Can they force players to train and take vacations or suspend them from employment?

The portal specialized in sports law, Iusport, published this Saturday an interesting and extensive article in which they explain the new situation that professional athletes face when they have seen how their competitions were suspended due to the coronavirus crisis. Pere Vidal, labor lawyer and collaborating Professor at the UOC, and Irene Aguiar, legal advisor and attached to the Iusport management, They answer many of the questions that we can ask ourselves now in the face of this unknown situation in our sport.

The article highlights that “we are faced with a scenario of absolute uncertainty in which the situation changes every day by leaps and bounds, so it could be the case that the competition could not be finished. “So the questions begin to appear: “If they contract the coronavirus in training – or, if the competition resumes, in a closed game – would it be an accident at work? Can the clubs force them to go to training, or, conversely, to fuck vacation? Can they be suspended from employment? “

Here are some of the most interesting questions and answers:

If an athlete is infected by coronavirus in training, would it be considered an accident at work?

“(…) If the disease is recognized in the list of occupational diseases, it is presumed that the injury is professional (Judgment of the TS of October 20, 2008). In general and with exceptions, the Courts consider that the situations caused by influenza or equivalent viral processes derive from common illness, including with regard to health personnel. (…) Several resolutions of the Social Court of the TSJ of Asturias issued in 2014 – in which he referred to the coronavirus as the mere cause of colds- determines that “in the epidemic period the virus circulates through a wide variety of environments in which people of very diverse conditions and activities are found, who are infected not by the exercise of their profession but by that ubiquity and circulation of the biological agent ”, Which would lead us to rule out the professional nature of an eventual infection during the working day.

It should be noted that diseases not included in the table of occupational diseases, but caused by reason of work, are considered an accident at work, as long as the exclusive cause in the execution of work is proven (article 156.2 e) of the LGSS) , at the same time that they will not have such consideration “those that are due to a force majeure that is foreign to the work, this being understood to be that which is of such a nature that it bears no relation whatsoever to the work”, so that a disability process derived from the COVID- 19 could only be considered an accident at work, when the causal link work-injury is proven (STS June 23, 2015 and TSJ of Castilla y León of June 4, 2014) “.

In the case of footballers both First and Second Division, Second Division B, and First Iberdrola, it must be borne in mind that, in the event that they incurred sick leave due to temporary disability, the footballer is entitled by agreement to that the club completes the provision of Social Security or Mutual Employers up to 100% of their remuneration until their discharge or the end of the contractual period, regardless of the reason for the withdrawal. “

Can athletes be forced to attend training?

“From the Royal Spanish Football Federation it has been recommended to suspend group training and replace them with individual plans” until circumstances allow the return to group training with safety for the health of the soccer players, “but the truth is that it remains At the choice of each club, whether or not to follow this recommendation: Clubs can therefore maintain both collective training sessions, modify them to individual training sessions, and temporarily suspend them entirely.

If the club kept training normally, contrary to the recommendations of the RFEF, or if matches were resumed behind closed doors, could the athlete refuse to attend them, considering their health to be at risk?

Labor law provides that, in the event that the provision of services in the workplace entails a serious and imminent risk, the worker has the right to interrupt his activity and leave the workplace, as stated in article 21.2 of the Labor Risk Protection Law (LRPL). It is then worth considering whether the risk of contagion by coronavirus can be effectively included in the concept of “serious and imminent risk”.

The law itself defines a serious and imminent risk as “one that is rationally probable that it will materialize in the immediate future and may entail serious damage to the health of workers.” However, in the case of the coronavirus it is not clear that the damage caused was serious, since, in principle, and unless the victim belongs to the considered risk population, it is not.

Can clubs force footballers to take vacations?

“Footballers have the right to paid annual vacations of 30 calendar days, established by the Collective Agreement for both professional football and 2nd B, as well as women's football, recently signed and pending publication in the Official State Gazette. Before the suspension of the competition, Although it is currently postponed for two weeks, if it were suspended sine die, could the clubs force footballers to take their vacation period?

The right to vacations is regulated, in addition and as a minimum standard (necessary right) in article 38 of the Workers' Statute, of supplementary application, according to which “the period or periods of enjoyment of vacations will be established in common agreement between the company and the employee ”, so there is no room for its unilateral imposition. In addition, the worker will have the right to know the period of enjoyment of the vacation two months before it “

The possibility of reducing working hours or suspension of the contract.

Another possibility for clubs is to make use of the powers granted by article 47 of the Workers' Statute to suspend or reduce the workday due to force majeure. The Regulation of collective dismissal procedures indicates, in its article 31, the “existence of force majeure”, as a motivating cause of the termination and suspension of employment contracts or the reduction of working hours, which must be verified by the authority , whatever the number of workers affected, after a procedure processed in accordance with the aforementioned regulation.