The Sports Law Review: Colombia
Organisation of sports clubs and sports governing bodies
The Colombian National Sports System was created by Law 181 of 1995, which specifies as its objective to sponsor, promote, divulge, plan, coordinate and execute the practice of sports and recreation, as the development of the right to have granted access to adequate physical and spiritual education.2
The National Sports System, set up by the Ministry of Sports, is a set of organisations to allow the country to access the benefits of sports. Among other things, these organisations are public and private, with local institutes and departments belonging to the public sector, and federations, leagues and clubs making up the private sector.
i Organisational form
A necessary clarification must be made between professional and amateur sports. In professional sports, athletes or players are hired and receive a salary, whereas amateur athletes do not receive a salary.
The amateur sub-system requires athletes to organise themselves in municipal clubs, as private and non-profit associations, to promote and sponsor the practice of a discipline in the municipal territory. To incorporate an amateur club, a plural number of athletes it is required as a minimum, and no fewer than the required number to play the sport according to its rules.
The professional sub-system requires an affiliation with the National Sports System to be organised either as a private association (non-profit organisation) or a corporation ruled under the Commerce Code (Sociedad Anónima). Nevertheless, taking into consideration the capital requirements for professional clubs, it is more common to incorporate corporations than non-profit associations.
For professional and amateur clubs, it is required to obtain a good standing certificate3 issued by the entity in charge of the promotion of sports in each municipality. This certificate allows the organisation to receive government aid and host national or local sports events.
ii Corporate governance
To stimulate transparency and good governance, the law encourages sports organisations to avoid conflicts of interest, forbidding the shareholders or associates to control more than one club by discipline, by a single person (natural or legal entity) or through third parties.
Law 49 of 1993 establishes the general disciplinary and compliance code for sports, by setting the general infractions that could lead to liability and sanctions either for the clubs, athletes or officers. The code is organised as follows: principles applicable to the disciplinary proceedings, infractions, and sanctions and proceedings.
Capital requirements for professional clubs are at least 100 monthly minimum wages. The equity of the organisation would depend on the number of associates (if a non-profit organisation) or professional clubs. For football clubs, the paid-in capital must be at least 500 monthly minimum wages.
Clubs must be transparent about where their capital comes from to comply with money laundering and terrorist financing rules via reporting to the Ministry of Sports and the Unit of Information and Financial Analysis of the Treasury Ministry.
Further, clubs must comply with anti-doping rules set out under Law 845 of 2003 to encourage fair play and preserve and avoid health issues derived from the use of illegal or unauthorised substances.
Finally, the clubs must fulfil their labour and taxation obligations, as any breach of these duties would lead to lose the certificate of good standing and the possibility to obtain any benefits described above.
iii Corporate liability
The regime of corporate liability is not specifically regulated in sports laws and regulations. Officers could be liable if they breach the general regulations settled in the Commerce Code and Decree 1066 of 2015.
For corporations, there is no doubt about the liability regime created by commercial regime, specifically in Article 24 of Law 222 of 1995, which modifies Article 200 of the Commerce Code: officers shall be liable (unlimited, several and joint) if with their unrightful actions cause damages to the corporation, the shareholders or third parties.
The Superintendence of Companies6 has mentioned7 that the disciplinary and sanctioning regimes from the commercial law cannot be applied in an analogical manner to other kind of associations. That means that non-profit associations (mostly amateur clubs) have to act according to the by-laws of the association and the general disciplinary regime.
As mentioned above, Law 49 of 1993, Article 12 sets out the infringements applicable to officers of federations and leagues, including:
- the breaching of orders given by the general assembly of associates or shareholders;
- not complying with obligations to send notices and calls for meetings to the general assembly or any boards;
- the malversation of funds;
- the compromise of a budget without authorisation; and
- organising international events without national or local government authorisation.
The dispute resolution system
There is not a national sports tribunal or court in Colombia, even though it was created in 1968 through Decree 2743 and afterwards explained through Decree 2845 of 1984 and Law 49 of 1993. The Constitutional Court of Colombia through ruling C-226 of 1997 determined that a national sports tribunal would reflect the exercise of a public prerogative and would interfere the constitutional right of a person to practice sports.
