Restrictions on the human rights of a professional athlete

A professional athlete is an athlete who earns a living by competing in sports competitions and for taking a relevant place in important competitions, receives a certain monetary prize, as well as receives treatment and necessary tests from the funding allocated by the state.

Article 19 of the Sports Law determines: ‘A professional athlete is a natural person who prepares for and participates in sports competitions on the basis of an employment contract and for an agreed fee’. The Sports Law entered into force on 27 November 2002, and the purpose of this law was determined as follows—to determine the general and legal foundations of the organisation and development of sports (Sporta likuma anotācija, 2002) and […] to determine the principles that need to be followed […]. With the issuance and entry into force of this law, an attempt was made to summarise all the legal acts regulating the field of sports in one law. Since the entry into force of the law, Article 19, mentioned above, has not changed, and it has been and is still the only attempt to describe the concept of a professional athlete and give it a legal status. According to the definition provided by the law, a ‘professional athlete’ must meet at least the following four characteristics:

The person is a natural person;

Having such a definition ignores the real situation and cultivates the absence of professional athletes from a legal point of view. Taking into account the real situation, athletes in Latvia are employed on the basis of company, royalty, self-employed, cooperation and other contracts. In this way, it differs greatly from the legal point of view given in the Sports Law, and according to the law, they are not considered as professional athletes. It should also be mentioned that the athlete is not provided with social guarantees, which would be received if the athlete was employed on the basis of the Labour law in accordance with the aspects stipulated in the Labour law (Blūma, 2019). If the rule about preparing for and participating in sports competitions for a fee seems logical, then employment on the basis of an employment contract in professional sports is debatable, because this sector is not well organised and put in order within Latvian sports. Perhaps the solution to this problem can be found by imposing on the sports organisation (such as the Latvian Olympic Association, whose statutes define the task of organisationally and financially supporting Latvia's best athletes), the obligation to employ professional athletes on the basis of an employment contract.

The employment contract imposes not only obligations on the employee, but also grants special rights, such as, for example, receiving wages for the work performed, the right to social guarantees, the right to fair, safe and healthy working conditions, the right to annual paid leave, the right not to be discriminated against, the right to equal treatment and so on (BDO Zelmenis and Liberte, 2010, 64–65). An employee performing work duties is under the authority of the employer and his interests shall be specially protected. A professional athlete, while ‘fulfilling his work duties’, is also subordinate to the employer, but in his case it is currently a club or a manager or an organisation, but while performing these work duties, the athlete does not have objective opportunities to realise the guarantees provided by the Labour law. In the event that a professional athlete is employed on the basis of an employment contract, this would also determine the professional athlete's duties and rights, which are not defined in the Sports Law.

Article 149, Part 1 of the Labour Law stipulates—‘Every employee is entitled to annual paid leave. Such leave may not be shorter than four calendar weeks, excluding holidays. Persons under the age of 18 shall be granted one month of annual paid leave (Darba likums, 2001)’. However, it is merely logical that the specifics of a professional athlete's work do not allow choosing vacation time, and it is also necessary to indicate that the athlete's ‘vacation’ is not paid. The Labour Law also stipulates that, upon termination of employment, the employee is paid compensation for unused vacation. The specificity of sports contracts is their ephemerality (short-term nature). Taking into account the interests, vision and plans of sports clubs, contracts with professional athletes are mostly concluded for a certain period of time. This means that every time such a contract expires, the athlete would have the right to compensation for annual paid vacation, because vacation in the sense of the Labour Law is not possible during the term of the professional athlete's contract (Darba likums, 2001). All of this just indicates that the definition of a professional athlete in the Sports Law is incorrectly defined, because it is not possible for a professional athlete to use the right to additional leave and leave in connection with the birth of a child provided for in the Labour Law.

