What is the regulatory governance structure in professional sport in your jurisdiction?
Sports federations are organised as associations. According to section 1 paragraph 5 of the Act on Associations (VerG) a federation is an association in which associations usually join together to pursue common interests. An umbrella association in turn is an association for the pursuit of common interests of federations. They are self-governing.
In Austria, the principle of association autonomy applies, which comprises the right to ‘legislate’ by statutes and the right to self-government through the application of the self-imposed rules and their enforcement. In addition to the function of typifying types of sport, private autonomous statutory regulations can be divided into legislation and regulatory measures. This means that associations or federations are also entitled, within the framework of their self-administration, to lay down their rules of conduct and to enforce them by means of regulatory and penal power (‘association’s power to penalise’). Comprehensive disciplinary regulations can be found above all in the statutes of the national sports associations.
As sports law is an interdisciplinary matter, there are no specific legal provisions on professional sport in Austria. The general legal provisions of association law, civil law, labour law, public law and criminal law apply.Protection from liability
To what extent are participants protected from liability for their on-field actions under civil and criminal law?Civil liability
The liability of athletes towards each other is usually not based on contract but on tort. From the point of view of liability law, a distinction has become established between martial arts (‘sports against each other’) and parallel sports (‘individual sports’). In Austria, the ‘sports liability privilege’ applies to the liability of athletes towards each other. Resulting injuries of another person do not constitute a liability for damages. Whoever practises such a sport acts at his or her own risk. The social value of sport is a recognised legal asset.
Civil liability is therefore only triggered in the event of a violation of the rules that cannot be considered ‘typical’. The reason for this restriction is that every type of sport has its typical potential for danger and risk, which is known to the participants. According to the prevailing opinion, the athlete accepts the risk of injuries from the outset, which cannot be avoided even when playing in accordance with the rules. Even in the case of an objective violation of a sports rule that serves to protect the other player, it is assumed that liability is excluded if the damage to the other athlete is caused by the typical risk of the sport without serious, not typical, violation of the rule.
Jurisprudence has raised the threshold quite high. In practice, therefore, there is no liability risk as long as the athlete behaves ‘properly’, even if sometimes against the rules.Criminal liability
If one athlete injures another, the same rules apply as for any other bodily injury. In football, attacks from behind, in particular, must always be qualified as against the law because they usually lack the chance to get to the ball in accordance with the rules and the opponent has no chance to react.
However, the liability threshold is much higher in the context of martial arts.Doping regulation
What is the regulatory framework for doping matters in your jurisdiction? Is there also potential secondary liability for doping offences under civil or criminal law?
In Austria, the International Convention against Doping in Sport entered into force in 2007. Austria has also ratified the Council of Europe’s Anti-Doping Convention and its Additional Protocol. This means that Austrian anti-doping legislation is also integrated into the worldwide fight against doping in accordance with international standards.
Anti-doping measures in Austria are governed by several acts and regulations.
The Federal Act on Combating Doping in Sport (ADBG) forms the basis of Austria’s anti-doping measures. Among others, it regulates the tasks of the National Anti-Doping Agency (NADA Austria), the Independent Austrian Anti-Doping Legal Commission (ÖADR) and the Independent Arbitration Commission (USK).
In addition, the ADBG regulates the rights and obligations of athletes, support staff and sports organisations and contains the implementing provisions for doping controls.
The Austrian Medicines and Prescription Act also contains provisions relevant to doping.
The ADBG furthermore includes judicial penal provisions for possession, trade and passing-on (section 22a ADBG, up to five years’ imprisonment) and regulates NADA Austria’s cooperation with state investigative bodies.
Since 1 January 2010, anyone who, for the purposes of doping in sport, commits fraud with more than minor damage by deceiving about the use of a prohibited active substance or a prohibited method according to the Annex to the Anti-Doping Convention, is punishable with a prison sentence of up to three years in accordance with section 147 paragraph 1a of the Austrian Criminal Code (StGB).Financial controls
What financial controls exist for participant organisations within professional sport?
