Professional athletes and disciplinary sanctions: the case of Lionel Messi

PSG has recently decided to suspend Lionel Messi for two weeks, after he went to Saudi Arabia to fulfill a personal business commitment, in defiance of the training of the day organized by the club. Although the suspension was eventually shortened following a public apology from the player, for a short period of time it has resulted in prohibiting Lionel Messi from going to the training center, participating in his team's games and depriving him of part of his salary. This case raises the question of the sanction regime for professional athletes in France, many of whom, including Lionel Messi, remain employees and are therefore protected by the French Labor Code.

The purpose of this article is to provide a non-exhaustive overview of the French legal framework that protects professional football players, which however leaves some wiggle room for the employing clubs. This article is based on the description of the sanction imposed on the player as given by some specialized press articles in the absence of any official communication from the club on the subject or publication of the said sanction.

Protection of professional football players

Sports sanctions can have a significant impact on the professional footballer. On the one hand, a ban on training with the professional team or participating in matches with his club may jeopardize the player's career, as he/she no longer has the opportunity to maintain his footballing level. On the other hand, there may be significant financial repercussions, for example, when the player has entered into sponsorship contracts under which his remuneration will vary according to the number of matches played with his/her club.

Several rules prevent clubs from “sidelining” one of their players.

Participation in training sessions

Pursuant to article L222-2-9 of the French Sports Code, clubs are required to offer professional athletes "conditions of training equivalent to those of other professional athletes employed by the club".

Moreover, in the specific case of football, article 507 of the Professional Football Charter, which is a collective agreement for football professions, states that: "Clubs must enable players under professional contract to participate in collective training with the group of players making up the professional group. Clubs must provide their professional players under contract the means to train in order to enable them to reach or maintain a level of physical condition sufficient for the practice of professional football in competition".

Thus, the club has an obligation to enable its players to train in the best conditions, so that they are able to maintain and even improve their sporting abilities, which are the foundation of their professional career.

As a result, for example, it is illegal for a club to send a player to the reserve team, or to require that he/she trains alone, away from the group.

Participation in the games

In the particular case of football, article 507 of the Professional Football Charter provides that the participation of an athlete in any competition is a matter of the club's management authority, which is in practice exercised by the coach. Thus, not selecting a player to participate in matches is not in itself illegal: the club is not obligated to select the player for matches and competitions in which the club participates.

In a classic way, the limit is the abusive or discriminatory use of this selection power. Indeed, the decision not to select a player for the matches must be justified by an objective choice made with regard to the player's sporting performance, which is assessed by the coach.

The club's disciplinary authority over the athlete

The above principles may, however, give way, temporarily, when the employer decides to use the disciplinary power it has over its employees – the players.

Indeed, as in any relationship between employer and employee, the former has disciplinary power over the latter. This power of sanction belongs to the employer when he considers that the employee has committed a wrongful act / misconduct.

Professional sport is no exception to this principle. In football, article 614 of the Professional Football Charter states that "the power to sanction is the power to take any measure that has a consequence on the status of the athlete in order to punish misconduct. This power is held by the club”.

Among the sanctions that can be imposed is a disciplinary layoff, which must comply with a specific regime and conditions.

The disciplinary layoff system

Article 614 of the Professional Football Charter defines a disciplinary layoff as a "sanction consisting of prohibiting an employee guilty of a fault from attending work. During the layoff, the employee is not paid". The disciplinary layoff has the effect of suspending the execution of the footballer's employment contract for the duration of the layoff, and therefore the contractual obligations of both parties.

The club no longer pays the player, and the player is denied access to the training facility and cannot participate in games with his/her club during the layoff period.

Thus, while a financial penalty is prohibited, a disciplinary penalty with financial consequences is legal – a disciplinary layoff being a legal penalty.

The withholding of wages strictly proportional to the duration of the disciplinary layoff sanctioning the employee's misconduct is therefore not covered by the prohibition of financial penalties. As the player does not perform his/her work during the time of the sanction, the employer may withhold wages corresponding to the period of inactivity.

Lawfulness conditions of a disciplinary layoff

Disciplinary layoffs, particularly in football, must meet certain conditions to be lawful.

According to article 614 of the Professional Football Charter, "the sanction shall be taken in view of the facts and circumstances [...]". Thus, the decision to impose a disciplinary layoff (rather than a warning, for example) must be justified. Moreover, it is established case law that the duration of the disciplinary layoff must be strictly proportionate to the seriousness of the employee's misconduct.

In football, disciplinary sanctions following a player's unjustified absence follow a particular regime. Indeed, article 614 of the Professional Football Charter states that the following provisions must be included in the internal regulations of all professional clubs:

" [...] 2. Absence from other training sessions without a valid reason, as well as from any course for the player in training and from any official summons such as technical conference, medical examination, treatment session, etc. :

• Warning.
• In the event of a repeat offence, disciplinary layoff of one day for each day of absence.
• After ten days, if the player has not made himself/herself available to his/her club: disciplinary layoff of one day for each day of absence, which can go as far as the termination of contract."

In principle, the sanction imposed by the employer must stick to the scale of sanctions set out in the internal regulations as provided for in the Professional Football Charter. Otherwise, the player may challenge the sanction before a judge if he/she considers it disproportionate, irregular or unjustified. In any event, a layoff may not be imposed for a period longer than that provided for in the internal regulations.

In view of the facts reported in the media, which have yet to be confirmed, it is possible that the sanction imposed on Messi – a two-week disciplinary layoff – exceeds the maximum duration stipulated by the club's internal regulations, which is a maximum of one day per day of absence. The sanction of the layoff itself could also be questionable, as article 614 of the Professional Football Charter gives priority to a warning as the first sanction for an absence. However, a more in-depth knowledge of the facts of the case is necessary in order to confirm or deny the above.

In this case, we cannot exclude the hypothesis that PSG not only sanctioned Messi for a simple absence from training but because his absence, combined with a trip to Saudi Arabia for publicity purposes, could have been interpreted as a serious damage on the club's image. The legality of such a sanction would then require a more thorough examination. PSG finally decided to reduce the length of the suspension after Messi publicly apologized, who was then able to return to training a week after the sanction was imposed.

In addition, the disciplinary layoff must comply with strict procedural requirements in order to safeguard the rights of the footballer. Article 615 of the Professional Football Charter requires that the player be summoned to an interview prior to the disciplinary layoff, during which the player may be assisted by a member of the club's staff of his/her choice.

Finally, in addition to disciplinary sanctions, which are a way for the employer to penalize a professional player, clubs also use contractual mechanisms in the form of "ethics bonus" clauses, stipulated in the player's employment contract. This mechanism makes it possible to link elements of remuneration to certain behavioral commitments of the players (e.g. participation in press conferences, thanking fans, etc.). This mechanism, which is increasingly used, will be the subject of a future article.

Authored by Mikael Salmela, Gabriel Lecordier, Sibille Bouessel du Bourg, and Nathan Ponthieu.