In a recent judgment, the Brussels Court of First Instance confirmed the legality of a so-called surety undertaking, i.e. an agreement in which the parents of a minor playing football guarantee that their child will sign a professional contract with a football club as soon as the child reaches the legal age of majority.

This long-awaited ruling was hailed, on the one hand, by clubs as a much needed and eagerly anticipated confirmation of a long-standing practice in Belgian football[1] and, on the other hand, criticised by FIFPro, the international player’s trade union, in a scathing press release.

Background

Jason Eyenga-Lokilo (“Jason Lokilo”), born on 17 September 1998, joined the youth academy at Belgian top club, RSC Anderlecht (“Anderlecht”), in the spring of 2007. Anderlecht had set up a specific youth academy a couple of months earlier, which combined school education and football training for young football players.

As Jason Lokilo was one of the youth academy’s more promising prospects, Anderlecht and Lokilo’s parents entered into an agreement in which the parents, in exchange for a payment of 75,000 EUR (paid in instalments), guaranteed Anderlecht that their son was going to sign his first professional contract with the club upon turning 16, i.e. the minimum age in Belgium for signing a player contract. This same agreement stipulated that the parents were liable to pay Anderlecht a lump sum of 450,000 EUR in damages, if their son did not sign such a player contract.

When, in 2013, Aston Villa made a request to Anderlecht to give Jason Lokilo a trial when he was 15 years of age, Anderlecht refused, citing the player’s training obligations and the existing surety undertaking. Jason Lokilo’s father, a football agent, then told Anderlecht that he wanted to revise the terms of the surety undertaking, given the fact that a number of European football ‘powerhouses’ wanted to sign his son. Anderlecht refused his demand.

In June 2014, Jason Lokilo and his parents sent a letter to Anderlecht arguing that the surety undertaking was unlawful and hence null and void. Jason Lokilo alleged that unacceptable coercion had been put on him to sign his first contract with Anderlecht, which the player and his advisers considered was contrary to public policy. Anderlecht replied that it considered the surety undertaking to be perfectly valid since the surety did not prevent the player from signing his first professional contract with another club.

By the end of July of 2014, the gridlock between both parties ended with Jason Lokilo leaving Anderlecht and the latter club starting court proceedings against Jason Lokilo’s parents for a damages claim of 450,000 EUR.

Jason Lokilo eventually signed a contract with Crystal Palace in the summer of 2015.[2]

The Brussels Court of First Instance ruling

In its 22 November 2016 judgment, the Brussels Court of First Instance (“CFI”) confirmed the principle of this surety undertaking in the context of professional football.

The CFI referred to Article 1120 of the Belgian Civil Code that expressly allows the principle of a surety undertaking. A surety undertaking under Belgian civil law can be defined as an agreement in which one party promises another party regarding what a third party (who is either absent or legally not competent) will do, give or refrain from doing. The third party retains the freedom not to commit himself, since he, as a third party, is not bound by the agreement. However, the contracting party that made the promise will in that case be liable to pay the contractually foreseen damages if this third party eventually does not commit himself.

The main question the court had to decide was to determine whether the surety undertaking had a valid object and cause.

Jason Lokilo’s parents first argued that the contract was contrary to public policy legislation, considering the contract violated the freedom of association principle enshrined in the Convention on the Rights of the Child (“UNCRC”), the European Convention on Human Rights (“ECHR”) and the European Social Charter (“ESC”). The CFI did not follow this reasoning, simply stating that the surety undertaking did not bind Jason Lokilo and did not prevent him from signing a contract with another club.[3]

Lokilo’s parents also invoked an alleged violation of Belgian federal legislation, which prohibits player contracts below the minimum age requirement. This argument was cast aside by the court since at no point in time was a player contract signed below the legal minimum age of 16.

Furthermore, Lokilo’s parents argued that the contract breached a (regional) decree guaranteeing an amateur sportsperson the right to leave their club free-of-charge at the end of each sporting season. The CFI repeated that Lokilo was not bound by the surety undertaking and could still freely leave Anderlecht, stating that this outcome was, moreover, exactly what Lokilo did in 2014. An aggravating circumstance for the CFI was the fact that Lokilo’s father had indicated to Anderlecht that Aston Villa in 2013 was willing to cover the 450,000 EUR in damages, as a result of which the CFI considered these damages were ‘clearly not an obstacle for Jason Lokilo to leave Anderlecht’.

The argument invoked by Lokilo’s parents under EU law (free movement) was also dismissed by the CFI ‘for lack of a cross-border EU element’[4].

In the end, the CFI granted damages to Anderlecht but limited the amount payable by the parents, on the one hand, based on the grounds that Jason Lokilo’s mother was not an agent (and hence not professionally active in football) and, on the other hand, because 450,000 clearly exceeded the actual damages suffered by Anderlecht. The CFI set the damages ex aequo et bono at 140,000 EUR instead.

Some considerations

The Lokilo case echoes the Spanish Baena case,[5] although the latter concerned a slightly different situation and had a clearly different outcome.

Where the Spanish Supreme Court in its 5 February 2013 ruling considered a pre-contractual agreement concluded on behalf of a minor football player at odds with the minor’s best interests and therefore contrary to public policy, the CFI adopted a rather strict ‘pacta sunt servanda’ approach.

