Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 344, Mars 2007

824. The present complaint is contained in a communication dated 3 April 2006 from the Colombian Association of Professional Football Players (ACOLFUTPRO). The Fédération Internationale des Footballeurs Professionnels (FIFPRO) on 4 May 2006 gave its support to the complaint presented by ACOLFUTPRO. ACOLFUTPRO presented additional information on 25 May 2006. On 3 November 2006, it sent information concerning the nature of its organization.

1. 825. The Government sent its observations and questioned the receivability of the complaint in a communication dated 14 August 2006.
2. 826. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 827. In its communications dated 3 April and 25 May 2006, the ACOLFUTPRO, in its capacity as the sole organization representing professional football players, and as a member of the FIFPRO, presented a complaint against the Government of Colombia alleging a refusal on the part of the Colombian Football Federation (COLFUTBOL) and the Colombian Football Major League (DIMAYOR), a grouping of professional football clubs, to bargain collectively. Specifically, it alleges that a meeting was held on 17 August 2004 between ACOLFUTPRO, COLFUTBOL and DIMAYOR, with the aim of discussing the Player’s Statute. At that meeting, the parties recognized their respective status as the representatives of football players and football clubs and discussed a number of matters, including the Player’s Statute drafted by COLFUTBOL and its conformity with labour legislation and the provisions of the Fédération Internationale de Football Association, in addition to the joint adoption of a model employment contract to be used by every professional club. Further meetings were held on 8 and 23 February and 7 June 2005, with the same objectives. At the last meeting, the players’ representatives requested the employers (the professional clubs) to respect football players’ occupational rights, asking also that the Player’s Statute drafted by COLFUTBOL conform with national and international laws and regulations. To this end, the employers’ representatives proposed that a new Player’s Statute be put to ACOLFUTPRO for discussion between the parties, also requesting ACOLFUTPRO to submit a list of demands with a view to concluding a collective agreement, in order to resolve labour-related issues.
2. 828. On 5 July 2005, the football players unanimously approved the text of the list of demands, which ACOLFUTPRO presented to COLFUTBOL and DIMAYOR, as employers’ representatives, on 7 July. On 18 July 2005, ACOLFUTPRO proposed that a timetable be agreed upon for discussions of the draft Colombian Player’s Statute and the dates for collective bargaining. On 22 August 2005, after various unsuccessful meetings, the chairpersons of COLFUTBOL and DIMAYOR returned the list of demands, arguing that they themselves were not employers and hence not legally entitled to discuss the demands. However, according to the complainant organization, pursuant to Circular No. O80 of 24 August 2005 from DIMAYOR and COLFUTBOL, these bodies acknowledge that they have been authorized to discuss labour-related matters with workers’ representatives. The complainant organization adds that in any case, if DIMAYOR and COLFUTBOL did not consider themselves competent to negotiate a list of demands, they should have transferred it to whomsoever was competent to do so, pursuant to Colombian legislation (section 433 of the Substantive Labour Code). For this reason, ACOLFUTPRO requested the labour authorities to impose sanctions on DIMAYOR and COLFUTBOL. On 30 August 2005, in view of the deadlock in the discussions, and after assemblies had been held at each of the 18 affected football clubs respectively, the workers decided to resort to strike action. At the same time, the complainant organization requested the Ministry of Social Protection to intervene to help restart negotiations. According to the complainant organization, the Government replied, through the Special Labour Inspection, Monitoring and Control Unit of the Ministry of Labour, that it had fulfilled its functions by encouraging meetings to be held with the presidents of the clubs, who were in favour of each club negotiating with its own players. The complainant organization alleges that this attitude implies a failure to recognize ACOLFUTPRO as the workers’ representative.
3. 829. Moreover, ACOLFUTPRO alleges that the football players suffered harassment and pressure to dissuade them from participating in the strike, with threats of dismissal and other acts of anti-union discrimination.