Ruling C-226 of 1997 declared unconstitutional the creation of a national sports tribunal or court as an administrative entity, but mentioned that each federation can establish its own disciplinary tribunals as from the principle of free will to determine the organs of private entities through its by-laws.
i Access to courts8
Decree 2845 of 1984, Article 56 establishes the hierarchy of the disciplinary tribunals among federations: each club must establish its own disciplinary committee; each league must set up a committee for its members and for clubs; and each federation must settle the disciplinary committee. In any case, the rights to contradict, defence, technical assistance, due process, etc., must be fulfilled.
Most international federations are obliged to have the Court of Arbitration for Sport (CAS) as an appeal body for the decisions issued by national federations. This is the case, for example, of the Fédération Internationale de Football Association9 (FIFA) statutes or the Fédération Internationale de Natation10 (FINA) constitution for all of its member associations (including the Colombian recognised ones); however, it is a new tendency for national federations to deny and challenge the jurisdiction of the CAS as an appeal body for the decisions issued by those federations.
The football federations have forbidden their members from attending courts for sports-related matters owing to disciplinary issues or specific contractual problems that could arise from the relationship between clubs and players; if a club or league seeks the ordinary administration of justice, it may be subject to a disciplinary sanction duly established in the disciplinary code.
Other federations might request ordinary courts to solve issues derived from the breach of the fundamental rights related to the disciplinary proceedings, since most of them do not have professional athletes and players.
The disputes that might arise from image rights or trademarks could be solved by the ordinary tribunals or through arbitration, but it is correlated to how the topics were discussed and negotiated within a contract.
ii Sports arbitration11
It is possible for parties to settle in contracts regarding commercial topics as image rights, sponsoring, and the labour issues expressly allowed by Law 1563. Social security matters are explicitly prohibited from being decided in arbitral tribunals and must be decided by the ordinary labour courts.
Further, for a private convention established in the Colombian Football Federation, the sports-related matters (contractual, labour and disciplinary) must be ruled by their internal jurisdictional bodies.
The arbitration can be reached across three types of agreements:
- an arbitral agreement, drafted as a contract or regular agreement;
- an arbitral clause contained in a specific contract or agreement as an accessory obligation (the principal obligation shall be the object of the agreement); or
- a compromise, which would be adopted after a regular proceeding was started before ordinary courts.
These all require the express will to submit the claims before an arbitral court and the resignation to file the procedure before an ordinary court, the problem or contract for which the parties resign the right to file the proceeding before state courts, and, of course, the specification of the parties.
Regarding interim measures, the court chosen to settle the dispute ought to decide on this matter; according to Article 32 of Law 1563, the arbitral court has to request the ordinary court (according to the rules of competence of the ordinary jurisdiction) in the city where the interim measures have to be performed, to proceed. For example, if there is an interim measure regarding real state property, the ordinary court where the real state property is located must order the inscription of that interim measure before public registration.
The enforceability of a decision from a sports governing body depends on which sports entity has rendered that decision. Colombia does not have a national tribunal and its jurisdiction over entities belongs to the National Sports System.
Most decisions taken involve disciplinary matters, either for the athletes or the officers. Therefore, each entity has to enforce the sanctions. Ordinary courts, such as the Constitutional Court, do not intervene in internal proceedings or rulings of the disciplinary bodies unless an affected party claims a violation of a constitutional right, such as due process.
Other matters are not usually discussed before a judicial body within private sports entities, but it is possible to quote, as an exception, the football federation that is entitled to decide through its jurisdictional bodies (the National Dispute Resolution Chamber and the Player Status Committee) some specific cases related to football as an industry and as a business. This federation, following the obligations acquired to obtain the membership and belong to FIFA as international and ruling federation, forbids its own members to review football affairs (even contractual) before an ordinary court. If the member breaches that obligation, that member might be subject to a disciplinary proceeding. Those decisions are enforced by the Disciplinary Committee.
