Published and translated by the firm Winter – Dávila & Associés
Paris, 4 November 2024
Introduction
Usually, the domain of Law is reserved for activities of social significance. This is why the filters to captivate the legal world are not easy to overcome. Now, an activity that has been consolidating over the past few decades to the point of having around three hundred million direct participants, 4% of the world population (Real Ferrer, 2016), and an incalculable number of indirect participants, is football.
In this sense, over the past few years, the attention of Law to football has evolved significantly. The employment relationships of professional footballers are one of the main focuses of attention. Taking this context into account, the topic to be developed in this research work addresses a gray area in terms of its application and legal treatment: social security in the employment relationships of professional footballers.
In national labor legislation, a very confusing, disorganized social security system is contemplated, where in some cases, the lack of protection for citizens prevails, as well as a failure to comply with international standards regarding the general social security system – without focusing on any specific area – in this sense, we start from a system that does not function very well.
Thus, the objective of this work will be: firstly, to describe the employment relationship on which we will base our social security approach; secondly, to apply international social security standards to this relationship; and finally, to propose a treatment that prioritizes the protection of professional footballers in Peru. To achieve this result, information is collected at both theoretical and regulatory levels; in addition, international and national regulatory instruments, as well as social security doctrines, will be used. Toward the end of this work, I will provide the conclusions.
I- Employment relationships of professional footballers
A) The MVP: The professional footballer
For many years now, in various competitions—football, basketball, hockey, etc.—the ‘most valuable player’ (MVP) has been awarded; that is, the most valuable player of the match, season, or championship, as appropriate. This award recognizes the player who stood out from the rest, who was essential to the game’s development, the main player of the match whose actions changed the course of the game.
In our research, the MVP is the professional footballer, whom we will talk about in the following lines, as he is undoubtedly fundamental to the development of the topic. To do this, it is important to identify when we are dealing with one and when we are not. Law No. 26566 “Law of the Labor Regime of the Professional Footballer” in its Article 2 states that professional footballers are those who, by virtue of a relationship established on a regular basis, voluntarily engage in playing football on behalf of and within the scope of the organization and direction of a club, in exchange for remuneration.
The identification of our MVP will not be limited to the definition established by the Law, especially today when there is an immense variety of championships, leagues, matches, competitions, etc., that can make this difficult. In this sense, in the sports field, confusion often arises between professional and non-professional athletes, that is, amateurs; and I consider it necessary to understand this difference. Professor Alonso Olea (as cited in Luis & Burguete, 2015, p. 5) summarizes it very well, stating that “the professional athlete does not play, unlike the amateur, but works, not practicing the sport out of hobby, but offering and providing their services to an employer in exchange for a salary.”
Now, once the professional footballer is identified, it is important to know the field in which they operate: football. According to Real Ferrer:
“Football is more than a sport, more than a spectacle, more than an industry, more than a passion. It is more than all of that because it is all of that at the same time, which, in its dimensions, is a unique fact in any social or economic sector. The immense web of interactions that occur between its different dimensions turns the football phenomenon into a complex and global reality that surpasses the mere sum of its facets” (2016, p. 5).
Although the definition above may summarize what football is well, it may lack objectivity due to the love and passion of its author. Therefore, I will refer to formal and official definitions of this sport. Firstly, according to the Real Academia Española, football is a “game between two teams of eleven players each, whose objective is to make the ball, which cannot be touched with the hands or arms except by the goalkeeper in their goal area, enter the opponent’s goal.”
And, of course, the definition of The International Football Association Board – IFAB[1]:
“Football is the world’s most popular sport. It is played in all countries at very different levels. The fact that the same Laws of the Game apply throughout all football and across the world, from the FIFA World Cup to a children’s match in a remote village, gives this sport a solidity that we must continue to harness for the benefit of global football” (IFAB, 2021, p.11).