In Austrian professional football (highest and second-highest division), the Fifth Senate (Licensing Committee) of the Austrian Football Bundesliga (ÖFBL) examines the fulfilment of financial, infrastructural, legal and personnel-organisational minimum criteria of the member association as licence and admission applicants in the context of the licensing procedure beyond the sporting qualification.
Every club wishing to participate in the ÖFBL competitions must prove its economic performance and meet certain financial criteria on an annual basis. The criteria are based on Austrian accounting principles in accordance with company law, including the specific regulations for corporations.
The main objectives of the financial requirements are as follows:
- improving the economic and financial performance of associations;
- monitoring financial fair play in ÖFBL and UEFA association competitions; and
- supporting associations in managing their revenues and ensuring financial discipline and rationality.
In particular, associations must submit to the ÖFBL audited annual accounts, future budget information and a liquidity plan. In addition, they must not have any overdue liabilities from player transfers to other associations, to employees and social insurance agencies or tax authorities.
Players of the highest and second-highest leagues are entitled to payment of the minimum wage under the collective agreement in the amount of €1,550 gross.
Moreover, associations in Austria must comply with the provisions of the Act on Associations 2002 (VerG).
Who has jurisdiction over the resolution of professional sport disputes in your jurisdiction, and how is this determined?
In Austria, internal disciplinary law (‘association’s power to penalise’) forms an essential part of the statutes of sports federations. Within this framework, far-reaching sanctions can be imposed on athletes, associations belonging to federations and officials of these clubs. The principle of self-regulation applies. In practice, club statutes very often provide for internal stages of appeal.
If a sanction or penalty has been imposed and the internal stages of appeal of the federation have been exhausted, the athlete has the full judicial review by the ordinary civil courts of these measures or decisions open to him or her.
In addition, most statutes of associations and federations contain regulations according to which disputes between members and the association are to be settled by arbitration courts and not by ordinary courtsEnforcement
How are decisions of domestic professional sports regulatory bodies enforced?
The internal disciplinary law in Austria is governed especially by the statutes of the sports associations and forms an essential part of the respective individual regulations of the association. The associations, especially their internal senates, enforce their decisions themselves. In most cases, these form an internal mediation board of the association.
The individual procedures vary from association to association.
Additionally, the national arbitral tribunals (in the field of football in particular, the Permanent Neutral Arbitral Tribunal) are of importance, since their decisions (arbitral awards) form executory titles. These are enforced before national courtsCourt enforcement
Can the decisions of professional sports regulatory bodies be challenged or enforced in the national courts?
As a first step, decisions by supervisory authorities can only be challenged within the framework of internal bodies of association (usually mediation boards set up within associations); before this, legal recourse to the national courts is inadmissible.
After the final internal decision of the association, ordinary legal action before a national court is permissible, and athletes and associations can bring an action against the decision before an ordinary civil court.
Sponsorship and image rightsConcept of image rights
Is the concept of an individual’s image right legally recognised in your jurisdiction?
In Austria the concept of personal image rights is part of the personal rights and is protected by numerous legal provisions. Image protection is a specific right of the person. According to section 78 Austrian Copyright Act (UrhG), athletes have the right to their own image. This also includes the naming right in section 43 Austrian Civil Code (ABGB), the right of privacy protection under section 1328a ABGB and protection of honour according to section 1330 ABGB, etc.Commercialisation and protection
What are the key legal considerations for the commercialisation and protection of individuals’ image rights?
Advertising in sport is becoming increasingly important in Austria. Without sponsors, competitive sport would not be able to survive. As already mentioned above, athletes have the right to their own image according to section 78 UrhG. Protection under section 78 UrhG only comes into effect if the person also has a legitimate interest in the non-publication of the image. According to this, portraits of an athlete may in principle neither be publicly exhibited nor distributed in any other way through which they would be made accessible to the public, if legitimate interests of the athlete, who has neither permitted nor ordered the publication, are thereby violated. If a picture is used for advertising purposes without the consent of the athlete, his or her interests will be violated, regardless of whether the advertising is offensive or not.
