Regulatory
Governance structureWhat is the regulatory governance structure in professional sport in your jurisdiction?
Swiss law does not include a specific set of regulations on the governance of sports organisations. The Swiss Constitution grants autonomy to clubs, federations and associations, which means sports bodies are responsible for their own governance. These organisations must comply with the general legal framework (civil law, public law and criminal law) in Switzerland. Many of the most important sports bodies in the world are organised as Swiss associations pursuant to article 60 of the Swiss Civil Code and have their registered seat in Switzerland, such as the International Olympic Committee (IOC), world football’s governing body FIFA, the Union of European Football Associations (UEFA), the International Ice Hockey Federation and the International Basketball Federation. The Swiss associations profit from organisational flexibility, protection against influence from the state and moderate taxation.
Protection from liabilityTo what extent are participants protected from liability for their on-field actions under civil and criminal law?
No specific rules exist in Switzerland defining civil liability or criminal behaviour of professional sportspeople. In general, their behaviour needs to be regulated by the sports bodies in their respective rules of the game. The state courts assess whether a sportsperson is liable for a certain behaviour based on these rules.
In Switzerland, civil liability for sports accidents falls within the scope of article 41 of the Swiss Code of Obligations. In general, sportspeople are only held liable for intentional or negligent on-field actions that are considered material breaches of the rules of the game and cause an unlawful loss.
As there is no specific criminal law for sports, on-field actions will be judged under the regular criminal law rules. According to the Swiss Federal Supreme Court, a sportsperson consents to the risk inherent in actions compliant with the rules of the game. In a recent decision, the Federal Supreme Court confirmed the conviction of a football player for unintentional bodily harm. The petitioner had unintentionally broken his opponent's ankle in a foul play, which the referee had sanctioned with a yellow card.
Doping regulationWhat is the regulatory framework for doping matters in your jurisdiction? Is there also potential secondary liability for doping offences under civil or criminal law?
Switzerland ratified the Anti-Doping Convention of the European Council and the UNESCO Convention against Doping in Sports. Within Switzerland, the doping legislation is set forth in article 19 et seq of the Sports Promotion Act. Based on article 22 of the Sports Promotion Act, the production, import, marketing, prescription and distribution of doping and applying of doping methods to third parties is prohibited. Unlike other jurisdictions, doping by the athlete him or herself is not prohibited by law. This behaviour is sanctioned by the respective sports organisation under its own doping regulations. Sports organisations apply the WADA Code and require their members to abide by those regulations. In addition to the Sports Promotion Act, the Act on Therapeutic Products and the Act on Narcotics may apply to doping, and offenders may be liable thereunder.
With the exception of the liability of an athlete towards his or her employer for damage the club suffered as a result of the athlete's doping, there is no case law on secondary liability.
Financial controlsWhat financial controls exist for participant organisations within professional sport?
Teams playing in a professional league usually have to obtain a licence to participate in a national championship. To receive the licence, clubs have to demonstrate their financial stability to the licensing committee. No other financial restrictions are imposed. As most of the professional sports clubs are organised as companies, the regular limitations on over-indebtedness according to article 725 et seq of the Swiss Code of Obligations applies. Furthermore, the UEFA Financial Fair Play Regulations apply to football clubs.
Dispute resolution
JurisdictionWho has jurisdiction over the resolution of professional sport disputes in your jurisdiction, and how is this determined?
According to the default rule, professional sports disputes fall within regular state court jurisdiction. However, most sports associations and federations opt out of that system in favour of arbitration. Typically, the associations have their own disciplinary committees, which decide on cases. In a second step, and once the intra-federation remedies are exhausted, those decisions may typically be appealed to the Court of Arbitration for Sport (CAS), seated in Lausanne. The CAS oversees around 300 disputes each year, both national and international. It has a list of highly experienced arbitrators who decide on cases (typically) by way of a three-member panel. Sports federations that provide for the CAS as an appeal body are, for example, the International Olympic Committee (IOC), (the International Federation of Association Football (FIFA), the International Cycling Union (UCI) and the International Automobile Federation (FIA). These disputes often concern topics such as player transfers and doping. In some cases, the parties agree on other arbitration rules, such as the International Arbitration Rules of the International Chamber of Commerce (the ICC Rules). Those cases typically relate to more commercial matters, such as ticket sales.
