Mohamed Dahmane is a professional football player of
French-Algerian origin, who has played for a variety of European clubs,
including French club US Mauberge, Belgian club RAEC Mons and Turkish club Bucaspor.
However, he will mostly be remembered as the player whose legal dispute with his former club (Belgian
club KRC Genk) revived the debate on football players’ labour rights.
Journalists wasted no time in comparing it to the Bosman case.[1] Fair
enough, Dahmane and Bosman do show some striking
similarities: the two cases concerned players employed by mediocre Belgian
football clubs claiming their right to be treated as normal workers.
Furthermore, in both cases the respective Courts met (to a large extend) the
players’ demands. The Bosman case not
only changed labour conditions for all footballers, it shook the whole transfer
system. In Dahmane, the case is
essentially about whether it is justifiable to have a special law that obliges
professional football players who unilaterally break their players’ contract to
compensate their club for up to 36 months of salary. After all, “normal”
workers are only obliged to pay a 12 months of salary compensation in an
identical situation. Whether the Dahmane
case will have the same weight as Bosman
depends on the effects of the judgment on footballers in Belgium, but also on
the European football sector in general. Therefore, a close look at the ruling is
needed to understand its potential consequences.
Dahmane signed a four-year contract with KRC Genk on 1
July 2007, he then unilaterally terminated the contract in January 2008 following
a row with his coach. Due to the contract termination, KRC Genk demanded a
compensation amounting to EUR 878.888,88. The demand was based on Articles 4 §
4 and 5 § 2 of the Law for Professional Athletes and the Royal Decree of 13
July 2004. Indeed, according to the Royal Decree, the compensation had to be
equal to 36 months of salary. Dahmane disagreed with KRC Genk’s demands and
argued that the compensation should be calculated in accordance with Article 40
§ 1 of the general Labour Agreements Law. Pursuant to this Article the
severance pay can only amount to a maximum of 12 months of salary.
In a judgment of 25 May 2009, the Labour Court (Court
of first instance) concurred with the demands of KRC Genk and ordered Dahmane
to compensate KRC Genk for EUR 878.888,88.
Dahmane placed an appeal with The Court of Labour
arguing that Article 4 § 4 of the Law for Professional Athletes and the Royal
Decree breached Articles 10 and 11 of the Belgian Constitution on equal treatment
and non-discrimination.[2] KRC
Genk, for its part, argued that the difference between labour agreements of
professional footballers on the one hand and “normal” labour agreements on the
other is based on the ‘specific character of labour agreements of professional footballers
and the specific character of sport in general’. Thus, the ‘specificity of
sport’ would imply a special status for sport, whereby ‘normal’ law (i.e. the general
Labour Agreements Law) cannot be applied unabridged. KRC Genk highlighted that
to achieve the objectives inherent to football, which include avoiding
competition distortions and the preservation of the stability of participating
sport clubs, certain specific measures, such as the Royal Decree of 2004, can
be taken in order to safeguard the legal certainty of labour relationships in
the sport sector.[3]
The Court of Labour dismissed the arguments raised by
KRC Genk, and held that the Royal Decree applies to all professional sports,
not only to football, thereby denying validity to RKC Genk’s claims on the
specificity of football.[4]
The Court agreed with KRC Genk that sport exhibits
certain characteristics that can deviate from other labour relationships
between employer and employee. However, the Royal Decree in question did not
mention the specificity of sport in its text, nor does it provide any objective
justifications as to why separate rules regarding compensation after a
unilateral termination of a labour contract is necessary for the sport sector.
Furthermore, the pursuit of financial profits, and the importance of preserving
a fair competition have to be taken into account. Those economic objectives are
not specific to the sport sector. Therefore, the Court saw no valid reason justifying
a separate Royal Decree, when sport’s economic dimension can be equally covered
by existing legislation. In other words, the same laws should be used to
achieve the same objectives.[5]
As regards KRC Genk’s view that some rules preventing
richer clubs from buying all the good players from smaller clubs, thereby
distorting competition, are justifiable, the Court found that to be incorrect.
Even though it is true that football’s transfer system is different from “normal”
movement of workers, a distinction needs to be made between buying and selling of
players on the one hand, and the unilateral termination of a player’s contract
on the other hand. Here again the Court found the breach of the Constitutional
Articles on equal treatment and non-discrimination based on the specificity of
the football transfer system was not objectively justified in the Royal Decree.
The Court reminded the parties that the transfer
system, which only allows two periods a year for clubs to buy and sell players,
would limit the possibility for professional footballers to change clubs.
Moreover, it highlighted that compensation equal to 12 months of salary
comprises two transfer periods, and should therefore not be seen as
unreasonable. Lastly, the Court took into account that the average career of a
professional sportsman is relatively short (12 years according to KRC Genk and
six to eight years according to Dahmane). A compensation amounting to 36 months
of salary would, for many professional players, amount to 1/3 of the player’s
revenue during his career and should therefore be deemed unjustifiable.[6]
Hence, the 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.
Dahmane revives a debate that has
occupied academics in the fields of sports law, labour law and other fields of
law for many decades. Is sport special and do its specificities oblige the
European and national legislators to make laws that answer the specificities of
sport? Should professional athletes be treated different from normal workers
because sport is “special”? After Bosman,
no transfer fees needed to be paid for players whose contract had ended and no
limitations on the number of EU nationals were allowed to be imposed by the
football clubs. In other words, the European Court of Justice (ECJ) found professional
footballers to be very much like normal workers. Similarly, the Dahmane case lead the Belgian Court of
Labour to deny any difference between professional athletes and normal workers
regarding compensation after a unilateral termination of the labour contract. Even
though Dahmane, as appellant, had asked the Court to raise a preliminary
question to the ECJ on the compatibility of the law with the free movement of
workers[7],
the Court decided the case under Belgian law only.[8] It
is therefore highly unlikely that Dahmane
will have the same transnational effect as Bosman
and mass unilateral contract terminations by professional athletes across the
EU are not to be expected.
Dahmane could set a precedent and encourage
professional players in Belgium to simply break their contract, move to another
club and pay compensation equal to 12 months of salary. This would be the
worst-case scenario for Belgian clubs, since a compensation equal to 12 months
of salary will nearly always be inferior to a transfer fee. On the other hand,
mass unilateral contract terminations by footballers in Belgium would vindicate
the need for specific regulation for football clubs.
In many ways the Belgian Court of Labour has “passed
the ball” back to the Belgian legislator. Should the Belgian legislator feel
that professional athletes, or footballers for that matter, have to be treated
differently compared to normal workers then it could always decide to adopt
specific laws or Royal Decrees for professional athletes. However, Dahmane
will serve as a warning that these separate laws or Royal Decrees will need
proper objective justifications as to why professional athletes are to be
treated differently.
[1] See for example: Zaak-Dahmane
krijgt allure van zaak-Bosman
[2] Arrest A.R. 2009/AH/199 (6 may 2014) Sub II, §1
[3] Ibid, Sub III §6
[4] Ibid, §7
[5] Ibid, §6
[6] Ibid, §7
[7] Ibid, Sub II, §1
[8] Ibid, Sub III §12