As far as the exploitation of personal image rights is concerned, the athletes usually agree in advance to this in licence, sponsorship and service contracts.
Further legal considerations for the marketing and protection of personal image rights are the protection of honour (section 1330 paragraph 1 ABGB), private and family life (article 8 European Convention on Human Rights (ECHR)) and economic reputation (section 1330 paragraph 2 ABGB).
How are image rights used commercially by professional organisations within sport?
Athletes who have a contractual relationship with an association can contractually grant the association the right to use their image rights worldwide and indefinitely, especially for marketing purposes. In particular, the use may also include the right to full or partial exploitation, publication, duplication, distribution, broadcasting, non-physical reproduction and other current or future possible use, for example on the internet or other new media.
The association is also entitled to transfer these rights in whole or in part to contractual partners and trade associations, to grant sublicences or rights of use or authorisations of use, as well as to exercise these rights itself or through third parties.Morality clauses
How can morality clauses be drafted, and are they enforceable?
Within the framework of freedom of contract under civil law, morality provisions can, for example, be integrated into employment and sponsorship contracts of athletes and into the statutes of associations and federations. In Austrian professional football, players declare their integrity in their employment contracts. This declaration protects the integrity and credibility of sporting competitions in Austria against any form of abuse.
Violation of the fair play principle can be sanctioned with warnings, suspensions, fines and deduction of points.
Match fixing, attempted match manipulations or other forms of corruption will not be tolerated and, in addition to penalties under association law, will also entail criminal consequences.Restrictions
Are there any restrictions on sponsorship or marketing in professional sport?
The Austrian Tobacco and Non-Smoker Protection Act (TNRSG) provides for a comprehensive ban on advertising and sponsorship of tobacco products, particularly in sport.
For alcoholic beverages, there are legal restrictions for the protection of minors also in the area of TV and radio advertising for alcoholic beverages. These restrictions can be found in the ORF Act, the Audiovisual Media Services Act and the Private Radio Act.
In addition, advertising for products exclusively available at pharmacies is prohibited. Legal bases can be found in the Medicines Act, the Prescription Requirement Act and the Specialist Information Ordinance.There are no restrictions with regard to gambling.
The Austrian Football League describes rules on how advertising for teams must look on sportswear. Only one player per team and round may have different sponsors on his or her jersey than the other players.
Brand managementProtecting brands
How can sports organisations protect their brand value?
In Austria, trademark law is governed by the Trademark Protection Act (MSchG). The acquisition of the trademark right requires the registration of the trademark in the trademark register. Trademarks can be signs of any kind, in particular words, including personal names, or illustrations, letters, numbers, colours, insofar as such signs are capable of forming a trademark (section 1 MSchG) and of being registered (section 4 MSchG). The functions of distinguishing and indication of origin are the basic functions that every trademark must fulfil.
Since a logo is a characteristic intellectual creation, it is in principle also protected by copyright as a commercial graphic (work of applied art), even if it is not registered as a trademark. This assumes that the logo meets the general copyright protection requirements.
How can individuals protect their brands?
Individuals can protect their brands the same way sports organisations can. The distinctive character within the meaning of section 4 paragraph 1 No. 3 MSchG is of paramount importance. Signs that are not specifically distinctive are incapable of fulfilling the basic functions (distinctive character and indication of origin) of the athlete’s trademark with regard to the goods and services claimed (allocated goods and services) and may therefore not be registered. These are signs that are not recognised by the relevant public as distinguishing features or indications of origin. According to section 4 paragraph 1 No. 4 MSchG, purely descriptive signs are also excluded from protection.
