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冠状病毒:球员、裁判还是观众?

发布日期:2020-06-23

文|Ricardo Oliveras  翻译|鲁虞舟

Without doubt, Covid-19 is having an enormous social and economic impact, a situation from which the sports industry is not exempt. Regardless of the sports practice, the country or the magnitude of the sport competition, we have witnessed during these last two months a continuous trickle of temporary postponements or definitive cancellations of competitions and sports events.

众所周知,Covid-19疫情已然导致巨大的社会和经济冲击,体育产业也难以独善其身。在过去的两个月中,全球各国的各种规模的体育赛事和活动被推迟或取消屡见不鲜。

In what situation does this pandemic leave the sports industry in Spain? What are the legal aspects to be debated? What legal instruments do we have in Spain? What legal position do such important stakeholders have for this industry as sponsors or TVs and audiovisual platforms? Are there opportunities within this scenario? In summary, what challenges from a legal perspective in Spain does Covid-19 leave us within the sports industry and how to deal with the diverse legal matters that arise?

这场疫情将西班牙的体育产业置于何境地?有哪些法律层面的问题值得讨论?西班牙提供哪些法律应对手段?赞助商或电视和视听平台等的重要利益攸关者在该行业有何法律地位?在这种情况下还有任何机遇吗?总而言之,Covid-19疫情下的西班牙体育产业在法律层面所面临的挑战是什么——我们如何应对和处理当下涌现的各种法律问题。

The consequences of the Covid-19 crisis in the sports industry have captured a lot of media interest in the last weeks. Below, we answer five legal questions which, due to their economic significance, will have an impact in the short or medium-term on the future of the sports industry.

在过去的几星期中,Covid-19危机对体育产业的影响吸引了大量媒体关注。有鉴于此,我们将回答五个在中短期对体育产业的未来会产生较大影响的法律问题。

Ⅰ. What is the status of contracts for professional team sportsmen and women?

一、职业团体运动员的合同状况如何?

Like any other entity, sports clubs and/or Limited Liability Sports Companies (in Spanish "Sociedad Anonima Deportiva or "S.A.D.") can also take advantage of the temporary employment regulation proceedings (ERTEs) for reasons of force majeure that are set out in Royal Decree-Law 8/2020 of 17 March (RDL 8/2020). It should not be forgotten that these entities as well as professional sportsmen and sportswomen are subject to the same labour regulations. For this reason, this report does not question the fact that clubs or S.A.D. can apply to the ERTE due to force majeure.

像任何其他实体机构一样,体育俱乐部或有限责任的体育公司(西班牙语为“Sociedad  Anonima Deportiva”或“S.A.D.”)也可以出于不可抗力的原因适用2020年3月17日颁布的第8/2020号皇家法令(RDL 8/2020)所规定的临时雇佣规则程序(ERTEs)。必须承认,这些实体机构以及职业运动员都受相同的劳动法规约束。因此,本报告并不质疑俱乐部或S.A.D.可以基于不可抗力适用ERTE。

Similarly, the position of certain sports federations, such as the RFEF, which would like to see football clubs or S.A.D. not go down this route is unrealistic and unfortunate, especially as it is an entity that has delegated administrative functions and whose main mission must be to ensure the promotion and maintenance of the sport of football. It is worth remembering that a club or S.A.D. is not only made up of sportsmen and women but also of a large group of non-sporting workers. Indeed, either in football, basketball, roller hockey, or handball, several clubs have taken advantage of the ERTE's measure. Those clubs and/or S.A.D. that have not yet applied an ERTE may still benefit from it if they consider it finally necessary.

相应的,从西班牙足联这类体育协会的立场出发,它们所期待的足球俱乐部或S.A.D.不采用劳动法层面手段,既不现实也不合理——尤其它们具有一定的受托行政管理职能,且首要任务是确保足球运动的稳定和发展。绝不能忽视的是,俱乐部或S.A.D.不仅仅有运动员,更有一大批非运动员职工。事实上,在足球、篮球、曲棍球、手球等领域,已经有数家俱乐部适用了ERTE的措施。即便部分俱乐部和/或S.A.D.暂未适用ERTE,一旦它们觉得必要,仍然可以适用。

Another measure applied by the clubs or S.A.D. - at least in football and basketball - has been the collective private agreements of salary reduction with their professional players. It is fair to acknowledge the common sense, social sensitivity and solidarity shown by the vast majority of football and basketball players in this country in reaching such agreements to support the financial viability of their employer, as well as to preserve the jobs of their non-sporting colleagues.

