According to Article L.121-1(2) of the Labour Code, persons working as trainers or athletes, in pursuance of a contract which they conclude with an approved federation or affiliated club, are not to be regarded as employees where that activity is carried on in both the following circumstances:
- the activity in question is not performed on a primary and regular basis, and
- the compensation paid in pursuance of the contract does not exceed annually the amount corresponding to twelve times the monthly social minimum wage.
The legislature has drawn a distinction regarding the status of employee on the basis of two cumulative conditions, both expressed in negative terms. Those two cumulative conditions, if both fulfilled, create for the athlete or trainer a regime which derogates from the other provisions of Title 2 of the Labour Code relating to employment contracts.
It is to be noted that the conditions relating to employment contracts are in the nature of supervisory provisions falling within the scope of national public policy. Consequently, those derogating provisions must be interpreted strictly and do not allow the parties, even by mutual agreement, to derogate from them.
Consequently, athletes or trainers cannot be brought within the status of employee where the activity in question is performed on an ancillary basis (and therefore essentially as a leisure activity) and where the remuneration received for that activity does not exceed the threshold prescribed by law.
In contrast, athletes or trainers who perform their activities on a primary and regular basis and/or for remuneration exceeding the threshold prescribed by law are to be regarded as employees.