Football is the field in which professional footballers operate, hence the need to describe it. In Peru, football was first played thanks to English migration with the founding of the Lima Cricket club in 1859, and it was not until 1970 that the professionalization of football began to be discussed (Panfichi, 2020, p.77)[2]. Although today there is an important level in terms of the professionalization of this sport—not without shortcomings and limitations—the labor development of people linked to it, especially that of footballers, continues to be peculiar. For this reason, we will now describe the employment relationship of a professional footballer.
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B) The employment relationship of professional footballers
Generally, when we refer to football, the first thing that comes to mind is the 90-minute match between two football teams. As spectators, we enjoy—or criticize—the game, and when the match ends, so does football for us. However, for those who work in football, this is not the case. From the club administrators to the professional footballers, their duties began long before the match’s start time. Focusing on the players, for example: they must train daily as part of their preparation for the match; in addition to fulfilling their work shifts, they must attend pre-match concentrations; if the match is held in another location, they must be available for travel to the venue, among other responsibilities and obligations they must fulfill as a contracted club footballer.
There is no doubt that a professional footballer acts as a worker, and indeed is one. While it is true that the provision of their service is peculiar due to the nature of the field, this does not disqualify them as a worker. It is also true that even though it is clear that they are workers, a significant number of disputes before football dispute resolution bodies focus on the contractual relationship between professional footballers and their clubs.
Professor Neves (Arce, 2005, p.11) pointed out that professional footballers form a special labor regime due to the unique characteristics of the companies they work for and the type of activity they perform. Footballers find themselves in situations uncommon to most other employment relationships, as described above.
As in most employment relationships, there is generally a party with greater power over the other. The field of professional football is not exempt from this reality. Naturally, this imbalance of power creates the need to protect the more vulnerable party, in this case, the professional footballer. Before moving on to the parties to the contract, we must ensure the existence of an employment relationship; for this, we will rely on the three traditional elements and three additional elements.
C) Elements of the professional footballer’s employment contract[3]
As is well known, for an employment relationship to exist, three essential elements must be present: 1. Personal provision of services, 2. Remuneration, and 3. Subordination. The employment contract of a player is no exception to the presence of these elements. As basic and obvious as this point may seem, it is vitally important since, in disputes, the first thing to prove, if the case is not solely about this matter, is the existence of a real employment relationship between the player and their club.
In this sense, when referring to the first element, the personal provision of services, we mean that this must be carried out by the player voluntarily, i.e., in the full exercise of their freedom. It must also be for another’s benefit, meaning the economic benefits of their work go to the club—or employer. Finally, it must be a productive personal provision, meaning that the player ultimately benefits from the club.
The second element is remuneration, which essentially is the pecuniary compensation the player receives in exchange for providing their services. This must be freely available to the player. The topic of footballers’ remuneration is broad and debatable[4], as there are concepts that add to the base amount, such as bonuses, signing fees, etc.
The third essential element of an employment relationship is subordination, which is simply the position the player takes vis-à-vis the club, allowing the latter to have the necessary authority and powers to organize and discipline the former. This is always within the scope of labor relations, with due respect for fundamental rights and in line with due process.
We have mentioned the three traditional elements of any employment relationship. While there will be cases where identification is straightforward, there will be others where this task is complicated. For this, as Umaña (as cited in Aquino, 2020, p. 5) points out, when faced with complex situations, we can rely on other elements that frequently appear in such relationships. I will mention two[5]:
The first of these elements is professionalism. Umaña (as cited in Aquino, 2020, p. 5) argues that this element is defined by the skill and preparation the club requires of the player. It is also characterized by the repetition and persistence of the worker’s actions towards the club.
The second element is exclusivity. As Professor Arce (2005) notes, one characteristic of this relationship is that players often change employers quickly, related to this second element. Players frequently switch clubs because they can only be under the authority of one club. They can only maintain a football relationship with one club, meaning players may only participate in official competitions under the club’s direction, except when representing their national team, according to the contracted season[6].
Thus, after first describing the three traditional elements of an employment relationship and then mentioning two additional elements that can simplify our task when faced with complex situations, we will be able to verify when we are dealing with a genuine employment relationship. Now, we will move on to discussing the parties to the employment contract in the professional footballer’s employment relationship.