俱乐部或S.A.D.采取的另一项措施——至少在足球和篮球行业——与职业球员达成降薪的集体协议。绝大多数足球和篮球运动员在达成此类协议以支持其雇主的财务生存以及维持其非职业运动员同事的就业时所表现出的共情共识、社会敏感性和团结精神,值得肯定。

The issue under legal debate at the moment, once the first impact of Covid-19 on the contracts of professional sportsmen and women has been overcome with success, is the validity and duration of those contracts that end on 30 June 2020. If the competition is resumed, it will most probably end later than such date foreseen in the contract. This is a question that has been usually anticipated and covered in the collective agreements signed between the clubs and their players.

成功抵御了Covid-19对职业运动员合同的最初冲击之后,目前需要在法律层面进行讨论的问题是,那些将在2020年6月30日到期的合同的效力和期限。赛事恢复后,赛季持续时间很可能比合同预设的到期时点更长。这是俱乐部和球员之间签署的集体协议中通常可预见并应涵盖的问题。

On the other hand, it should be borne in mind that RDL 8/2020 establishes that those temporary contracts that, because of Covid-19, cannot comply with the initially agreed purpose, will be interrupted. Thus, the situation of those clubs or S.A.D. that have applied an ERTE to their sportsmen and sportswomen whose contracts have a termination date set at "the end of the 2019/2020 season" (i.e. with no express mention of 30 June) should be analyzed to determine whether those contracts would be automatically extended until the end of the competition beyond 30 June.

 另一方面,根据RDL 8/2020规定,Covid-19导致的临时合同如不再符合最初签订时的目的,将被终止。因此,将ERTE适用于到期时点原本定为“2019/2020赛季末”(也即未明确提及6月30日)的合同的情况应当被具体分析,以确定其适用时限是否应该自动延长至可能超过6月30日的赛季结束时点。

However, the extension of contracts beyond 30 June seems to have a "sport-administrative" obstacle in terms of the initial sports licence which was issued until 30 June. This should not be an obstacle to the continuity of the sportsman or woman beyond 30 June because the sports federation that issued the licence can perfectly well modify and extend the term of the licence.

但是,将合同期延至6月30日之后,相对最初签发的有效期至6月30日的体育执照似乎存在“体育行政管理”层面的障碍。但这不是6月30日后运动员继续工作的障碍,因为签发执照的体育协会完全可以妥善地修改和延长该执照的期限。

In short, two final conclusions:1.the rights of professional sportsmen and sportswomen as workers prevail over the integrity of the competitions in which they participate. And,2.the circumstances caused by the coronavirus open up a world of possibilities that in the future must be provided for contractually, regulating and administratively.

简要小结有二:1. 职业运动员作为劳动者的权利凌驾于他们所参加比赛的完整性;2. 由冠状病毒引起的情况开辟了一个充满可能性的新世界,未来必须通过合同、法规和行政管理手段进行规制。

Ⅱ. How are sports sponsorships?

二、体育赞助营销将何去何从?

Sports sponsorship is a sector that has not stopped growing in recent years. This 2020 has been a strong blow at a global level and significant losses are expected for certain brands in the sector. This new circumstance will affect certain current sponsorships and will open the door to new sponsors.

体育赞助营销领域近年来持续增长。但毫无疑问,2020年该领域在全球范围内都受到沉重的打击,部分品牌预计将蒙受重大损失。这种新情况会影响当前的赞助商,但也为新的赞助商打开大门。

To date, companies sponsoring clubs or sports competitions in Spain have acted patiently and quietly in claiming reductions or refunds of sponsorship fees from their sponsored parties. However, it is only a matter of time - as is already the case in the United States, England, Germany or Italy - before several of these sponsors make demands for reduction or refund of sponsorship fees due to contractual considerations or applicable law which, in the case of the Spanish law, offers mechanisms to request from the moderation of the sponsorship fee to the early termination of the sponsorship contract by the sponsor.

