THE BULGARIAN MODEL OF SPORTS GOVERNANCE
1. Legal ground
The main legal act that regulates the public relationships concerning the physical education and sports in Bulgaria is the Bulgarian Physical Education and Sports Act /PESA/ which was passed by the Bulgarian parliament in 1996.
The term ‘sports’ is also used in the Bulgarian Constitution where article 52, par. 3 stipulates that: ‘The state guards the health of the citizens and stimulates the development of sports and tourism’. This is the only constitutional norm that uses the term ‘sports’ in connection with the citizen’s health. The norm is within chapter two of the Constitution which regulates the main rights and obligations of the Bulgarian citizens and is part of article 52 which outlines the main principles of the health system in the republic of Bulgaria. The correlative relation between sports and public health is stated further as a principle in article 3, par.2, p.2 of the Physical education and sports Act, which stipulates that the sports and physical education system should be: ‘a complex binding of physical education and sports with health care and recreation activities, education and culture, into a common functional system for improvement of its balanced effect on all strata of the population.’
The concretization of the constitutional norm for sports related matters, namely the concretization of how the state ‘stimulates’ sports is made by Physical education and sports Act. Article 4 of the same outlines the means by which the state applies its powers in stimulating the sports in Bulgaria. In fact the ‘right for sports’ is firstly recognized as a main right of the citizens not in the Constitution but in article 4 of the Physical education and sports Act. According to art.4.1 the state encourages the development of physical education, sports and tourism by recognizing the physical training, sports and tourism as internal necessity and right of each Bulgarian citizen to maintain and perfect his moving activities. Further the named article lists the state’s competence towards sports, that are, not comprehensively, as follows: The state throughout its organs creates the normative regulation of physical education and sports (art.4.3), establishes the conditions for the development of the ‘sports for all’ – the children sports, the sports for the pupils and students (art.4. 4); ensures the preparation and the participation of national and Olympic teams in international competitions and Olympic games (art.4.5); builds, maintains, modernizes and controls the exploitation of sports bases and equipment – public state property and establishes the conditions and procedures for their exploitation (art.4.6); supports, coordinates, regulates and controls the activity of the sports organizations (art.4.7); educates the sports specialists and supports their future qualification (art.4.10); finances the approved sports related projects (art.4.12). The same authorities are given to the municipalities as bodies of local self-governance, even though they are not mentioned in the Constitution as executive bodies which ‘stimulate’ sports.
In fact, the whole following legal regulation of sports activities in the Act on physical education and sports, namely – the type and competence of state bodies of physical education and sports governance, the status of the sports organizations and the degree of their dependence to the state, the regulation of the rights and obligations of the athletes, the exploitation of the sports bases, the financing of sports and other, is structured according to the abovementioned general principles about the state and the municipalities authority in sports. What I mean is that because it is the state, or a concrete municipality, which has the authority to regulate all the basic sports related matters, to control their so to say execution and to finance the sports activities, it could be concluded that the sports system in Bulgaria is built according to the mentioned by Josef Cobra ‘interventionist model’.1
2. Government bodies for management of the sports.
In accordance to Art. 7 from the active Physical Education and Sports Act /PESA/ the basic directions of the national policy in the filed of the sports are approved by the Council of Ministers /CM/. CM accepts national program for development of the physical education and sports for the period of 4 years (the period of the mandate of the government according to the Bulgarian Constitution which coincides with the Olympic cycle) and reports its fulfillment before the National Assembly of the Republic of Bulgaria /NARB/. The CM as well annually provides the necessary funds for the development of the physical education and sports due to the State Budget Act of Republic of Bulgaria where financing of the sports activity is stipulated.
