On 1 July 2023, the so-called “Sports Reform Law” contained in Italian Legislative Decree of 28 February 2021, no. 36, originally published in the Italian Official Gazette of 18 March 2021, no. 67, came into force. This law deals specifically with the “reorganisation and reform of the provisions on professional and amateur sports bodies, as well as work in the sports sector.”
The reform of work in the sports sector came full circle on 4 September 2023 when Italian Legislative Decree of 29 August 2023, no. 120 (i.e., the second reform on work in the sports sector) was published in the Italian Official Gazette.
The Sports Reform Law was drawn up with the aim of overcoming the previous framework contained in Italian Law of 23 March 1981 no. 91, giving greater importance to the sports sector in the legal system, and ensuring compliance with the principles of equal treatment and non-discrimination in the field of work in the sports sector.
Among the main innovations introduced in the employment law field is the significant expansion of the “sports worker”.
Athletes, coaches, instructors, technical, sports and race directors, and athletic trainers who, without any distinction of gender and regardless of whether they work in the professional or amateur sector, carry out sporting activities for a remuneration for an individual or entity within the sports sector, are now considered sports workers.
The list also includes any other person registered in a sports organisation who, in return for remuneration, performs tasks that, based on the technical regulations for that individual sport are necessary to carry on that sport, with the exclusion of administrative-managerial tasks.
Under the Reform, work in the sports sector can be the subject of a subordinate employment relationship or a self-employment relationship, including coordinated and continuous collaborations under Article 409, paragraph 1, no. 3 of the Italian Code of Civil Procedure.
In the context of sport, the regulation of the “ordinary” subordinate employment relationship takes on a special character: for example, the rules on audio-visual equipment, individual and collective dismissal and fixed-term employment relationships do not apply to sports employment contracts.
In the professional field, the sports employment relationship is presumed to be subordinate. On the other hand, the relationship is considered to be one of self-employment when at least one of the following conditions is met: (i) the activity covered by the contract is carried out at a single sporting event or at several events connected to each other in a short time, (ii) there is no contractual obligation on the part of the athlete to participate in sessions or training sessions and (iii) the services provided under the contract is less than eight hours per week or five days per month or 30 days per year.
A significant change is the express inclusion of amateurs in the list of sports workers, whose work is presumed to be the subject of a self-employment contract, in the form of coordinated and continuous collaboration, when the following conditions are met with regard to the same client: (i) the duration of the services provided under the contract does not exceed 24 hours per week (excluding the time dedicated to participation in events sports); (ii) the services covered by the contract are coordinated from a technical-sporting point of view in compliance with the national sports’ regulations.
Other related insights:
There is no law in the Italian legal system establishing a legal minimum wage. In fact, the parameters for ‘fair’ pay are defined by the Italian Constitutional Charter.
Specifically, Article 36 of the Italian Constitution states that fair pay is pay which ensures the worker a free and dignified existence and is proportionate to the quantity and quality of the work performed.
This pay is usually quantified by collective bargaining in the relevant sector.
In this regard, the Italian Court of Cassation confirmed in ruling no. 27711 of 2 October 2023 that, in the event that the minimum wage is determined by a legal provision, as in the case of the cooperative sector, ‘fair’ pay must in any event be assessed on the basis of the comparatively most representative collective agreement within the sector of activity or other relevant ‘financial’ information.
In particular, in the aforementioned ruling, the Italian Court of Cassation clarified that the judge, even where there is a rule establishing the minimum wage, in assessing compliance with the constitutional parameters on fair pay, must verify the consistency of that wage also in the light of the provisions of the collective bargaining agreement signed by the most representative employers’ and trade union associations. In the event of a negative outcome, the judge must extend the investigation to other concurrent parameters such as, for example, the financial and statistical indicators used to measure the poverty threshold the ISTAT index (Istituto nazionale di statistica– Italian National Institute of Statistics), the income threshold to qualify for an incapacity pension, or the statistical indicators identified by the Directive (EU) 2022/2041 on adequate minimum wages.
With its decision no. 14457/2017, the Court of Cassation turned over the “double conforming” decision of the lower courts and intervened with regard to the stability pact enclosed with the subordinate employment contract. Specifically, the Court observed that, outside the cases of just cause under Art. 2119 of the Italian Civil Code, a worker can freely make use of the right of withdrawal, agreeing to a minimum guaranteed duration of the contract, provided that it is limited in time, which would involve the payment of damages to the employer in the event of a breach thereof. According to the Supreme Court, this conclusion complies with the recognised availability of the right to one’s employment post, that may be inferred from the admissibility of agreed contractual terminations and also from the “consolidation of the effects of an unlawful dismissal due to failure to make a prompt appeal”. In the decision in question, the Court also looked at the remuneration of this “sacrifice” and reached the conclusion that the agreed salary conditions, taken overall, provided that they do not exceed the so-called constitutional minimum, cannot, in any way, compensate for the (even) temporary renunciation of the employee to their right of withdrawal. The remuneration, therefore, must be assessed in the light of the overall agreed contractual conditions, which may consist of the reciprocal nature of the stability commitment or in a different service provided by the employer, such as an increased salary or a non-monetary obligation, provided that it is not just symbolic and it is proportionate to the sacrifice of the worker.
