By a judgment of May 12, 2021 (n ° 19-24.610), the 2nd civil chamber of the Court of Cassation ruled on the presumption of salaried employment of high-level athletes solicited to present to the public branded products of the company Uhlsport France.

The Court of Cassation considers that the direct presentation to the public of a product by an athlete on the occasion of various events and in particular, sports exhibitions, with or without competition, is such as to justify the existence of a contract. of work between the athlete and society.

1) Facts

Following an inspection, URSSAF reinstated in the base of the contributions of a company, the amount of the sums paid to high-level athletes responsible for promoting the equipment of the brand of the present company.

The company, faced with the constraint opposed by URSSAF, therefore filed an opposition before a social security court.

By a judgment of September 13, 2019, the Aix en Provence Court of Appeal upheld the company's request not to take into account the amount of sums paid to high-level athletes in exchange for their promotion of brand products of the company, having considered that "these contracts did not relate to the activity of modeling but constituted commercial contracts of sponsorship or sports sponsorship, so that the presumption of salary could not be accepted".

Likewise the Court of Appeal underlines that the photographs of the sportsmen carrying the promoted products, were not used in the catalogs of the company nor in its commercial publications, just as it is demonstrated that the sportsmen did not participated in any event or demonstration imposed by the company, these elements being such as to rule out the presumption of salaried employment.

URSSAF therefore appealed to the Supreme Court on the basis of Article L7123-2 of the Labor Code, which defines the activity of modeling according to the following terms: “is considered to be exercising a modeling activity, even if this activity is only exercised on an occasional basis, any person who is responsible: either to present to the public, directly or indirectly by reproduction of his image on any visual or audiovisual medium, a product, service or advertising message, or to pose as a model, with or without subsequent use of his image ", and on the basis of Article L7123-3 of the Labor Code which provides that" any contract by which a person secures, in return for remuneration, the assistance of a mannequin is presumed to be an employment contract ”.

2) Means

URSSAF criticizes the judgment for failing to recognize the existence of an employment contract between top athletes and society.

In this regard, it is maintained that, in application of the articles cited above, that "the contract by which a person secures, in return for remuneration, the assistance of a model is presumed to be a contract of employment", of all the more so as high-level athletes were not only paid for their work which consisted in exclusively using the company's equipment during training, friendly or championship matches and for all other events relating to their activity, but that in addition, the athletes undertook to provide, before the start of the championship, one or more pictures of their image with the products promised, thus characterizing a bond of subordination necessary for the formation of an employment contract.

Against the argument according to which the absence of clichés of sportsmen dressed in branded products in the catalogs and commercial publications of the company is such as to justify the presumption of non-salaried employment, URSSAF opposes on the contrary that the mere fact of " to provide snapshots of one's image with brand material or to make himself available to allow the production of such snapshots necessary for the promotion of [the] equipment, is sufficient to characterize [the] activity of a model, unimportant than the the sponsoring company does not subsequently use pictures of athletes in its catalogs or commercial publications ”.

Then if the athletes have not actually had the obligation to participate in any event or demonstration, this is nevertheless not required for the profession of model to be characterized, within the meaning of article L.7123-2 of the labor Code.

3) Are top-level athletes responsible for presenting a product directly to the public at the time of sporting exhibitions bound by an employment contract with the company requesting them? Yes, answers the Court of Cassation

The Cour de cassation replied in the affirmative, and quashed and annulled the judgment of the Court of Appeal on the basis of Articles L. 7123-2, L. 7123-3 and L. 7123-4 of the Labor Code, on the latter providing that “The presumption of the existence of an employment contract remains regardless of the mode and amount of remuneration as well as the qualification given to the contract by the parties. It is not destroyed either by the proof that the model retains complete freedom of action for the performance of his presentation work ”.

The Court of Cassation thus considers that “it results from the combination of these texts that the direct presentation to the public of a product by an athlete on the occasion of various events and in particular, of sporting exhibitions, with or without competition, falls within the scope of the presumption ”of employment contract.

Consequently, the contract which binds athletes to society are employment contracts and not commercial sponsorship or sports sponsorship contracts.

Indeed, the three conditions constituting the salary relationship were met, namely the remuneration, the work performance, and above all, the link of subordination since the sportsmen had "the obligation to wear the equipment of the brand in view. to promote it at various events ”thereby presuming the existence of a modeling activity thereby implying the existence of employment contracts.

Thus, since the company has not been able to prove the absence of a relationship of subordination, the amount of sums paid to high-level athletes responsible for promoting its brand's equipment must be included in the base for social contributions.

Source: Cass. civ. 2nd, May12th, 2021

Frédéric CHHUM, Avocat à la Cour et Membre du Conseil de l’ordre des avocats de Paris (mandat 2019-2021)

Sarah BOUSCHBACHER juriste
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