Organisation of sports events
i Relationship between organiser and spectator
As a general rule, the spectator is a consumer of the sports events. Most of the time, the consumer signs an adhesion contract (terms and conditions) with an organiser (i.e., when buying the tickets) to attend the event. The organiser must publish all information regarding the city and location where the event shall take place; activity; date and time; price; information concerning the organiser; options to buy tickets; and customer service addresses and phones, so the consumer is informed to take a decision.12
There is, however, an exception: team tournaments. In football tournaments, the organiser is the Colombian National Federation (FCF) through the Professional Division of Colombian Football (Dimayor), but the customer relationship is between the host club and the consumer. The host club sells the tickets to attend the game. This is also the case in basketball, where the team sells the tickets and the organiser is the national federation.
The organiser must take into consideration the following obligations towards a consumer:
- to inform the consumer the items listed above;
- to keep open customer service channels;
- to provide mechanisms to return the price paid for the tickets if there is cancellation or if the conditions are modified;
- to define which events would constitute force majeure – even when the Superintendence of Industry and Commerce has not provided specific mechanisms towards those kinds of incidents; and
- to avoid misleading advertisement.
Finally, the organiser must know that clauses from terms and conditions shall be interpreted against him or her in any proceeding, because the consumer is the vulnerable party in the contractual relation.
ii Relationship between organiser and athletes or clubs
For private events (such as exhibition tournaments or games) the relation between the athletes and organiser are private contacts for the performance of the sports spectacle. The organiser hires the athlete through his or her manager for rendering the services and the payment of the price. It depends on the clauses agreed, but most of the time, organisers, taking into consideration production costs and their obligations towards consumers, have agreed upon penalties and insurances to decrease the risk of damages caused by the breach of contractual obligations.
When the event is a tournament within a federation, the clubs and athletes, as members of that federation, are entitled to participate in the official tournaments. Further, the statutes of several federations establish the obligation of their members to participate in the official tournaments organised. For example, members of the Basketball National Federation (Fecolcesto) have as statutory duty 'to participate yearly in the tournaments or sports events officially organised by Fecolcesto'.13 The breach of statutory obligations could lead to lose the membership (and therefore the possibility to represent the federation in international tournaments) or disciplinary sanctions.
iii Liability of the organiser
The organiser has the liability towards spectators and the host city for the event. According to Circular of 2001, the organiser must inform customers if there is a cancellation or if the initial terms are modified, so the customer would have the option to request the reimbursement of the price paid for attending or to request (if there is an option of course) to attend other event.
The municipalities request the organisers to obtain an insurance policy to cover civil liabilities and torts derived from the activity of the event (accidents, health problems, riots, etc.) to issue the city permits required to organise large gatherings of people.
The obligation to control and prevent any situation that could derive in criminal behaviour of the crowds of fans in correspondence to Article 13 of Law 1445 of 2011, is shared between the clubs and the authorities. The law orders the clubs to control its own followers (and not the federation owner of the tournament).
For criminal liability it is needed to identify a suspect (a person), since right now there is no criminal liability for entities derived from riots of supporters or fans. Therefore, if a criminal offence is committed, authorities could investigate ex officio depending on the type of offence, and would have to identify the offender and the right14 damaged.
iv Liability of the athletes
Athletes in the scope of major sports event would not normally be liable towards consumers. As mentioned above, athletes would have to fulfil their contractual obligations assumed concerning contracts signed with the organiser or as members of a national federation.
Injuries can occur and are most of the time risks derived from the sports profession and activity, but it is required that the injured athlete file a criminal complaint for the criminal offence of personal injuries before the authorities to start any kind of criminal proceedings against the competitor that caused such injury.
With regard to civil liability, all federations, leagues and club with professional athletes must pay for their employees' social security when hiring, in order to cover risks associated with sports, such as the risk of suffering injuries. Amateur clubs are not required by law to do this, but need to have a general insurance policy to cover the risks associated with, for example, tort.