In the frame of its power in the capacity of a common executive – ordering body which determines and performs the government policy in every aspect and sphere of the government management and in particular the system of the physical education and sport, the CM determines the special administration institutions which will fulfill the government policy in the area of the physical education and sportss. Regularly these are the respective Ministers which are members of the Government and which are approved by NARB after the newly chosen prime minister introduces the members of the new Council.2 In the cases when for a definite sphere of government management CM does not provides a creation of separate ministry the same has the power, stipulated in Art. 35 from the Administration Act, to establish a new administrative structure due to a Council of Ministers decree which structure could be empowered and burdened with the fulfillment of the respective government policy in a certain sphere of public life. Namely due to that competency of the CM was established the Committee for the physical education and Sports as special body of CM for pursuing the government policy in the area of the physical education and sports. The establishment of that body and the assigning of the functions in the filed appointed above does not contradict to the aims of the law and does not subordinate the government policy to the internal interests of the Committee. That is in that way because CM exercises its constitutional powers by the help of its bodies which CM manages and controls. Its power is to cancel by its own will these acts of the government institutions which it considers to contradict the entire governing of the state ( Arg. Art. 107 from the Constitution, respectively decision № 1562/15.03.2000 г. of Supreme administrative Court, 5 member jury).
When PESA was accepted in 1996 there were provisions for the powers of the chairman of the so-called by the law – State Agency of Youth and Sports /SAYS/. The Law itself in the provision of Art. 8, which determines the powers of the chairman of State Agency of Youth aND Sports, predestines the constitution of a special administrative body which should pursue the government policy in the filed of the physical education and sports. From the administrative point of view the capacity of “executive body” had only the chairman of the agency which powers, as it was already said, were expressly determined by the law. The chairman was helped by administration which activity, structure and competence were determined by structure regulation accepted by CM (Art. 48 from the Administration Act).
Beffort the acceptance of PESA there was a lack of comprehensive legal regulation in the sphere of the society relations connected with the management of the physical education and sports in Bulgaria. This activity firstly was performed by the Bulgarian union for physical education and sports, then Committee for physical education and sports (its name has been changed many times), that also had the position of bodies established with governmental orders and subordinated to the Government. Probably that was the reason for accepting in PESA in its first edition the state organ to execute the government policy in sports to be an agency, not a ministry.
Together with the change of the Governments however, after PESA was accepted, was changed the status of the administrative bodies which exercised the powers in the area of the physical education and sports. In 2002 after the Parliament elections in Republic of Bulgaria the newly chosen Government took the decision for transforming SAYS into Ministry of Physical education and Sports and respectively the position chairman of SAYS was transformed into a Minister of Physical education and Sports. The transformation in the status was made by a change in PESA, which is the legal way for doing so, and in § 34 of the Act for amending and complementing of PESA was stipulated that everywhere in PESA the word “chairman of SAYS” to be changed with Minister of Youth. In § 35 from Act for amending and complementing of PESA was also stipulated that all the properties of SAYS would be legally accepted by the newly established by CM Ministry of sports. On the next Parliament elections held in 2005 the Government was changed and the newly Government regained the position of the Ministry of sports into an Executive Agency. The change in the position of this specialized government body was made due to amending of PESA and especially the provisions of §4 и §5 from the Act for amending and complementing of PESA and respectively the secondary legislation was again changed by orders and decrees of CM.
The newly chosen Government during 2009 regained the position of the agency into a ministry. Among the members of the new Government which was introduced by the prime minister and approved by the NARB was elected a Minister of the physical education and sports as a special administrative body in that area of state government.
In a view to the change CM accepted - DECREE № 195 of CM dating from 6 -th of August 2009 for closing of SAYS and for accepting a structure regulation of Ministry of physical education and sports (posted in State Gazette c. 64/ 11.08.2009 into force from 05.08.2009).
Neither at the moment of composing of the present resumes and not before that was made a change in the legislation concerning the position of SAYS in the way that was described above and connected with the previous two amendments. The above mentioned change was made with decree of the CM which from legal point of view is a subordinate to the Law legal act. In that connection the decree in principle should be in compliance with the law.
The Lack of amendment in the legislation (amendment in the PESA) predestines the following legal conclusions:
On first place in a view to the secondary character of the Decree in its capacity as secondary legislation which provisions should be complied with the provisions of the higher legislation - the laws, the decree contradicts to the active legislative act, namely the PESA. That is so because art.8 of the PESA stipulates that the chairman of an agency is the special administrative body that pursues the government policy in the area of sports but not a Minister. In the decree for closing of SAYS and the creation of Ministry for the Physical Education and sports it is appointed that the Ministry has been established on the grounds of Art. 35 form the Administration Act. Actually, as it was commented above, CM has the power to institute with a decree newly administrative bodies which are not provided in the Constitution of Republic of Bulgaria i.e. has the right and the power to establish a Ministry, as well as to accept a structure regulation for its activity, but CM has no power to amend the laws which are acts with a higher legal power by comparison to the acts of the government. The law should be changed with an act of the same level accepted by NARB. In this sense when such a legislation is not accepted according to the present moment, the decree of CM contradicts to the law. In the cases of contradiction according to the regulation of Art. 5, par. 1 of Administrative Procedure code in connection with Art 15, par 3 from the Statute instruments Act, the superior legislative act should be applied, or in the case PESA.