迄今为止,西班牙俱乐部或体育赛事的大部分赞助商在向其受赞助方要求降低或退还赞助费方面仍然保持宽容和克制。但是这仅仅是时间的问题——正如美国、英国、德国或意大利已经发生的——这些赞助商未来必将根据合同约因或者现行法律法规主张赞助费的降低或退还。在西班牙法体系下,现行法律规定提供了从要求调整赞助费金额到提前终止赞助合同的各类救济机制。

When sports events are postponed and/or temporally suspended, sponsors -either of a club, event or athlete- lose visibility and the object of the contract is indeed frustrated. It should not be forgotten that sports sponsorship is much more than brand visibility, and that the cancellation of events or competitions or, where appropriate, their hosting without an audience affects the sponsorship itself. Although there are ways to keep sports sponsorship activated these days thanks to technology and social networks, the return on investment in sports sponsorship (the so-called "ROI") decreases. As an example, several sponsors use sports sponsorship as a tool to build customer loyalty or to attract new customers, actions that disappear completely in the current scenario and will most likely remain inactive both in the short and medium-term after the Covid-19.

当体育赛事被推迟或暂时中止,俱乐部、体育活动或运动员的赞助商便丧失了曝光度,也即合同的目的落空。值得注意的是,体育赞助绝对不仅仅是为了品牌曝光度,在某种程度上,取消赛事或者没有现场观众本身即会损害赞助营销。尽管近来有了借助信息技术和社交网络来保持体育赞助营销活动热度的方法,但是体育赞助营销活动的投资回报率(所谓的“ROI”)依然有所下降。例如,一些赞助商将体育赞助作为一种工具来建立客户忠诚度或吸引新客户,这些效果在当前情况下会完全消失,并且很可能在Covid-19疫情之后的中短期内都难以恢复。

In sponsorship contracts, force majeure clauses and solutions for both parties are usually established. In the contract, both parties "play on the same team", and therefore the most beneficial thing would be to reach an agreement. Therefore, despite the negative impact that Covid-19 has in the short term for both sponsor and sponsored party, it will be convenient to analyze the contract, the sponsorship situation and make a joint strategy in the medium-long term.

不可抗力条款及其后果安排在赞助合同中是常见条款。但在合同中,因为双方实际上“同队参赛”,因此,最符合双方利益的事情其实是协议解决。尽管Covid-19疫情在短期内对赞助商和受赞助方都有负面影响,但分析合同内容、评估赞助情况和制定中长期共赢战略仍应是主要思路。

In the case of sports events postponed to a certain date in 2021, it would be best to agree - if not already provided for by contract - on an automatic extension of the rights and obligations of the sponsorship contract until a date later than the date of the event. Both the sponsor and the sponsored party have already made a significant investment, and breaking the sponsorship would only entail a loss for both. However, contractually, the new extension scenario must be well regulated, to avoid possible claims in case of failure to meet expectations.

如果体育赛事推迟到2021年的某个日期,最佳策略是就自动延长赞助合同的权利和义务至该日期后达成一致意见(如果合同未作事先约定)。赞助商和受赞助方都已经进行了巨额投入,而中断赞助只会导致两败俱伤。但是合同必须对延期方案进行周密的规定,以避免在预期落空的情况下的潜在索赔。

Ⅲ. How to refocus TV/audiovisual rights?

三、如何重新聚焦电视/视听权?

It is clear to everyone that television revenues are a fundamental pillar of what professional sport collects, and the sports industry in Spain is no stranger to this. From a sports industry perspective and concerning those competitions/tournaments where TV rights are the major source of revenue, "the current season must be finished no matter what", not only for sporting reasons (promotions, relegations, qualification for future competitions) but above all for purely economic reasons.