The athlete then has the possibility of selling fan articles within the framework of merchandising by secondary marketing via his or her own fan shops or by granting a licence.Cybersquatting
How can sports brands and individuals prevent cybersquatting?
In Austria, ‘domain grabbing’ is immoral and affected owners of sports trademarks as well as individuals can sue for an injunction against the use and deletion of the domain name if either a competitor is to be prevented from using a trademark used by him or her or the registration is to be carried out exclusively in order to demand ‘ransom’ for the surrender.
According to jurisprudence, a breach of section 1 Federal Act against Unfair Competition (UWG) under the aspect of ‘domain grabbing’ requires that the infringer acted with intention of obstructing the reservation and use of the domain.Media coverage
How can individuals and organisations protect against adverse media coverage?
The fundamental right of freedom of media (article 13 Basic Law on the General Rights of Nationals (StGGk)) allows a certain amount of negative coverage within the legal limits.
The Media Act (MedienG) partly offers protection against negative reports in a medium. If, pursuant to section 6 MedienG, objectively an offence of defamation, insult, mockery or libel is established, individuals and organisations are entitled to compensation for the offence suffered against the media owner. The amount of the compensation shall be determined in accordance with the scope and effects of the publication, in particular the type and extent of dissemination of the medium.
If an individual's strictly personal area of life is discussed or portrayed in a medium in such a way as to expose it to the public, the person concerned is entitled to compensation from the media owner for the offence suffered. The amount of compensation may not exceed €20,000.
Which broadcasting regulations are particularly relevant to professional sports?
TV broadcasting is based on the Federal Constitutional Act on Safeguarding the Independence of Broadcasting (BVG Rundfunk). The BVG Rundfunk defines broadcasting as a public task and defines the framework conditions for ensuring the objectivity and impartiality of reporting, the consideration of diversity of opinion, the balance of programmes and the independence of persons and bodies. The Television Exclusive Rights Act (FERG) is also of particular importance in Austria.
In addition, the Federal Act on the Austrian Broadcasting Corporation (ORF-G) is of comprehensive significance. Pursuant to section 4 b (1) ORF-G, the Austrian Broadcasting Corporation (ORF) is required, subject to economic viability, to provide a special-interest television programme that serves the purpose of current reporting on sports activities and sports competitions as well as the broadcasting of sports competitions, including such activities and competitions, that usually do not receive much attention in Austrian media reporting.Restriction of illegal broadcasting
What means are available to restrict illegal broadcasting of professional sports events?
The illegal transmission and reproduction of TV broadcasts in professional sports constitutes a copyright infringement. A TV broadcast of a sports event can be a work of cinematographic art. In a warning letter, the authors or rights owners of individual TV broadcasts can request the infringer to stop the concrete illegal use, reproduction or transmission of streams within a certain period of time, to give a cease-and-desist declaration and to pay damages of a certain amount.
What are the key regulatory issues for venue hire and event organisation?
The legal basis for events and event organisations can be found in the nine Event, Nature Conservation, Youth Protection and Fire Police Acts of the Austrian federal states. The federal legislature has also issued regulations concerning events within the scope of its competences. Such provisions, which are particularly relevant for sports events, can be found in the Industrial Code (GewO), the Federal Security Police Act (SPG), the Traffic Regulations Act (StVO) and the Austrian Civil Code (ABGB).
In Austria, a distinction is made between events requiring registration, notification or authorisation and free events. The basis for renting an event location is always a permit from the competent authority.
In addition to the personal suitability of the organiser, the following general requirements are prerequisites for official approval:
- no endangerment of life and health of people or safety of property;
- no unacceptable impairment of people by emissions such as noise, odours, smoke or light;
- no disturbance of public order and safety;
- compliance with the state of the art with regard to construction, safety, fire protection and hygiene requirements; and
- in some cases, additional requirements are added, such as no significant impairment of the environment or of the townscape and landscape.
