Introduction

Contemporary sports reflect its dynamic nature, primarily between its educational, health, societal, and amateur dimensions on one hand and commercial, professional, and economic on the other side. The status of athletes remains heterogeneous across the countries, especially in terms of employment relations. One of the reasons lies in the legal, institutional, and societal position of sports within a particular country. When discussing the status of athletes, the concept of amateurism played an important role, more specifically, the method of how it was applied or practiced. The recent research highlights various contractual relations of athletes ranging from the status of a civil servant, employment relations with the National Olympic Committee, with public or quasi-public or private organizations (e.g., UK Sport), a contract with the National Sports Federation to participation agreement (O’Leary et al., 2024). This process was directed and shaped under external drivers, such as globalization, commercialization, and professionalization. Equally, internal forces in the form of governmentalization and politicization contributed to the configuration of the sports ecosystem on a national level (Begović 2020). According to the categorization adopted by Chaker (2004), the configuration of the sports ecosystem varies on the following:

Whether the state law regulates the terms structure and responsibilities of a significant part of the sports movement (interventionist approach) or regulates only partially (non-interventionist approach), 2) whether state competence set is done centrally or decentralization of power, and 3)type of the sport movement; set to be on the top pyramid is an organization that embraces both Olympic Committee and all national sports federations (consolidated system), and in this respect there is no difference between the Olympic Committee and other national associations, or even a general national sports federation (unconsolidated system).

Further, the relationship between the public sector and the sports movement depends on the concept of autonomy granted by the former or exercised by the latter. Geeraert et al. (2014) differences between legal, political, financial, and pyramidal segments of autonomy that impact relationships on both national and international levels. In order to translate Chaker’s categorization and Geeraert’s layers of sports autonomy into a national context, it is important to present briefly the sports ecosystem in Montenegro. Sports as part of physical culture is a constitutional provision (Art. 77) mandating the state to ensure necessary conditions (Parliament of Montenegro 2007). In addition, the freedom of association provision (Art. 53) applies to the actors in the sports ecosystem. Consequently, this provision facilitates the opportunity for unionization without the approval of consent in accordance with the law.

The concept of public interest is set broadly within the Law on Sports as an attempt to reference major international documents (e.g., UNESCO’s International Charter of Physical Education, Physical Activity and Sport, Council of Europe’s European Sports Charter, European Union’s White Paper on Sport and IOC’s Olympic Charter). This set ranges from general efforts aimed at promoting Montenegro through sports, supporting high-performance sports (especially specific categories of athletes), and development of sports for all concepts to research development, health protection, and international cooperation (Parliament of Montenegro 2021). Consequently, supporting and providing necessary conditions for natural persons (athletes, coaches, and others) as part of participating in organized physical activities in a non-discriminatory environment is enacted within the Law on Sports. The Law on Sports is adopted as a lex specialis, particularly addressing legal status, establishing and organizational requirements of sports organizations, concerning the Law on Non-Governmental Organizations as lex generalis (Begović 2021a). Regarding our topic of concern, the Law on Sports stipulates labor-related provisions following the Labor Law provisions, with the role of the public sector ensuring adequate distribution of rights and responsibilities, especially regarding social protection.

Following Chaker’s categorization, the sports ecosystem in Montenegro could be characterized as interventionist and centralized in the sense that through the Law on Sports and NPRS, the state directly intervenes in the field of sports by setting up jurisdiction and competencies of the public sector and sports movement. The Law on Sports governs public interest and sets the frame for the development of sports movement, employment relations, health protection, financing sports, and other important aspects of sports. Within the Government of Montenegro, the responsibilities are shared when it comes to combating violence in sports, labor relations, and implementation of ratified international treaties and documents (Begović 2021a). The sports movement is consolidated with the Montenegro Olympic Committee acting as the national umbrella sports organization in charge of coordinating sports movement primarily in implementing activities of public interest (Begović 2024a).

The Law on Sports represents the major legal framework stipulating the pyramidal structure of the sports movement following the European Model of Sports. In the context of legal autonomy, national sports federations, together with umbrella sports organizations, are playing a major role in developing sports-specific rules as part of private regulations, but under the competent international sports organizations and the Law on Sports. The latter is particularly important, as the Law on Sports sets a framework for establishing relationships within the sports movement and between national and international sports organizations, ensuring, among others, applicability and uniformity of international sports rules for all subjects regardless of their legal personality in accordance with the law. With the adoption of amendments to the Law on Sports in 2021, the concept of depoliticization of sports governing bodies has been introduced, adhering to the constitutional provision related to the freedom of association without political interference (Parliament of Montenegro 2021). The Law on Sports foresees that sports organizations may generate funds outside of public investment or subsidies per the legal system. Despite their legal status, tax regulations apply in sports, including corporate income tax and property-related and personal income tax. For national sports organizations, up to 5% of the total revenue is recognized as deductible expenses, whereas the other 3.5% (Begović 2025). As for natural persons, the Tax Administration issues Instruction on Tax Treatment of Income Paid to Athletes (Tax Administration 2019). This instruction underlines that the salary of professional athletes is taxable and employment relations shall be established following the Labor Law provisions. Section 5 of the Law on Personal Income Tax recognizes both professional and amateur athletes with their rights and responsibilities, including subject to taxation (Parliament of Montenegro 2022).

