中国职业足球运动员转会权利保障的研究

发布时间：2019-03-18 11:56

【摘要】：职业球员作为职业足球的核心力量,他们的权利能否得到完全的保障,直接影响到我国足球水平的发展。在职业球员所拥有的权利中,自由转会权是职业球员在足球界赖以生存的权利。通过转会,职业球员可以转会到更加适合自己水平的俱乐部,俱乐部也可以借助强援的加盟从而提高球队水平。权利的保障有赖于良好的制度,而良好的转会制度则是推动职业联赛不断进步的助推剂。2009年以前,中国职业球员转会受到诸多限制,自由转会权利受到严重损害。2009年,中国足协进行了转会制度的改革,中国转会制度逐渐与国际接轨。新的制度的实行,随之出现的是新的问题。本文采用比较研究法,文献研究法,实例分析等研究方法,对我国新实施的职业球员转会制度当中的问题,以及社会上一些足球热点问题和保障球员自由转会权利的制度建设等进行了深入的探讨。本文第一部分介绍了职业足球中转会制度的概念及其意义,并对我国和国际足球转会制度的历史发展进行了梳理。并介绍了自由转会权利的定义,本文第二部分对职业球员的身份进行了定位。从劳动者的基本特征入手,分析得出职业球员属于劳动者的结论。此外,从其他国家的法律规定来看,无论是什么项目的职业运动员,职业运动员与俱乐部之间的关系一般都被认定为劳动关系。因此,《劳动法》和《劳动合同法》应当作为维护职业球员基本权益的法律在足球界发挥其作用。本文第三、四部分,从转会的过程分析,把转会过程分为俱乐部之间的商讨,球员与原俱乐部解约、球员与新俱乐部签约三个阶段。其中第一阶段是俱乐部之间商讨转会费,与球员无关,应当属于《合同法》规范的内容。第二与第三阶段是一个解约与签约的过程,尤其在签约的过程中,引申出当前较为火热的“阴阳合同”的问题,分析其法律性质,并找出问题的根源。第四部分是自由球员转会的法律问题分析,列举出了球员在某几种特定的情况下拥有与原俱乐部解约,成为“自由球员”,从而与新俱乐部签约。并指出了当中需要修改的一些问题。本文第五部分对中国足协仲裁制度的合法性进行了分析论证,一方面,足协现有的仲裁制度违反《立法法》的规定,中国足协没有设立仲裁制度的权利;另一方面该仲裁组织的真正性质是一个内部裁决机构,并非实质意义上的仲裁组织。从国际足联章程规定的角度来说,中国足协的仲裁组织缺乏独立性,不能达到国际足联的要求。所以,从各角度分析,设立独立的体育仲裁制度已经迫在眉睫。最后,基于前文提到的问题,对职业球员的自由权利的进一步保障提出了一些意见。其中包括对职业球员的身份进行明确的认定、组建球员工会、建立足球经纪人制度、设立体育仲裁制度等等。笔者希望通过职业球员权利的保障为例,提醒足球管理者应该用法治的方法来管理足球:管理者的权利尽可能小,行业的自由尽可能大,但是行业不能管理到的事情,管理者要切实负起责任。并以足球为先锋,将法治的精神向各行各业推广开来。
[Abstract]:As the core force of the professional football, the professional players can be fully guaranteed and directly affect the development of our country's football level. In the rights of professional players, the right to transfer is the right of professional players to live in the football world. As a result of the transfer, the professional can move to a club that is more suitable for its own level, and the club can also help to improve the team's level with the aid of the aid. The guarantee of rights depends on a good system, and a good transfer system is a boost for the advancement of the professional league. In 2009, the transfer of Chinese professional players was limited and the free transfer rights were seriously damaged. In 2009, the Chinese Football Association had reformed the transfer system. China's transfer system is gradually in line with the international standards. The introduction of the new system followed the emergence of new problems. This paper makes an in-depth study on the problems in the transfer system of the new professional players in our country, as well as some of the hot issues in the society and the establishment of the system of guaranteeing the free transfer of the players. The first part of this paper introduces the concept and significance of the transfer system in the professional football, and then combs the history of the transfer system of our country and the international football. This paper introduces the definition of the right of free transfer, and the second part of this article is to position the status of the professional players. Based on the basic characteristics of the workers, this paper analyzes the conclusion that the professional players belong to the workers. In addition, from the legal provisions of other countries, the relationship between the professional athlete, the professional athlete and the club, no matter what project, is generally recognized as a labor relationship. Therefore, the and the Labor Contract Law> should play its role in the football field as the law to safeguard the basic rights and interests of the professional players. In the third and fourth part of this paper, the transfer process is divided into three stages: the negotiation between the club and the former club, and the signing of the player and the new club. The first stage is to discuss the transfer of contributions between the clubs, which is not related to the players, and should be the content of the Contract Law> Specification. The second and third stage is a process of releasing and signing, especially in the process of signing, the problem of the current hot "yin and yang contract" is introduced, the legal nature of the contract is analyzed, and the root of the problem is found out. The fourth part is the analysis of the legal issue of the transfer of the free players, and lists the players who have the contract with the original club in some specific circumstances and become the "free player", thus signing with the new club. And points out some of the problems that need to be modified. The fifth part of this paper analyses the validity of the Chinese Football Association's arbitration system. On the one hand, the existing arbitration system of the Chinese Football Association is in violation of the provisions of the Law of the Chinese Football Association, and the Chinese Football Association does not have the right to establish an arbitration system; On the other hand, the real nature of the arbitration organization is an internal adjudicative body, not a substantive arbitration organization. From the angle of the FIFA Constitution, the Chinese Football Association's arbitration organization lacks independence and cannot meet the requirements of FIFA. Therefore, it is urgent to establish an independent sports arbitration system from various angles. Finally, based on the above-mentioned problems, some opinions on the further guarantee of the free rights of the professional players are put forward. These include a clear identification of the status of the professional player, the formation of a player's trade union, the establishment of a football broker system, the establishment of a sports arbitration system, and the like. The author hopes to take the guarantee of the rights of the professional players as an example to remind the football manager that the rule of law should be used to manage the football: the manager's rights are as small as possible, the freedom of the industry is as large as possible, but the industry can't manage the affairs, and the manager should take the responsibility effectively. As a pioneer of football, the spirit of the rule of law is spread to all walks of life.
【学位授予单位】：华中科技大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：G843

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