Important provisions can be found in section 49 a-c SPG on special powers of the safety authorities to prevent violence at major sporting events.Ambush marketing
What protections exist against ambush marketing for events?
Ambush marketing refers to marketing activities aimed at exploiting the media attention of a major event without being a sponsor of the event themselves in order to advertise products or services cheaply.
Organisers of major sporting events must try to prevent abuse as far as possible by strict licensing regulations and comprehensive brand protection. At the 2008 European Championships in Austria, UEFA had a whole list of terms, symbols and photographs relating to the entire event legally protected.
Moreover, the Federal Act against Unfair Competition (UWG) offers protection against ambush marketing, as it is an unfair business practice as defined in section 1 UWG. A company can be sued for injunctive relief and for damages in the event of fault.Ticket sale and resale
Can restrictions be imposed on ticket sale and resale?
Yes, restrictions are imposed in particular in the general terms and conditions of the Austrian sports organisers. The resale of tickets is usually restricted to the extent that the sale of tickets with a profit or with the intention of making a profit is prohibited.
Moreover, the sale of a large number of tickets (eg, under the General Terms and Conditions of the Austrian Ski Federation, more than eight tickets) to a single person is subject to the separate consent of the organiser.
ImmigrationWork permits and visas
What is the process for clubs to obtain work permits or visas for foreign professional athletes, and coaching and administrative staff?
For professional athletes as well as coaching and administrative staff from third countries (ie, outside the EU or EEC), the legal basis in Austria for obtaining a residence and employment permit is the Settlement and Residence Act (Niederlassungs- und Aufenthaltsgesetz (NAG)) and the Foreign Nationals Employment Act (AuslBG). The types and forms of residence permits are listed in section 8 NAG.
The professional athlete, coaching or administrative staff-member from a third country must submit an application to the Austrian representative authority (embassy, consulate) for the first issue of a residence permit in person and abroad, before entering Austria. The representative authority checks the completeness and correctness of the application and forwards it to the competent residence authority in Austria. This authority checks whether the requirements for the granting of the residence permit are fulfilled. If the conditions are fulfilled and the residence authority concludes the procedure positively, it informs the Austrian representative authority abroad and, if necessary, instructs it to issue a visa. The representative authority shall inform the persons concerned accordingly.
The person can enter Austria with a valid visa or, if there is no visa requirement, without a visa (visa-free) and collect the residence permit personally from the competent residence authority.If professional athletes, coaches or other personnel who are third-country nationals fulfil the legally required requirements, they will be granted the residence title ‘Red-White-Red-Card’ (section 8 paragraph 1 No. 1 in connection with section 41 NAG). This residence title is issued for a period of 24 months (unless the employment contract has a shorter duration; in such a case, the residence title is issued for a period exceeding the duration of the employment contract by three months) and entitles the holder to unlimited access to the labour market (self-employed and dependent gainful activity) and can be extended upon application. Top athletes are classified as ‘other key personnel’ in Austria. They must also earn a statutory monthly minimum wage (€3,132 per month for athletes aged 30 and over, and €2,610 gross per month for athletes under the age of 30) and achieve the required minimum number of points for the criteria listed in Annex C of the AuslBG.
The association applies for an employment permit by submitting an application to the competent district administrative authority, which then forwards the documents to the locally competent labour market service.
Professional athletes, coaches and administrative staff who are EU citizens, EEA citizens of equal status (Iceland, Liechtenstein, Norway) or Swiss citizens need neither a work permit nor a residence permit because of the freedom of movement of persons, since this fundamental freedom enables top athletes in principle to live and engage in sports in any other member state of the European Union.
What is the position regarding work permits or visas for foreign professional athletes, and coaching and administrative staff, temporarily competing in your jurisdiction?
If professional athletes, coaches or administrative staff who are third-country nationals meet the legally required requirements, they will be granted the residence title ‘Red-White-Red-Card’ (section 8 paragraph 1 No. 1 in conjunction with section 41 NAG).