1- Professional footballer
As expected, one party is the football player, who must meet the criteria established by Law No. 26566 to be considered a professional footballer. This means they must voluntarily engage in playing football on behalf of and under the direction of a club and receive remuneration for doing so, all within the context of a regular relationship with the club.
This definition consolidates all the previously described elements, reaffirming the existence of the traditional requirements of an employment relationship while adding other special conditions. To clear any doubts, we rely on Professor Arce’s breakdown (2005), where the requirements mentioned are:
- Natural person.
- Playing football must be performed on behalf of and within the organization and direction of the club.
- Remuneration.
- Voluntary participation in football.
- Regularly established relationship.
Furthermore, we must mention the definition provided by Article 2 of the Regulations on the Status and Transfer of Players, henceforth RETJ, which states that a professional player is one who has a written contract with a club and earns more than the expenses incurred for their football activity. Any other player is considered an amateur.
It appears that both national legislation and FIFA regulations are concerned with differentiating the professional footballer from other types of players or, as Arce (2005) puts it, from other people who play football. The main distinction is made against amateur players[7].
What should be clear are the characteristics, requirements, and conditions that must be met for someone who plays this sport to be called a professional footballer.
2- The Football Club
Article 3 of Law No. 26566 establishes that football clubs organized in accordance with current regulations are considered employers.
As can be seen, what the law states is general and brief. Therefore, for its definition, we turn to the general concept, as stated in the Paidotribo Dictionary of Physical Activity and Sport (as cited in Lorenzo-Calvo, 2016, p. 9): a sports club is a professional or amateur organization whose purpose is to encourage its members to practice one or more sports. It is a private entity with legal personality and capacity to act.
Mestre (as cited in Lorenzo-Calvo, 2016, p. 10) points out that clubs are the driving force behind sports in our sports system, as they reorganize and create higher structures such as federations and club associations.
In this same sense, FIFA defines a club as a member of a federation (itself a member of FIFA) or a league recognized by a member federation that fields at least one team in the championship.
Thus, we can now build the concept of a football club[8]. We must remember that the important thing is to identify it as the counterpart in an employment relationship. The first characteristic to note is that these are private legal entities that can be associations or corporations[9]; second, they are members of a federation. In Peru’s case, they are part of the Peruvian Football Federation. Third, which is obvious, they are dedicated to playing football.
Finally, Arce (2005) mentions an important clarification regarding the exclusion of national federations, i.e., national football teams. For example, the Peruvian National Football Team cannot be identified as a sports club.
D) Labor obligations and rights of professional footballers
Article 6 of Law No. 26566 sets out the special obligations of professional footballers:
- To perform the sports activity for which they were hired, applying the specific diligence corresponding to their physical and technical conditions, according to the applicable rules of the game and the instructions of the club or sports entity representatives.
- To attend training and preparation sessions at the place and time set by the club and to concentrate for competitions when required.
- To travel for competitions in accordance with the club’s provisions. Travel-related expenses, such as transportation, accommodation, food, and others inherent to the trip, are borne by the club.
- To submit to the discipline of their superiors and comply with their orders and instructions, maintaining proper conduct in their sports activities and complying with local, national, and international regulations.
- To maintain private behavior compatible with the efficient physical and mental condition of a professional athlete.
- To adhere to the terms of the employment contract and to any legal provisions, directives, and regulations.
Meanwhile, Article 7 of Law No. 26566 outlines the rights of professional footballers:
A footballer is entitled to the benefits agreed upon in the contract, especially:
- Weekly rest, holidays, and vacation days, according to the nature of the contract.
- Commercial exploitation of their image and/or participation in the club’s use of the same.
- A share in the payment made by the acquiring club for their transfer.
- Effective employment, meaning that, except in cases of sanction or injury, they cannot be excluded from training and other instrumental or preparatory activities for their sports activity.
Having described key concepts for understanding the employment relationship of professional footballers, we will now move on to the application of social security in these relationships.