众所周知,电视收益是职业体育经济的基本支柱,西班牙也不例外。从体育产业的角度和关注来看,对于那些以电视转播权为主要收入来源的比赛/锦标赛,“无论如何,本赛季都必须打完!”——这当然不仅仅出于体育事业(升级、降级或是未来参赛的资格)的考虑,纯粹的经济因素才是最大的动因。

Television and/or audiovisual rights contracts usually establish payment calendars, with a first payment before the start of the season and the remaining payments upon compliance of certain agreed milestones during the season. Therefore, in most professional competitions there are still payments to be met, but as the competitions are suspended, these will not be paid until they are resumed or at least, if payment is claimed, the television has cause to withhold it.

电视或视听权合同通常会设定付款时间表:在赛季开始前支付首款,并于赛季过程中重要时间节点完成时支付尾款。因此,对于大多数专业赛事,费用支付义务将会产生,但是由于比赛被推迟,相应款项仅当赛事恢复后才能继续被支付——即便被诉求支付,至少电视台也有正当理由暂缓支付。

Generally, television rights contracts include force majeure clauses and even in the case of major sporting events or competitions, causes for suspension or cancellation are already provided for. Contrary to what public opinion may perceive, TV/media companies and/or platforms that bid for such audiovisual rights are few and far between and are very limited by the economic volume of these contracts, not to mention that the sale of these rights is established in a medium-long-term. For all these reasons, there is no point in starting a lawsuit, since it would be counterproductive to try to collect payments now and then break off relations. The key is to find a balance.

一般而言,电视转播权合同中包含不可抗力条款。即便是大型体育活动或赛事,推迟或取消的具体事由往往已经提前在合同中规定。与普通人所猜测的正好相反的是,受限于这类合同的经济体量,参与竞争这类视听权利的电视/媒体公司或平台为数极少更别提这类权利的出售往往是中长期合作。基于此,提起诉讼意义甚微,因为现在竭泽而渔地催收款然后中断合作关系只会适得其反。关键是要找到平衡。

In conclusion, focusing on the short-term consequences, renegotiation of TV/media contracts is expected to come over and over and either to be downgraded or the duration or rights granted to be extended, since cash constraints are looming for audiovisual rights operators, as it happens in other industries.

总而言之,在接下来的一段时间内,电视/媒体合同的重新谈判将反复进行,或者降低相应费用,或者延长合同期限或授权——视听权的经营者的资金紧缺迫在眉睫,一如其它行业中业已发生的。

Ⅳ. Will opportunities arise to invest in the Sports Industry?

四、依然有投资体育产业的机会吗?

It is anticipated that several clubs or S.A.D.'s in the professional leagues will suffer economically and financially to maintain their structure and level of competition. Although both international federations (e.g. FIFA) and national federations (e.g. RFEF) have announced financial support for their members, so far everything remains a proposal, although hopefully sooner than later will come. It is almost certain that this will not be enough to alleviate the delicate economic situation in which several clubs or S.A.D.'s in Spain may find themselves.

不难预料,职业联赛中的一些俱乐部或S.A.D.将会为维持其组织结构和竞赛水平而面临经济和财务上的巨大压力。国际联盟(如FIFA)和国内协会(如RFEF)已宣布将为其成员提供财务支持。尽管或早或晚这些会被付诸行动,目前这一切尚停留在提案环节。但几乎可以肯定的是,这些根本不足以缓和西班牙的数家俱乐部或S.A.D.即将面临的尴尬财务困境。

As a result of the anomalous economic situation that Covid-19 will leave to the clubs, some of them will become insolvent, that is, they will not be able to meet their main payment obligations, including the salaries of their players. For this reason, the club owners will seek financing on the market, opening the door to new investors in the club or even considering its sale. Those who do not succeed in their financing or sales campaign will be forced into an insolvency proceeding in the medium term. In fact, Spain already had a boom in insolvency proceedings in football (more than 20 insolvency proceedings between 2008 and 2014), which has led to a change in the shareholder structure of many S.A.D. Hence, it is not a bit too much to suppose that a similar effect may occur in the medium term after Covid-19.