This residence permit is generally issued for a period of 24 months, unless the employment contract has a shorter duration. In such a case, the residence permit is issued for a period exceeding the duration of the service contract by three months.Residency requirements
What residency requirements must foreign professional athletes, and coaching and administrative staff, satisfy to remain in your jurisdiction long term or permanently?
Professional athletes, coaching staff and administrative staff who are third-country nationals, who have been entitled to settle in Austria without interruption during the last five years and who have fulfilled Module 2 of the Integration Agreement (corresponding German language skills required) can personally submit an application for permanent residency ‘Daueraufenthalt EU’ (section 8 paragraph 1 No. 7 in conjunction with section 45 NAG) to the locally responsible residence authority at the earliest three months before the expiry of their residence title ‘Red-White-Red-Card’.
If a person meets the requirements, the authority issues the residence title Daueraufenthalt EU (‘long-term resident’).
However, this residence title expires again if the person with the title ‘Permanent Residence EU’ stays longer than 12 consecutive months outside the EEA and the title becomes invalid if he or she has not settled in Austria for six years.
Do the family members of foreign professional athletes, and coaching and administrative staff, legally resident in your jurisdiction have the same residency rights?
Provided that professional athletes, coaches or other personnel who are third-country nationals have a legally valid residence permit (‘Red-White-Red-Card’ or ‘Daueraufenthalt EU’), their family members are entitled to apply for a ‘Red-White-Red-Card plus’ abroad at the Austrian representative authority before entering the country. If the family members are allowed to enter Austria without a visa or already have a valid residence permit, they can also submit the application directly to the competent residence authority in Austria (state governor or authorised district authority or magistrate).
The ‘Red-White-Red-Card plus’ entitles family members to temporary settlement and unrestricted access to the labour market.
The ‘Red-White-Red-Card plus’ is issued for one year. If the family members are legally resident in Austria for two years and fulfil Module 1 of the Integration Agreement, they can receive a ‘Red-White-Red-Card plus’ with a validity period of three years.
Sports unionsIncorporation and regulation
How are professional sporting unions incorporated and regulated?
Unions in the field of professional sport are becoming increasingly important in Austria. In Austria, the ‘younion-Die Daseinsgewerkschaft’ is responsible for all sports matters. It is a sub-union of the Austrian Federation of Trade Unions (ÖGB).
The Association of Footballers (VdF) represents the interests of all amateur and professional footballers active in Austria. The VdF advises its members (players, coaches, etc) individually with regard to the conclusion of a contract and questions arising during the term of the contract. In addition, the VdF provides players and coaches with further information on the lawful termination of contracts, rights and obligations that a player or coach has towards the association, and on possible changes to the statutes on the part of the Austrian Soccer Federation (ÖFB) and the Austrian Football Bundesliga (ÖFBL).
The major strategic goal of the players and the VdF was to conclude a collective agreement with the ÖFBL, which was successful in 2008. Furthermore, they advocate the creation of a separate sports law, which should bring clarity to Austrian professional football, and are aimed at the integration of VdF representatives in all important committees of the ÖFBL. In addition, economic advice, such as investment and insurance models, as well as a pension plan are to be developed, which will be complemented by transfer advice for VdF members.Membership
Can professional sports bodies and clubs restrict union membership?
In the field of professional football, a restriction is not possible, as the ÖFBL has concluded a collective agreement with the VdF. Since the associations of the first and second national football leagues are members of the ÖFBL, the associations are subject to the provisions of the collective agreement, the statutes of the ÖFBL as well as the regulations of the ÖFB.Strike action
Are there any restrictions on professional sports unions taking strike action?
