Italy - Sport Law: Legal Update

Icardi out from FC Internazionale for mobbing? Here's what the law says.

Many rumours circulate these days about Mauro Icardi who allegedly contacted several labor lawyers to understand if it is possible to try to terminate his contract with FC Internationale over bullying, so as to be free to choose his next destination. The football player could ask the Serie A arbitration panel to terminate his contract with the Nerazzurri, valid until 30 June 2021. If the board accepts the player's appeal, the number 9 of Inter could leave the team at no cost and start the next season with a new team.

Mobbing is commonly understood as the conduct of the employer or the hierarchical superior, systematic and protracted in time, held against the worker in the workplace, which results in systematic and repeated hostile behaviour that end up taking forms of abuse of power or psychological persecution, from which can arise the moral mortification and marginalization of the employee, with detrimental effect on his physical-psychological balance and the complex of his personality.

The sports employment relationship consists of rights and obligations between the sports club and the athlete and the distinctive features of this relationship are specified by art. 2094 of the Civil Code in close combination with specific provisions of Law No. 91 of 1981 (on sports professionalism). It is a fundamental principle that the sports club, the employer, undertakes to raise the psycho-physical and technical conditions of its athlete, providing them with the equipment suitable for athletic training, all in an environment appropriate to their dignity as professional "sports workers".

Over recent years, the phenomenon of mobbing is also spreading in the world of football and it can be cited many cases involving professional footballers, which would be related to the scope of the phenomenon under investigation.

Icardi away from FC Internazionale for mobbing? Records

An example could be Lorenzo Mattu, an AS Latina football player, who in 2003 complained before the C series arbitration panel about the "lack of respect for the dignity of the worker" of the club to which he belonged.

The same happened to Rodrigo Taddei, who in 2004 after being left out of the AC Siena and never called-up during the football season for problems of renewal of the contract, decided to file an appeal before the arbitration panel of the FIGC1 asking for the termination of the contract as well as significant financial compensation.

Even more famous is the case of Goran Pandev, who in 2009 refused to renew the contract with S.S. Lazio and was put on the sidelines along with his companion Ledesma.

In the latter case, despite his suitable physical condition, the Macedonian striker was constantly excluded from sports activity, which led the arbitration board of the Lega Calcio to terminate the contract between the two parties forcing S.S. Lazio to pay a €160,000 compensation. The ruling underlined the violation by S.S. Lazio of Articles 7.1 and 7.2 of the collective agreement AIC/LNPA 2 , concerning training and pre-championship preparation.

It is easy to see that these kind of persecution almost always results from the refusal of the player to renew his contract with the club or to do so under the club’s conditions. Obviously the failure of the (professional) player to renew his contract represents an economic damage for the employer, because he loses the athlete "to zero parameter", but it is also clear that for our system, inspired by the principles of freedom and dignity of the service provider, an evaluation of an economic nature, albeit legitimate, cannot prevail over the freedom of the human person.

In football it happens that this contractual autonomy is very often sacrificed for the benefit of the economic interests of the club, and the cases cited are just some of the many in which there have been facts of players excluded from the first team because they are found guilty of not wanting to renew their contract or not accepting the conditions offered by the club to which they belong.

Icardi out from FC Internazionale for mobbing? Differences

The Icardi case seems in theory to be part of the wake of many similar cases, but with obvious differences related to the individual case and also to the development of the attacker's negotiation in recent months with the club.

One wonders if - looking at the events of 2019 - the arbitration board can recognize that in the episodes that have affected the attacker – not be the captain anymore, not being called up in the match against S.S. Lazio on March 31, 2019, be isolated in the locker room, the “fight” that led to the non-renewal of the contract – the football team did not act entirely correctly. Technically, Icardi could try to argue that, without justification, FC Internazionale treated him differently than his companions.

On the other hand, the Nerazzurri club could defend itself and resist in court with a fair chance of success, deducing the repeated refusal of the player to take to the field for months, thus configuring various hypotheses of unjustified absence. Finally, the athlete should be found a biological and/or existential damage, that is, in simple terms, should be clinically proven psycho-physical diseases.

In this regard, the jurisprudence that has been interested in cases of sports mobbing has specified that for mobbing damage to be ascertained, from the medical-legal point of view, a real injury on the psychic or psychosomatic level of the victim, and therefore not a "simple" disturbance.

In any case, or whatever the Icardi case may be, it is perhaps worth remembering (and stressing) that the phenomenon of sports bullying still remains much more frequent in the amateur than professional field, because the current legislation protects only the "professionals" of sport, so that those who on paper are amateur athletes, but in fact carry out a sporting activity fully comparable to sports professionalism, are sadly without protection, highlighting a gap that the sports system will be called to fill as soon as possible.

Originally published on 21 June 2019 by (Head of Labour Law Department) from  Jenny Avvocati

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