Chinese football arrears: Can the "dead game" be "live"?

  Xinhua News Agency, Beijing, May 26th.

Chinese football arrears: Can the "dead game" be "live"?

  Xinhua News Agency reporters Gongbing, Cai Yongjun, Wu Kunpeng, Xiao Shiyao

  Chongqing Liangjiang Athletic Football Club recently announced that it has withdrawn from the Chinese Super League and stopped operations due to "indebtedness and inability to maintain the club's operations".

For three consecutive seasons, Chinese Super League clubs have withdrawn, which has a huge negative impact on Chinese football.

  One of the questions left after the club's exit is how the back pay will be resolved.

The Chongqing Club stated that it will continue to raise funds through subsequent litigation recovery, debt collection, asset sales and group borrowing, and gradually pay off wages as much as possible.

But even if some of the funds are recovered, I am afraid it is a drop in the bucket.

  The dissolution of the club means that the Arbitration Committee of the Chinese Football Association is likely to no longer accept cases of wage arrears for players.

The current situation of the Chongqing club is special. According to the access process of the Chinese Football Association, although the club announced its dissolution, in theory, the club is still qualified to participate in the Chinese Super League before the Chinese Football Association makes a formal handling or disciplinary punishment. .

From this point of view, if a player of this club applies for industry arbitration now, it should be accepted in theory.

However, from the perspective of past practice, even if the arbitration committee of the Chinese Football Association has accepted relevant cases, due to the fact that the club's assets have not been able to achieve better results, it is basically impossible to solve the arrears of wages within the industry.

Once the Chinese Football Association makes a formal punishment or disciplinary punishment against the Chongqing club, the club will officially lose its qualification for the Chinese Super League, and the players cannot apply for industry arbitration.

  If the club fails to pay off the back wages in full after bankruptcy and liquidation, it can only be resolved through a labor arbitration institution or a people's court.

However, at present, there is no unified understanding of judicial remedies for unpaid wages among players, and there are still cases where some labor arbitration institutions and courts will not accept them.

  This seems to have entered a "dead game". Can the "dead game" be "live"?

Recognize that the channels of judicial relief need to be expanded uniformly

  The "Articles of Association of the Chinese Football Association" stipulates: "Except as otherwise stipulated by the Articles of Association and FIFA, the Association and the football organizations and football practitioners within the jurisdiction of the Association shall not bring disputes to court. Relevant disputes should be submitted to the Association or The relevant agencies of FIFA will resolve it.”

  The Sports Law stipulates: "Disputes arising in competitive sports activities shall be mediated and arbitrated by a sports arbitration institution." The "sports arbitration institution" in this provision is considered by some labor arbitration institutions and courts to be equivalent to arbitration under the jurisdiction of industry associations committee.

  Based on the above provisions, some labor arbitration institutions and courts do not accept cases of players' unpaid wages, and believe that disputes involving the football industry should be under the jurisdiction of the Chinese Football Association.

A typical case is that the Higher People's Court of Liaoning Province rejected a player's request for retrial in April this year, on the grounds that: according to the provisions of the Sports Law, the contracts and disputes signed by the two parties occurred in competitive sports activities, so the sports arbitration institution should be responsible. Mediation and arbitration are excluded from the jurisdiction of the people's court.

Since football belongs to a special industry, professional players and clubs have a special labor relationship. According to the principle that special is better than general, the original court of first and second instance found that it was not inappropriate for the dispute resolution method of the two parties to exclude the jurisdiction of the people's court.

Therefore, the retrial applicant's application was rejected.

  Lawyer Zhou Ming, a partner of Beijing Weiheng Law Firm, said that the statement that "disputes shall not be brought to court" in the Football Association's articles of association is a requirement of FIFA, which highlights the latter's "autonomy" attribute. FIFA remains consistent.

But he also believes that this does not mean that the relevant subjects cannot seek judicial relief.

The country's judicial sovereignty is higher than the autonomy of the sports industry. Regardless of whether the arbitration committee of the Chinese Football Association accepts a player's wage arrears or not, the labor arbitration institution or the court shall have the right to accept it in accordance with the law.

  He said that the "Opinions on Strengthening and Improving the Labor Security Management of Professional Football Clubs" issued in 2016 by the Ministry of Human Resources and Social Security, the Ministry of Education, the State Sports General Administration, and the All-China Federation of Trade Unions pointed out: "Clubs should sign labor contracts with players and other laborers in accordance with the law. ".

This shows that the player's work contract is also a labor contract. If there is a dispute over wage arrears, the labor arbitration institution or the court should accept it.

