Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 336, Marzo 2005

Caso núm. 2347 (México) - Fecha de presentación de la queja:: 18-MAY-04 - Cerrado

Allegations: Refusal of the authorities to register the complainant organization and to recognize its executive committee

1. 605. The complaint is contained in a communication from the Trade Union of Associated Football Players of Mexico (FAM), dated 18 May 2004. The Government sent its observations in a communication dated 22 September 2004.
2. 606. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 607. In its communication dated 18 May 2004, the FAM alleges that, on 16 April 2001, in accordance with Mexican law and all applicable international agreements, a meeting was held in the federal district of Mexico approving the Statutes of the trade union known as the Trade Union of Associated Football Players of Mexico (FAM) which was established as a trade union from that moment, having met all the necessary requirements. According to its Statutes, the FAM brings together individuals who work, or who have in the past, worked as professional football players and covers all those carrying out, or having carried out, such activities in a part of, or throughout, the Republic of Mexico, and is therefore a national organization. The FAM was formed by 118 active workers having decided, in accordance with article 359 of the Federal Labour Law, which allows trade unions to freely elect their representatives, to nominate four former football players to be members of the executive committee, making for a total of 122 founding trade union members. The FAM was founded in order to collectively put an end to repeated violations of football players’ rights perpetrated by their employers, the football clubs.
2. 608. In September 2001, the executive committee of the FAM contacted the Mexican Secretariat of Labour and Social Security requesting that it be registered as a trade union, in the belief that the latter was the competent authority in such matters, based on an interpretation of the law and previous cases of registration of other trade unions of a similar type. The FAM submitted all the documents required by law for the process. However, in a decision handed down on 4 October 2001, the Secretariat of Labour and Social Security stated that it was not the competent authority in relation to the registration of the FAM.
3. 609. Through its representatives, the FAM lodged an appeal for review with the Secretariat of Labour and Social Security, which reiterated that it was not the competent authority in the matter. The FAM then filed an indirect amparo (enforcement of constitutional rights) application in response to the Secretariat of Labour and Social Security’s confirmation of its decision. The indirect amparo was received by the federal district’s First District Judge for Labour Matters, who granted the amparo to the FAM on the grounds that the Secretariat of Labour and Social Security was the competent authority in the matter of registration.
4. 610. Despite this, the case concerning competence regarding the registration of the FAM was then brought before the Supreme Court of Justice of the Nation, due to the fact that the Secretariat of Labour and Social Security had lodged an appeal for revision which was finally dealt with by the said Supreme Court.
5. 611. On 15 November 2002, in an unprecedented move, the plenary of the Second Chamber of the Supreme Court of Justice of the Nation ruled that, in the case of the registration of a trade union with members and a presence throughout the Republic of Mexico, the local authority should be competent, a ruling that contravenes all precedents in the field of the registration of national trade unions in Mexico (national trade unions fulfilling registration requirements had previously been registered by the Secretariat of Labour and Social Security).
6. 612. Although it had not yet been registered, the FAM continued to carry out various internal activities related to its continued existence and running. On 15 January 2003, 35 of the FAM’s founding members requested that 214 new active workers be accepted as members of the trade union. This request was granted and the total membership of the FAM rose to 336 on the aforementioned date.
7. 613. On 10 March 2003, based on article 371, sub-heading VIII of the Federal Labour Law, 224 FAM members (66.67 per cent of the total membership) requested that the executive committee of the FAM call an assembly to study various pending issues, stating that should the assembly not be called within ten days, then the members themselves would call the assembly, based on the aforementioned Law.
8. 614. Due to the fact that the executive committee of the FAM could not call a general assembly of the trade union within the time frame specified, on 31 March 2003, the aforementioned 224 trade union members called on all members of the trade union to attend a general assembly on 30 April 2003, based on article 371, sub-heading VIII of the Federal Labour Law.
9. 615. During the general assembly, the founding executive committee submitted reports on its activities and the members present unanimously requested that the FAM should continue in its effort to be registered by the competent authority. So as not to leave the trade union in a defenceless state, new members of the national executive, the same council that is behind this complaint, were voted in unanimously to represent the trade union.
10. 616. The complainant organization states that the ruling handed down by the Supreme Court of Justice of the Nation has no precedent, as the FAM’s social domicile is in the federal district, in accordance with the trade union’s Statutes, and it has many more than 20 founding members whose employers are domiciled in the federal district, where they (the trade union members) carry out their work; furthermore, due to the nature of the work carried out by the FAM’s members, who travel to various parts of the country as part of their job as professional football players, all of them have, at one time or another, worked in Mexico City.
11. 617. The FAM adds that, on 9 July 2003, it requested the Local Conciliation and Arbitration Board for the Federal District to register the trade union and to take note of the executive committee of the trade union as it stood at the time. Despite this, in a decision handed down on 11 August 2003, the same day on which the case was referred for processing and consideration, the Board turned down the request through a decision issued on the aforementioned date. The FAM filed an indirect amparo in response to the decision of 11 August 2003 on 1 October 2003. The complainant went before the First District Labour Court of the Federal District on 5 November 2003. This court granted the FAM the amparo, as well as the protection of the federal courts, in order that the Local Conciliation and Arbitration Board should issue a new decision with respect to the appeal for review lodged by the FAM, ordering the Board to do so, correcting all the errors that the Court had found in the decision handed down by the aforementioned Local Board on 11 August 2003 and which were enumerated by the Court.
12. 618. However, on 23 January 2004, the Local Conciliation and Arbitration Board handed down a new decision, yet again refusing to register the FAM and its executive committee at the time.
13. 619. The FAM stresses that the District Court which granted the amparo to the trade union stated, in a ruling handed down on 26 February 2004, that the decision of the Local Conciliation and Arbitration Board of the Federal District was not in accordance with the amparo granted to the FAM and therefore the aforementioned Board would have to issue a new decision.
14. 620. However, on 16 April 2004, the aforementioned Board issued a new decision, yet again refusing to register the FAM and its executive committee, giving reasons which, according to the complainant, go against the national and international principles of freedom of association.
15. 621. The complainant organization states that it filed a request with the corresponding district court, with the aim of having the aforementioned Board found to be in contravention of the corresponding amparo ruling and thus obliging it to comply with the ruling and grant registration.
16. 622. The complainant organization adds that the decision, handed down by the Local Conciliation and Arbitration Board on 16 April 2004, states that the members of the FAM must prove that they have a working relationship with their clubs in order to request registration of a trade union (a requirement not laid down in law); this is an arbitrary requirement, all the more so given that many of the members’ problems stem from the fact that their employers either do not give them contracts, or copies of their contracts, or they give them double contracts, one of which is false. The aforementioned decision justifies the refusal of registration by referring to the content of the Statutes, which is an element of freedom of association and not a legal reason for refusing to register a trade union.
17. 623. Given all of this, the complainant organization believes that the competent authority has contravened Convention No. 87, ratified by Mexico.