When it comes to terminating a professional athlete's contract, which is often done because the set sports goals are not achieved, the athlete is forced to change the sports club or team, and contracts are often terminated if the professional athlete violates the terms which have been discussed and for which the athlete himself is responsible. If we are still looking at linking the Sports Law with the Labour Law, then this aspect is also completely wrong, because the employer has certain rights in the law in which cases he can terminate the employment legal relationship.

The Labour Law stipulates that the employee has the right to terminate the employment contract in writing one month in advance, if a shorter notice period is not specified in the collective labour agreement or the employment contract. At the request of the employee, the period of employment relation termination notice shall not include the period of temporal inability to perform work assignments (Darba likums, 2001). A professional athlete, breaking a contract with a club or organisation, would be required to pay a penalty for breaking the contract.

Professional sports has changed and developed since 2002, when the Sports Law came into force, so it should be taken into account that there are several types of sports where the athlete participates with his own funds, which he earns in competitions or receives from sponsors. These would be, for example, equestrian sports, tennis, and athletics and other individual sports. Often, these athletes earn their living only through sports, but according to Article 19 of the Sports Law, they do not qualify as professional athletes.

Such shortcomings of the law are only related to the imprecise determination of the definition, which can be successfully accomplished if it were actually achieved that a professional athlete is employed with an employment contract, which could be performed by the only competent institution—namely, the Latvian Olympic Association. When an athlete is classified as a professional athlete, it is necessary to determine his rights and obligations, as well as the guarantees provided by the features of the employment contract. In several European countries, professional athletes perform their activities in a self-employed capacity, or special regulatory acts are issued that regulate the employment of professional athletes (Colucci and Hendrickx, 2014). In this way, the question of remuneration is controlled both in everyday life and also for specific achievements, which is an important issue in the everyday life of a professional athlete and in the regulatory framework in Latvia.

Undeniably, the rights and obligations of employees, including the rights and obligations of a professional athlete, as well as the rights and obligations of every person, are determined by the Constitution of the Republic of Latvia. The articles of the Labour Law, which determine the employee's rights, are in accordance with Article 107 of the Constitution of the Republic of Latvia, which stipulates the following: ‘Every employee has the right to receive a salary corresponding to the work performed, which is not less than the minimum set by the state, as well as the right to weekly holidays and annual paid leave (Latvijas Republikas Satversme, 1993)’.

Article 107 of the Constitution includes two employee rights in the field of employment—the right to pay and the right to rest. In addition to that, the basic rights mentioned in Article 107 of the Constitution apply to every employee—both to employees who are employed in accordance with the Labour Law and to various state officials, for example, civil servants and state service officials (Constitutional Court of the Republic of Latvia, Case No.2021-07-01, 2021). Taking into account the above, currently Article 19 of the Sports Law provides that a professional athlete is also employed on the basis of the Labour Law; however, the right to rest is not ensured for a professional athlete.

While researching the situation regarding the right of a professional athlete to rest, the author finds that in the Anti-Doping Administration and Management System (ADAMS) system, the athlete must sign up (mark himself) every day, regardless of whether there is a competition period, a rest period or a preparation period. It is understandable that every athlete has an annual training plan that they follow for several years. It includes a heavy training process, after which there is a competition period, which of course also includes training, only in a lighter mode, and then an equally important rest period. During the rest period, the athlete does not train and probably does not even think about training and competitions, but spends time with his family and possibly travels abroad. But there is a big problem in this situation—the athlete has to continue to indicate his location in the ADAMS system in one way or another, which apparently leads to violation of rights. Article 107 of the Constitution applies to both legal labour relations and other forms of employment, because the right to freely choose an occupation according to one's abilities and qualifications, as stipulated in Article 106 of the Constitution, is closely related to the right to pay and rest. Therefore, the performance of paid work should be recognised as the most important criterion in determining whether a person has the rights stipulated in Article 107 of the Constitution (Constitutional Court of the Republic of Latvia, Case No. 2021-07-01, 2021).