No, in general there is a right to strike in Austria. There is the ‘freedom to strike’. Strikes and participation in strikes are constitutionally protected because article 11 of the European Convention on Human Rights (ECHR) guarantees the right to form and join trade unions. This right also includes the right to take action in important cases. Article 8 of the UN Social Pact, to which Austria has acceded, expressly guarantees the right to strike. Strikes are therefore allowed in Austria and are not punishable by law.
As mentioned in ‘Incorporation and regulation’, trade unions are becoming increasingly important in professional sport. As far as strike action is concerned, there are no legal provisions in Austrian sports law, as this is an interdisciplinary issue.
The ‘younion-Die Daseinsgewerkschaft’, which is responsible for sport in Austria, is a member of the Austrian Trade Union Federation (ÖGB), and therefore, as with the other Austrian trade unions, there are basically no restrictions with regard to strike action. Only the VdF, which represents the interests of professional footballers, has concluded a collective agreement with the ÖFBL on the basis of which strike action is permissible in respect of disputes concerning individual provisions of the collective agreement.
Dismissals resulting from participation in a strike are unlawful and must ultimately be withdrawn by the club or association.
What is the legal framework for individual transfers? What restrictions can be placed on individuals moving between clubs?
In Austria, professional athletes in the field of team sports are to be qualified as employees. The legal framework between association and athlete is thus formed by an employment contract (section 1151 Austrian Civil Code (ABGB)). Under the employment contract the athlete as an employee does not owe any success besides the unrestricted provision of his or her labour. In doing so, he or she is working in personal dependence, the basis of which is the athlete’s strictly personal duty to work. Another important feature is the athlete’s obligation to follow instructions, as he or she is integrated into the organisational and hierarchical structure of the association.
In the field of individual sports, athletes are in most cases not considered as employees but as entrepreneurs and receive income from self-employment. There are no transfers in individual sports.
Before an individual transfer, the employment relationship between the former association and the athlete must first be terminated. Subsequently, the host association concludes a new employment contract with the sportsperson.
Restrictions for association changes can exist for athletes due to contractual and ‘Financial Fair Play’ rules as well as the ban on third-party ownership. In the context of third-party ownership, investors acquire transfer rights from football players in order to earn money if the player is transferred to another association for a large fee.Ending contractual obligations
Can individuals buy their way out of their contractual obligations to professional sports clubs?
As in most cases an athlete concludes a (temporary) employment contract as defined in section 1151 ABGB with the association, he or she is considered an employee. The athlete is subject to contractual duties of loyalty, in particular the prohibition of competition, obligation to secrecy, obligation to train according to detailed specifications of a trainer, nutritional regulations, obligation to orient oneself towards strategic, tactical or even sports policy concepts as well as representation duties. As a result, the provisions of Austrian labour law apply and the athlete him or herself cannot buy his or her way out of his contract. Since the employment contract is a continuing obligation, a separate termination act (notice of termination, time limit) is required.
Many fixed-term employment contracts contain an exit clause, in most cases this contains a precisely defined transfer fee. If another professional association is interested in hiring the player, it can buy him or her back during the transfer period when the transfer fee is paid and a change of association is permitted.
Athletes who are active under contracts for work and services owe a success, so they cannot buy their way out of their contractual obligations.Welfare obligations
What are the key athlete welfare obligations for employers?
With regard to the welfare of the athletes, the employer is bound by the duty of care and therefore has to protect important legal interests of the employee. Section 3 of the Employee Protection Act (ASchG) regulates the general obligations of employers. In particular, employers are obliged to ensure the safety and health of sportspeople with regard to all aspects relating to sport. They must take the necessary measures to protect life, health, integrity and dignity.Young athletes
Are there restrictions on the employment and transfer of young athletes?
In principle, a young sportsperson in Austria can conclude a young professionals contract with an association from the age of 16 onwards. The provisions of the collective agreement apply. Within the limits of labour law, a young athlete can be transferred to a new association in Austria.
