CBA国内职业球员个人聘用格式合同研究

发布时间：2018-05-18 21:33

本文选题：格式合同 + 职业球员　；参考：《北京体育大学》2008年硕士论文

【摘要】：中国篮球协会制定的格式条款合同——CBA国内职业球员个人聘用合同(以下简称CBA职业球员格式合同)是职业篮球运动员和俱乐部进行商品交换和经济往来的实现形式,是体育运动商业化的法律基础。其相关法律问题主要有:职业球员和俱乐部的法律关系及其地位,中国篮协在调整合同主体的权利义务关系中的作用,格式条款定入CBA职业球员格式合同的规则,以及球员合同的解释、有效性、规制等法律问题。通过研究促进职业球员格式合同的规范化、合法化,使职业球员合同即有利于保护职业球员的合法权益,又有利于维护俱乐部的利益,保障职业联赛的健康发展,从而提高我国的篮球竞技水平。本研究主要采用了文献资料法、系统分析法、专家访谈法、比较分析法、规范分析法、实证分析法。主要结论:(1) CBA职业球员格式合同是劳动合同,具有劳动合同的法律特征。职业球员和职业俱乐部既存在劳动法律关系,又存在一般民事法律关系。(2)劳动合同法的适用范围包括职业球员和职业俱乐部的劳动关系,职业球员通过法律途径解决劳动争议并不是最佳途径,但当劳动争议无法调解时,双方当事人可以依据劳动法进入劳动仲裁和诉讼程序。(3)CBA职业球员格式合同存在以下几个方面的问题:职业球员的自由择业权、休息权、言论自由权、人格标识权等权利不能得到充分保障;部分条款用词模糊,不够严谨;缺少劳动合同的必备条款;合同的格式化性质存在复杂性;合同内容具有双重性。(4)运动员权利保护的内容应更多地纳入法律之中。应制定职业球员合同的相关法规,作为法院审理合同纠纷和行政规制的依据。(5)司法规制在解决职业球员格式合同的不公正条款问题上存在一定的局限性。今后应完善对职业球员格式合同的司法规制。(6)中国篮协有为获取更多的经济利益而过分使用行政权利的可能,对职业球员合同的公平制定产生不利的作用,不能充分保护职业球员的合法权益。中国篮协应政企分开,建立公开听证会方式的职业球员格式合同审查手段。(7)加强CBA国内职业球员格式合同的社会控制。(8)CBA职业球员格式合同的规制应以实现双方当事人的力量均衡为出发点,进行改革和完善:中国篮协与联赛的关系;球员工会问题;俱乐部联盟实体化问题;建立简洁、高效、专业的仲裁机制。
[Abstract]:The contract of format clauses made by the Chinese Basketball Association (CBA) is a form of exchange of goods and economic exchanges between professional basketball players and clubs, namely, individual employment contracts for domestic professional players (hereinafter referred to as CBA professional player format contracts). It is the legal basis of the commercialization of sports. The related legal issues include: the legal relationship between professional players and clubs and their status, the role of the Chinese Basketball Association in adjusting the rights and obligations of the contract subjects, and the rules for the format clauses to be included in the CBA professional players' format contracts. And player contract interpretation, effectiveness, regulation and other legal issues. Through the research to promote the standardization and legalization of the professional player format contract, the professional player contract is not only conducive to protecting the legitimate rights and interests of the professional players, but also conducive to safeguarding the interests of the club and ensuring the healthy development of the professional league. In order to improve our basketball competitive level. This research mainly adopts the literature method, the system analysis method, the expert interview method, the comparison analysis method, the standard analysis method, the positive analysis method. The main conclusion is that the CBA professional player format contract is a labor contract, which has the legal characteristics of labor contract. Professional players and professional clubs have both labor legal relationship and general civil legal relationship. (2) the scope of application of labor contract law includes that of professional players and professional clubs. It is not the best way for professional players to settle labor disputes through legal means, but when labor disputes cannot be mediated, The parties may enter the labor arbitration and litigation procedure according to the labor law. The CBA professional player format contract has the following problems: the professional player's right to free choice of employment, the right to rest, and the right to freedom of speech. The rights such as the right of personality identification can not be fully guaranteed; some terms are vague and not rigorous enough; the necessary clauses of labor contract are lacking; the formative nature of the contract is complicated; The content of the contract has duality. 4) the content of the athlete's right protection should be brought into the law more. The relevant regulations of professional players' contract should be formulated, which is the basis for the court to deal with contract disputes and administrative regulations. The judicial regulation has some limitations in solving the unfair clause of professional players' contract. In the future, it is necessary to perfect the judicial regulation of professional players' format contracts. (6) the Chinese Basketball Association has the possibility of overusing administrative rights in order to obtain more economic benefits, which will have an adverse effect on the fair formulation of professional players' contracts. The legitimate rights and interests of professional players cannot be fully protected. The China Basketball Association should separate the government from the enterprises. To establish the professional player format contract review method of public hearing. 7) to strengthen the social control of CBA professional player format contract the regulation of CBA professional player format contract should be based on the realization of the balance of power between the two parties. Reform and perfection: the relationship between the Chinese Basketball Association and the league; the problem of the players' union; the materialization of the club league; and the establishment of a simple, efficient and professional arbitration mechanism.
【学位授予单位】：北京体育大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：G841

【引证文献】