Professional sports and the reward for it is a frequently discussed topic—not always is the published news about the big bonuses encouraging for people who are not interested in sports and cannot appreciate the work, time and effort invested by the athletes. Also, the author would like to mention that the athlete receives compensation only according to specific criteria. When it comes to international competitions, it is determined by the regulations of the Cabinet of Ministers No. 26, ‘About the procedure for awarding cash prizes for outstanding achievements in sports, and the amount of cash prizes’ (Ministru kabineta noteikumi Nr. 26, 2012). The third chapter of the rules determines the amounts in which prize money is awarded to athletes participating in individual sports, as well as to sports teams, coaches, sports workers, doctors and other people involved. In order to award a cash prize, it is necessary to write a submission in which the athlete and the achievement are mentioned, as well as attach a document certifying the achievement. There are often discussions about the amounts of the athlete's compensation and whether the received compensation is proportionate. The regulations stipulate that an athlete who wins the first place in the European Championship is awarded a cash prize of EUR 10,000, or a professional athlete who wins the World Championship can receive approximately EUR 25,000. The payment of money takes place only after winning high-value results in international competitions, which do not take place every year, so the author believes that the amount received is proportionate if it is equalised over a longer period of time. Professional athletes often also have contracts with clubs and managers, which also pay for the criteria specified in the contract, both for competitions at the international level, and for competitions in which they represent themselves, the manager or the club. A reward is given to a professional athlete after achieving a sporting goal, but if this is not done, then it is possible that the athlete does not receive a reward for the work done and the fact that he attempted to participate in the competition.

Articles 13 and 14 of the Sports Rights Law determine financial means in sports, as well as separately—cash prizes for outstanding achievements in sports. Much of the funding allocated under the annual state budget law is allocated to children and youth sports. By investing money in young people, one can try to build a professional athlete, achieving high-value results and defending Latvia's prestige in the world. This is a long-term goal, which the author considers valuable, because a young person needs to start doing physical activities from childhood, not only in order to achieve high success in sports, but also to keep the body healthy.

The professional athlete, receiving compensation for the achieved sports results, also pays his share of taxes to the state, as required by law, because a professional athlete is an employee. The employer calculates, withholds and pays the mandatory state social insurance contributions (VSAOI) and personal income tax (IIN) to the budget from the athlete's salary (State Revenue Service, Taxation of income of professional athletes, 2). Article 14, Part 20 of the Law on State Social Insurance stipulates the following: ‘For a professional athlete, the subject of mandatory contributions is EUR 860’. The subject of mandatory contributions is determined in proportion to the period in which a professional athlete has the status of an employee, and is also not applied to those calendar days of the tax year in which a professional athlete is on parental leave, in which he (the father of the child) has been granted leave due to the birth of the child, in which he is on leave without retaining the salary granted to a professional athlete, to whose care and supervision a child under care has been transferred by the decision of the Orphans Court before the adoption was approved in court, or for calendar days of temporary incapacity for work, maternity leave, in respect to which an incapacity for work sheet ‘B’ has been issued (Likums ‘Par valsts sociālo apdrošināšanu’, 1997). The possibility that an athlete with the status of a professional athlete has a vacation is only if he actually performs his work on the basis of an employment contract.

The tax rate, which must be paid by a professional athlete in the summary procedure, from the total salaried income from professional sports for the taxation year, is 20%. The payer of income, when calculating IIN (personal income tax) from the income of a professional athlete's salaried work, is entitled to apply a 20% rate to the entire monthly income within a year, regardless of whether it is presented as the main source of income in the athlete's electronic salary tax book. If a professional athlete has not noted in his electronic salary tax book that the employer is the main source of income, the predicted non-taxable minimum (if applicable) is not applied to the monthly income (salary), nor are the benefits for dependents (State Revenue Service, Taxation of income of professional athletes, 3). This type of tax payment and access to it is feasible for professional athletes participating in team sports competitions. For such athletes, a specific period of time is set when the athlete does not need to worry about income and a contract is signed with the respective club for payment and responsibilities. However, it should be taken into account that an athlete participating in a team sports competition is on the verge of breaking the contract and being transferred to another league, team or is simply fired. Problems arise with individual athletes, of whom there are innumerable numbers and there is no opportunity for the athlete to work on the basis of an employment contract. The fact that the athlete has agreed with the club for a specific time or season does not mean that he has social guarantees, vacations and benefits in the same way as an employee performing his duties in the state or public sector. Either way, the athlete has to take into account financial problems or possible problems, because there is no guarantee that he will not suffer an injury or be traded to another club/team.