由于Covid-19导致的各俱乐部的财务困难,其中一些或将资不抵债。这些俱乐部将难以负担其付款义务,包括支付给球员的薪水。因此,这些俱乐部的所有者将在市场上寻求融资,为俱乐部的新投资人广开大门——甚至考虑出售俱乐部。那些未能成功融资或被收购的输家将在不久的未来被迫进入破产程序。事实上,西班牙足球行业的破产程序已经热门了起来(2008年至2014年间发生20多宗破产程序案件),这导致许多S.A.D.的股东结构发生了变化。因此,不难预测在Covid-19疫情之后的中等期限内,类似的影响将持续发生。

In addition to football and other team sports, Spain has a large number of sports facilities and/or properties (golf courses, tennis academies, paddle courts, sports arenas, circuits/tracks, football academies, etc.) which, due to their privileged geographical location and climate, are attractive investment property assets, mainly for foreigners. Besides, owners and/or right-holders of sports events in Spain may consider going out into the foreign market to attract investment for their competitions.

除了足球和其他团体运动之外,西班牙还拥有大量的体育设施和场所(高尔夫球场、网球学院、板球场、运动场、赛道/跑道、足球学院等)。鉴于西班牙优越的地理位置和气候条件,这些对外国人来说是很有吸引力的物业资产。此外,西班牙体育赛事的所有者和/或权利人也会考虑踏入国外市场为赛事吸引投资。

Therefore, the challenge facing the sports industry in Spain will be to ensure and facilitate the entry of new "players" in order to have a more robust and strong industry.

因此,西班牙体育产业面临的挑战将是确保并促成新“玩家”进场,以保障全行业的繁荣兴盛。

Ⅴ. What does this period of confinement mean for e-sports?

五、隔离期对电子竞技意味着什么?

Where some have a serious problem and lose, see traditional sport, the e-Sports sector has a great opportunity to continue to grow. Despite this, the Covid-19 has also stopped its competitions with a live audience. Thus, there are many more potential spectators online, through the different digital streaming platforms, but professional events have been reduced. This is an opportunity to promote competitions held from home or to bring this world closer to the reality of sports, carrying out campaigns like the recent ones, of LaLiga players playing FIFA in a charity tournament or NBA players doing the same with the 2K game of basketball and broadcasting some of these duels even on TV (ESPN in the United States). Some of the Moto GP riders also ran the first-ever virtual Mto GP Race. The Coronavirus affectation is temporary and initiatives like the ones mentioned above, serve to keep the flame in the fans.

当传统体育行业举步维艰、日渐迷失之时,电子竞技行业却面临了发展壮大的绝佳机会。当然,Covid-19疫情一视同仁地阻却了现场观赛的观众。因此,即便大量的潜在观众通过不同的数字流媒体平台涌到线上,专业赛事数量依然有所下降。这是推广在自家即可参与的赛事,或将全世界更加聚集到运动的好机会。诸如组织西甲球员在慈善锦标赛中玩FIFA足球,组织NBA球员在2K篮球游戏中进行NBA比赛,甚至将这些对决在电视上播出(正如美国娱乐体育节目电视网已经在尝试的)。一些Moto GP赛车手还参加了有史以来首次虚拟Mto GP竞速赛。虽然冠状病毒只是暂时性的,但前述这类创新将长期点燃粉丝们的热情。

As an example, sports betting companies that have suffered a significant drop in income due to the cancellation or suspension of sports competitions (football, basketball, tennis, golf, Moto GP, F1, etc.), in their search for alternatives, are making greater agreements and/or collaborations within e-sports, in these times in which the consumption of internet, online games and video games is the order of the day.

春江水暖鸭先知,由于取消或推迟体育赛事(足球、篮球、网球、高尔夫、Moto GP、F1等等)而导致收入大幅下降的体育博彩公司正在积极寻找替代方案,比如在电子竞技领域达成更广泛的协议和/或合作——互联网、线上游戏和电视游戏的消费正是当今之世热点中的热点。

On a legal level, this situation is an opportunity to professionalize even more from a merely legal and contractual perspective this industry, as well as to legally advise those stakeholders of traditional sports to form their e-Sports division.

从法律层面而言,现状为我们提供了至少从法规和合同角度进一步推进行业专业化和建议传统体育行业的金主们打造他们的电子竞技部门的极佳机会。

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