This contradiction leads to some legal paradoxes in the application of the sports related legislation. The following example describes some of the legal consequences of the abovementioned controversy:
In the secondary legislation regarding the application of PESA, as well as in the Act itself, it is provided that the chairman of SAYS issue, refuse, renew and withdraw licenses to sports federations and to the national sports organizations for carrying out sports activities (Art.8, par.3, p. 12 from PESA). In the Ordinance for the procedure of acquiring a license of the sports organizations in Republic of Bulgaria accepted with Decree of CM dating from 26.09.2008 is provided that, according to the law, the body that manages the licenses of the sports organizations is the chairman of SAYS. According to art. 1, par. 5 from the Ordiance which is an active secondary legislative act, the orders of the chairman of SAYS regarding licenses of sports organizations should be appealed in accordance with the Administrative Procedure Code. In that connection it should be pointed out that the procedure for appealing the administrative acts of the chairmen of executive agencies and the ministers is not the same.
In the cases where a subject of appeal is an administratevet act issued by a Minister the competent Court that should consider the appeal as first instance is three member jury of the Supreme Administrative Court /SAC/. The decision of the first instance court should be appealed in front of five member jury of SAC. And, on the opposite, when we have an appeal against an administrative act of a chairman of a state agency the competent court for considering the case as first instance will be the respective administration court which decision could be appealed in front of SAC which settles the dispute for the law compliance of the administration act issued by the chairman of an agency peremptory. In the present case the Decree due to which SAYS is closed and a Ministry of physical education and sports was established without the necessary law amendment, every act of the minister of the physical education and sports issued on the grounds of the CM`s Decree will be legally conforming because it would have been issued on the basis of an statutory instrument that contradicts to the law.
As a conclusion according to the present moment the basic body for sports management is a Ministry of physical education and sports which powers are stipulated in an Decree of CM for its creating having in mind the abovementioned.3
3. Sports organizations and clubs. Relations between the sports organizations and clubs and the ministry of physical education and sports. Status of the sportsen.
The sports organizations, according to the PESA, are separate legal entities which are incorporated as Joint Stock Companies according to the Commerce Act (for the professional sports clubs) or in the form of legal entities with non- benefit purpose for carrying out activity in private or public favour according to the Non profit Legal Persons Act.
PESA recognizes three basic kinds of sports organizations in Republic of Bulgaria.
The first basic kind of partnership is the sports club.
The sports clubs are voluntary associations of citizens, registered as non-profit legal persons, which develop and promote physical education and sport and carry out training and competition activities for one or more sports (Art. 11, par. 1 from PESA). Sports clubs which develop and practice professional sports may be registered as joint-stock companies - professional sports clubs, or as non-profit associations - professional sports clubs.
Professional sports clubs must also meet the following additional conditions:
1. their name should explicitly indicate that they are a "professional sports club";
2. to have stipulated through contracts the rights and obligations of the professional athletes according to their status;
3. one natural person or legal person should not hold the majority shares or the control of two or more professional sports clubs participating in one competition or championship;
4. professional sports clubs - joint-stock companies shall issue only registered stocks. The merger, separation, division and incorporation of professional sports clubs pursuant to the Commerce Act or pursuant to the Non-profit Legal Persons Act shall not lead to the change of the ranking of teams in the respective championships and their transition from one group to another.