A professional athlete, like all people, has human rights and every individual should have the opportunity and the right to practice sports without legal restrictions or unjustified prohibitions. In the sports community, it is accepted that the athlete should not face any kind of discrimination and should find mutual understanding with friendship, solidarity and fair play is the basis of everything.

On 16 April 2021, an order was issued by the Court of Arbitration for Sport—Sports and Human Rights, which involved a review from the perspective of the Court of Arbitration for Sport. The exercise of the rights and freedoms set forth in this Olympic Charter is ensured without discrimination of any kind, such as race, skin colour, gender, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status.

The official document, adopted in connection with the actualisation of human rights in the field of sports law, contains current events focused on the Summer Olympic Games in 2024. The most discussed issues are violation of labour rights, forced and unjustified expulsion from competitions, suppression of human rights and right to freedom of speech. The right to a fair trial and public hearing within a reasonable time is also reserved in this meeting and in the official document created. Great emphasis is also placed on the right to privacy, family life and property. Certain exceptions are also indicated, such as ‘A public authority may not interfere with the exercise of these rights, except for those that are in accordance with the law and are necessary in a democratic society in the interests of national security, public safety or economic well-being of the country, in order to prevent disorder or crime, to protect health or morals, or to protect the rights and freedoms of others’ (Overview form CAS perspective, 2021, 9).

Every player, athlete or sportsman has the right to a sports environment that is well managed, free from corruption, manipulation and fraud, as well as an environment that protects, respects and guarantees the basic rights of all people involved in sports, including the athletes themselves. In this regard, the Universal Declaration of player rights has been created and announced (Universal Declaration of Player Rights, 2017). There are several such declarations and they tend to be worded differently for each sport, but in general this document includes very significant and important things. As an example, every athlete has the right to be protected, respected and equal.

A professional athlete has an excess of responsibilities but incomparably fewer rights than any other person who earns a living in some other way. The regulatory acts of the Republic of Latvia stipulate that a professional athlete works on the basis of an employment contract, but his duties and rights do not correspond to the definition of an employee according to the Labour Law. It is necessary to explain why the sportsman's rights are restricted and incorrect regulations should be amended.

Competent authorities are regularly involved in order to deal with issues affecting the human rights of the athlete and to look for new solutions. For example, the International Olympic Committee's (IOC) proposal to include human rights principles in the Olympic Host City Agreement could help prevent future abuses by Olympic organisers, which was announced in a 2017 article related to the actualisation of human rights in sports; this news was announced by the Sport and Rights Alliance (SRA). The role of the SRA is to ensure that sports institutions and sports events respect human rights, the environment and anti-corruption requirements at all stages of the process (Universal Declaration of Players Rights, 2024). In addition, the SRA is a Sport and Recreation Alliance that believes in the power of sport and recreation to change lives and bring communities together. Together with their members and in partnership with the wider industry, they make the most of opportunities and solve problems in areas of difficulty (About the Sport and Recreation Alliance, 2022). The SRA brings together the sport and leisure industry and supports participants, solves problems and takes advantage of opportunities. The SRA helps the state to be active among citizens by providing advice, support and guidance. The resulting Olympic Host-City Agreement, drawn up with recommendations from a leading coalition of rights, transparency and athletes' organisations, was finalised in January 2017 and will apply to the 2024 Summer Olympics for the first time (Universal Declaration of Player Rights, 2017). For the first time, the IOC has included a clear reference to the United Nations Guiding Principles on Business and Human Rights (UNGP), which outline companies' responsibilities in the field of human rights, as well as references to anti-corruption standards. The guidelines explain how commercial enterprises should assess and treat human rights threats, take effective steps in order to avoid human rights problems and ensure protection against abuses that occur despite these efforts.