If an athlete incites violence, he or she would be liable to the city authorities, who could impose fines and prohibitions from attending sports facilities or playing for their club.
v Liability of the spectators
Article 14 of Law 1445 of 2011 has duly regulated the conduct and sanctions for spectators of sports events who disturb the peace or incite violence, mentioning that spectators would be subject to fines and prohibited from attending sports events for a period ranging from six months to three years, depending on the conduct. The acts sanctioned are the following: possessing a gun or trying to enter the sports facility with a gun (or another weapon such as a knife); the possession of narcotics; field invasion; inciting violence against the armed forces or the police; and inciting physical or verbal violence or damage against the infrastructure.
The final conduct mentioned would have higher fines and result in a longer prohibition from attending sports facilities.
The criminal code also establishes as a criminal offence15 throwing substances or objects from the tribune of the sports facilities and the possession of guns or hazardous objects inside sports facilities.
vi Riot prevention
The Ministry of Internal Affairs, through Decree 3888 of 2007, published the National Plan of Emergencies and Contingency for Massive Events in which organisers must submit a plan of contingency and security before a sports event takes place, and the following duties:
- to fulfil the requirements and duties assigned by central government and local authorities;
- to promote the prevention of riots and citizen culture activities to ensure the safety and security of attendants;
- to collaborate with local authorities with safety and vigilance;
- to develop the planning event according to the established parameters in the plan of contingency presented to the authorities; and
- to create accessible spaces for disabled people.
Further, local authorities require the payment of a contribution (a local tax), which could be about 10 per cent of total tickets sold, taking into consideration the fact that these taxes depend on the municipality and the specific percentage is fixed in each city.
Commercialisation of sports events
i Types of and ownership in rights
Sponsorship is one of the major sources to commercialise sports events, taking into consideration that, most of the time, national federations, leagues and clubs have long-term relations with their sponsors. Each stakeholder in a major sports event have their own rights to exploit them through sponsorship: the tournament sponsorship rights are exploited and negotiated either by the organising federation or league, but the athletes and clubs can also exploit their own rights. An example of this type of rights within the sports industry are the sponsorships celebrated with sports clothing brands: national federations have their sponsor, clubs and athletes as well.16
Sponsorship agreements are atypical contracts, meaning they are not expressly regulated by law and depend exclusively on the free will of the parties.
Sponsorships do not only exploit the trademarks and intellectual property rights of each party involved, but the image rights of athletes and players. 'Image rights' has two connotations since it is a fundamental right of the natural person and also constitutes an asset. Usually, clubs include an image rights assignment clause for their players or athletes when hiring, and likewise clubs assign rights to the league and national federation to commercialise the tournament.
The commercialisation of merchandising can be performed by the owner itself (the club, for example) or through third parties. The example of the sports clothing brands is useful to explain this: national federations usually do not have the necessary infrastructure and so sell the merchandise through third parties that do provide such services.
Broadcasting rights are owed by national federations and leagues. Each federation holds the rights to broadcast their tournaments and events, and the contracts are commonly signed by several years. For example, National Cyclist Federation executed in January the agreement to broadcast their national competitions with RCN (a private broadcaster) for four years,17 after terminating the long-term agreement with Señal Colombia (the government broadcaster). This is an atypical agreement and not specifically regulated by Colombian law.
ii Rights protection
Colombia has laws in force against piracy18 and merchandising rights have been affected by this criminal behaviour for years. Nevertheless, Colombia has not yet been promulgated or passed a law against streaming piracy.
Either way, piracy is a criminal conduct duly typified in the Criminal Code19 for unrightful exploitation of broadcasting rights and the misappropriation of trademarks, and can lead to jail.
iii Contractual provisions for exploitation of rights
The sponsorship and broadcasting contracts are no specified in Colombian law and accordingly can be freely negotiated. The mandatory provisions are the general ones established for all kinds of contracts (such as negotiate and agree in good faith; avoid any unrightful earning; do not contract over illegal activities, etc.).