II- Social security in the employment relationship of professional footballers
A) The match being played in Peru
Currently, Peru does not have a social security system specifically designed for professional footballers. What happens is that they are part of the common social security systems that exist in our country, meaning that many of them—the majority—have private insurance that allows them to face potential future contingencies for both themselves and their families.
I must add that the current situation is very concerning and creates scenarios where footballers are unprotected, and the worst part is that this issue is not being prioritized in our society, where there is a need to establish public policies and reforms to ensure a better social security system for them.
For example, footballers are constantly exposed to injuries, and when this happens, there is no special insurance that is activated for these cases; instead, they resort to the private system they belong to for treatment. But what is the issue with this? Firstly, there is the problem for the Club regarding whether or not it should pay the salary while the player is injured—fortunately, there is growing consensus that they should pay the full salary—and then, we face a bigger problem: what happens when a footballer is unable to play again? The insurance will evaluate the case according to common and general criteria to determine their ability to return to work, but they do not consider that their job is to be a footballer, so they will be denied a pension for permanent disability, as it will be argued that while they cannot play football, they could still engage in another income-generating activity.
I believe this is the most serious scenario footballers can face because the nature of their professional activity is not being considered, but rather a general approach that overlooks the particular challenges they face.
In conclusion, in terms of an adequate social security system tailored to the needs of professional footballers, it can be said that such a system is currently non-existent, and on the contrary, a scenario of vulnerability is created for them.
B) The match being played abroad
The case of Argentina
Decree Law 2003 – 05 – 20 of the Argentine National Executive Branch develops the social security system for football players. I consider this a significant step forward because it not only highlights the importance of sports at the national level but also demonstrates concern for protecting workers. Let us remember that without players, there is no football.
In Argentina, footballers have a specific institution that handles their needs in case of injury. This is important not so much for the top leagues, as each club has its own medical staff to handle everything, but for the lower-income leagues that also have players and look out for them.
This is why I want to emphasize the text of the Decree[10]:
“In this regard, it is necessary to establish a system for the collection of social security contributions corresponding to the staff of the Argentine Football Association (AFA) and the clubs in the Primera ‘A’, Nacional ‘B’, and Primera ‘B’ divisions, as well as football players, technical staff, medical personnel, and assistants participating in any category of entities dedicated to professional football in the mentioned divisions, providing legal security to the workers dependent on these institutions, establishing an agile and efficient way for the National State to monitor contributions, and granting institutions an equitable system suitable to their economic reality.”
I want to stress the importance of protecting the leagues, not just focusing on the top national league but also considering the other leagues that truly need protection. In these leagues, player salaries are not high, and there is a need to promote a social security system because they care for the players.
In conclusion, in Argentina, there is at least a general framework that protects professional football players. From this, guidelines are established to ensure their care.
The case of Spain
I consider Spain an exemplary case, being one of the countries that has most developed a social security system for professional football players. Not only are there general rules or guidelines that can be interpreted through general regulations, but the system has evolved to the point where it specializes in the levels of contributions by players and the benefits they will receive based on these contributions. All of this is paired with the recognition and care of the player for the nature of their work.
They have a contribution scale based on the league level in which one participates[11] and how benefits will be provided according to this contribution.
Spain’s case is exceptional because it understands that football is much more than a sport or a spectacle and has focused efforts on caring for and protecting players by providing an optimal and coherent social security system according to the nature of their work. Additionally, football is one of Spain’s main economic activities.
Due to space and content limitations, I will mention just one of the many positive examples that can be highlighted in the case of Spain:
For instance, among the 14 special provisions governing social security for professional players is Royal Decree 2806/1979 of December 7, which establishes the Special Social Security Regime for professional football players[12]. We find Article 8[13]:
Article 8. Protective action.
The protective action of this Special Regime shall include the following benefits: a) Health care in cases of illness and accident, regardless of their cause, and maternity. b) Economic and recovery benefits in cases of permanent disability, regardless of the determining contingency, in the following degrees: a’) Total permanent disability for the usual profession. b’) Absolute permanent disability for all work. c’) Severe disability. c) Economic benefits in cases of death and survival. The concepts of the benefits listed in the previous number and their regulatory standards shall be the same as in the General Social Security Regime.