Sports clubs build and manage sport facilities, organize and administrate sport contests, prepare competitors. The sports clubs after registration as a legal entity are obliged to submit an application for membership in the respective sports federation (Art.10, pat.6 from PESA). The membership in the respective federation is a condition for the sport club to have the right to propose to the respective sports federations the granting, termination and withdrawal of competition rights of athletes, carry out transfer of athletes and hold the rights of advertising, TV and radio broadcasting of sports events organized by them under conditions and following a procedure determined by the respective sports federation as well as to provide sports services (Art. 13, par.3 from PESA). That requirement has been initiated with the amendment of the law during 2008, before the amendment only the registration of a sports club as a legal entity was enough for exercising of the rights stipulated in Art. 13, par.3 from PESA.
The second kind of association are the sports federations. According to the law they are voluntary associations of sports clubs for one or similar type of sport which coordinate the development, practising and administration of the respective sport on national level and represent their members before the state and international sports organisations. (Art. 14, par..1 from PESA). It is an obligation of the sports federations to be granted a license by the competent state body.4
Together with gaining a sports license the respective sports organization receives some particular powers in the filed of the sports activity developed. These are listed in Art 19 from PESA and are as follows:(1) Sports federations holding a sports license shall have the right to:
1. regulate and organize the state championships of the country for the respective type of sport
2. determine the champions for the respective age groups;
3. confer titles to athletes, coaches and sports specialists under a procedure specified with a regulation of the Council of Ministers proposed by the Chairperson of the State Agency of Youth and sports;
4. develop and apply specific normative and methodological and administrative regulations for the respective sport;
5. select and organize the training of the national teams and represent the Republic of Bulgaria at international sports competitions and forums;
6. 7.train specialists for the respective types of sport;
8. sanction athletes and officials who have permitted doping usage and application of doping methods in the training and sports activities;
9. adopt rules and carry out sports jurisdiction and sports and technical arbitration;
10. grant, terminate and withdraw the competition rights of athletes and hold the rights of advertising, TV and radio broadcasting of sports events organized by them by submitting, on a contractual basis, a percentage of the receipts to the sports clubs participating in the event.
In a view to the rules regulating the conditions for gaining a sports license in Republic of Bulgaria an important notice should be made. As I marked above, according to Art. 17, par 1 from PESA the chairman of SAYS gives a sports license when he considers that the respective sports federation is responding to the criteria and conditions established by the law, following the procedural rules established in the Ordinance accepted by CM. Therefore, on one hand, the law is the statutory act that should initiate the conditions to which the sports federation should be responding in order to receive a license and on the other, the procedure which should be followed in receiving the license is settled in an Ordinance for the procedure for gaining a license as sports organization in Republic of Bulgaria. In that sense, the conditions for gaining a sports license, numerously stipulated in Art 17 form PESA are – the applying sports organization should have a registration as a non-profit legal entity for performing activity for public benefit with the purpose of organizing and conducting training and competitions in a specific or similar types of sport, should have an established structure as an association of sports clubs, have adopted rules for holding competitions included in the state sports calendar in the respective sport and have an adopted development programme in the respective subject area of physical education and sport and social tourism. It should be pointed out that the law does not provide as a requirement for gaining a sports license the membership in a respective international sports federation. The membership in the respective international sports federation is firstly settled in the secondary legislation, namely the Ordinance for the procedure of gaining a license of the sports organizations in Republic of Bulgaria, issued by CM. Thus the Ordinance arranges additional conditions which are not stipulated in the law and for the settlement of which CM is not empowered by the law. In the current situation the provision of Art. 17 from PESA establishes regulatory competence of CM only in the frame for issuing a secondary statutory instrument which should provide the procedure of issuing, canceling, amending and renewing of a sports license but not to provides with legal material prerequisites for license. In that connection, I consider the provision of Art. 11 form the Ordinance which stipulates the together with the package of documents for applying for a sports license should be enclosed a certificate that the respective sports organization is a member of the respective international federation contradicts to the law. 5
Questions of dispute in the practice and the theory are arising from the given capacity of sports federation in Art. 19, p. 9 from PESA to adopt rules and carry out sports jurisdiction and sports and technical arbitration. The regulation of Art 19, p.9 from RESA puts some dispute questions on first place about the character of the issued by the Sports Federations /SF/ acts and the connected question about the admissibility for appealing of these acts in front of the court.