EnforcementHow are decisions of domestic professional sports regulatory bodies enforced?
Sports-specific disciplinary committees established by sports associations and federations enforce their decisions by themselves (eg, through fines, match suspensions or exclusions from the association as a result of doping). International arbitral awards by CAS arbitrators, or those rendered under the ICC Rules, may be enforced quickly and efficiently by applying the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958). In addition, in accordance with the newly enacted FIFA Disciplinary Code, FIFA enforces final CAS awards.
Court enforcementCan the decisions of professional sports regulatory bodies be challenged or enforced in the national courts?
In general, the statutes of the sports associations provide for the CAS as the appeal body and sportspeople must agree to the CAS jurisdiction to participate in the game. Hence, the state courts' jurisdiction is usually excluded for claims challenging the decisions of sports regulatory bodies.
If a case is purely domestic and the parties have not opted in favour of the CAS as the appeal body, the state appeal courts have primary jurisdiction. The appeal courts typically analyse sports disputes by applying the law on breach of contract. The appeal court's decision may in turn be appealed, in certain limited cases, to the Swiss Federal Supreme Court. These court decisions, once final, can be enforced by state authorities in separate enforcement proceedings. These procedural rules on domestic arbitration are contained in the Third Part of the Swiss Civil Procedure Code (article 351 et seq).
If the case is international, the 12th Chapter of the Swiss International Private Law applies (article 176 et seq). Based on the associations’ and federations’ statutes, to which the players must adhere to participate in games, appeals against arbitral awards typically must be brought before the CAS (instead of a state appeal court).
Both of these systems (national and international) only apply if the established arbitral body is a 'proper' arbitral panel - that is, unbiased and independent.
In certain urgent instances, state courts may also have jurisdiction to order interim measures.
Sponsorship and image rights
Concept of image rightsIs the concept of an individual’s image right legally recognised in your jurisdiction?
An individual's image right is part of his or her personality rights and primarily protected by the Swiss Federal Constitution and the Swiss Federal Civil Code.
There is no register of image rights in Switzerland.
Commercialisation and protectionWhat are the key legal considerations for the commercialisation and protection of individuals’ image rights?
Any commercialisation of an individual's personality rights, including image rights, requires the individual's consent.
Any commercialisation without the individual’s consent entitles him or her to seek legal protection (including a cease-and-desist order, damages and an information disclosure order) against the infringing party.
How are image rights used commercially by professional organisations within sport?
Athletes usually grant their clubs a licence to commercialise their image rights, including a right to sublicense these rights to other organisations (including partners and sponsors). It is common for clubs and other organisations to utilise the image rights of athletes for marketing, promotional and merchandise purposes, including for ticket sales and branded products.
The extent of the commercialisation of an athlete's image right thus depends on the agreements between (i) the athlete and his or her club and (ii) the athlete's club and any other organisation.
In addition, some athletes have their own direct agreements with organisations that in individual cases can clash with arrangements their clubs already have in place. The club and the other organisation will then have to settle any opposing interests.
Morality clausesHow can morality clauses be drafted, and are they enforceable?
As a rule, parties are free to draft their relationship based on the general principle of the freedom of contract as enshrined in Swiss law.
Contracts may also include morality clauses. However, no one may give up their freedom or restrict the use of it to a degree that violates the law or public morals. Any clause that results in the loss or restriction of a party's freedom would therefore be considered (depending on the circumstances, partially or fully) void and unenforceable.
RestrictionsAre there any restrictions on sponsorship or marketing in professional sport?
