Transfer to another football club
Right of freedom to work
RULING Nº 181/07
8 of March of 2007
When a football player signs on with a new club, provision for a compensation payment to his old club to cover its investment in professional development and enhancement does not contravene the right to employment. A rule allowing an unspecified and unlimited payment of compensation to the player's old club, with no reference to the reason for it or to its intended function, might be contrary to the basic right to freedom of employment. In the present case, however, the compensation is for "development and enhancement of the sportsperson". In relation to ordinary workers, the labour code refers to the collective agreement in many areas relating to fundamental rights. However, the special features of sportspeople's employment contracts do not seem to require particular precautions for the protection of their basic rights, as these are appropriately protected by the legal rules.
The legal rules at issue on "compensation" cannot be construed from the constitutional standpoint as intolerably restricting freedom of employment. The Constitution only prohibits arbitrary or unjustified restrictions on that fundamental right - for instance, a compensation payment so large as to deter all potentially interested clubs, leaving players little choice but to stay with their original club or give up their occupation. The original employer has an interest in being compensated for its investment in training its employee and developing his or her skills. Such an interest, given the special features of this particular activity, and in particular the smallest clubs' expenditure on training, developing and enhancing their players' skills the players, is not in breach of the Constitution.
Rules exist which limit compensation. Under the general regulations of the Portuguese Professional Football League, it applies only if, at 31 December of the year in which the contract expires, the player is under the age of twenty-four to player transfers between Portuguese clubs headquartered in Portuguese territory. It must in no case unduly interfere with players' freedom of enterprise. In addition, the validity and operation of a new contract are not dependent on payment of the compensation, which can also be paid by the player himself.
I. In proceedings before the arbitration committee of the Portuguese Professional Football League concerning transfer of a footballer, a set of rules had been alleged to be substantively unconstitutional and unlawful because, as interpreted and applied, they reduced or restricted a player's right to employment by unilaterally and arbitrarily providing for a sum of compensation to be paid by any club signing a player who had terminated his contract with his old club.
The arbitration committee established under the statutes of the Portuguese Professional Football League comprised a Chair, nine full members and three substitute members, who had to have law degrees and came under the code of civil procedure disqualification rules applying to judges. Its function was to settle disputes between the league and its member clubs, or between clubs provided they were league members. It was thus a proper tribunal for purposes of applying the constitutional justice machinery and the rules on constitutional appeals.
II. The appeal was solely concerned with the constitutionality of the legal rules as interpreted to allow a requirement that a professional footballer's new club pay his old club compensation for professional development and enhancement when the footballer terminated his contract with the old club. The Constitutional Court concluded that the rules were not unconstitutional.