Each sports federation accepts a regulatory act with which determines the basic points of its activity – organization structure, bodies of management and representation, powers of the bodies of the sports organization, the way of appealing of theirs acts and other. The sports federations issue as well regulations, ordinances connected with the contractual, sports and transfer rights of the sportsmen, regulations concerning the disciplinary procedures and sanctions.
Firstly, I consider that indisputably the sports federations have administrative competence and the acts that they issue have an administrative character. Actually the sports federation are not administrative bodies included the administration of the state. They are sports organizations which are registered as separate legal entities under the regulations of the Law for the non – profit legal persons as I mentioned in the resume above. On the other hand, PESA assigns to the sports federations powers of management of the sports activity which are part of the government policy in the area of the physical education and sport. Something more, sports federations are liable together with the specialized government body – the ministry or agency for the realization of the national program for development of the physical education and sports in Republic of Bulgaria. In that sense I consider that sports federations are organizations which are empowered by PESA with executive – order capacities in the field of physical education and sports and with the exercising of them they carry out administrative activity. I think that conclusion is also supported out by the definition for an individual administrative act, settled in Art. 21 from the Administrative Procedure code according to which administrative acts could be issued by other empowered bodies or organizations besides the administrative authorities.6
On the next place, the question is about the kind of the acts of sports federations issued - whether they are individual, general, or normative administrative acts. Considering that the individual administrative act is directed to a particular recipient, whereas the acts of the sports federations issued under art 19, p. 9 of PESA are directed to a broader circle of legal subjects and having in mind the material essence of the individual and normative (statutory) act, it could be concluded that the acts of the lisenced sports federation have a normative character. The normative administrative acts in comparison to the individual administrative acts contains legal regulations which are determined by the theory as “secondary legislation” and for that reason their aim is to give datailization and concretization of the first line regulatory rules and legislation. The material legal essence of the statutory administrative acts explains their application for many times over unlimited number of recipients. In that sense is the legal explanation for the statutory administrative acts stipulated in Art 75 from Administrative procedure code.
In connection to the abovementioned, the acts of the sports federations due to which they establish rules to organize their activities in connection with the different kind of sports, establish rules about the status and transfer of athletes, about disciplinary sanctions are statutory administrative acts due to which a secondary legislation is created.
In a view to the legislative competence of the sports organizations established in art. 19 par. 1 from PESA there should be made an important notice. Only the licensed sports federations which have gained their sports license under the procedure established have the expressly determined powers in art 19 par. 1 from PESA. Article 19, par, 1 says: „Sports federations holding a sports license shall have the right to…“issue rules and to execute sports arbitration (p .9 of art.19 from PESA). Therefore the organizations which have not received a sports license under the procedure established do not have the rights stipulated in art. 19, p. 1, 1- 10 includingly. On the next place the provision of Art. 19 par. 1 from PESA distinguishes the type of sports organizations that have the rights given in the pointed above provision and these are only the “sports federations”. Therefore in a view to the difference between the sports organizations – sports clubs, sports federations and national sports organizations only the sports federations which have gained the license under art. 19, par. 1, p.1-10 have the legal competence of issuing normative acts regulating the behavior of the subjects participating in the respective kind of sport.
The question is interesting regarding the legal character of the acts issued by the third type of sports association according to the PESA, namely the national sports organizations. National sports organizations, according to art.15 from PESA are voluntary associations of sports clubs and/or sports federations which coordinate their activities in a specific subject of activity in the system of physical education, sports and social tourism, and interact with the state and with the international sports organizations in forming and implementing the national sports policy. The State Agency of Youth and Sports (now the ministry of sport) acknowledges the status of national sports organizations of those organizations whose members constitute at least two thirds of the sports clubs and/or sports federations carrying out activities in the respective subject sphere of the system of physical education and sports.
National sports organizations shall be registered as non-profit legal persons for the public benefit. The national sports organizations participate principally in the development, implementation and reporting the results of the fulfillment of the National Programme for the development of physical education and sports.
It is indisputably accepted in the jurisprudence that the acts of the national sports associations have a normative obligatory character for the subjects addressed. As I outlined above, however only the licensed sports federation have normative authorization by the law to issue normative administrative acts establishing obligatory provisions. In that connection the logical legal conclusion is that the acts of the national sports organizations do not consist of legal provisions with binding character.