Some statutes contain specific rules on advertising to address risks associated with the advertising of certain products such as alcohol, tobacco, pharmaceuticals and certain foodstuffs, or advertising in media that were traditionally considered particularly pervasive - namely, television and radio. Advertising of alcoholic spirits and tobacco products is generally prohibited on television and radio.
In relation to sports, advertising of alcoholic spirits is also generally prohibited on sports fields and at sports events. Advertising of tobacco products is generally prohibited at sports events aimed at minors.
The Swiss State Lottery holds the monopoly for sports betting in Switzerland. Online betting providers are excluded from the Swiss market and (technically) banned from offering their services in Switzerland.
Brand management
Protecting brandsHow can sports organisations protect their brand value?
Sports organisations can register their brands as trademarks. All graphic representations of a distinctive sign are eligible for trademark protection, for example words, combinations of letters, numbers, images, three-dimensional forms, slogans, and combinations of these elements or even sounds as a sequence of notes. Trademark owners may grant licences and contractually control the use of the brands by their partners (eg, media partners and sponsors). Trademark law provides for civil remedies and criminal sanctions in case of unauthorised use of trademarks. Unfair competition law may further grant remedies against third parties taking advantage of the reputation and brands of sports organisations.
How can individuals protect their brands?
Individuals can register their own name as a trademark. The names of real persons who have exercised a dominant influence in their field (eg, because of a particularly significant contribution to their field) and whose names are very frequently used to describe the thematic content of certain goods or services are not eligible for protection. Licences and sponsoring agreements allow the contractual control of the use of the brands by partners. Trademark law provides for civil remedies and criminal sanctions in case of unauthorised use of trademarks. Unfair competition law and personality rights of individuals may further provide remedies against third parties taking advantage of the reputation and brands of individuals.
CybersquattingHow can sports brands and individuals prevent cybersquatting?
Legal remedies against unauthorised use of brands and names (eg, in case of domain name registrations or (online) impersonations to deceive the public) are based on trademark rights, unfair competition law and name or personality rights. Possible remedies include civil claims and criminal sanctions.
Terms of domain name registries (eg, ICANN, Switch) foresee dispute resolution procedures to request cancellations or transfers of infringing domain name registrations.
For Swiss-based hosting providers of unauthorised content, a self-regulatory code of conduct provides for an efficient notice-and-takedown mechanism, which is particularly beneficial to rights owners in case of an unidentifiable infringing party or a disadvantageous jurisdiction.
Media coverageHow can individuals and organisations protect against adverse media coverage?
Swiss law does not generally prohibit adverse media coverage. Reporting of falsehoods, defamatory statements or excessive disclosing of details of an individual's personal sphere may be challenged under personality rights (particularly if personal interests override public interest to reporting the specifics of a case).
Legal remedies, for example in case of defamation, include civil claims (including publication of a decision) and criminal sanctions. If (alleged) falsehoods are stated in periodically published media, the person whose personal rights are directly affected by the publication has the right to a counterstatement. In case of a defamatory statement in the media, criminal liability is allocated according to the following hierarchy: (i) liability of the author; (ii) if no author can be determined, liability of the editor or the person responsible for the publication; and (iii) if no author can be determined, and in the absence of a responsible editor, the person responsible for the publication.
Broadcasting
RegulationsWhich broadcasting regulations are particularly relevant to professional sports?
Swiss (linear) television broadcasters are subject to regulatory requirements under the Swiss Federal Act on Radio and Television and the European Convention on Transfrontier Television.
Swiss law specifically regulates television and radio advertising, restricting or prohibiting advertisements for certain sectors (eg, alcohol, tobacco, pharmaceuticals and political parties). It also sets specific requirements on separation of advertising from editorial content, sponsorship and product placement.