As a general recommendation, contracts should contain an exclusivity clause to exploit the rights, at least in the field to which the sponsor or broadcaster belongs, and additionally there should be a provision to prevent piracy through the protection of confidential information and penalties or contractual fines if there is a leak of information.
iv Professional sports and labour law20
Signing professional (labour) contracts has mandatory legal obligations, as the payments for social security according to Law 100 of 1993 (and complementary rules) and the inscription before the national federation.
The general rule for labour contracts (and all other contracts) is to celebrate and sign only with people that has already became of legal age. But there is an exception for sports: the Code of Youth allows minors of between 15 and 17 years old to work if they have the authorisation from the local work authority and from parents or legal guardian, to work under a labour contract for a maximum of 14 hours a week.
The Constitutional Court in ruling C-320 of 1997 mentioned that professional sports have a complex dimension, since it is a spectacle, a way to develop personally, a labour activity and an enterprise. The court said it has to be respect the right of the athlete to freely choose to work, and defended the legal provision to keep sports rights only for professional athletes.
Regarding salary, workers or employees cannot earn less than a minimum wage if the contract provides the maximum working schedule of 48 hours a week. This means that professional athletes must earn at least one minimum wage. It is typical for athletes to subscribe labour contracts with a defined term, but protected with the stability right established in the labour law, allowing the parties to automatically renew the contractual term if there is not provided written notice requesting the effective termination of such contract.
Finally, only employers with professional athletes could have the sporting rights of athletes, within the scope of the labour contract signed and executed.
Free movement of athletes
The general rule established in Articles 74 and 75 of the Labor Code limiting the number of foreign workers was abrogated by Law 1429 of 2010. The rule mentioned that entities in Colombia had to respect proportionality between the number of nationals (90 per cent) and foreigners (10 per cent). But Law 1429 seeking to encourage the creation of new and formal employments, dismissed the rule. That means, speaking in the general labour law terminology, there are no limitations for foreigners to work in Colombia or within an industry.
Nonetheless (and according to principle of free will in the establishment of internal rules for private associations and entities – which falls in the range of commercial law), federations could establish for their tournaments limits in the number of foreigners working and participating.
Application of employment rules of sports governing bodies
Even though Colombian labour law tends to be very protective of the workers, it allows federations to fulfil their duties towards international bodies, unless the rules violate the rights of the workers. Most of the time, international federations establish mandatory obligations, but when it comes to labour rules, always respect internal laws, leaving it up to the national federation to harmonise its diverse system of laws (private and public).
The Constitutional Court in the ruling cited above (C-320/97) declared the free will of the federations to build its own rules, and that athletes are entitled to hold their own sporting rights, as development of their constitutional right of freedom. This is important, because it was only recognised by FIFA, for example, during the year 2019 (more than 20 years after the ruling of Colombian Constitutional Court).
Sports and antitrust law
Antitrust law has been highly improved in Colombia through the years, taking into consideration the country's laws only date back to 1959 regulating these matters. For the specific case of sports, Law 181 of 1995 has expressly ruled that not a single person (natural or entity) can have the controlling votes over more than one club from the same discipline, either directly or through third parties.
The problem about piracy of merchandising can also be treated under the prohibition to exploit third parties reputation or to confuse consumers about the origin of the goods sold. But it has been seen that criminal complains satisfy more the affected parties than the antitrust complains (even when this kind of claims could mostly be resolved faster than a criminal claim).22
During the past three years, the Superintendence of Industry and Commerce (SIC) has been investigating presumptive antitrust conducts committed by the Colombian Football Federation and a couple of ticketing entities regarding the issuance and commercialisation of the tickets for the games of the National Team, regarding a presumptive arrangement in between them to offer the tickets to consumers at higher prices than the ones publicly offered by the national federation, through a system of resell (grey markets). Since it is one of the powers of state authorities (to watch and review stakeholders that distribute some goods and that have the capacity to determine the prices), during the first week of the month of July, the first instance of the SIC found the Colombian Football Federation guilty and imposed a fine of about US$4.7 million. The national federation has since filed a claim before the Organisation for Economic Co-operation and Development (OECD) against the investigator, so this case remains ongoing.
