Sports-legal questions on the 2nd collective bargaining agreement applicable to women basketball players 

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Women's Basketball: Past and present in sport-legal terms

BOE No. 112 of May 8, 2024 published the Resolution of April 26, 2024, of the Directorate General of Labor, which registers and publishes the (second) Collective Bargaining Agreement for female basketball players who provide their services in clubs of the women's basketball league (which includes as a novelty a Protocol for the prevention and intervention against sexual harassment and/or harassment based on sex in Women's Basketball of the Endesa Professional League).

I emphasize that it is the second in brackets because the first was published in the BOE, No. 13 of January 15, 2008 by Resolution of December 21, 2007, of the Directorate General of Labor, which registers and publishes the Collective Bargaining Agreement for the professional basketball activity of the Women's League organized by the Spanish Basketball Federation.

As I pointed out in another publication, the first one arose at a time when the Spanish national teams and clubs already had a very significant track record. In addition, Spanish basketball players were even recognized in the WNBA (Beth Cebrián, Marina Ferragut, Amaya Valdemoro, Elisa Aguilar, Isabel Sánchez, Nuria Martínez, ...). This is still the case today and there are exchanges of Spanish players between the WNBA, NCAA, Liga Femenina, Liga Femenina Challenge, Liga Femenina 2, together with European competitions such as the Euroleague Women and other domestic competitions such as the French or Turkish leagues.

This international and European notoriety of the Women's League in 2008 was already reflected in the agreement insofar as its articles provided for the application to all labor relations established between professional basketball players and clubs or sports entities in accordance with the preceding articles, within the national territory, as well as those that are provided outside the national territory and are within the functional or professional scope of the same. It also applied to players participating in the women's league 2 (as all clubs, sports entities or SAD of the women's league 2 that wished to do so could adhere to it).

However, the scope of application of the new agreement is reduced, since it only applies to those participating in the First Division League, and it only applies in the Spanish territory, without any mention of the provision of services outside the national territory.

The application of the first agreement was not linked to the federation license, as is the case with the second agreement. This is a debatable issue in sport-legal terms because the basketball player is a professional athlete if she meets the criteria for employment, regardless of the category of the competition (art. 84.2 of Law 39/2022, December 30, 2002, on Sport) or the type of license, and, therefore, including the term license in the scope of application is both confusing and difficult to reconcile with the regulations.

Proof of this is the literal wording of a ruling that states: «It is noteworthy in this definition (that of professional sportsperson) that, unlike the provisions contained in the first legal regulation of the special employment relationship we are dealing with [RD 318/1981, of 5/February], in the current regulation it is not necessary for the sportsperson to be in possession of the corresponding federation license, as required by the sporting provisions. This is a completely reasonable novelty, since the existence of the professional sports employment contract and the submission to the discipline of the specific labor regulations cannot be conditioned to a license that operates in a different regulatory sphere and whose absence cannot distort the nature of the contract». (Judgment of the Supreme Court of April 2, 2009, rec. 4391/2007).

Before continuing with the (second) agreement now in force, two interesting points should be clarified.

On the one hand, women's basketball at the highest level in Spain is not classified as professional, despite the erroneous professional qualification provided in the title of the first agreement, as well as in the title of the new protocol against sexual harassment and/or harassment based on sex, and despite the fact that it is the modality most practiced by women and girls. This can be corroborated in the Sports Statistics Yearbooks where the number of licenses, as an example, for the year 2022 was 130,644.

On the other hand, the first collective bargaining agreement mentioned above was denounced shortly after its publication, although, since the reform operated by the seventh transitory provision on the regime applicable to collective bargaining agreements denounced at the date of entry into force of Royal Decree-Law 32/2021, of December 28, on urgent measures for the labor reform, the guarantee of employment stability and the transformation of the labor market, all those collective bargaining agreements that were terminated at the date of entry into force of the Royal Decree-Law and until a new agreement is adopted, will remain in force under the terms established in Article 86. 3 of the Workers' Statute as amended by the Royal Decree-Law. Then, from this reform until the signing of the new agreement, the first agreement was applicable, although in practice it was not applied, I do not know if this was due to lack of knowledge of the previous agreement or because so much progress had already been made in labor rights that the negotiated measures became meaningless.

Returning to the new agreement, the minimum salary is 16,000 euros full-time for each season, but no longer expressly contemplates bonuses for hiring, permanence or objectives, nor the end of professional sports career award that consisted of rewarding loyalty after 6 continuous seasons, which would be paid upon termination of the contractual relationship with the club. In addition, the first agreement stated that at the end of the first 12 months, a salary review would be negotiated, but this is no longer established.

Nor are there any amounts for collective image rights, as in the first agreement, based on a table according to the annual remuneration. In the first agreement, compensation and per diems were also agreed in detail in an appendix, but in the second agreement they disappear, as well as the social fund for the promotion of women's basketball.

In 2007, priority was given to part-time hiring to favor the reconciliation of family and professional life, and respect for maternity during breastfeeding is also mentioned. In the second collective bargaining agreement, a sort of pact of commitment is made to guarantee measures for reconciliation and maternity, without indicating which ones.

Moreover, the second collective bargaining agreement for women's basketball establishes that all employment contracts must be full-time, and part-time contracts are not allowed.

In any case, in practice, it is known that the players sign contracts for 8 months, the duration of the season, and, during the summer months, they are not hired, curiously coinciding with the summer vacation period, returning to be hired by the same club at the beginning of the new season. Nothing is said, nor was said in this regard to try to avoid this type of behavior, beyond ironically stating that «the duration of the contract, in any case, will begin on the first day of training and/or work relationship, and will end on the last day of work relationship with the Club».

Little by little, the professionalization of basketball will make these irregularities disappear.

However, a Joint Commission is constituted which, under arbitration procedure, will resolve disputes (i) in relation to non-payments, or (ii) in relation to the Christmas vacation period (and not the summer vacation period, since it is implied that the above is accepted), or (iii) the monitoring of compliance with the agreement; (iv) the interpretation of the application of the clauses of the agreement; and, (v) any other activities that tend to the greater practical effectiveness of the agreement. It also clarifies that for the solution of labor disputes that may arise, the parties adhere to the VI Agreement on Autonomous Solution of Labor Disputes (Extrajudicial System), Resolution of December 10, 2020 of the Directorate General of Labor or subsequent text that replaces it, (SIMA -Interconfederal Service of Mediation and Arbitration-).

In this link, a more detailed comparison of the changes is available: https://www.diazmari.com/una-simple-comparativa-entre-i-convenio-y-ii-convenio-colectivo-para-las-jugadoras-de-baloncesto/

As a very brief conclusion, of course, the first agreement was pioneering and it is good news that a second agreement has been published, although, in the approximation between the measures of one and the other, it seems that the improvements are reduced, except for some details as we have analyzed.