In the rare judicial practice connected with the acts issued by the Bulgarian Football Union, which is a national sports organization registered under the provision of art.15 of PESA, is accepted, as I mentioned, the vision that its acts are normative legal acts with binding character. Furthermore, it is accepted that the acts issued by the bodies of the BFU in some cases are excluded from juridicial control.7 I consider such a conclusion as completely irregular and even “frightening”. Firstly, such provisions from the acts of BFU which excludes the courts control in regards to the administrative acts which are issued by the instituted by BFU bodies contradict the Bulgarian Constitution and in specific, are in conflict with article 120, p.1 from the Constitution of Republic of Bulgaria where is stipulated that citizens and legal persons may appeal against any kind of administrative act which they think affects them except for the expressly specified [as unappealable] by statute acts. Therefore the constitutional provision includes a rule for appealing of all kind of administrative acts regardless of their kind. In that sense, the excluding of courts control over some kind of administrative acts, on the other hand, should be settled in an express provision with legal (lawful) character. Therefore each one of the provisions of the statutory administrative acts which provides impossibility for appeal of the decisions of the bodies of the sports organizations contradicts the Constitution of Republic of Bulgaria.
PESA distinguishes two types of athletes – amateur athletes and professional athletes. The status of the athletes – professionals or amateur is determined by the regulations accepted by the relative sports federations. The regulations of the sports federations about the status of the athletes, according to Art.35, par. 3 from PESA should be approved before issung from the chairman of the state agency – now the minister of physical education and sport. That requirement is an obligatory prerequisite for the legal conformity of the statutory acts of the sports federations under art. 35, par. 3 from PESA and the non observing of the same would lead to a defect in the administrative act which is a ground for its canceling. In that connection, court decision № 11634/08.10.09 of SAC which motives I fully support. 8
One gains the capacity of an “athlete” by registering in the respective federation. After the registration the person receives “athlete rights” for competing for the sport club which initiated his registration in the respective sports federation. The competition rights are determined in PESA as “a combination of the athlete's right to participate in the training and competition activities of a sports club as well as the rights related to this participation”. With the registration in the sports federation, the sports club which promoted the athlete for registration gains the transfer rights of the certain athlete. The transfer rights are designated by PESA as well as “combination of the right to negotiate a change in an athlete's club affiliation and the right to receive a transfer price” (Art. 35 from PESA).
Together with the legal provisions connected with the statute of the athletes there is a secondary legislation act – Ordinance № 3 from 18 -th of June 1999 for the statute of the persons which participate in training and sports–competitive activities and for transfer of competitive rights issued by the Chairman of the Commission for physical education and sports. The Ordinance determines the statute of the persons participating in the training and sports competitive activities – the amateur and professional athletes, the status of the coaches, the instructors and sports referees, as well as the basic principles in transfering competitive rights.
On the first place, the Ordinance lays down some basic principles connected with the establishment and the suspension of the competitive rights of the athletes. The registration of the athletes is done by respective sports organization which issues a certificate to the athlete. The certificate gives the right for the person to participate in the training and sports – competitive activities of the respective sports organization. The registration is within the term of one sport – competitive year.
According to the Ordinance the athletes are divided in two kinds – athletes – amateurs and athletes – professionals. The criteria accepted for distinguishing the types of athletes is whether they receive a financial reward for their sport activity or not. The amateur athletes do not receive remunerations. For the sports competitive activity they have the right of funds that cover their expenses (Art.12 from the Ordinance). In contrast to them the professional athletes receive remuneration on the grounds of a labor contract or due to their professional activity in accordance to art. 13 of the Ordinance. The respective sports club that promotes the registration of a professional athlete determines the way of the legal relation between the sportsman and the organization – whether it should be on the ground of a labor or civil contract. The football players, for example, are competing for the respective football clubs on the grounds of labor contracts which minimum requirements and contents are determined by the Bulgarian Football Union The tennis players, for example, are competing on state championships and receive remunerations on the grounds of civil contracts which are concluded for each respective championship organized by the Bulgarian Tennis Federation. The way due to which the legal relationship between the professional athlete and the club is established does not affects legal conformity of the connection between the club and the athlete only if the respective tax and insurance obligations of the club are fulfilled.