B. The Government’s reply

1. 624. In its communication dated 22 September 2004, the Government sends the observations of the Local Conciliation and Arbitration Board of the Federal District, which are reproduced here:
   • (a) On 9 July 2003, José María Huerta Carrasco, José Alberto Mariscal Mendoza, Mario García Covalles and Mario Carrillo Rojo submitted a request for the registration of the organization known as “the Trade Union of Associated Football Players of Mexico” to the Local Conciliation and Arbitration Board. The Board turned down the request for the registration of the aforementioned trade union in a decision issued on 11 August of the same year, falling as it did within the grounds for refusal envisaged in sub-headings I and III of article 366 of the Federal Labour Law.
   • (b) Furthermore, under the terms of constitutional article 123, the organization submitting the request for registration is not made up of the elements essential to the formation of a trade union based on an employer-worker relationship, that is to say, that those claiming to be members of the trade union at no time provided proof that they fulfilled the criteria set out in article 8 of the Federal Labour Law for classification as a worker. Article 8 states that “A worker is a physical person who carries out work for another physical or moral person under its direction …”. This is confirmed by simply reading the Statutes of the trade union in question, which state that the members of the trade union may be founding members, active, retired or honorary members. Likewise, the Statutes establish that, in order to join the trade union, applicants must be active or retired football players, the latter being individuals whose profession consisted of playing football.
   • (c) It is important to note that the main posts within the trade union are held entirely by retired football players, a practice not in compliance with the terms of article 356 of the Federal Labour Law. Neither did the trade union ever prove that the remaining members, who are listed as being active football players, play for the clubs that they claim to play for, and, as a consequence of the aforementioned facts, the request for registration was denied.
   • (d) Having been notified of the decision above, on 1 October 2003, the instigators of the request filed an indirect amparo application against the aforementioned decision, established under No. 1726/03 of the index of the First District Labour Court of the Federal District which granted the complainant the amparo and the protection of the Federal Courts through a ruling dated 5 November of the same year, to the effect that the Local Conciliation and Arbitration Board for the Federal District should issue a new decision in which it would set out and justify its reasoning.
   • (e) Against this background, and in strict accordance with the aforementioned ruling, the Local Conciliation and Arbitration Board for the Federal District complied fully with the federal authority’s ruling, issuing a new decision on 16 April 2004. Disagreeing as it did with the new decision, the trade union lodged an appeal based on nonconformity, with the result that the judicial power of the Federation is currently considering its verdict on the matter.

