Intellectual Property and Entertainment Law

Newsletter of the International Bar Association Legal Practice Division

VOLUME 5 ISSUE 1 SEPTEMBER 2013

By Ignacio Domínguez Torrado and Ernesto M. Meade

In Mexico, as in many other countries in the world, athletes had to submit to the terms and conditions agreed with their federations, clubs or organisations in regard to their labour conditions. Mexico has a labour law that cannot be renounced even by express consent. For example, even if the athlete agrees on its labour contract that in case of a controversy the matter would be settled through the specific dispute resolution mechanisms established by the parties, the athlete can also pursue the protection of the federal labour authorities

The Mexican Federal Labour Law contains specific provisions applicable to athletes.

Amongst the most important ones, we can find:

• a variety of options as to the term of the relationship;

• the athletes cannot be transferred to another club or entity without its express consent;

• specific provisions as to the exchange premiums;

• obligations of the athletes; and

• obligations of the employer.

This dual system has brought some problems in the past, as the athletes had to follow the dispute resolution mechanisms of their federation, sometimes leaving them at the mercy of biased panels and/or individuals, obliging them not pursue the protection of Federal law under penalty of being banned from the corresponding federation. The resolutions from clubs or federations left the athlete defenceless since they would have to carry out a long trial against such decisions without the possibility of being reinstated in their work.

That said, recent amendments to the Mexican Amparo Law (a Federal mechanism against abuse by acts of authorities) grant the possibility to the athletes (workers) to appeal the decision of a national federation or any other private entity when they are acting as authority in an activity regulated by a law, vis-à-vis, as in the past, that the decisions taken by the federations or club were not considered as an act of authority thus not falling under the protection of the Amparo Law. Hence, the act of the federations, in which the teams (employers) and the athletes (employees) are included, could be contested by the athletes through an Amparo appeal, if the act or decision damaged human rights.

Therefore, and with such amendments, it is clear that the Mexican labour law and now the Amparo law (at a second stage) strongly protect the rights of the athletes.

Notwithstanding, the international practice in sports law states that athletes have a primary obligation to enforce any claim through the specific sports rules and alternative dispute resolution (ADR) mechanisms rather than seeking to solve the conflict through the specific national law.

The sporting federations and the national federations claim autonomy for their methods of dispute resolution. They attempt to have exclusive jurisdiction and prevent athletes from accessing national courts. In this regard, they state in the rulebooks that their decisions are final and binding and that the athletes (employees) have no final appeal to the courts. The only way to appeal these decisions is through arbitration before the Court of Arbitration for Sport.

Usually, this kind of regulation is included in the agreements as exclusion clauses, in which the athletes state that they will not take legal actions against the team (employer) or the federations as a precondition of taking part in national and international competitions.

Considering the above, although the sports law should be considered as an autonomous legal order and respected by national courts, the Mexican athletes (workers) have the possibility to enforce their labour rights before the national courts and such courts are bound to protect them. Unfortunately, the consequence to the athletes of claiming their rights before the national courts is to be excluded from the national and international federation and thus, from their competitions.

In the future and as a consequence of these new amendments, employers and employees will have to work together to find a solution that will work for each party, protecting the right of any given federation to establish its own ADR mechanisms and the right of the athletes to seek the protection of the Mexican federal court system.

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