Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS

My favourite speed skater (Full disclosure: I have a thing for speed skaters bothering the ISU), Claudia Pechstein, is back in the news! And not from the place I expected. While all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG or German Constitutional Court), I should have looked to the European Court of Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending for a long time (since 2010) and I did not anticipate that the ECtHR would render its decision before the BVerfG. The decision released last week (only available in French at this stage) looked at first like a renewed vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling in the Pechstein case), and is being presented like that by the CAS, but after careful reading of the judgment I believe this is rather a pyrrhic victory for the status quo at the CAS. As I will show, this ruling puts to rest an important debate surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its much-used appeal format in disciplinary cases) forced arbitration. Furthermore, stemming from this important acknowledgment is the recognition that CAS proceedings must comply with Article 6 § 1 of the European Convention of Human Rights (ECHR), in particular hearings must in principle be held in public and decisions freely available to all. Finally, I will criticise the Court’s finding that CAS complies with the requirements of independence and impartiality imposed by Article 6 § 1 ECHR. I will not rehash the  well-known facts of both cases, in order to focus on the core findings of the decision. More...

ISLJ International Sports Law Conference 2018 - Asser Institute - 25-26 October - Register Now!

Dear all,

Last year we decided to launch the 'ISLJ Annual International Sports Law Conference' in order to give a public platform to the academic discussions on international sports law featured in the ISLJ. The first edition of the conference was a great success (don't take my word for it, just check out #ISLJConf17 on twitter), featuring outstanding speakers and lively discussions with the room. We were very happy to see people from some many different parts of the world congregating at the Institute to discuss the burning issues of their field of practice and research.

This year, on 25 and 26 October, we are hosting the second edition and we are again welcoming well-known academics and practitioners in the field. The discussions will turn around the notion of lex sportiva, the role of Swiss law in international sports law, the latest ISU decision of the European Commission, the Mutu/Pechstein ruling of the European Court of Human Rights, or the reform proposal of the FIFA Regulations on the Transfer and Status of Players. It should be, it will be, an exciting two days!

You will find below the final programme of the conference, please feel free to circulate it within your networks. We have still some seats left, so don't hesitate to register (here) and to join us.

Looking forward to seeing you and meeting you there!

Antoine

Football Intermediaries: Would a European centralized licensing system be a sustainable solution? - By Panagiotis Roumeliotis

Editor's note: Panagiotis Roumeliotis holds an LL.B. degree from National and Kapodistrian University of Athens, Greece and an LL.M. degree in European and International Tax Law from University of Luxembourg. He is qualified lawyer in Greece and is presently working as tax advisor with KPMG Luxembourg while pursuing, concomitantly, an LL.M. in International Sports Law at Sheffield Hallam University, England. His interest lies in the realm of tax and sports law. He may be contacted by e-mail at ‘p.roumeliotis@hotmail.com’.


Introduction

The landmark Bosman Ruling triggered the Europeanization of the labour market for football players by banning nationality quotas. In turn, in conjunction with the boom in TV revenues, this led to a flourishing transfer market in which players’ agents or intermediaries play a pivotal role, despite having a controversial reputation.

As a preliminary remark, it is important to touch upon the fiduciary duty of sports agents towards their clients. The principal-agent relationship implies that the former employs the agent so as to secure the best employment and/or commercial opportunities. Conversely, the latter is expected to act in the interest of the player as their relationship should be predicated on trust and confidence, as much was made clear in the English Court of Appeal case of Imageview Management Ltd v. Kelvin Jack. Notably, agents are bound to exercise the utmost degree of good faith, honesty and loyalty towards the players.[1]

At the core of this blog lies a comparative case study of the implementation of the FIFA Regulations on working with intermediaries (hereinafter “FIFA RWI”) in eight European FAs covering most of the transfers during the mercato. I will then critically analyze the issues raised by the implementation of the RWI and, as a conclusion, offer some recommendations. More...



