The District Court of Gelderland ruled on 18 June last that Dutch Gymnastics (Koninklijke Nederlandse Gymnastiek Unie – KNGU) must nominate gymnastics coach Wevers to NOC*NSF as a member of the support team for female gymnasts during the 2021 Olympic Games in Tokyo. The KNGU, Wevers' employer, refused to do so, but the District Court ruled that it had insufficiently demonstrated the serious grounds for not nominating the gymnastics coach.
Reports of inappropriate behaviour
Wevers entered the employment of the KNGU on 1 January 2014. Former gymnasts reported misconduct in the gymnastics sport in July 2020. In part as a result of those reports, on 11 August 2020 the KNGU reported suspected inappropriate behaviour by Wevers to the disciplinary authority for the sports sector Instituut voor Sportrechtspraak (ISR). ISR is charged on behalf of the KNGU with investigating violations of the disciplinary regulations by trainers and affiliates and imposing disciplinary measures. The ISR prosecutor subsequently investigated Wevers; that disciplinary investigation is still pending.
Suspension
Based on the reports of misconduct, Wevers was suspended by the KNGU on 4 August 2020. As from 26 August 2020, under certain conditions Wevers was permitted to provide training sessions again for the national gymnastics team. However, the KNGU informed Wevers on 9 April 2021 that he would not be included in the Olympic Games support team for female gymnasts. The KNGU said it took this decision in order to provide the gymnasts with clarity and to promote calm. According to the KNGU, the circumstances justified this decision. Those circumstances included the serious and other accusations against Wevers, the disquiet caused by any kind of report concerning misconduct within the gymnastics sport, the disciplinary investigation of Wevers and the recently published investigation 'Ongelijke leggers' ('Uneven Bars').
Good employment practice and CBA
Wevers subsequently sought preliminary relief in the form of an order for the KNGU to nominate him as a member of the support team for the Olympic Games. The District Court ruled that it had been agreed in the employment contract that Wevers would be included in the support team for large sports events, and therefore for the Olympic Games as well. For that reason, on the basis of good employment practice (Article 7:611 of the Dutch Civil Code), the KNGU may only refuse to allow Wevers to perform the agreed work if serious reasons give grounds for doing so. The District Court ruled that the KNGU had not demonstrated reasonable grounds due to serious reasons, given that it had previously lifted the suspension and allowed Wevers to perform his work. This was also in line with the collective bargaining agreement for the sports sector, which dictates that employees may only be suspended for a maximum of four weeks. After that period, the employer must either lift the suspension or opt for a dismissal. Factually suspending Wevers again at a later stage, after lifting the suspension based on the same facts and circumstances, by not nominating him for the Olympic Games support team is contrary to the cba. What is more, the KNGU failed to clarify why Wevers was permitted to perform his work during the European Championships in April 2021, but shortly thereafter could not be a member of the Olympic Games support team. Therefore, the KNGU was ordered to nominate Wevers to NOC*NCF as a member of the Olympic Games support team.
Commentary
An employee's right to perform the agreed work is a serious right and may only be restricted under exceptional circumstances. Exceptional circumstances may exist in the event of misconduct by the employee. Although the KNGU stated that serious accusations have been made against Wevers, during the proceedings it proved to be unwilling, or unable, to substantiate this further. Moreover, the KNGU had already decided to allow Wevers to resume his work, and no new facts had emerged since then. Against this backdrop, the decision of the District Court comes as no surprise. The foregoing does not change the fact that disciplinary measures may still be imposed on Wevers, as that investigation is still pending, or the fact that such measures (if any) may have consequences for his employment relationship with the KNGU.
Feel free to contact Tim Wilms, if you have any questions.