Reporting of events of major importance to society must be made freely accessible to a substantial proportion of the public. The Swiss list of relevant events includes, among others, the summer and winter Olympic Games, semi-finals and finals of all teams as well as all games of the Swiss national team at the FIFA World Cup, the UEFA European Championship and the Alpine Ski World Championships. Additionally, for broadcasters of Swiss television programmes, the lists drawn up by the member states of the European Convention on Transfrontier Television are binding in the state concerned with regard to free access.
Restriction of illegal broadcastingWhat means are available to restrict illegal broadcasting of professional sports events?
With regard to free television broadcasting in Switzerland, Swiss copyright law provides for a statutory licence subject to collective rights management for the simultaneous retransmission of unaltered programmes. Public viewing (screening) generally requires a licence, which is subject to collective rights management.
Copyright law-based remedies against illegal broadcasting include civil claims and criminal sanctions. Cease-and-desist notices and contacting platforms hosting the respective content may provide for efficient restrictions on access to an illegal stream.
Event organisation
RegulationWhat are the key regulatory issues for venue hire and event organisation?
Venue hire is subject to the Swiss Code of Obligations. Special use of public space (for sports events, advertising activities, parades, filming, etc) generally requires a permit or licence by the competent public owner (eg, city, canton).
Various health, safety and environment-related regulations at federal, cantonal and communal level may apply, depending on the venue and event (eg, fire safety, traffic diversions, selling of foodstuffs and alcohol, waste management).
Public viewing (screening) and other public use of musical works generally require a licence under the collective rights management.
Liability and insurance arrangements are particularly important for organisers of (major) sports events.
Ambush marketingWhat protections exist against ambush marketing for events?
Trademark rights, copyright, company name rights and unfair competition law may grant legal remedies against unauthorised marketing using the media attention of a major event whereby the advertiser has no legal connection to the event and the organiser.
Claims under trademark law usually depend on the risk of confusion if third parties use identical or similar signs (eg, logo, event titles and images of mascots) for promoting similar goods and services. Famous brands may even be protected in relation to other goods and services.
Mascots, film recordings, official theme songs and logos may fall under copyright protection. Public viewing (screening) generally requires a licence under collective rights management.
Statements by which the advertiser creates the false impression of an existing business relationship (eg, as a sponsor or service provider) with the organiser of a sports event or the winner of a tournament are considered an unfair competition practice or a violation of personality rights, or both.
The organiser of a sports event can additionally support the branding strategy through contractual arrangements with the sponsor and other partners as well as general terms and conditions of ticket purchases and stadium use. Those arrangements only have a direct legal effect on the contractual partners (eg, sponsors, visitors and suppliers).
Public licences for the special usage of public ground may prevent third parties from buying advertising space in the geographical and temporal environment of the event.
Ticket sale and resaleCan restrictions be imposed on ticket sale and resale?
Yes. Contractual conditions may, in principle, include restrictions on sale or resale of tickets. The legal requirements for these terms may be different for contracts with professional resellers and individual buyers of tickets. In case of contractual arrangements with consumers, unfair competition law prohibits the use of standard terms and conditions that, to the detriment of consumers and in a manner that is contrary to good faith, provide for a substantial and unjustifiable imbalance between the contractual rights and the contractual obligations.
Immigration
Work permits and visasWhat is the process for clubs to obtain work permits or visas for foreign professional athletes, and coaching and administrative staff?
Switzerland has a dual system and distinguishes between EU and EFTA citizens and non-EU and non-EFTA citizens. EU and EFTA-citizens are free to take up gainful employment in Switzerland, based on the Agreement on the Free Movement of Persons between Switzerland and the EU. Once athletes, coaches or staff members from an EU or EFTA member state have entered into an employment contract in Switzerland, they need to register within two weeks with the respective authorities at their place of residence. By contrast, athletes, coaches and staff members from non-EU and non-EFTA member states need to apply for a work permit to take up gainful employment in Switzerland. In general, the applicant must be highly qualified (eg, for athletes, at least three years’ professional experience in one of the highest leagues and for young athletes between 18 and 21, at least one year’s experience at the highest national level with regular playtime for the first team) and receive a specific median salary. In general, only professional clubs (eg, the two highest levels in football and ice hockey) are granted work permits for professional sportspersons. Exceptions may apply to clubs in other sports.