Seraing vs. FIFA: Why the rumours of CAS’s death have been greatly exaggerated

Rumours are swirling around the decision (available in French here) of the Court of Appeal of Brussels in the case opposing RFC Seraing United to FIFA (as well as UEFA and the Belgian Football Federation, URSBFA) over the latter’s ban on third-party ownership. The headlines in various media are quite dramatic (see here and here), references are made to a new Bosman, or to a shaken sport’s legal system. Yet, after swiftly reading the decision for the first time on 29th August, I did not have, unlike with the Pechstein ruling of the Oberlandesgericht München, the immediate impression that this would be a major game-changer for the Court of Arbitration for Sport (CAS) and the role of arbitration in sports in general. After careful re-reading, I understand how certain parts of the ruling can be misunderstood or over-interpreted. I believe that much of the press coverage failed to accurately reflect the reasoning of the court and to capture the real impact of the decision. In order to explain why, I decided to write a short Q&A (including the (not water-proof) English translations of some of the key paragraphs of the decision).

 More...

New Article Published! The Olympic Charter: A Transnational Constitution Without a State?

My latest article has just been published online by the Journal of Law and Society. It is available open access here.

The article stems from a conference organised by Jiri Priban from Cardiff University on Gunther Teubner's idea of societal constitutionalism applied to transnational regimes. My role was to test whether his descriptive and normative framework was readily applicable to the lex sportiva, and in particular its overarching "constitutional" text: the Olympic Charter.

As you will see my conclusion is mixed. I find that the Olympic Charter (OC) displays many constitutional features and is even able to regularly defend successfully its autonomy vis-à-vis national states and their laws. However, while I document some inception of limitative constitutional rules, such as the ban on discrimination or the principle of fair play, I also conclude that those have limited impact in practice. While constitutional changes to the OC can be triggered by scandal, resistance and contestation, as illustrated by the emergence of environmental concerns after the Albertville Games and the governance reshuffle of the IOC after the Salt Lake City scandal, I am also sceptical that these were sufficient to tackle the underlying problems, as became obvious with the unmatched environmental damage caused by the Sotchi Games in 2014.

In conclusion, more than sporadic public outrage, I believe that the intervention of national law and, even more, European Union law will be capable and needed to rein the Olympic regime and impose external constitutional constraints on its (at least sometimes) destructive operations.

Here is the abstract of the article: This article examines various aspects of Teubner's theory of societal constitutionalism using the lex sportiva as an empirical terrain. The case study focuses on the operation of the Olympic Charter as a transnational constitution of the Olympic movement. It shows that recourse to a constitutional vocabulary is not out of place in qualifying the function and authority of the Charter inside and outside the Olympic movement. Yet, the findings of the case study also nuance some of Teubner's descriptive claims and question his normative strategy.

Good read! (And do not hesitate to share your feedback)


New Position - Internship in International Sports Law - Deadline 15 August


The T.M.C. Asser Instituut offers post-graduate students the opportunity to gain practical experience in the field of international and European sports law.  The T.M.C. Asser Instituut, located in The Hague, is an inter-university research institute specialized in international and European law. Since 2002, it is the home of the ASSER International Sports Law Centre, a pioneer in the field of European and international sports law. More...


Human Rights Protection and the FIFA World Cup: A Never-Ending Match? - By Daniela Heerdt

Editor’s note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She recently published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.


The 21st FIFA World Cup is currently underway. Billions of people around the world follow the matches with much enthusiasm and support. For the time being, it almost seems forgotten that in the final weeks leading up to the events, critical reports on human rights issues related to the event piled up. This blog explains why addressing these issues has to start well in advance of the first ball being kicked and cannot end when the final match has been played. More...



Call for papers: Annual International Sports Law Conference of the International Sports Law Journal - 25 & 26 October - Asser Institute, The Hague

 Call for papers: Annual International Sports Law Conference of the International Sports Law Journal

Asser Institute, The Hague

25 and 26 October 2018

The editorial board of the International Sports Law Journal (ISLJ) is inviting you to submit abstracts for its second ISLJ Annual Conference on International Sports Law, which will take place on 25 and 26 October at the Asser Institute in The Hague. The ISLJ published by Springer in collaboration with Asser Press is the leading academic publication in the field of international sports law. Its readership includes academics and many practitioners active in the field. This call is open to researchers as well as practitioners. 

We are also delighted to announce that Prof. Franck Latty (Université Paris Nanterre), Prof. Margareta Baddeley (Université de Genève), and Silvia Schenk (member of FIFA’s Human Rights Advisory Board) have confirmed their participation as keynote speakers.

