have wider implications for sporting labour
relationships in general. Indeed, the Cour de Cassation rejected the
specificity argument put forward by the Rugby Club. The legal reasoning on
which the decision is grounded could, therefore, easily be transposed to other
instances, where core labour rights of athletes are at stake.
Patrick Millot, Avocat à la Cour