We can see that, first and foremost, it understands and recognizes that the dynamics of a football player are different from those of other workers, which is important. Starting from this understanding is crucial for then being able to provide benefits that align with that.
In conclusion, Spain has developed the social security system for football players very well, understanding their nature and from there beginning to offer special and coherent benefits aimed at protecting players.
The case of Uruguay
In my opinion, Uruguay has one of the best models for social security systems in general, but specifically in the sector of professional football players. Not only did it establish a social security system for them, but it also issued legal provisions that respond to the nature of their activities.
The Social Welfare Bank of Uruguay has a special section for professional football players, who have been contributing to the system since January 2012, based on their real remuneration.
Article 1 of Decree 398/009 of August 24, 2009 states:[14]
“This decree includes sports professionals, whether they perform their activities as employees or independently. For the purposes of this decree, sports professionals are understood to be athletes, referees, observers, physical trainers, technical directors, technical assistants, kinesiologists, and masseurs who perform such activities in a remunerated and habitual manner, so that they constitute the main means of livelihood for them. It will be considered that the activity is the main means of livelihood for the worker when their real remuneration as a sports professional represents more than 50% (fifty percent) of their total income or, in any case, exceeds the amount equivalent to 11 (eleven) fictitious contribution bases.”
I also find it important to highlight the provisions regarding benefits mentioned in Article 6:
“Sports professionals covered by Article 1 of this decree shall be entitled to unemployment benefits once the employment relationship ends, provided they meet the requirements set forth by the applicable legal standards, and they shall be beneficiaries of all other social security benefits in accordance with the current regulations on the matter.”
This shows that, first of all, they understand that sports professionals have a different nature than other professionals and, secondly, they do not create barriers or bureaucratic obstacles to the benefits they deserve through social security.
III- The match that should be played according to international standards
Next, I will present a proposal that can be applied in our country according to the five aspects that should be analyzed in a social security system:
1- Coverage
In the context of our country, I believe that as a first step and as the beginning of creating a social security system for professional footballers, we should not set overly ambitious and largely unattainable goals. It is better to start with a limited scope, but what matters is starting.
This means that we cannot expect this social security system to cover, as it does in countries like Uruguay or Argentina, not only professional footballers but also all the people who work in the field, such as medical staff, technical directors, physical trainers, etc. I believe that in Peru, we can start by ensuring coverage for professional footballers and their families, children, and spouses.
2- Benefits
Healthcare
- Outpatient consultations for them and their families.
- Treatment for injuries through this system.
- Emergency care for them and their family members.
Economic
- Pensions when they stop working.
- Pensions when the club does not want to cover the salary in case of injury.
- Pensions when they can no longer play football due to an injury.
On this point, regarding pensions[15], an example can be taken from what PUCP has done with its retirement complement for its workers.
3- Financing
I believe it could be funded with contributions from the Club. Football clubs have significant and established financial resources to be able to contribute a percentage for the social security of footballers. It should not be forgotten that they themselves would benefit from this since, when a contingency arises, this system could be activated.
To suggest a number, we would first need data on the average monthly salary of footballers and the number of professional players in Peru—data that is currently outdated and inaccurate.
But, based on the reference that there are between one thousand to twelve hundred professional footballers and that the average salary is 5,000 soles, an employer contribution of 10% of 5,000 soles could generate a fund for the social security system for footballers.
4- Management
I believe there are two possibilities: one based on our national system and another based on international legislation.
Regarding our system, I think ESSALUD could open a department dedicated to this. Internationally, another option is for the SAFAP union to manage the system.
5- Supervision
The SBS could be entrusted with overseeing the system, as I believe it is easier for the SBS to adapt and train to supervise an insurance system for players compared to other entities.