Abstracts could, for example, tackle questions linked to the following international sports law subjects:

  • The interaction between EU law and sport
  • Antitrust and sports regulation
  • International sports arbitration (CAS, BAT, etc.)
  • The functioning of the world anti-doping system (WADA, WADC, etc.)
  • The global governance of sports
  • The regulation of mega sporting events (Olympics, FIFA World Cup, etc.)
  • The transnational regulation of football (e.g. the operation of the FIFA Regulations on the Status and Transfer of Players or the UEFA Financial Fair Play Regulations)
  • The global fight against corruption in sport  
  • Comparative sports law
  • Human rights in sport 

Please send your abstract (no more than 300 words) and CV no later than 30 April 2018 to a.duval@asser.nl. Selected speakers will be informed by 15 May.

The selected participants will be expected to submit a draft paper by 1 September 2018. All papers presented at the conference are eligible for publication in a special edition of the ISLJ.  To be considered for inclusion in the conference edition of the journal, the final draft must be submitted for review by 15 December 2018.  Submissions after this date will be considered for publication in later editions of the Journal.

The Asser Institute will cover one night accommodation for the speakers and will provide a limited amount of travel grants (max. 300€). If you wish to be considered for a grant please justify your request in your submission. 

Stepping Outside the New York Convention - Practical Lessons on the Indirect Enforcement of CAS-Awards in Football Matters - By Etienne Gard

Editor’s Note: Etienne Gard graduated from the University of Zurich and from King's College London. He currently manages a project in the field of digitalization with Bratschi Ltd., a major Swiss law firm where he did his traineeship with a focus in international commercial arbitration.

1. Prelude

On the 10th of June, 1958, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, widely known as the “New York Convention”, was signed in New York by 10 countries.[1] This rather shy figure progressively grew over the decades to now reach 157 signatory countries, turning the New York Convention into the global recognition and enforcement instrument it is today. As V.V. Veeder’s puts it, “One English law lord is said to have said, extra judicially, that the New York Convention is both the Best Thing since sliced bread and also whatever was the Best Thing before sliced bread replaced it as the Best Thing.”[2]

However, among the overall appraisal regarding the New York Convention, some criticisms have been expressed. For instance, some states use their public policy rather as a pretext not to enforce an award than an actual ground for refusal.[3]  A further issue is the recurring bias in favor of local companies.[4] Additionally, recognition and enforcement procedures in application of the New York Convention take place in front of State authorities, for the most part in front of courts of law, according to national proceeding rules. This usually leads to the retaining of a local law firm, the translation of several documents, written submissions and one, if not several hearings. Hence, the efficiency of the New York Convention as a recognition and enforcement mechanism comes to the expense of both money and time of both parties of the arbitral procedure.

In contrast with the field of commercial arbitration, where the New York Convention is often considered the only viable option in order to enforce an award, international football organizations, together with the Court of Arbitration for Sport (“CAS”), offer an effective enforcement alternative. This article aims at outlining the main features of the indirect enforcement of CAS awards in football matters in light of a recent case. More...



The International Partnership against Corruption in Sport (IPACS) and the quest for good governance: Of brave men and rotting fish - By Thomas Kruessmann

Editor's note: Prof. Thomas Kruessmann is key expert in the EU Technical Assistant Project "Strengthening Teaching and Research Capacity at ADA University" in Baku (Azerbaijan). At the same time, he is co-ordinator of the Jean-Monnet Network "Developing European Studies in the Caucasus" with Skytte Institute of Political Studies at the University of Tartu (Estonia).


The notion that “fish rots from the head down” is known to many cultures and serves as a practical reminder on what is at stake in the current wave of anti-corruption / integrity and good governance initiatives. The purpose of this blog post is to provide a short update on the recent founding of the International Partnership against Corruption in Sport (IPACS), intermittently known as the International Sports Integrity Partnership (IPAS), and to propose some critical perspectives from a legal scholar’s point of view.

During the past couple of years, the sports world has seen a never-ending wave of corruption allegations, often followed by revelations, incriminations and new allegation. There are ongoing investigations, most notably in the United States where the U.S. Department of Justice has just recently intensified its probe into corruption at the major sports governing bodies (SGBs). By all accounts, we are witnessing only the tip of the iceberg. And after ten years of debate and half-hearted reforms, there is the widespread notion, as expressed by the Council of Europe’s (CoE’s) Parliamentary Assembly (PACE) Resolution 2199/2018 that “the sports movement cannot be left to resolve its failures alone”. More...