The Ordinance determines the statute of the sports referees, the trainers and the instructors as well as the minimum requirements for the transfer of the competitive rights. The contracts for transfer should be concluded in written form with notary certification of the signatures of the parties after which they are entered in a special Transfer register (Art. 22, par 2 from the Ordinance). Art 23 from the Ordinance sets the principle of free agreement of the price of the transfer as well.
There is a provision in the Ordinance that provides an obligation for the sports clubs in cases of transfer to order a particular percentage of the transfer price on the account of the Ministry of education and sports. According to Art. 25, par 1 from the Ordinance: “The sports clubs pay 7 % of the transfer price in the account of the Committee of the Youth physical education and sports in a 14 days term after the conclusion of the contract for transfer.”
It should be underlined that the quoted provision from the ordinance is grounded neither on the law nor in the Constitution of Republic of Bulgaria. With regard to this provision from the ordinance is not legally conformed and should not be applied. That is because of the following:
Actually before the acceptance of the Ordinance, according to the provision of art. 57, p.2 from the Physical education and sports Act, the sports organizations had the obligation to order 3 % from the price of the transfer of athletes in the account of SAYS. This sum was aimed to support and finance the sport. The provision of art. 57, p.2 from PESA was confronted in 2002 by the state prosecutor (the matter was referred to him by the Bulgarian Professional football league) in front of the Constitutional Court which has canceled the provision as contradictory to the Constitution. In its decision № 6/ 10.02.2002 the Constitutional Court marked that: “The legal institute in its essence settles additional financial weights out of the determined in Art. 60, pat 1 form the Constitution tax obligations in the form of withholds of amounts coming from incomes from legally completed transfer deals along with the obligation for payment of the respective taxes over the income coming of a transfer deal there is an obligation for payment towards the budget of The Ministry of Youth and Sports. The appealed provision has no constitutional grounds. There is no constitutional article from where to emerges the power of a state body which to assigns over the physical and legal entities financial burdens including the burdens to finance the activity of children and youths in the field of the respective sports with the exclusion of the taxes and local fees. It is indisputable that such a financial burden is the appealed obligation settled in art.57, p. 2 from PESA. The Constitutional provision creates only the obligation for payment of taxes and fees but not the obligations for holding of amounts realized due to the activities permitted by the law.”. In the sense of the courts decision the norm of art. 57, p.2 from PESA was revoked and it stayed no longer as an obligation for the sports organizations to withhold 3 % of the transfer sum for the Ministry of Youth and Sports. The provision from the Ordinance, in that connection, has no legal ground and its existence contradicts the law and the constriction, as mentioned.
The PESA does not distinguish between individual and team sport in the sense explained by Josef Corba in his article on the Slovak Act on the Organization and support of Sport.
5. Financing of the sports
The financing of the sports has two main origins in Republic of Bulgaria. The funds for sports are settled in the state budget, respectively in the municipal budgets, as well as funds for the sports are coming from the specially established state company – Bulgarian Sports Totalizator.
PESA settles the sports activities which are financed from state budget funds and the sports activities financed from the money collected from the Bulgarian Sports Totalizator. Resources from the state budget finance: 1. the construction, reconstruction and modernization of sports sites of national importance and the facilities for social tourism of national importance; 2. the expenses for educational, training and competition activities in the secondary specialized sports schools; 3. the scientific and research and applied activities in the sphere of physical education and sports; 4. the medical and doping control; 5. activities and measures from the National Programme for Promotion and Development of Physical Education and Sports; 6. other activities in the sphere of physical education, sports and social tourism determined by a law or by an act of the Council of Ministers; 7. programme for Olympic training; 8. preparation and organization of world and European championships hosted by the Republic of Bulgaria; 9. programme for youth activities (art.58, p.1 from PESA). The resources under this article are ensured on an annual basis with the Republic of Bulgaria State Budget Act and differentiate as a percentage each year.
In 2000 with an Ordering of Counsel of ministers № 163 from 2-nd of August 2000 on the grounds of § 11 from PESA was established the Bulgarian Sports Totalistic (BST) as a state company under art. 62, par. 3 from the Commercial Act.