  Zhou Ming said that the "Sports Arbitration Institution" in sports law has not yet been established. This institution is not an arbitration committee under the jurisdiction of an industry association. If the benchmark is abroad, its corresponding should belong to a statutory institution with judicial functions, such as the International Court of Arbitration for Sport.

  He also put forward suggestions on broadening judicial remedies: First, pass the revised draft of sports law as soon as possible.

In the second review, it has been determined to establish an independent sports arbitration institution.

In the future, there can be laws to follow to avoid different understandings.

Second, through typical cases of the Supreme People's Court or promulgation of judicial interpretations, it will provide corresponding guidance for labor arbitration institutions and courts to deal with players' salary arrears and other related cases in accordance with the law.

  Zhou Ming said that court judgments, labor arbitration, and sports arbitration awards (revised by the Sports Law) are all legally enforceable. One of the reasons why some awards cannot be effectively enforced outside the industry.

At present, some labor arbitration institutions and courts have accepted the players' labor arbitration applications and lawsuits in accordance with the law.

Under normal circumstances, in labor arbitration and litigation, the award of the Chinese Football Association Arbitration Committee can only be used as evidence.

Moreover, many judicial institutions have found that the subject matter and calculation method involved in the case are very different from the ruling of the Chinese Football Association Arbitration Committee.

The award of the Chinese Football Association Arbitration Committee cannot be applied to the court for enforcement as an effective judgment.

  In addition, since most Chinese football clubs operate with light assets and lack solvency, it is still very difficult to fully recover the back wages even if the players win the case through labor arbitration or litigation.

  Can the parent company vouch for the club?

Zhou Ming believes that the club is a limited liability company. According to the company law, if the club goes bankrupt, unless the parent company provides a guarantee or has legal reasons such as insufficient capital contribution, false capital contribution, or withdrawal of capital, the parent company will not bear unlimited joint and several liability. The reason for the unpaid wages of players after the dissolution of the club.

If the parent company is forcibly considered to be jointly and severally liable in the absence of laws and agreements, it breaks the legal boundaries of limited liability companies and violates the relevant provisions of the company law.

  However, in practice, there are cases where the parent company guarantees the club. For example, the parent company of the China League One club once guaranteed it, but most of the parent companies are unwilling to guarantee it.

Many practitioners worry that once the league mandates guarantees, it will further dampen investor confidence and trigger a larger wave of exits.

However, some people said that the guarantee policy is a touchstone and can effectively prevent speculation. Although there will be short-term pains, it is conducive to long-term development.

The ultimate "method" to improve hematopoietic ability to solve wage arrears

  Why does the club's wage arrears problem arise?

Comprehensive factors such as the new crown epidemic have affected the economy, resulting in the club's lack of revenue means, and the parent company's tight or even broken capital chain.

But the fundamental reason is probably that the club lacks hematopoietic ability and cannot survive on its own.

In addition, the previous "Golden Dollar Football" caused serious league bubbles and high club costs; the "Professional League Council" (now called: China Professional Football Club Federation) in the foot reform plan still had differences after years of preparation and failed to establish it. , causing the league operation and business operation to be affected to a certain extent, etc., which is not unrelated to the problem of wage arrears.

  Experts suggest that to solve the arrears of wages, one is to form the China Professional Football Club Federation as soon as possible to improve the professionalism, autonomy and stability of professional league management; Across the board, it is necessary to adjust measures according to local conditions, consider the club's wishes, and not set up a fixed share reform model; the third is to improve the financial supervision system to ensure the continuous and stable operation of the club; the fourth is to enhance the club's hematopoietic capacity.

  Focusing on how to improve the club's hematopoietic ability, a senior executive of a Chinese Super League club believes that speeding up the issuance of football lottery tickets targeting the Chinese Super League and promoting full competition in the league broadcast rights market are all effective means.

  The new Chinese Super League club Chengdu Rongcheng’s approach to improving its hematopoietic capacity is that the parent company, Chengdu’s state-owned enterprise Xingcheng Group, coordinated the club’s investment in high-quality assets and high-quality projects such as sand and gravel mining and used car dismantling and inspection under Xingcheng Group. The dividends obtained are used as the income of the club.

In addition, Xingcheng Group also actively promotes Rongcheng Club to participate in sports industry development projects such as the construction of football parks and sports and wellness centers.

  The vast majority of football practitioners believe that the professional league is the cornerstone of a country’s football, and the club is the foundation of the league. Only when it is given enough attention, it is supplemented by policies that comply with the law and a healthy and relaxed development environment, including problems such as arrears of wages. to be fundamentally resolved.

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