Asser International Sports Law Blog | Compatibility of fixed-term contracts in football with Directive 1999/70/EC. Part 2: The Heinz Müller case. By Piotr Drabik

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Compatibility of fixed-term contracts in football with Directive 1999/70/EC. Part 2: The Heinz Müller case. By Piotr Drabik

Introduction
The first part of the present blog article provided a general introduction to the compatibility of fixed-term contracts in football with Directive 1999/70/EC[1] (Directive). However, as the Member States of the European Union enjoy a considerable discretion in the implementation of a directive, grasping the impact of the Directive on the world of football would not be possible without considering the national context. The recent ruling of the Arbeitsgericht Mainz (the lowest German labour court; hereinafter the Court) in proceedings brought by a German footballer Heinz Müller provides an important example in this regard. This second part of the blog on the legality of fixed-term contract in football is devoted to presenting and assessing the Court’s decision.


I. Facts and Procedure
Heinz Müller, the main protagonist of this case, was a goalkeeper playing for 1.FSV Mainz 05 a club partaking to the German Bundesliga. He was employed by the club as a licensed football player since 1 July 2009. His first 3-year contract ended on 1 July 2012 and was renewed for two years until 30 June 2014. It included an option for a one-year extension if the player took part in a minimum of 23 Bundesliga fixtures in the 2013/2014 season. Despite a good start of his last season (he participated in 10 out of the first 11 games), Heinz Müller got injured and was then set aside from the professional team and relegated to the reserve team. He attributed this relegation to the despotism of his manager and the fall-out in their professional relationship. Due to this relegation to the reserve team, he was unable to attain the 23 Bundesliga games necessary for a one-year prolongation of his contract, which ended on 30 June 2014. Thus the player decided to bring 1.FSV Mainz 05 to court claiming both the payment of the bonuses he would have obtained if he had been allowed to continue playing with the Bundesliga team and the establishment by the tribunal that his employment contract was an indefinite contract and, therefore, still valid.

In its ruling,[2] the Arbeitsgericht Mainz gave way to his demand that the contract should be qualified as an indefinite contract, though it refused to award him the lost bonuses. The decision was widely commented in the mainstream German press (here, here and here), including the biggest German tabloid Bild which featured a report on the case. Fears of a new “Bosman” started to spread in the German football community. The reactions have ranged from utter incredulity from the part of the clubs, to calls for a true collective bargaining agreement from the side of the players’ union. The ruling was immediately appealed and it is likely that the appeal court will nuance the decision rendered in first instance. Yet, this remains an important case highlighting the relevance of the European rules regarding fixed-term contracts in the realm of football. As we will see, it offers a suitable legal blueprint to assess the potential impact of the EU directive on fixed-term work on professional football.


II. Decision of the Court
The Court scrutinized the validity of the subsequent fixed-term contract concluded between the club and the player against the Part-Time and Fixed-Term Employment Act (TzBfG),[3] the national law implementing the Directive, and in particular, Section 14(1) thereof which provides that, in principle, contracts for a definite period are allowed only when justified by an objective reason. Section 14(2) TzBfG, however, stipulates that objective reasons are not required for fixed-term contracts the duration of which does not exceed two years. After finding that the said exception no longer applies to the contract concluded between Müller and the club, the Court focused on Section 14(1) TzBfG which provides that an objective reasons exist ‘in particular’ when i) the employer’s need is temporary; ii) the definite period of contract is to facilitate the employee's entry into subsequent employment following a training or study; iii) the employee substitutes another employee; iv) the nature of the work justifies the fixed-term of the contract; v) the definite period is to serve testing the employee; vi) when grounds related to the employee himself or herself justify a fixed-term contract; vii) the employee is to be paid from the budget intended for fixed-term employment and he/she is employed on that basis; or viii) the definite term of the contract is based on an amicable settlement before a court. In this respect, the Court referred to both the Directive’s aim of limiting recourse to fixed-term contracts, and the interpretation of clause 5 of the Directive adopted by the Court of Justice of the European Union (CJEU) in Angelidaki[4]. Subsequently, the Court turned to the assessment of the validity of the contract at dispute. Here, it first focused on the grounds related to the employee’s personal status, and the nature of the work as provided under Section 14(1) TzBfG.