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IV- Conclusions
- The relationships of professional footballers are different from others; in addition to the traditional elements that characterize employment relationships (personal provision, remuneration, and subordination), professionalism and exclusivity can also be found.
- In Peru, there is no social security system specifically for football players, which creates a scenario of vulnerability for them, as the nature of their work requires a system different from the common and general one.
- Argentina and Uruguay are countries that do have a social security system designed for football players. Moreover, Spain has developed a social security system for football players at the global level to such an extent of specialization that it includes contribution categories.
Finally, within the framework of a proposal for the development of a social security system for professional footballers, I believe it should cover them and their families, with both economic and healthcare benefits. Funding should come from the clubs’ finances, while the administration or management could be handled by SAFAP or ESSALUD (by creating a dedicated department), with supervision by SBS.
References
[1] The entity responsible for the Laws of the Game worldwide. The only body authorized to decide and approve changes to the Laws of the Game. According to IFAB itself, the Laws of the Game are relatively simple compared to those of most team sports.
[2] To delve into the process of professionalization of football in Peru, see the article by Gisselle Vila and Aldo Panfichi, which provides an interesting and detailed historical account of this process during the Revolutionary Government of the Armed Forces, using sources such as journalistic archives, interviews with former football club leaders, and decrees issued during those years, among other literature.
[3] Although, from an Employment Law perspective, each element can be developed extensively due to its rich content, for the purposes of this research work, I will limit myself to mentioning very basic aspects of these elements to contextualize them in the employment relationship of professional footballers.
[4] As this topic is beyond the scope of our research, the issue of footballers’ remuneration is not covered extensively, and I will limit myself to mentioning and discussing it briefly.
[5] The author mentions three elements: 1. Professionalism, 2. Exclusivity, and 3. Stability. I do not mention the latter because, although it helps with identification, it is not as relevant in a football relationship but in others.
[6] This element does not mean that the player cannot maintain a contractual relationship of a different nature, such as having another job as a business owner, etc. This element is closely related to the football field, meaning that the player cannot participate in official matches for two football clubs simultaneously.
[7] This does not mean that amateur players are not considered in any case. It is beyond the scope of our research, but there are regulations concerning them.
[8] The definition provided is limited to being basic and practical. For example, for a financial-focused definition, see “Football and the Global Entertainment Business. Clubs as Entertainment Multinational Corporations” (Portet, 2011), which concludes, among other things, that football’s evolution has turned clubs into content creators.
[9] According to Ricardo Aguilar (2019), in Peru, most professional football clubs are non-profit civil associations. This situation is criticized by the author, arguing for the need to convert them into corporations.
[10] https://www.argentina.gob.ar/normativa/nacional/decreto-1212-2003-85230/texto
[12] Yes, Spain has approximately 14 regulations governing the social security of football players, one dating back to 1979.
[13] https://www.boe.es/eli/es/rd/1979/12/07/2806/con
[14] https://www.bps.gub.uy/bps/file/3684/2/d0398-009_profesionales_del_deporte_aportacion.pdf
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Elmer Guillermo Arce Ortíz. (2005). El futbolista profesional y sus derechos laborales (A. E. E.I.R.L. (ed.); 1st ed.).
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Lorenzo-Calvo, B. (2016). Historical-Legal Origin and Evolution of Sports Clubs in the Community of Madrid (1883-1936). http://oa.upm.es/id/eprint/39695/contents
Luis, D. J., & Burguete, V. (2015). Master’s Degree in Personnel Management and Labor Practice Faculty of Labor Sciences CORPORATE SOCIAL RESPONSIBILITY: INTERNAL MARKETING AS A TOOL.
Morales Luna, F. (2010). Ubi societas, ibi futbol. Legal Forum, (11), pp.128-137.
Panfichi, A. (2020). The Professionalization of Peruvian Football. 73–92.
Portet, X. G. (2011). Football and the Global Entertainment Business. Clubs as Entertainment Multinational Corporations. Communication and Society, 24(1), 141–166.
Real Ferrer, G. (2016). Prologue. In Football Law: Present and Future2 (1st ed.).
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