What is the position regarding work permits or visas for foreign professional athletes, and coaching and administrative staff, temporarily competing in your jurisdiction?
Temporarily competing in sports competitions (such as Tour de Suisse, football, ice hockey or golf tournaments) and taking part in training for up to two months a year does not qualify as a gainful activity in Switzerland, and therefore no work permit application or registration requirements apply. An entry visa must be obtained if applicable.
Residency requirementsWhat residency requirements must foreign professional athletes, and coaching and administrative staff, satisfy to remain in your jurisdiction long term or permanently?
In general, an athlete, coach or staff member needs to have a valid employment agreement to reside in Switzerland. The work permit issued is linked to the purpose of the athlete's, coach's or staff member's stay in Switzerland (eg, to the particular club). Once the employment agreement with the respective club has ended, the work permit for Switzerland will expire and the permission to reside in Switzerland will no longer be valid. However, an athlete, coach or staff member may apply for a residence permit after a stay of 10 years (in exceptional cases, after five years) in Switzerland. A residence permit is not linked to a special purpose or contract.
Do the family members of foreign professional athletes, and coaching and administrative staff, legally resident in your jurisdiction have the same residency rights?
Family members (spouses or civil partners, same-sex spouses or partners (registered) and children below the age of 18) of athletes, coaches or staff members may obtain a residence permit in Switzerland based on the family reunification provisions. The family members may work in Switzerland based on their family reunification residence permit.
Sports unions
Incorporation and regulationHow are professional sporting unions incorporated and regulated?
Professional sporting unions play a minor role in Switzerland. There are only two important unions in professional sports: the Swiss Association of Football Players (SAFP) and the Swiss Association of Ice Hockey Players (SAIP). The SAFP is officially recognised by the Swiss Football Association (SFA) and the Swiss Football League (SFL). The SFL and the SAF negotiated the content of the standard player contract with the SAFP.
Generally, trade unions are organised in the form of associations. Their governance is regulated in their by-laws.
MembershipCan professional sports bodies and clubs restrict union membership?
No. The right to associate is a constitutional right in Switzerland; any restriction on unionisation is therefore unconstitutional.
Strike actionAre there any restrictions on professional sports unions taking strike action?
If professional athletes are part of trade unions, these trade unions would be subject to the same strike restrictions that other trade unions are subject to. According to the practice of the Swiss Federal Supreme Court, the following conditions must be fulfilled for a strike to be lawful:
- The strike must be supported by a workers' organisation that negotiates working conditions with the employer. An individual athlete may not go on strike autonomously.
- The strike must pursue objectives that can be regulated within a collective labour agreement (eg, higher salaries or a change in retirement age).
- There must be no special obligations in place to maintain industrial peace or to conduct conciliation negotiations.
- The strike must be proportionate and may only be considered as a last resort.
Employment
TransfersWhat is the legal framework for individual transfers? What restrictions can be placed on individuals moving between clubs?
The relationship between professional athletes and their clubs is typically based on an employment contract (usually in fixed-term agreements). Therefore, when an athlete is transferred, his or her employment contract with the former club has to be terminated (unless the respective term has expired) and a (new) employment contract with the new club will be entered into. Generally, restrictive covenants (eg, non-competition undertakings) are permitted under Swiss employment law. However, in the sporting industry these restrictive covenants are considered an unreasonable impairment of the athletes’ economic prospects, and are thus seen as excessive and not enforceable. Additional restrictions (eg, restrictions on the transfer of minors or transfer bans imposed on clubs) can arise, including from regulations in a particular sport (eg, the UEFA Financial Fair Play Regulations for football).
Ending contractual obligationsCan individuals buy their way out of their contractual obligations to professional sports clubs?