Sports and taxation
Under the Taxation Code, there is a big difference between residents and non-residents for taxation purposes. A resident is anyone that has been living in Colombia for more than 180 days or on a non-continuous basis over 365 days.
An athlete that arrives in Colombia territory for a major sports event would be subject to receive taxable income (as the payment for its personal services) but through withholding tax. The income would derive from the personal rendering of services inside the country. The withholding tax is 20 per cent for payments made overseas.
Article 592 of Taxation Code provides in which cases the tax return filling is necessary: if the gross income is lower than 1,40023 units of tax value (UVT)24, or if the income was not subject to withholding tax, the non-resident25 would have to declare the total income received from national source.
Colombia has made several efforts to execute double taxation treaties and usually provides that the taxation authority entitled to receive the taxation as of income derived from rendering personal services should be the country of residence of who renders such services and not the country where the services where received. This means it is necessary to review on a case-by-case basis if the athlete is subject or not to withholding tax, if there is a possibility to receive tax credit after a withholding was performed, etc.
Specific sports issues
26Colombia is a signatory to the Treaty against Doping in Sports.27 Doping means all activity executed to modify (in a non-physiological manner) the ability and capacity of an athlete for the purposes of participate in a competence or tournament having unlawful advantages, affecting the fair play.
But it is not considered as criminal offence capable of sanctioning with jail. Colombia has a national rule, called the Anti-Doping Code, produced by the World Anti-Doping Agency (WADA), and it part of the International Treaty promoted by United Nations Educational, Scientific and Cultural Organization (UNESCO). Nonetheless, if there is commerce or distribution of narcotics and illicit substances, that conduct could be criminalised not because of doping and its effects, but for being an illegal conduct.
Betting is permitted under Colombian law. It is a regulated activity owned by the state to exploit, organise, administrate, operate, control, tax, regulate and oversee gambling at sporting events. The income received by the state is used principally to provide healthcare to vulnerable citizens, and to provide resources for national departments of health.
Law 643 of 2001 (and all related rules and regulations) determines the way to obtain the licence issued by Coljuegos, an administrative authority belonging to the state, to offer gambling and betting in the territory of Colombia.28
To obtain a licence, it is necessary to incorporate an entity in Colombia as a corporation or subsidiary (most of the time, betting companies are multinational enterprises). There is no mandatory provision for the incorporation of a company that would provide betting services, but the requirements are the following:
- by-laws must expressly provide the possibility to engage in games and betting;
- the entity must have been active for at least seven years (five as for the term of licence and two more for liability purposes);
- the entity requesting the licence must have a bank account in Colombia, not a bank account overseas;
- financial requirements of paid-in capital and equity must have been fulfilled;
- the entity must have an insurance policy, fiduciary agreement or any bank warranty to ensure the payment of prices and funds; and
- the entity must perform the payments required.29
Besides the corporate requirements, the licensee must review the technical requirements with Coljuegos to avoid any fraud.
Match-fixing is not yet considered a criminal offence, but there have been cases where a private party has been accused of match fixing under the crime of private corruption (Article 250A of Criminal Code). The offender could be subject to a prison sentence between four and eight years and a fine between 10 and 1,000 minimum wages.
Further, administrative fines are established for illegal gambling equal to the payments required to obtaining licences, the purpose of which being to help recuperate losses caused to national health departments.
iv Grey market sales
Selling tickets through grey markets is forbidden, as it could lead to tax evasion and violations against the rights of consumers and antitrust law.
Grey market sales are considered as tax evasion because the organiser of major sports events must pay tax contributions according to the pricing of tickets. In the above-mentioned investigation into the Colombian Football Federation, the Superintendence of Industry and Commerce said that consumers would have paid for tickets to Colombian National Team's games amounting to between 150 per cent and 1,000 per cent of the original price, which evidently leads to a drop in tax revenue for the authorities and for the country.