C. The Committee’s conclusions

1. 625. The Committee observes that, in the case in question, the complainant organization, which is made up of football players, alleges that having been established on 16 April 2001, the competent authority (the Local Conciliation and Arbitration Board) refused to register the trade union and to take note of its executive committee at the time, in the trade union’s opinion, ignoring rulings issued by the judicial authority regarding amparo applications. The complainant organization stresses the fact that the aforementioned Local Board issued three decisions denying registration and that the last decision to have been issued is currently being examined by the judicial authority.
2. 626. The Committee takes note of the Local Conciliation and Arbitration Board for the Federal District’s comments (submitted by the Government), stating that the refusal of the appeal is based on the following facts: (1) according to the trade union’s statutes, its members may be active or retired football players; (2) the main posts within the trade union are entirely occupied by retired football players; (3) with respect to the remaining members who are listed as being active football players, it has never been proven that they play for the clubs that they claim to play for; and (4) at no time did the trade union organization, FAM, prove that its members were workers in the sense of the term set out in article 8 of the Federal Labour Law (“A worker is a physical person who carries out work for another physical or moral person under its direction …”); the aforementioned organization is not made up of the essential elements to form a trade union based on an “employer-worker” relationship.
3. 627. In this respect, the Committee wishes to point out that the right to decide if a trade union should be represented by retired workers or not, in the matter of the defence of its specific interests, is a question pertaining to the internal autonomy of all trade unions. In the case at hand, the complainant organization states that it represents 224 members who are active football players. The Committee is of the view that if the complainant organization’s membership contains a number of football players equal to or more than the minimum number required in law for the formation of a trade union, then registration should be granted to the organization in question. Another issue raised by the Government is that of proof of members working as active football players (the burden of proof falling, in principle, on the trade union), as well as proof of a paid working relationship between the footballers and their clubs. However, the complainant organization points out that many of its members’ problems stem from the fact that their employers either do not give them contracts, or copies of their contracts, or they give them double contracts, one of which is false. Consequently, the Committee requests the Government to take measures to ensure that the administrative labour authority – also acting within the framework of its function as inspector of compliance with labour legislation – determines whether the complainant organization has enough football players amongst its members to make up the minimum number required to form a trade union. Furthermore, the Committee requests the Government to ensure that retired persons have the same rights as other workers to join trade unions and to present themselves as candidates to union bodies and consequently to amend article 356 of the Federal Labour Law.
4. 628. The Committee stresses the fact that the complainant organization requested to be registered over three years ago and recalls that, by virtue of Article 2 of Convention No. 87 “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation”. The Committee also brings to the Government’s attention the principle that “By virtue of the principles of freedom of association, all workers – with the sole exception of members of the armed forces and police – should have the right to establish and to join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent, for example, in the case of agricultural workers, self-employed workers in general or those who practice liberal professions, who should nevertheless enjoy the right to organize” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 235].
5. 629. In these circumstances, the Committee expects that the decision of the judicial authority concerning the registration of the complainant organization will be issued as soon as possible and that it will fully take into account the principles cited and requests the Government to communicate any ruling or decision taken in relation to the registration of the complainant organization.

The Committee's recommendations

1. 630. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take measures to ensure that the administrative labour authority determines whether the complainant organization has enough football players amongst its members to make up the minimum number required to form a trade union. Furthermore, the Committee requests the Government to ensure that retired persons have the same rights as other workers to join trade unions and to present themselves as candidates to union bodies and consequently to amend article 356 of the Federal Labour Law.
   • (b) The Committee expects that the decision of the judicial authority concerning the registration of the complainant organization will fully take into account the principles cited in the conclusions and requests the Government to communicate any ruling or decision taken in relation to the registration of the complainant organization.