Discussion

Despite the specificity of sports in terms of limitation of the duration of the employment relation, and specific working hours, the provisions from Law on Sports and Labor Law must apply in labor relations between athletes and sports organizations. One could argue that the system is set; however, this would be premature, especially keeping in mind the gap between law-on-the-book versus law-in-action. In practice, this is constantly avoided or often bypassed with the adoption of internal regulations resulting in violation of athletes’ basic human rights. This gap is coined through the process of institutionalization as part of the development of regulatory mechanisms. The specificity of sports and practiced relations limits the opportunity for unionization and the establishment of appropriate collective bargaining agreements. The root of this challenge lies in the inadequate representation of athletes within governing bodies and decision-making processes (Begović 2021b). The athletes’ commissions are either nonexistent or nominally established without core functions to influence governance within particular sports, representing athletes, and empowering their rights, social protection, and wellbeing.

The power structure drives this process either through maintaining, developing, or disrupting formal regimes. Legal realism takes into account the gap between the adoption of legislation and its practice, confirming that institutional interaction is challenged as the public sector and sports movement jointly shape and direct the development or governance of the sports ecosystem, its organizational structure, and regulatory regime (Bantekas & Begović 2024). As a product of this complexity, the transformation of informal practices through process over bypassing regulatory mechanisms translates into formal legal regimes that can suggest the coexistence of institutional contradictions, as suggested in the recent European Commission progress report on Montenegro. As part of law-in-action, these contradictions are rooted in socio-political and cultural patterns shaping institutional relations, as indicated earlier.

The prevalence of informal regimes suggests the domination of clientelist structures and transactional relations in which certain actors (e.g., athletes) are subjected to various pressures (Begović 2021b; Begović 2023). These pressures proved to have a coercive nature that, over time, became socially accepted practices contributing to the maintenance of monopoly (political one). Therefore, the inconsistency in the application of law and the co-existence of conflicting regulations should be observed simply as part of pressures (Begović 2024b).

The recent case from Montenegrin handball that was brought before the European Handball Court of Arbitration (ECA) illustrates the predictability of the rule of law. The case was brought by a professional athlete requesting the club to pay the total amount as indicated in the contract, as the plaintiff received only 2% of the amount for the 2020/2021 season (European Handball Court of Arbitration 2024). In 2020, she was pregnant, and the club was responsible for providing all conditions by the law. As discussed, a professional athlete or any other employee is entitled to compensation during the period of inability to work in accordance with the Law on Health Insurance and related bylaw on rights to temporary incapacity to work and wage compensation. This solution allows the club to obtain a refund for salary compensation from the Fund for Health Insurance if the employer provides proof of paid contribution for mandatory social insurance and that the employer paid compensation during this period. The Law on Sports (Art. 70) stipulates that sports organizations must reimburse all costs if they fail to provide insurance for athletes.

In this particular case, the Labor Law prescribes special protection for women during the pregnancy period and maternity/parental leave. The sports organization cannot cancel the employment contract of a pregnant employee or/and an employee exercising the right of maternity/parental leave (Art 123, Paragraph 1 of the Labor Law). For a professional athlete whose fixed-term employment contract expires during pregnancy, the use of temporary inability to work based on pregnancy maintenance or maternity/parental leave, the term for which the employment contract established a fixed-term employment relationship is extended until the expiration of the right (Art. 123, Paragraph 5 of the Labor Law).

According to the Art. 126, paragraph 1 of the Labor Law, an employed woman is entitled to a mandatory maternity leave of 98 days, of which 28 days are before the day of the expected delivery and 70 days after the birth of the child. Following the delivery, parental leave is the right of each of the parents to take leave from work for the care of the child (Art. 127). Parental leave can be used after the expiration of the maternity leave for up to 295/296 days from the day of the child’s birth. Further, the Art. 130, Paragraph 1 of the Labor Law sets the legal ground for an employee’s rights and return to the same workplace in cases related to Art. 126–127, including rights to improve working conditions to which an employee would have been entitled during leave. During the leave, the wage compensation cannot be lower than the wage compensation in case of temporary inability to work due to pregnancy (Art. 130, Paragraph 2).

An employee who intends to use the right related to maternity/parental leave is obliged to notify the employer one month before the start of using this right (Art. 137). If an employed woman starts working before the child is one year old, in addition to a regular break from work of 30 minutes, she has the right to a paid leave from work for up to two hours a day to breastfeed the child. If an employee decides to resume working during the parental leave, the parent is obliged to transfer the right to the other parent, and it will not be entitled to continuation of the use of parental leave (Art. 127, Paragraph 5 of the Labor Law). Upon the expiry of the leave, the employer is obliged to provide the employee conditions to resume at the same or an appropriate workplace with at least the same wage compensation (Art. 130, Paragraph 3 of the Labor Law). Compensation of a woman’s earnings in case of temporary inability to work due to pregnancy is 100% of her earnings during work, per the provisions of Art. 40 of the Law on Mandatory Health Insurance.

The legal representative of a sports organization must submit the request for the reimbursement of funds in the name of salary compensation paid during temporary incapacity to work to the regional unit/branch of the Fund on the prescribed form, according to the place of application of the employee for health insurance. The employer is obliged to submit a request for a refund of salary compensation to the regional unit/branch of the Fund no later than 90 days from the day of payment of salary compensation to the employee for the month for which the refund/reimbursement of salary compensation is requested. According to Art. 30 of the Rulebook on the Detailed Conditions for Providing Basic Material Benefits from Social and Child Protection, in addition to the request for a refund of wages for maternity/parental leave, the employer must provide the following documents:

• Proof of the employee’s employment relationship.

• Proof of temporary inability to work.

• The employer’s decision on exercising the right to maternity/parental leave.

• IOPPD form.

• The individual analytical account of the tax insured, which contains all monthly IOPPD applications for the period prescribed by Article 51 Paragraph 1 of the Law.

• JPR form from the Tax Administration.

• M4 Form from the Pension and Disability Insurance Fund of Montenegro.

• A commercial bank statement through which the salary that is subject to refund was paid to the beneficiary.