Grey market sales are considered a violation against the rights of consumers because there must be a price list of tickets for major events, and grey markets prevent consumers from obtaining tickets from legally established channels (buying the tickets before consumers) and obliging consumers to pay higher prices.
Finally, grey market sales violate antitrust law because they alter the markets and cause a loss of new competitors.
The year in review
The sports industry has come to a standstill and, according to the Ministry for Sports, it could be a ling time before national federations will be able to start up again. Colombia must also prepare for the Olympics due to be held in Tokyo next year after being suspended for the expansion of the pandemic, or national athletes will not be capable of participating.
The national courts have suspended their terms for deciding cases within their jurisdiction, as well as the Ministry of Sports (investigations towards stakeholders of the National Sports System) and even the disciplinary chambers of the national federations.
It is expected that the decision regarding antitrust and grey markets shall be issued this year by the Superintendence of Industry and Commerce, but as the future seems more uncertain than ever, it is not possible to know.
Further, regarding the pandemic, Colombia has been in a state of emergency since 18 March 2020, which allows the government to assume functions to issue decrees and regulate some matters to alleviate the crisis, taking into consideration that Congress was only partially working for a period of about 90 days, owing to the national lockdown.
Outlook and conclusions
Despite Colombia being a country with some of the world's highest calibre athletes,30 the national budget for developing the sports industry and aiding amateur sports still is very low. It is well known that the country has suffered economic problems, poverty and violence, but it is also known that promoting sports and culture can help prevent violence and drugs abuse.
The United Nations Children's Fund (UNICEF) has mentioned31,32 that sports constitute a key factor in the health, happiness and welfare of children and youth, and it has been demonstrated that sports can not only help prevent violence but teach children the importance of team work, discipline and respect towards others.
International federations such as FIFA have been trying to introduce programmes such as Forward 2.0 to provide means for the development of amateur football as the basis for the professional industry.
1 César Mauricio Giraldo Hernández is a partner and Maria Cristina Delgado-Aycardi is a senior associate at GHER Sports Colombia.
2 According to the Constitutional Court in Colombia, the practice of sports is a fundamental right (Constitutional Court of Colombia, ruling T-242 of 2016) granted to all citizens. The practice of sports is granted by Colombia as a state, making efforts to promote either its practice and association through sports organisations, for the effective accomplishment of the constitutional rights of the people. The Constitutional Court of Colombia is the highest tribunal in charge of the protection of the fundamental rights granted to all inhabitants of Colombia and the protection of the Constitution's integrity, through the interpretation of the rules of lower category (laws, presidential decrees, etc.).
3 The good-standing certificate for this specific case is the reconocimiento Deportivo issued by the dependence of the Municipality, which incorporates the club or the league to the National Sports System.
4 Colombia is organised as a unitary republic, under the central model of government: central government and local administrative organisation: departments (set of cities) and municipalities (cities).
5 Colombia is administratively organised as a unitarian republic, divided by departments and municipalities. The leagues have to be affiliated with the relevant departmental administrative entities.
6 The Superintendence of Companies is a government agency that supervises companies and the fulfilment of corporate and legal obligations.
7 The Superintendence of Companies, as well as most government entities, can provide interpretation to regulations, when requested by citizens. For a specific case, the Superintendence of Companies clarified the applicable regime to non-profit organisations, through document 220-053767 from 14 March 2016.
8 As general rule, every person has access to court, regarding the right of administration of justice (constitutional and fundamental human right). Nevertheless, each federation has its own disciplinary tribunals and sometimes (such as in the case of the Football Federations worldwide) each federation has its own administration of justice system, outside the ordinary courts.
9 FIFA Statutes Article 57, 58, and 59. https://resources.fifa.com/image/upload/fifa-statutes-5-august-2019-en.pdf?cloudid=ggyamhxxv8jrdfbekrrm.