Not unilaterally. They would need the consent of the respective professional sports club or a specific provision in the employment agreement, such as a buy-out clause.
Welfare obligationsWhat are the key athlete welfare obligations for employers?
The employer’s duty of care comprises a wide range of obligations regarding the safeguarding of the welfare of the employees, including the athlete's health and safety, and personality rights. Under Swiss law, athletes have a right to remain occupied. Therefore, an athlete is entitled to at least train with the team he or she was hired for, provided that there are no disciplinary offences for which he or she is responsible.
Young athletesAre there restrictions on the employment and transfer of young athletes?
Yes, under Swiss labour laws, minors (children under the age of 15 years) may only be employed on an exceptional basis, and if certain requirements are fulfilled. Special provisions of a particular sports federation may also apply, such as article 19 of the FIFA Regulations on the Status and Transfer of Players, which generally prohibits the international transfer of minors.
What are the key child protection rules and safeguarding considerations?
Based on Swiss labour laws, minors (children under the age of 15 years) may be employed for sports activities provided that (i) the physical and mental development of the minor is in no way jeopardised; and (ii) the minor's school attendance and performance are not impaired. Maximum working hours for minors are three hours per day and nine hours per week. Also, a notification has to be made to local authorities.
Club and country representationWhat employment relationship issues arise when athletes represent both club and country?
The contractual relationship of athletes that represent both their club and their country is typically exclusively with the club. In certain sports, most notably football, clubs are obligated to let selected athletes participate in activities of their respective national team. Players and their clubs are usually obligated to accept invitations of the national team. The contractual relationship with the club (salary, insurance, etc) remains in force during these activities. Issues can arise if athletes suffer from injuries during activities with the national team.
Selection and eligibilityHow are selection and eligibility disputes dealt with by national bodies?
The right to select athletes for the relevant games and activities lies with the relevant sports federation or, in relation to the Olympic Games, with the Swiss Olympic Committee. The relevant eligibility and selection criteria differ depending on the sport and are typically performance-based. In circumstances where disputes arise and athletes seek to appeal against the decision of the selectors, the rules governing the athlete’s relationship with the club, the relevant sports federation and the Swiss Olympic Committee set out the terms for the athlete’s right of appeal. Ultimately, these decisions can (usually) be appealed to the CAS.
What are the key taxation issues for foreign athletes competing in your jurisdiction to be aware of?
Athletes residing abroad who engage in gainful activity in Switzerland are subject to limited tax liability owing to their economic affiliation. These athletes are subject to withholding tax in the canton concerned, whereby the sports event organiser must deduct the amount of withholding tax owed from the prize money and other premiums and deliver them to the tax authority. The double taxation agreements (DTAs) between Switzerland and the athlete's country of residence generally provide for the right of taxation of the country in which the sports event is held, whereby payments such as prize money and other premiums for taxation are mostly allocated to the venue of the sports event. Whether the athlete is in an employment relationship or is self-employed is irrelevant in most cases. In addition, payments that are not made to the athletes directly but to a third party that organises the event for the athlete are subject to taxation in Switzerland.
Foreign athletes competing in Switzerland with a worldwide turnover of 100,000 Swiss francs are also subject to value added tax, provided that the tax is not paid by the sports event organiser using the method outlined above. Additional social security deductions may apply.
Athletes residing in Switzerland are generally subject to federal, cantonal and communal taxes on their worldwide income. Accordingly, any income received by an athlete is taxable (eg, prizes in the form of cash or non-cash premiums, sponsorship income and entry fee). This taxation is, however, limited by certain rules provided by DTAs Switzerland has entered into.
Update and trends
Key developments of the past yearAre there any emerging trends or hot topics in your jurisdiction?
Hot topics37 Are there any emerging trends or hot topics in your jurisdiction?E-sports is an emerging area and a hot topic in sports law. There are a lot of open legal questions relating to e-sports that have to be clarified, for example on licensing and IP rights.
