BDS's lawyer, a specialist in labor matters, spoke of trainers' contracts in national football and assured that these should be treated as workers, with Social Security and AFP
Within the framework of Teacher's DayToday's newspaper made a special edition to address different topics related to this profession, and in BASKETBALL COURTin particular, two edges were worked: the stories of football teachers, and the legal situation of many coaches who, today, are still without pension and oblivion.
However, this is not a normal situation at the level of legislation or worldwide for the FIFA International Football Federation.
According to the legal analysis of Jaime Solís, an expert lawyer in Labor Law and partner of BDS Advisors, a member of the Global Littler International Network, the practice of signing coaches through “professional services” contracts constitutes a violation not only for circular 1171 of the FIFA players statutes – also applied to coaches in accordance with the principle of functional analogy – but also to the current Salvadoran labor regulations.
As established in article 17 of the Labor Code of El Salvador, “Individual Labor Contract, whatever its denomination, is that by virtue of which one or more people are obliged to execute a work, or provide a service, to one or more employers, institution, entity or community of any kind, under their dependence and through a salary.
Who provides the service or executes the work is called a worker; who receives and remunerates it, employer or employer.
The employment contract does not lose its nature, even if it is involved or in concurrence with another or others, such as those of society, lease of workshops, vehicles, sections or dependencies of a company, or other unnamed contracts and, consequently, are applicable to all of them the rules of this code, provided that one of the parties has the characteristics of the worker.
In such cases, the pecuniary participation that it receives is salary; And if that participation cannot be determined, the rules of Art. 415 will apply.
In that sense, the name that the parties grant to the contract has no determining legal effects on their true nature. What prevails is the reality of the provision of services, says Solís.
“The principle of primacy of reality – recognized by Salvadoran labor jurisprudence and by the ILO supervision bodies – implies that, if in practice the elements of a labor relationship are verified, such as legal subordination (reception of orders, compliance with schedules, application of sanctions), the personality in the execution of the service, exclusivity and continuity, then we are faced with a true relationship, then we are faced with a real relationship. Regardless of whether the contract is called professional services, ”explained the BDS partner.
Indeed, the Civil Chamber and Labor Courts have repeatedly maintained that subordination or dependence is the defining element of the employment contract. In multiple failures, he explains, it has been determined that even if a contract is formally qualified as civil or commercial, if a continuous legal subordination is verified in the facts, this should be considered a employment contract and, therefore, generates the corresponding obligations in matters of social security and other labor benefits.
“Unfortunately, due to ignorance or for avoiding labor loads, contracts that do not conform to national legislation are still signed, which exposes sports clubs and organizations to administrative sanctions, demands for recognition of labor rights and economic contingencies, without neglecting the current disorder of national football that moves fans of the product away,” said Solís.