A. The personal status
Concerning the former, the Court indicated that neither the age of the employee, nor his wish to conclude a contract for a definite period could constitute personal grounds in the case at hand.[5] Moreover, as the argument relating to the age of the player was brought up by the Court and not the club itself,[6] the Court elaborated only on the latter claim. In this regard, it provided that a genuine interest in concluding a fixed-term contract exists when the employee is offered a choice between a contract for a definite and indefinite term and choses the former.[7] According to the Court, the player’s wish to prolong his contract could not be considered as pointing at the existence of such a genuine interest.[8] In addition, the Court stated that Müller’s alleged interest in the flexibility of his engagement by concluding a fixed-term contract could not constitute a valid argument due to the fact that employees in general are not prohibited from terminating indefinite employment contracts.[9]


B. The nature of the work
Next, the Court decided that the subsequent fixed-term contract between Müller and the club may not be justified on the basis of an objective reason relating to the nature of the work. The Court referred to literature arguing, first, that it is necessary for coaches to implement their vision through the choice of adequate athletes which in turn requires flexibility in replacing players, and second, that contracts for a definite period are needed due to the progressive decline of employees’ (players) ability to perform at a certain level throughout their careers.[10] In this respect, the Court did not really address the first limb of the argument and focused on the latter. Here, the Court referred to the established jurisprudence according to which fixed-term contracts for coaches are permissible due to the risk of degradation of the relationship between coaches and athletes.[11] Only in such a situation, according to the Court, can a fixed-term contract be properly justified. Yet, the decline caused by the long-term exercise of a profession was not regarded by the Court as a factor specific to football.[12] Furthermore, the Court provided that, pursuant to both national and European law, contracts for an indefinite period are the general form of employment, and that specific interests of sports clubs, unlike those of broadcasters, press and artists, have not been granted a protected status under the German Constitution.[13] By referring to the prohibition of discrimination based on age the Court also declined to accept the club’s argument concerning age-related uncertainty as to the quality of the work performed by the player.[14] 


C. Other objective reasons
Lastly, the Court addressed the arguments concerning the customary nature of fixed-term contracts in sports, the need to satisfy fans by changing the composition of teams, the level of footballers’ remuneration, and the impossibility to dismiss a player on a fixed-term contract. The custom of signing players for a definite term contract was not deemed by the Court a valid justification pursuant to Section 14 TzBfG.[15] Changing the composition of teams according to the needs of supporters was regarded as of minor importance, in comparison to the need to safeguard the interests of employees.[16] Also, high wages were not identified as a proper justification for the recourse to fixed-term contracts since Section 14 TzBfG does not provide for such an exception, and the higher level of remuneration is not capable of alleviating the negative consequences connected to a lack of employment security.[17] Lastly, the Court declined to accept the argument that the fixed-term period of the employment agreement could be justified by the fact that the contract cannot be terminated. According to the Court, the argument not only fails to fall within the scope of Section 14 TzBfG, but also the impossibility for the employer to terminate the contract does not provide an adequate counterweight to the employee’s interest for continued employment.[18] Based on all of the above the Court decided that the contract is of an indeterminate nature, and therefore still valid.


III. A critical analysis of the judgment
The Court’s ruling is not entirely convincing. This concerns, in particular, the Court’s failure to consider a number of factors which lay at the core of football and are inherent to this particular activity.


A. The personal status
The rejection of the argument concerning the personal grounds connected to the alleged wish of the player to conclude a fixed-term contract does not seem to be controversial. An extensive interpretation of Section 14 TzBfG in this regard could potentially be liable of considerably limiting the protection afforded to fixed-term workers under European and national law. Moreover, in its ruling the Court relied on previous case-law which indicates that for the exception to apply it must be established that the employee concerned, when granted a choice between a fixed-term and a permanent contract, would have chosen the former.[19] Therefore, the Court’s findings that, first, the player wished to prolong his employment relation with the club, and second, that his interest in maintaining flexibility could have been safeguarded under a contract for an indefinite period, seem to exclude the possibility of applying the exception.


B. The nature of the work
The Court’s assessment of the existence of an objective reason stemming from the nature of the work of a professional footballer is less convincing. First, the Court failed to address the argument concerning the necessity of maintaining flexibility as to the choice of players included in the squad. Indeed, this flexibility is needed for a coach to be able to adapt and modify its strategy over the years. In case of a change of the coach, a permanent pool of players would necessarily drastically reduce the potential for variations in the team’s strategy. This concerns not only the characteristics of footballers in terms of their physical attributes and skills, but also their ability to perform in several competitions which often requires playing a number of games every week. Introducing contracts which would bind clubs to their players for an indefinite period could thus be liable of ‘freezing’ football as a result of the coaches’ limited abilities to experiment, adjust and improve line-ups, and to implement new tactics. This situation should be considered analogical to the one concerning artists and comedians. In this regard, the competent national court indicated that fixed-term contracts for comedians and actors were necessary to enable theatre directors to be flexible with regard to their program.[20]

