Las relaciones laborales de los deportistas profesionales en Colombia, como empleados, partiendo del objeto del código sustantivo del trabajo
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Resumen
This monograph will explore the current situation of professional athletes in Colombia in relation to sports legislation, starting mainly from the Colombian Substantive Labour Code, since it is the main regulation that gives the general guidelines to the labor issue and that must be applied to Colombian athletes. Football will be taken here as the main example, since this, as in the rest of the world, is the most professional and stable for an athlete, the other disciplines are also of important analysis, but in Colombia they are far from the labor impact, and the differences between athletes and clubs are not so influential. According to article 1 of the Colombian Substantive Labour Code,1 the aim of the Code is to achieve justice in relations between employers and workers, although professional sport has special characteristics, and the legislation has not been clear in relation to these disciplines, the issue has been developed in some cases and the Constitutional Court has studied it, for the most part, for facts that arise from the way of guardianship, in view of the lack of clarity in Colombian legislation on sports.Based on this, for footballers interested in finding a solution to their differences with clubs, according to Villegas going to the ordinary courts of each country is one of the alternatives for solving the problems that have been presented between footballers and clubs, in view of the high costs for South American countries of going to the CAS (Court of Arbitration for Sport) in Lausanne, Switzerland.This will be developed in the form of an exploratory monograph, since the above-mentioned topic has been little studied in our country and we wish to study it in greater depth. On the one hand, it will explore, organize and critically analyze the bibliography existing to date in Colombia on the subject in question, in addition to the international references of Latin countries, on the basis of an analysis of the Substantive Labour Code and the various protections imposed on the subject of sports work. It is important to know the dynamics of the professional sportsmen’s labor process in order to understand if the conditions and the treatment regarding the hiring of these sportsmen should be done in the same way or if otherwise they should be treated special, in view of the special conditions of sport, such as the relationship of the sportsman and the clubs that form them, the so-called sports rights which differ from the player’s employment contract, even if they are apparently the same, According to Cardozo the labor contract are the obligations that arise in itself from the contract and the rights arise from the registration of the contract or from the transfer of the player, Moreover, according to the author here, the most complex problems of negotiation start. Since the enactment of Law 181 of 1995, another topic has developed: It is that related to the relationship or legal bond existing between a professional sportsman, and that club that contracts his services. At this point it is of vital importance, the fact that it indicates that they are the players, the main protagonists and focus of the professional activity. Without these, there really would be no sporting spectacle, there would be no identity on the part of the fans, interest that from the commercial and business point of view constitutes the essential nucleus, of all activities ancillary to football proper, which constitutes the so-called "Football Company". or "Football Show". From this relationship began to misinterpret the labor bond between professional athletes and clubs, especially in football and although the astronomical figures of money paid by a player in the world are striking, In Colombia the topic attracts more attention, not so much because of the amounts of money, but because of the legal problems that arise around transfers. However according to Cardozo the court pronounced for the first time considering, the right to practice sport, right to work, freedom of decision on the profession we want to choose and very important as it is the first time that sport-work was related, the protection of the rights of a sportsman-worker. For Colombian football players, the basis for settling differences with the clubs is the ordinary justice, since as mentioned above, this is the alternative especially for South American players, given the complexity of going to the CAS, with very exceptional cases such as that of player Elkin Soto, who has his case pending before this FIFA authority, this analysis will be based on the Substantive Code of Colombian Labour and the different norms or pronouncements that have been given to regulate these relations. According to the bibliography so far explored, the player has tried to point out or become an asset of the clubs, precisely because of the void that existed in the Colombian normativity mainly in law 181 of 1995, The Constitutional Court has already ruled on this issue in judgments T-498 of 1994 and C-320 of 1997, where it has been clarified. On the subject of the magazine "Protection Popular Actions and Enforcement Actions Protection". 7 tells us that the assets of the clubs, are basically made up of the sports rights of their players, therefore they must necessarily be given special treatment, which has led to managers seeing their athletes also from a financial point of view, which in turn has led to them being considered as a value or property title of the club, this has been analyzed and criticized by the constitutional court, which will be discussed later. The former Minister of Labor Rafael Pardo even spoke on this issue, as he perceives the need for specific legislation on the contract of the professional player, although in this case it is intended to regulate the situation of the professional footballer in Colombia, specifically, and not the relations of all professional athletes with their respective clubs, For this reason, the former Minister’s intention on this problem, the general aspects of the bill and the relationship with the substantive labour code will be examined later. This is intended to give a brief introduction and justification on what will be dealt with in this document, the perspectives to be analyzed, the consequences, the results that this has brought up to today, the state of the problem and possibly will be based on the facts and the literature analysed here.