4. 830. Finally, in its communication dated 3 November 2006, ACOLFUTPRO sends additional information concerning the nature of the organization, enclosing:
5. (a) a copy of the statutes of the Colombian Association of Professional Football Players, stating the purpose and aim of the organization, which is “to defend the rights of Colombian professional football players”;
6. (b) a copy of the minutes of an agreement whereby DIMAYOR, COLFUTBOL and ACOLFUTPRO undertake to discuss “in its entirety and in the light of the Constitution and legal standards currently in force, the draft Colombian Player’s Statute prepared by the COLFUTBOL Executive Committee, which will enshrine fundamental labour rights as appropriate, and will include the following labour-related headings: 1. General framework for the work contract […]; 2. Obligations […] of clubs and players; 3. Disciplinary procedures […]; 10. Termination of work contract …”
7. (c) the minutes of an agreement reached at the Special Labour Inspection, Monitoring and Control Unit, in the presence of the Vice-Minister of Labour, in which the following was agreed:
8. 1. The following text is included in the introduction to the Colombian Player’s Statute: “the present Statute was agreed between the Colombian Football Federation and the Colombian Association of Professional Football Players (ACOLFUTPRO), as the representative of the professional football players of Colombia”.
9. (d) copies of the powers invested by the players in the abovementioned organization (power of representation), to enable it to represent them in collective bargaining.
10. 831. ACOLFUTPRO sent a new communication dated 19 February 2007, in which it provides further information on the questions examined.
11. B. The Government’s reply
12. 832. In its communication dated 14 August 2006, the Government states that the professional players formed themselves into a civil organization and did not establish a workers’ organization, despite the fact that the legislation in force allowed them to do so, thus rendering the complaint irreceivable, since only workers’ or employers’ organizations may present complaints. The Government adds that ACOLFUTPRO has not been entered in the trade union register and is therefore not competent to engage in collective bargaining, since it may not present lists of demands.
13. 833. The Government adds, moreover, that neither COLFUTBOL nor DIMAYOR can be considered as employers’ organizations. These are bodies that regulate aspects of Colombian football and, as such, entertain relations with football clubs but are neither employers, nor employers’ groups. They had been authorized by the clubs to prepare a general Player’s Statute, but not to engage in collective bargaining over a list of demands. In this regard, the Government encloses a number of letters from football clubs confirming that they have not invested any kind of power of representation either in COLFUTBOL or DIMAYOR to enable these bodies to bargain collectively on their behalf.
14. 834. The Government also encloses copies of the various administrative rulings imposing sanctions on a series of football clubs for non-compliance with Colombian legislation.

C. The Committee’s conclusions

1. 835. The Committee notes the complaint presented by the ACOLFUTPRO, in which it alleges the refusal by the Colombian Football Federation and the DIMAYOR to bargain collectively, despite the presentation of a list of demands, as well as the various requests to the Ministry of Social Protection for sanctions against these bodies and the absence of tangible progress, and the harassment, pressure and threats of dismissal endured by workers to dissuade them from resorting to the strike action agreed upon by ACOLFUTPRO on 30 August 2005 as a result of the refusal to negotiate.
2. 836. The Committee also notes the reply from the Government, which argues firstly that the complaint is irreceivable, owing to the fact that ACOLFUTPRO is a civil association and not a properly registered trade union organization, despite the fact that there is nothing to prevent it establishing itself with this status. The Government adds that, for this reason, the organization may also not present a list of demands for the purposes of collective bargaining. The Committee further notes that, according to the Government, neither DIMAYOR nor COLFUTBOL are employers or representatives of football clubs for the purposes of collective bargaining; rather, they have been authorized by those clubs to draft the Colombian Player’s Statute.
3. 837. The Committee observes that the issues arising in the present case can be summarized as follows: (a) the question of the receivability of the complaint presented by the ACOLFUTPRO, which has been raised by the Government, in light of the fact that it is not registered as a trade union organization and as such cannot be considered as a workers’ organization competent to present a complaint to the Committee on Freedom of Association; (b) the refusal by DIMAYOR and COLFUTBOL to bargain collectively with ACOLFUTPRO, owing to the fact that, as a civil association rather than a registered trade union, the latter cannot present lists of demands and because DIMAYOR and COLFUTBOL are not representatives of the employers (the football clubs) but had merely been authorized by the clubs to prepare the Colombian Player’s Statute; (c) pressure, threats of dismissal and other acts of discrimination against workers by the football clubs because of their decision to resort to strike action on the grounds of the refusal by DIMAYOR and COLFUTBOL to bargain collectively.
