The Social Chamber of the Court of Cassation, by two judgments dated September 21, 2017 (n ° 16-20103 and n ° 16-20104), clarified the respective definitions of the offer and the unilateral promise of an employment contract. of sportsman between a sports club (rugby) and a player. This distinction was then taken up by the Court of Appeal of Nîmes in a judgment of 10 October 2017 (No. 16 / 00184) recognizing the existence of a contract of employment due to the meeting of the will of the parties.
The law of obligations applied to labor law between a club and a player
The new article 1124 of the civil code, in its wording resulting from the order n ° 2016-131 of 10 February 2016's Contract Law, General Regime and Proof of Obligations, provides that:
"The unilateral promise is the contract whereby one party, the promisor, grants to the other, the beneficiary, the right to opt for the conclusion of a contract the essential elements of which are determined, and for the formation of which is lacking only the beneficiary's consent.
The revocation of the promise during the time left to the beneficiary to opt does not prevent the formation of the contract promised.
The contract concluded in violation of the unilateral promise with a third party who knew of its existence is void. "
These new provisions applied to labor law and especially to the promise of employment now allow the judge to validate the conclusion of a contract of employment following the signing of a promise to hire in case of meeting the wishes of the parties.
Previously, the judges of the Court of Cassation consistently held that the promise of employment specifying the job, the remuneration and the date of taking office was a contract of employment (Cass Soc., 15 Dec. 2010, n ° 08-42951 - Cass. Soc., 13 May 2003, No. 01-42729 - Cass. Soc., 17 March 2010, No. 07-44468 - Cass. Company, 12 June 2014, No. 13-14258 - Cass. Soc., October 5, 2017, No. 15-14793). This solution related only to the content of the contentious act emanating from the employer and did not take into account the expression of the employee's consent.
From now on, it is still up to the judges to check whether the promise includes all the details relating to the essential elements of the employment contract, but they must also assess the scope of the act in question in order to distinguish the offers from the promises of employment contract.
The application to sport of the new definition of the promise of employment
Applied to the sporting field, these new legislative provisions have been retained for the first time in the context of the dispute between the rugby association Union Sportive Carcassonnaise and two players having each benefited from a promise of employment.
In an expected principle, the Court of Cassation, by two judgments of 21 September 2017 (No. 16-20103 and N 16-20104), clarified the respective definitions of the offer and the unilateral promise of an employment contract :
"Whereas the act by which an employer proposes a commitment specifying the employment, the remuneration and the date of taking office and expresses the will of its author to be bound in case of acceptance, constitutes an offer of employment contract, which can be freely withdrawn as long as it has not reached the addressee; that the withdrawal of the offer before the expiry of the period fixed by its author or, failing that, the result of a reasonable time, hinders the conclusion of the contract of employment and engages the extra-contractual liability of its author .
Whereas, on the other hand, unilateral promise of employment contract is the contract whereby one party, the promisor, grants to the other, the beneficiary, the right to opt for the conclusion of an employment contract, including employment, remuneration and the date of taking office are determined, and for whose formation only lacks the consent of the beneficiary; that the revocation of the promise during the time left to the beneficiary to opt does not prevent the formation of the contract of employment promised."
In conclusion, the recognition of an employment contract of a professional player
Following these judgments, and still in a case involving Union Sportive Carcassonnaise, the Nîmes Court of Appeal, by a judgment of October 10, 2017 (16/00184), pronounced on referral (Cass. Soc. 25 Nov. 2015 , No.14-164324), took up the expectations set out by the Court of Cassation. It expressly refers to "evolution of the law of obligations resulting from 2016 131 order 10-2016 february XNUMX leads to appreciate differently, in labor relations, the scope of offers and promises of employment contract". It concludes, on the present case, that"the contentious act characterizing the meeting of the wills of the parties and the perfect formation of a contract of employment, the judgment will be reversed in all its provisions". The Court of Appeal therefore appreciates the meeting of the wishes of the parties in the same way as the presence of the essential elements of the employment contract in the content of the act.