11 In 2012, Colombian Congress passed Law 1563, the national and international arbitral statute, as an alternative mechanism to solve conflicts that can be freely arranged and decided by third parties invested with the faculty to administrate justice. The basic principles to obtain an arbitral award are: (1) the free will of the parties to solve the dispute outside the regular system of justice; (2) the independence of the judges chosen to settle the dispute; (3) the temporal faculty to administrate justice; (4) the exceptional cases that could be settled by a arbitral court; and (5) the procedural character of the arbitral proceedings, since it must respect the rules of due process and the tribunal, and the parties have to follow the process regulations (Constitutional Court of Colombia, ruling C-538 of 2016).
12 The organisation of sports events falls into the rules of consumer protection, and the organisation itself (city permits and requirements) depends on the rules locally established for large events. A public major event is defined by the general Circular of 2001 issued by the Superintendence of Industry and Commerce, as 'all forms of collective recreation, congregating the attending people, to express its emotions, enjoy artistic expressions, where the invitation to the public is open, general and undifferenced'.
13 Basketball National Federation statutes. https://c55c0536-f124-4d08-a7d4-25c287ecf4f3.filesusr.com/ugd/134488_53bb2518f6ef428e95fef1f8c5e1ddda.pdf.
14 For sake of clarity, any protected right is called a 'right'; for example, and in the terms of the Criminal Offences Code: life, freedom, any assets, property. In Spanish, it is referred to as 'bien jurídico tutelado'.
15 Article 358 of the Criminal Code.
16 There are several types of commercialisation of sports events (among others). The most used are the following: sponsorship; merchandising; and broadcasting rights.
18 Currently there is an alliance signed between several private broadcasters called 'Alianza contra la Piratería de Televisión Paga' to try to show the importance of having laws to protect those broadcasters and its rights, because it represents not only income for them, but for the states represented in taxes not collected: https://www.alianza.tv/es/#:~:text=La%20Alianza%20contra%20la%20Pirater%C3%ADa,FTA%20(Free%20to%20Air).
19 Article 271.
20 As described in Section I of this chapter, sports in Colombia are divided into amateur and professional categories. Amateur sports do not admit payments in favour of the athletes and the professional is assumed as the relevant class under a labour contract.
21 Law 181 of 1995 in Article 16 describe the definitions of, among others, professional and amateur sports. Professional practice implies the payment of a salary and subordination of the athlete (or employee) to the orders of the employer. That subordination implies the obligation to obey the internal rules of the employer and follow orders (technical and tactical orders, for example).
22 The antitrust rules also seeks to prevent the abusive use of a dominant position, Decree 2153 of 1992 includes (among others) to sell in different conditions in order to diminish or eliminate competence; to obstruct or impede to third parties to access markets or channels of commercialisation; and to promote mergers and acquisitions of enterprises to control the industry unless it is demonstrated and proven to benefit the markets of such mergers and acquisitions.
23 About US$14,000.
24 Taxation unit established to unify concepts to make easier to understand tax duties.
25 There is a special provision but applied only to artists and production, but it has not yet reached the sports events and activities.
26 Specificity is a sporting principle applied globally and recognised in Colombia first through ruling C-320 of 1997 of the Constitutional Court, determining that it is perfectly possible to establish rules responding to specific sporting issues (not only through competence but to the industry).
27 Ruling C – 376 of 2009 of the Constitutional Court of Colombia.
28 Highlights include: (1) illegal games are those provided by operators not duly authorised by Coljuegos, and players using these illegal operators are jointly liable for any fines that could be imposed on the operator; (2) sports betting is called 'novel games' since they differ from lotteries and bingo; and (3) the licensee permitted to promote betting games must donate some funds to the health system (which is to justify the establishment of a state entity to control betting).
29 Three types of payments must be performed to Coljuegos, the entity in charge issuing licences to perform activities of betting, to obtain the licence and operate: (1) annually, there has to be paid a contribution equal to 811 minimum wages; (2) 15 per cent of gross income less the prices dully paid for each game performed; and (3) administrative expenses equal to 1 per cent of the amount paid according to (1).