4. 838. With regard to the receivability of the complaint, the Committee observes that, whilst ACOLFUTPRO was founded not as a trade union but as a civil association, it is laid down in its statutes that the aim of the association is “to defend the rights of Colombian professional football players”. The Committee considers that the status of the professional football players as workers is undeniable. It follows that they must be covered by Conventions Nos. 87 and 98 and, hence, that they must enjoy the right to associate in defence of their interests, even if, given the specific characteristics of their work, the football players have deemed it appropriate to form a civil organization rather than a trade union. This fact does nothing to diminish the status of ACOLFUTPRO as an organization representing football workers. Moreover, the Committee recalls by the same token that “[it] has full freedom to decide whether an organization may be deemed to be an employers’ or workers’ organization within the meaning of the ILO Constitution, and it does not consider itself bound by any national definition of the term” [see Special Procedures for the examination in the International Labour Organization of complaints alleging violations of freedom of association in the Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006].
5. 839. In addition, the Committee observes that, from the various documents sent by the complainant organization and the Government, it can be inferred that ACOLFUTPRO’s status as the players’ representative was acknowledged on a number of occasions by the football clubs, by COLFUTBOL and DIMAYOR, as well as by the Government. Indeed, in the course of a number of meetings and the negotiations over the Player’s Statute held with the football clubs, DIMAYOR and COLFUTBOL, ACOLFUTBOL was recognized as a valid interlocutor in its capacity as workers’ representative for the purposes of negotiating issues of interest to the players. Moreover, ACOLFUTPRO encloses copies of the powers of representation invested in it by the players for bargaining purposes. In these circumstances, the Committee rejects the arguments put forward by the Government to the effect that ACOLFUTPRO cannot be considered a workers’ organization whose purpose is to defend the socio-economic interests of its members.
6. 840. With regard to the refusal by COLFUTBOL and DIMAYOR to bargain collectively with ACOLFUTPRO on the grounds that: (1) ACOLFUTPRO, as a civil association, cannot present a list of demands; and (2) neither COLFUTBOL nor DIMAYOR are the football players’ real employers or have been authorized by the clubs to represent them for bargaining purposes, the Committee observes that, although football players may fall into a special category of independent worker, with the nature of their work excluding them from the scope of application of the Substantive Labour Code, this is not to say that they are not to be considered as workers, and hence covered by the guarantees enshrined in Conventions Nos. 87 and 98. They must therefore be able to enjoy the right to form the organizations that they deem appropriate, as underlined in previous paragraphs, and these organizations must be able to bargain collectively to defend the interests of the workers who are members of them and who have expressly granted authority to ACOLFUTPRO to negotiate on their behalf.
7. 841. In addition, with regard to the refusal by COLFUTBOL and DIMAYOR to bargain collectively on the grounds that, as indicated by the Government, these organizations are not the football players’ employers, but rather were mandated by the clubs (the direct employers of the football players) simply to prepare the Colombian Player’s Statute, the Committee recalls that the right to engage freely in bargaining with employers over working conditions constitutes an essential element of freedom of association. The Committee believes that if, as stated by the Government, neither COLFUTBOL nor DIMAYOR are the football players’ employers, nor are they organizations representing the interests of those employers, ACOLFUTPRO should be able to negotiate directly with each of the interested clubs. In these circumstances, the Committee requests the Government, in conformity with Convention No. 98, to take measures to guarantee the right of ACOLFUTPRO to collective bargaining in its capacity as an occupational organization representing football players, either directly with football clubs or with the employers’ organization that these clubs choose to represent them. The Committee requests the Government to keep it informed in this respect.
8. 842. The Committee observes that the negotiations between DIMAYOR, COLFUTBOL and ACOLFUTPRO over the Colombian Player’s Statute, in which the first two organizations were acting under a mandate from the football clubs, have reached deadlock. The Committee requests the parties to make every effort to pursue these negotiations.
9. 843. With regard to the allegations concerning pressure, threats of dismissal and other acts of discrimination by the football clubs against workers because of their decision to resort to strike action on the grounds of the refusal by DIMAYOR and COLFUTBOL to bargain collectively, the Committee recalls that no one should be subjected to discrimination or prejudice with regard to employment because of legitimate trade union activities or membership, and the persons responsible for such acts should be punished [see Digest, op. cit., para. 772]. In these circumstances, the Committee requests the Government to undertake an investigation in order to ascertain the existence of pressure, threats of dismissal and other acts of discrimination directed at workers because of their decision to resort to strike action and, should such allegations be confirmed, to take measures to punish the persons responsible appropriately. The Committee requests the Government to keep it informed in this respect.