According to article 19 of the FIFA regulations, a player may only be transferred internationally if he or she is at least 18 years old. This provision does not apply in the following cases: (i) the player’s parents take up residence in the country of the new association for reasons other than football, or (ii) the transfer takes place within the European Union or EEA and the age of the player is between 16 and 18 years. In addition, the new association must fulfil certain minimum obligations and the player may live no more than 50km from the Austrian border and the association of the neighbouring federation to which the player wishes to be registered is also no more than 50km from the Austrian border.
What are the key child protection rules and safeguarding considerations?
The Austrian Youth Protection Acts apply to all young people up to the age of 18 and are within the competence of the federal states. In addition, the Child and Adolescent Employment Act 1987 (KJBG) is of great importance. This law contains protective regulations that also apply to young sportspeople. The protection considerations relate in particular to breaks, rest periods, night rest, weekly leisure time and health and morality protection.
There are no exceptions to these rules in Austrian sports law.Club and country representation
What employment relationship issues arise when athletes represent both club and country?
Problems arise from the fact that there is usually an employment relationship between the athlete and the associations and that the athletes are subject to obligations under labour law.
Pursuant to article 1 of the FIFA Regulations on the Status and Transfer of Players, associations are obliged to assign their players to the federation team of the country of which they are nationals. Therefore, the associations undertake to release players for the periods stipulated by FIFA. Additionally, the association is obliged to continue to pay the player’s salary and pay accident and health insurance for the duration of the secondment.
Because of the dominant market position of FIFA and UEFA, such regulations are not entirely unproblematic, but they are indispensable for the organisation of international tournaments. However, FIFA and UEFA pay parking fees per day per player (ie, the associations’ share of revenues from broadcasting rights, commercial rights and ticket sales).
It could also be a problem if a player is injured during a national team match. In this case, however, the FIFA protection programme applies. It lays down the conditions under which an association is entitled to compensation if one of its players is injured in a match played by the national team.Selection and eligibility
How are selection and eligibility disputes dealt with by national bodies?
According to section 19 of the articles of association of the Austrian Olympic Committee (ÖOC), the internal arbitration court is appointed to arbitrate all disputes arising in connection with the selection and suitability of members of the ÖOC. It is a ‘mediation board’ within the meaning of the Act on Associations (VerG) and not an arbitral tribunal according to section 577 ff of the Austrian Code of Civil Procedure (ZPO).
In most cases selection and suitability disputes are dealt with by senates specifically set up in sports associations within the framework of an internal instance within the association.
What are the key taxation issues for foreign athletes competing in your jurisdiction to be aware of?
Section 1 of the Austrian Income Tax Act (EStG) regulates the personal tax liability of natural persons. According to section 1 paragraph 2 EStG, all natural persons, including foreign athletes, are subject to unlimited tax liability if they have a domicile or habitual residence in Austria. Foreign athletes are subject to limited tax liability if they have domestic income as defined by section 98 EStG and neither a domicile nor a habitual residence in Austria. According to section 26 paragraph 1 of the Austrian Federal Tax Code, a person has a place of domicile where he or she has an apartment under circumstances that suggest he or she will retain the apartment. The habitual residence within the meaning of section 26 paragraph 2 BAO is where someone is in circumstances that show he or she is not only temporarily staying at this place or in this country. The duty is always payable if the stay in Austria lasts longer than six months.
In Austria there are seven different types of income, which are listed in section 2 Abs 3 EStG.
Foreign athletes who have neither a domicile nor a habitual residence in Austria are only subject to limited taxation on income earned in Austria.
Several double taxation agreements that Austria has concluded with other countries avoid a double taxation.
Update and trendsKey developments of the past year
Are there any emerging trends or hot topics in your jurisdiction?Hot topics37 Are there any emerging trends or hot topics in your jurisdiction?
Currently, no specific trends can be identified in sports law. An exciting legal topic in recent years has been the passing on of a federation-imposed penalty from the association to disruptive viewers under tort law.