In fact BTS is the recipient of the rights and the obligations of the existing before its incorporation the state owned so called “money lottery” which was a company that carried out lottery, toto and lotto games, especially betting over the results of sports games. The Minister of finance according to the schemes proposed by the Chairman of the State Agency for Youth and Sports (now Minister for Youth and Sports) approves the allocation of the money raised by the BST.
The law for the physical education and sports provides that the amounts coming from the BTS incomes should be kept and reported to the Chairman of SAYS and should be used for the designated in art. 59b from PESA purposes, namely: 1. for activities of licensed sports organizations, sports clubs and members of licensed sports organizations; 2. for organization of internal championships and international competitions on the territory of the country which are included in the state and the international sports calendar; 3. for preparation and participation of Bulgarian athletes in European and world championships and Olympic games; 4. for construction, restoration and management of sports sites and social tourism facilities of national importance; 5. for granting of monthly bonuses to Olympic medallists who have ceased their active competition career;
The resources for the sports organizations are provided on the basis of contracts for sports development, by taking account of the social importance of sports activities which are being supported.
According to art. 63 from PESA the state and the municipalities support licensed sports organizations and their members under terms and procedures determined by the Minister of Finance, the Chairperson of the State Agency of Youth and Sports and the municipalities. Paragraph 2 of the same article provides that the state and the municipalities may also support other non-profit associations and organizations which organize and encourage children and young people to practice physical exercises, sports, sports games and tourism. Paragraph 3 of art. 63 of PESA says: “State resources and subsidies may not be used and the state and the municipalities may not support organizations which are not registered as non-profit legal persons for the public benefit under the Non-Profit Legal Persons Act.”
The legal regulation of the mentioned provision of art. 63 of PESA lead to the conclusion that the only criteria for determining the sports organizations which have the right to be subsidized and helped from the state budjet is the received license. Another determining criterion this article does not contain.
The additional criteria are included in par 3 from the article and it provides that the sports organization should be instituted as legal entity for non – profit purposes. As I mentioned above, the sports federations are voluntary associations of sports clubs of one or another kind of sports and should be registered as legal entities for non – profit purposes (art. 14, par. 1 and 4 of PESA). The national sports organizations are voluntary associations of sport clubs and/or sports federations and they are also registered as legal entities for non – profit purposes (art.15, par. 1 and 3 from PESA). Only the sports federations and the national sports organizations should be licensed and the logical conclusion of all is that the sports clubs are sports organizations which should not be licensed. That circumstance leads to conclusion that art. 63, par 1 from PESA excludes the possibility sports clubs to be supported by the state and the municipalities even if they are registered as legal entities for non – profit purposes for pursuing activities for public benefits. Only because that they do not cover the requirement stipulated in that legal rule – to be licensed sports organizations.9
Also It should be marked that the provision of Art. 63 should be rendered to the amounts for sport which come from the state budget.
In contrast to the mentioned above, the regulation of Art. 59b from PESA provides that the licensed sports organizations as well as the sports clubs which are members of the licensed sports organizations should use the amounts which are spread by BTS and the State money – object Lottery /SMOL/. The provision of Art. 59 b from PESA does not puts a requirement about the sports organization for registering them in the form of legal entities for non – profit purposes for pursuing activities for public benefits in order to receive the amounts by BTS and SMOL for supporting of their activity in a view to which the only condition for a national sports organization or sports federation is the same to be licensed and for the respective sports clubs to be a member of a licensed sports organization.
The stated regards the finace of the sport with funs from the state or minisipality budget, as mentioned, and from the state organized and controlled lotarry games carried out from the Bulgarian sport totalizer. Apart from this funding the sport organizations receive financial support from private persons in the form of sponsorship about which there are no legal restrictions or requirements.
Instead of conclusion:
The exposition tries to outline the most important questions related to sport matters stipulated in the Physical education and sport Act.It was not an easy task writing it since in the Republic of Bulgaria no sports law theory or jurisprudence exists. The court decisions mentioned in the writing are most of the court decisions in the sports related field. In fact “sports law” is not legally distinguished term and it is not used in the legal doctrine or in legislation at all. I think that the Bulgarian Act on physical education and sport, on the other hand, gives a relatively comperehensive regulation of the sport issues, regardless the controversies described, so it stays for the scholars to interpret and for the practitioners to apply its regulations.