Prepared by Annalisa Di Ruzza, Guido Ajello, Edoardo Ferrero and Marco Solazzo
Premise
- In recent years, the sport has been the protagonist of a significant change, such as to make necessary a profound reform of the relevant legal system, dictated by the greater conviction that sport is a “value” in the world of work, as well as the desire to simplify the functioning of the entire system, as an engine of growth and economic-social development.
In this sense, on 18 and 19 March 2021, five legislative acts implementing the Law reforming sport were published in the Italian Official Journal (Law 8 August 2019, n. 86):
- Legislative Decree 28 February 2021, n. 36, concerning the reorganization and reform of the provisions on professional and amateur sports bodies as well as sports work;
- Legislative Degree 28 February 2021, n. 37, containing measures regarding relations of representation of athletes and sports clubs and access and exercise of the profession of sports agent;
- Legislative Decree 28 February 2021, n. 38, containing measures on the reorganization and reform of safety standards for the construction and operation of sports facilities and legislation on the modernization or construction of sports facilities;
- Legislative Decree 28 February 2021, n. 39, concerning the simplification of obligations relating to sports bodies;
- Legislative Decree 28 February 2021, n. 40, concerning safety measures in winter sports.
With reference to the entry into force of the aforementioned Legislative Decrees, it is worth noting the extension that the current Government provided for in Decree-Law 22 March 2021, n. 41 (so-called Sostegni Decree).
In fact, by Article 30 of Sostegni Decree, respectively at paragraphs 7 to 11, the rules of Decrees n. 36, 37, 38, 39, 40 did not enter into force on 2 and 3 April 2021, as originally planned.
These are deferred until 1 January 2022, except for Articles 25, 26, 27, 28, 29, 30, 32, 33, 34, 35, 36 and 37 of Legislative Decree n. 36/2021 on sports work, which apply from 1 July 2022.
2. It should be noted that the framework for the reform of the sports system is enriched with Decree-Law 29 January 2021, n. 5 containing urgent measures regarding the organization and functioning of CONI, converted without amendment by Law 24 March 2021, n. 43.
In order to guarantee Italy’s participation in the Tokyo Olympics, the Decree in question wanted to remedy the contrast between the provisions of the Olympic Charter and the structure of the CONI created by Law 30 December 2018, n. 145 (so-called Budget Law 2019).
Article 27 of the Olympic Charter requires that for each National Olympic Committee keeps its autonomy and independence from political institutions of the Country in which it operates.
However, with the creation of “Sport e Salute S.p.a.”, Budget Law 2019 assigned many duties belonging to CONI, to the abovementioned public company, failing to meet the criteria set out in the Olympic Charter.
In this context, Decree-Law n. 5/2021 has remedied the critical situation that has arisen and has re-established the condition required for the participation of Italian athletes in the Tokyo Olympics, through an articulated mechanism of (re)transfer of personnel and assets from the company Sport e Salute S.p.a. to the CONI.
The reform of sport in the Implementing Decrees
3. Important news is included in Articles of Legislative Decree 28 February 2021, n. 36.
Article 2, for what concerns sport work relations, provided that anyone who receives compensation for the performance of sporting activity, outside amateur activities, should be regarded as a worker.
In addition, Article 31 abolished the sporting constraint in the amateur sector, which is regarded as an obstacle to the athlete’s freedom to contract, and at the same time recognized the amateur sports clubs that have trained the athlete with a technical training award.
Other innovations concern the regulation of sports disciplines involving the use of animals and, again, appreciable provisions on equal opportunities, aimed at encouraging women’s professionalism in sport and the entry of paralympic athletes into military sports groups and civil bodies of the State.
4. Legislative Decree 28 February 2021, n. 37 makes significant changes to the rules governing the performance of the profession of sports agent.
Among the novelties, it can be pointed out the new provisions on the protection of minors: Article 10 states that a sports agent may assist an underage athlete from the age of 14, being able to receive compensation exclusively from the company or sports association with whom the minor athlete is registered.
The introduction of an Ethical Code of Sports Agents by Article 12 should also be highlighted. In order to ensure compliance with the principles of impartiality, independence, autonomy, transparency, and fairness in the conduct of the profession, CONI, in addition to the enactment of the aforementioned Code, will determine the implementing procedures to ensure the proper conduct of economic transactions in which sports agents appear.
5. Legislative Decree 28 February 2021, n. 38 provided for the updating of technical standards, as well as the simplification of administrative procedures about the construction and maintenance of sports facilities on Italian territory, paying attention to the safety of the same and spectators.
Article 4 provided that the person wishing to carry out an intervention on a sports facility must submit to the municipality, also in agreement with one or more of the associations or sports clubs (including amateur clubs) using the plant, a feasibility document of the design alternatives, accompanied by an economic and financial plan, which identifies, among several solutions, the one that presents the best relationship between costs and benefits for the community, in relation to the specific needs to be met and the services to be provided.
It should be borne in hand, in this regard, that the feasibility document may also provide for the construction of buildings with uses other than sports, which are complementary or functional to the financing or usability of the sports facility, with the exclusion of the construction of new residential complexes.
The procedural simplification to which the legislator aspires seems achieved, not only by the provision of a special authorizing procedure, but also by the possibility for the private individual to request the convening of the conference of services.
In addition, Article 8 of the same Decree establishes the enactment of a single regulation of technical safety standards for the construction, modification, accessibility and operation of sports facilities.
Finally, it should be noted that Article 9 provides for the establishment of the single Commission for sports facilities operating at CONI. This body will be competent to certify the suitability, for sporting purposes, of all sports facilities, including school facilities, in compliance with the requirements laid down by international sports federations in relation to the practice of their respective sports.
6. Legislative Decree 28 February 2021, n. 39 operates in relation to two specific (i) areas: bureaucratic simplification and (ii) the fight against gender-based violence in sport.
In relation to the first, Article 4 and following Articles provide for the establishment of a National Register of amateur sports activities at the department for sport, managed electronically and with the help of Sport e Salute S.p.a.
The Register will contain the institutions of amateur sports associations and clubs, including teaching and training, operating within a national sports federation. Companies and associations will have to communicate a series of elements including, for example, personal data of the partnership, the legal representative, the members of the governing council and any supervisory bodies, as well as the personal data of all members, including those of minor age, the list of facilities used for the performance of the sporting activity.
About the protection of gender-based violence in sport, Article 16 of the same Decree establishes methods and times for the drafting of specific guidelines, with a four-year value, for the preparation of organizational models and control of sports activity and codes of conduct for the protection of minors and for the prevention of harassment, gender-based violence and any other conditions of discrimination.
7. Finally, Legislative Decree 28 February 2021, n. 40 provided new safety rules in the performance of downhill and bottom winter sports, also in the light of the next XXV Winter Olympic Games to be held in Milan and Cortina d’Ampezzo in 2026.
On the safe management of skiable areas, Article 4 and following Articles outline the basic principles. In this sense, safety devices within the equipped skiable areas are being strengthened and new measures are envisaged to ensure that the obligations and prohibitions laid down in the Decree in question are not fulfilled.
8. In short, the five Legislative Decrees, which implement the Law 8 August 2019, n. 86, have completed and definitively implemented an unprecedented reform, providing a new 360% reading of the world of sport, its organization and the related impacts on professional and amateur sports bodies, as well as on the procedures to be followed for the necessary modernization of sport infrastructures.
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PwC TLS Avvocati e Commercialisti
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