Second, by stating that work-related decline in output cannot justify recourse to fixed-term contracts as it does not constitute a feature specific to football, the Court explicitly aligned professional football players with workers in other professions. The Court’s reasoning in this regard, together with the Court’s findings that age-related uncertainty as to the quality of work may not be relied upon as a justification for fixed-term contracts as it constitutes discrimination on the basis of age, are problematic. In order to exercise their profession football players, and sportspeople in general, are required to maintain the highest level of physical fitness, a factor which does not play a key role in many sectors or industries. It is common knowledge that physical capabilities deteriorate with age, making it gradually more difficult and challenging for athletes not only to preserve a high level of performance but also, as mentioned above, to compete in several sporting competitions. One should also mention that employers outside the sporting world are usually keener on hiring individuals with considerable experience acquired during their professional careers. However, the situation in the football industry is opposite. While footballers improve their skills and broaden their experience with time, aging is the very cause that undermines their ability to perform at the highest level. This explains why football players over the age of thirty are often considered as ‘old’, and provides the underlying rationale for granting shorter contracts to such players. If deterioration due to age does not constitute a relevant factor, why would clubs consciously decide to deprive themselves of the possibility of securing long-term services of top thirty-plus footballers by offering them contracts for periods shorter than those given to younger players, and additionally, undermine their own ability to secure a future transfer fee? The answers is simple: age-related physical decline constitutes a specific factor inherent to the exercise of football, and disproportionately important in comparison to other professions, which influences the capabilities of players to perform, and thus, should not be disregarded as a specific justification for the recourse to fixed-term contracts.

Third, and considering the above, the nature of the industry requires an influx of young talents.[21] In this regard, introducing permanent contracts as a standard would diminish the possibility of young players having a chance to enter the market. Indeed, one has to keep in mind that the football labour market is closed, with a strictly limited number of employees due to the pre-defined number of professional teams active on this market. Thus, the use of indeterminate contracts would have the consequence of freezing the labour market and drastically reduce the incentive to train young players and to improve the squads.

Fourth, providing players with contracts for an indefinite period would also entail the possibility for footballers to terminate their employment agreements pursuant to statutory notice periods. Such an eventuality would affect the stability of contracts between professionals and club, with negative effects on clubs’ planning security in both sporting and financial matters.[22]

Fifth, the fact that contracts for an indefinite period are regarded as the general form of employment and that interests of sport clubs have not been granted protection under the German Constitution should not constitute a reason for precluding the application of Section 14 TzBfG. In this respect, the social partners indicated that ‘fixed-term contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers’.[23] Also, the national implementing measure do not make reliance on Section 14 TzBfG conditional upon the employer falling within one of the sectors protected under the German Constitution. On the contrary, the exception established pursuant to national law seems rather broad. It refers to, inter alia, the nature of the work and the list of objective grounds does not seem to be exhaustive.[24]

Sixth, the rejection by the Court of the argument concerning the customary nature of the recourse to fixed-term contracts in football is not surprising. However, the fact that the needs of the public (supporters) were regarded as being of minor relevance is more questionable. The need to replace players is based not only on the reasons mentioned above, but also necessary from the perspective of maintaining a stable fan base and attracting new supporters by, inter alia, increasing clubs’ competitiveness. Allowing flexibility in signing new players, and conversely in parting with those footballers who are no longer (effectively) able to contribute to the team effort, enables clubs to, at least, increase their chances of success, and thus, fulfils the desires of the supporters. In this respect, the Court mentioned itself that popularity of clubs depends on sporting success. Therefore, it is unfortunate that the Court did not hesitate to disregard this particular factor and failed to scrutinize it in more detail.


