Contribution by Avv. Daniela Italiano published on N&T Plus Diritto – Il Sole 24ORE.

As is well known, starting from February 2020, in order to combat the spread of the Covid-19 pandemic, the Italian Government adopted – through extraordinary, urgent and unforeseen acts – regulatory measures ad hoc that fundamentally prevented the conduct of most economic, social, cultural and sporting activities.

With reference to sporting activity, the aforementioned emergency legislation provided for the suspension of sporting events and competitions of every kind and discipline in public and private places, as well as prohibiting training activities for team sports.

The sports legal system, being a sectoral legal system existing within the state legal system and subject to the norms thereof in compliance with the principle of hierarchy of sources, complied with the provisions of the Decree-Laws and Prime Minister’s Decrees issued by the Government from time to time.

With specific reference to the volleyball sector, training and competition activities were initially interrupted for limited time periods and/or limited areas of the national territory, until, on 8 April 2020, the Italian Volleyball Federation (FIPAV) ordered the early closure of the 2019-2020 championship with consequent definitive cessation of all activities. In summary, FIPAV:

• i. initially suspended all national volleyball competition activities at all levels until 1 March 2020 (Federal notice of 24 February 2020);

• ii. subsequently implemented the resolution adopted by CONI (Italian Olympic Committee) and suspended volleyball activities until 13 April 2020 (Federal notice of 10 March 2020);

• iii. finally, decreed the definitive conclusion of all national, regional and territorial volleyball championships of every series and category (Federal notice of 8 April 2020).

The aforementioned legislation and related measures constituted in all respects an exceptional, extraordinary and unforeseen event. This is the so-called factum principis, that is, an objective impediment to the performance of the respective obligations that alters the contractual synallagma and renders performance objectively impossible.

The suspension of competitions imposed by emergency legislation inevitably, but also without fault, determined:

• – for the players, the cessation of any training and competition activity as of 9 March 2020 and the impossibility of playing 7 out of 26 total matches;

• – for the Clubs, the obligation to close their sports facilities and the impossibility of requiring and receiving from the athletes both training activities and participation in championship matches.

Nor was there any way for the players to perform their obligations in the form of so-called “remote work”, since the performance of an athlete is by its nature incapable of being performed and enjoyed through modalities other than those typical of a physical performance, whereas remote work modalities are conceivable exclusively with regard to intellectual performances.

Following the supervening impossibility for the athletes to play and train, an objective impossibility crystallized to perform a portion of the contract which, in percentage terms in relation to the contractualized commitments, amounts to approximately 27% of the agreed performances.

In light of such objective data and considering the serious economic repercussions caused by the pandemic and the related containment measures, as well as taking into account the non-imputability of the situation, the compensatory nature of the contract and the extraordinary risk that had altered its synallagmatic balance, the Clubs of the Serie A1 Women’s Volleyball Championship unanimously implemented a reduction in the compensation of the players, proportional to the quantity and number of performances not rendered by the athletes, as these had become impossible and in any case were not legally enforceable or available to the respective Clubs.

The reduction imposed by the Clubs, although in compliance with the provisions of the civil code regarding supervening impossibility, generated a bitter conflict between the sports companies and the athletes as subjects bearing opposing and conflicting interests.

Indeed, while the players claim the right to compensation even for performances not rendered, on the other hand the Clubs, already burdened by the negative economic consequences caused by the pandemic (consider, for example, the failure to sell match tickets, the failure to collect television rights revenue, the termination of contracts with sponsors) do not intend to remunerate performances that they have in fact not received.

This conflict was resolved mostly through effective renegotiation activity in compliance with the principles of fairness and good faith pursuant to Articles 1175 and 1375 of the Civil Code. The majority of the players, in fact, accepted a reduction in compensation in consideration of the number of matches and training activities not performed.

In other cases, however, attempts to reach an amicable settlement failed, resulting in the referral of the matter to the judicial bodies of the volleyball sector, namely the International Volleyball Federation (FIVB) competent to decide international financial disputes between Clubs, players, agents and coaches, and the European Volleyball Confederation (CEV), endowed with the same competencies with exclusive reference to disputes between Clubs, players, agents and coaches who are citizens of the EU.

At present, given the small number of cases decided so far, it is not possible to understand what will be the prevailing orientation of the sports judicial bodies and in what manner they will intend to resolve the current conflict.