Major problems in human rights violations are usually encountered in international sports competitions. Such competitions include the Olympic Games, World and European Championships, the most pronounced competitions in winter sports—the World Cup stages. In these competitions, human rights violations are encountered due to the fact that it is necessary to involve a large number of people in the organisation of the competition, who are trained and warned of responsibility in case of any violation of rights. A number of volunteers come from all over the world to organise the Olympic Games and make up the Olympic Games organising team. It is clear that it is not possible to track the activities of each volunteer, and at other times athletes are influenced by volunteers or other staff involved. Organisers work with such risks and try to analyse the situations even before the violation occurs, so that human rights violations do not occur. The IOC has stipulated that the host cities of the Olympic Games ‘protect and respect human rights and ensure that human rights violations are prevented in accordance with international agreements, laws and regulations, applicable in the host country, and in accordance with all internationally recognised human rights standards and principles, including the UNGP, applicable in the country hosting the Olympic Games’ (Human Rights Watch, 2021). The place of organisation of the Olympic Games and the host city are chosen by the commission, which decides on all cases of compliance and non-compliance with safety rules. There are several candidate countries that express their desire to host the Olympic Games a long time in advance, and this city is decided by competition.

In official and international articles, there are often reports of violations of the human rights of athletes. For example, in 2008, the Beijing Games contributed to human rights abuses not only in professional sports, but in general for the people involved, including mass forced expulsions from the Games; the arrest, detention and persecution of government critics; repeated violations of media freedom; and increased political repressions. The 2015 European Games in Baku were also held under conditions of serious repression in the host country, Azerbaijan. In preparation for the 2016 Rio Olympics, >22,000 families were evicted. The 2014 Sochi Games were marred by forced deportations, abuses against migrant workers, media censorship, a crackdown on nongovernmental groups in Russia and discrimination against the lesbian, gay, bisexual and transgender (LGBTQ+) community, who are among the most vulnerable to discrimination and the discussion on this topic is relentless.

In any case, every city that hosts the Olympic Games must expect that there may be violations of the law and must create an image of the city and the organisation that the main rules will be followed, which are determined in the Olympics document: Host City Contract Requires Human Rights. Human Rights Watch (2021).

One of the most serious cases of human rights violations in athletics is related to the athlete Mokgadi Caster Semenya, who is from South Africa and specialises in the 800 m running distance. This athlete won gold medals at the Olympic Games in 2012 and 2016, and was also the World Champion in this distance in 2009, 2011 and 2017. Semenya's testosterone level was too high and therefore the doping control indicated that the athlete was using banned substances. The International Association of Athletics Federations stated that Semenya, with elevated testosterone levels, should not compete with other women and determined that she needed to reduce her testosterone levels (Sport and the European Convention on Human Rights, 2). Semenya's body and health condition is called hyperandrogenism, when the level of testosterone in the body is increased and the visual appearance is similar to the appearance of a man. Initially, M. C. Semenya tried to defend her rights in the Court of Arbitration for Sport, but the arbitration court agreed with the opinion expressed by the International Association of Athletics Federations that Semenya was a man by biological standards and it was necessary to reduce her testosterone levels or otherwise the participation in women's competitions would be denied (Semenya v. Switzerland, ECHR 148, 2021). The athlete did not give up, and she appealed to the European Court of Human Rights, because she believed that her human rights had been violated. In a complex trial involving several medical specialists and other experts, a conclusion was reached to close the case based on Article 41 of the European Court of Human Rights, which determines the rejection of claims and variations thereof.