C. Other objective reasons
Arguments relating to high wages that professional footballers receive, or the fact that an employment agreement between a club and a player concluded for a definite period may not be dissolved have not been accepted by the Court as constituting objective grounds justifying successive fixed-term contracts. In this regard, it is difficult to criticize the Court. The Court correctly pointed out that these arguments find no support in grounds explicitly mentioned in Section 14 TzBfG. And even though the national law implementing the Directive indicates that successive fixed-term contracts may be justified based on ‘in particular’ the grounds enumerated in Section 14 TzBfG (which might be interpreted as not fully meeting the criteria established in the CJEU’s case-law),[25] thus leaving a possibility for employers to argue the existence of justifications not covered by the provision, accepting such arguments could not only threaten workers’ employment stability, but would also be liable of undermining the system established for the purpose of preventing abuse stemming from recourse to successive fixed-term contracts.


Concluding remarks
The ruling in the Müller case clearly illustrates that for the purpose of evaluating the compatibility of fixed-term contracts in football with the Directive it is absolutely necessary to assess its practical implementation at the national level. In this regard, the focus of the legal debate, which the present blog aspires to spark, has to be placed on the issue of successive fixed-term contracts in football being capable of falling under the objective reasons justification. It cannot be denied that a number of arguments pertaining, in particular, to the specific nature of football as an economic activity may constitute basis for retaining the current system. However, recourse to such arguments will only be possible where national implementing measures allow for it, which therefore implies a specific assessment of the situation in each Member State. Moreover, in those Member States in which national laws prevent objective reason justifications from being relied upon in the professional football sector, successive fixed-term contracts could only be valid through the introduction of amendments to national legislation, (broad) interpretation of the applicable rules by national courts, or by providing room for social partners to agree on a specific status of sports regarding fixed-term contracts. The Müller case has undoubtedly kick-started a much-needed legal discussion. Nevertheless, its intensity will probably depend on the substance of the appeal decision in the Müller case, and whether or not similar cases will appear before national courts outside of Germany.



[1] Council Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP [1999] OJ L 175/43 (Directive)

[2] ArbG Mainz, AZ: 3 CA 1197/14, 13.03.2015 (Heinz Müller Judgment)

[3] The German text of the Teilzeit- und Befristungsgesetz is available in full at https://dejure.org/gesetze/TzBfG

[4] Joined cases C-378/07 to C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarchiakis Autodioikisis Rethymnis, Charikleia Giannoudi v Dimos Geropotamou and Georgios Karabousanos and Sofoklis Michopoulos v Dimos Geropotamou [2009] ECR I-3071

[5] Heinz Müller Judgment, para 3.1.

[6] Ibidem

[7] Ibidem

[8] Ibidem

[9] Ibidem

[10] Ibidem, para 3.2.1.

[11] Ibidem

[12] Ibidem

[13] Ibidem, para 3.2.2.

[14] Ibidem

[15] Ibidem, para 3.2.3.

[16] Ibidem

[17] Ibidem

[18] Ibidem, para 3.3.

[19] BAG 19.01.2005, 7 AZR 115/04

[20] BAG 02.07.2003, AP BGB §611 Nr.39. See also BeckOK TzBfG §14 at Rn. 55

[21] The CJEU held that considering the social importance of sporting activities, and especially football, in the European Union the objective of encouraging the recruitment and training of young players must be accepted as legitimate and thus capable of justifying restrictions on free movement of workers. See Case C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman [1995] ECR I-4921, para 106; Case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC [2010] ECR I-2177, para 39

[22] Diego F. R. Compaire, Gerardo Planás R. A., Stefan-Eric Wildemann, ‘Contractual Stability in Professional Football: Recommendations for Clubs in a Context of International Mobility’, July 2009. http://www.lawinsport.com/pdf/ContStabinProfFoot.pdf. Accessed 17 July 2015; also FIFA regulations provide for rules introduced for the purpose of facilitating contractual stability between clubs and players, see FIFA, ‘Regulations on the Status and Transfer of Players’, 2015, Chapter IV. Maintenance of contractual stability between professionals and clubs

[23] Annex to the Directive, ETUC-UNICE-CEEP Framework Agreement on Fixed-Term Work, recital 8

[24] Section 14 TzBfG indicates that objective grounds exist ‘in particular’ in situations provided for in the provision. The wording of the provision thus grants considerable flexibility to employers

[25] In case C-212/04 Konstantinos Adeneler en anderen tegen Ellinikos Organismos Galaktos (ELOG) [2006] ECR I-6057, para 72 the CJEU ruled, inter alia, that regarding the concept of objective reasons as provided under the Directive national provisions may not be of a purely formal nature, but must justify recourse to successive fixed-term contracts ‘by the presence of objective factors relating to the particular features of the activity concerned and to the conditions under which it is carried out […]’

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