Changing the living country connecting to the sportsmen’s professional activity
Transfer of sportsmen from one sports club to another is a common practice in the field of sports. Change of a team, as well as a state, where a sportsman is engaged in his professional activities, is no less traditional practice.
In this comment we will consider the situation with change of a state from the point of employment and migration legislation, on the basis of which the legality of a work activity of a foreign sportsman in Ukraine is ensured.
Difference between a professional sportsman and an amateur
Definition of "sportsman" is stated in the Law of Ukraine "On Physical Culture and Sports". In order to be called a sportsman, an individual must comply with the following criteria:
- systematically be engaged in one or more sports;
- take part in competitions.
Hereinafter, namely in Article 38, the law gives a definition of the concept of professional sports and a sportsman, who acquired a professional status.
Taking this into consideration, a professional sports is an activity, which:
- is commercial and has a purpose of making profit;
- is related to preparation / conduct of sporting events at a high organizational level.
A sportsman can be considered a professional if he concludes a contract for participation in competitions with the relevant subjects in the sphere of physical culture and sports (which can be physical culture organizations and sports educational institutions), as well as the relevant public authorities. With regard to the above mentioned, occupation of professional sports must be the main source of income of such a sportsman.
In turn, the law details the types of physical culture / sports educational institutions:
- sports clubs;
- olympic training centers;
- sports schools;
- other types of institutions.
Legalization of work activity and stay of sportsmen
It is important to explore differences between a status of a professional sportsman and an amateur in order to differentiate the procedure for employment of each of them.
Subsection 6 of Section 6 of Article 42 of the law regulating the employment of population in Ukraine (Law from 05.07.2012 under the number 5067-VI) stipulates that sportsmen, who acquire a status of professional, do not need a special work permit in Ukraine.
Does it mean that no other permission document is required?
The answer to this question is partly found in the Law of Ukraine "On Physical Culture and Sports". Article 38 of the Law, which we mentioned above, stipulates conclusion of a contract with a sportsman.
Such a contract is a primary document, which allows to carry out work activity in the field of professional sports.
Affirmance of this provision is found in the Order of obtaining a temporary residence permit (the Resolution of the Cabinet of Ministers of Ukraine number 322, dated April 25, 2018). Thus, Subsection 33 stipulates that foreign citizens, who arrived in Ukraine for employment, among other things, submit a special permit for the usage of work, and for a category of foreigners, for whom it is not applicable, an employment contract is submitted.
It should be mentioned that the requirements for such a contract are established by the Labor Code of Ukraine, and other national legislation, as well as:
- regulatory/statutory documents of national subjects in the sphere of sports (for example, the Football Federation of Ukraine);
- similar documents of international sports organizations (for example, the International Federation of Association Football).
Amateurs, as well as other other specialists in the sphere of sports
If a sportsman does not acquire a status of professional (for example, sports activity is not the main source of income), exemption from obtaining a work permit stipulated by Article 42 of the Law of Ukraine "On Employment of the Population" will not be applied to him. At the same time, the relevant legislation does not prohibit him to engage in sports activities for money. For this, an employer of such a foreign sportsman will be required to submit a package of documents to the relevant departments of the State Employment Service and obtain a permit for the usage of work in one of the positions, according to the relevant classifier of professions (for instance, a sportsman-instructor). Similar requirements apply to other foreign specialists in the field of sports, for instance, trainers.
Regardless of professional/non-professional status, foreign sportsmen are not exempt from the need to obtain a temporary residence permit, which allows to stay on the territory of Ukraine for a long time.
The procedure for the issuance of residence permits (the Resolution of the Cabinet of Ministers of Ukraine number 322, dated April 25, 2018) stipulates that a status of a temporary resident for persons, who are engaged in work activity in Ukraine, is granted for the duration of a work permit. Regarding the professional sportsmen, a work permit should be replaced by a contract (employment contract) in the provision of law.
Future employers of foreign sportsmen and directly sportsmen should remember that it is necessary to thoroughly approach defining of their professional status. Its incorrect definition may lead to an imposition of fines according to the Code of Ukraine on Administrative Offenses (CUoAO). Thus, Article 204 of the Code stipulates an imposition of a fine on an official of an employer (for example, a director) for violation of the procedure for employment of a foreigner. This includes absence of a permit for the usage of work. The size of a sanction may range from 1,700 to 3,400 hryvnias (100-200 untaxed minimum incomes of citizens).
In addition to this, a sanction for non-obtainment of a work permit (in a situation, where such a permit is required) can be applied in parallel to a foreigner (Article 203 of the Code of Ukraine on Administrative Offenses) in the amount from 1700 to 5100 hryvnias (100-300 untaxed minimum incomes of citizens).
That is why it is important to independently determine the affiliation of a sportsman to a particular status, as well as to obtain an official response of the relevant authority (for instance, the State Employment Service), or retain services of consultants.
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