The CFI considered that the surety undertaking did not prevent Lokilo from signing a contract with a club other than Anderlecht. This finding may be correct from a strictly legal perspective, but ignores the reality that a child may not want to pursue his or her career at another club if he realises that, by doing so, his or her parents will be liable to pay damages. Moreover, under Belgian law, while a minor is indeed of legal age to sign his or her first professional contract when turning 16, the minor in principle still needs parental authorisation to do so until reaching 18 years of age. Parents might of course not be very inclined to agree to their child signing his or her first professional contract elsewhere, and therefore not provide the necessary parental authorisation, if doing so triggers important financial liabilities for them…

The surety undertaking seems also incompatible with regional decrees guaranteeing amateur sportsmen the right to leave their club free-of-charge at the end of each sporting season. These decrees are considered to have a public policy character by the case law, and disallow any hindrance, financial or otherwise, when moving to another sports club.[6] The fact that the surety undertaking related to a switch from an amateur to a professional contract,[7] did not alter the fact that the player was not free to leave for another amateur club when turning 16 either, since he was forced to sign a professional contract with Anderlecht when turning 16 or see his parents face the prospect of paying hefty compensation.

Arguments regarding the fundamental rights of the minor were either not invoked or not upheld by the CFI. The CFI stated that the matter concerned a contract between the parents and the club and not between the player and the club, as a result of which the minor’s fundamental rights were not jeopardised.

This argument is frankly unconvincing.

It should be noted that the UNCRC[8] recognises the right of a child to freedom of association[9] and the right to participate freely in cultural life.[10] The UNCRC furthermore protects children from economic exploitation.[11] The UNCRC provides also that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

The UNCRC is often labeled as ‘soft’ law,[12] with Belgian case law even considering most of its provisions lacking a self-sufficient or self-executing character;[13] yet, the UNCRC remains a treaty with clear moral authority. Moreover, a number of its provisions do have direct effect, especially when read in combination with other international legal sources, such as the ECHR and the EU Charter of Fundamental Rights. The obligation to consider the best interests of the child is expressly incorporated in the EU Charter of Fundamental Rights.[14] Even though the obligation to observe the child’s best interests is not expressly laid down under the ECHR, the ECtHR incorporates this obligation also in its case law.[15] One could further argue that the surety undertaking disproportionally affects the career development and perspectives of a player who is a minor, and so violates that player’s proprietary rights[16] and the right to family life that both the player and the player’s family enjoy.[17]

In addition, both the Belgian Constitution[18] and the Belgian Economic Code[19] protect the freedom for each individual to freely choose his or her occupation. This freedom can only be curtailed through or by law.[20] An agreement jeopardising one’s freedom to freely choose one’s occupation, has an unlawful causa and is null and void.[21]

The statement made by the CFI that the EU internal market law does not apply due to a lack of cross-border effect is at odds with the fact that Lokilo clearly intended to join a club outside Belgium, within the EEA (as shown by Aston Villa’s interest and his eventual signing with Crystal Palace), a fact that was not contested by Anderlecht. As Anderlecht is a Belgian football ‘powerhouse’, and clearly one of the top clubs in Belgium (if not the top club), a player aiming higher than Anderlecht would necessarily have to look at opportunities abroad.

If EU law is deemed to apply, then the guiding principles of the Bernard case must be observed. The CJEU, in its Bernard ruling,[22] recalled that an obstacle to the freedom of movement of workers can be accepted only if it pursues a legitimate aim and is justified by overriding reasons in the public interest. The CJEU clearly accepted recruitment and training of players as a legitimate aim. Even where that is so, that measure’s application still must be such as to ensure the objective’s achievement and not go beyond what is necessary for that purpose. In considering whether a system restricts the freedom of movement, the specific characteristics of sport, and of football in particular, their social and educational function, should be taken into account. One may even take into account the costs of training other players that do not succeed at establishing a professional career (the player factor).[23]

This being said, the surety undertaking mechanism in this case seems overly restrictive for the player. Although, again, a surety undertaking binds the parents and not the player, and damages can only be claimed from the parents, the surety undertaking obviously ultimately serves to discourage a player from exercising his or her right of free movement. Moreover, the player already suffers a restriction upon his or her free movement, following the training compensation mechanism in place under FIFA regulations, which is criticisable in its own right.[24] The surety undertaking constitutes an additional burden on the player’s free movement. In Bernard, although the CJEU seemed to accept the principle of training compensation, the CJEU dismissed the French arrangements governing young players (‘joueurs espoirs’) since they did not involve compensation for real training costs incurred, but rather were damages for breach of contractual obligations calculated with reference to the total loss suffered by the club. And taking into account the actual loss suffered by Anderlecht is exactly what the CFI has done. To the extent a surety undertaking goes beyond what is necessary to encourage the recruitment and training of minors (and funds those activities), a violation of the EU internal market law seems given.

Conclusion

In conclusion, based on the considerations set out above, it can certainly not be excluded that the ruling will be overturned on appeal. Such an appeal, which would bring the case before the Brussels Court of Appeal, is being considered by the player’s parents, but has not yet been lodged.

Apart from the doubt around their enforceability, it should be noted that payments under surety undertakings may in addition give rise to (social) tax issues, if they are not structured correctly.[25] [26]

The problem with the surety undertaking in the Lokilo case predominantly lies with the surety undertaking’s disproportionate character in the specific case at hand. Less restrictive solutions could, in the author’s view, be envisaged, although exploring such alternatives would exceed the scope of this article.

[1] Surety undertakings, together with money lending contracts (loan to parents pledging that their child will sign first professional contract, non-reimbursable if child effectively signs contract), are common practice with Belgian top level teams.

[2] Jason Lokilo is still a member of the Crystal Palace Academy. Crystal Palace offered Anderlecht compensation for an approximate amount of 45,000 EUR, which Anderlecht refused.

[3] “(…), la convention de porte-fort litigieuse n’engageait que les parents de Jason vis-à-vis du club et ne créait aucune obligation pour lui”

[4] “Or, contrairement à l’arrêt Bernard qu’ils invoquent (arrêt du 16 mars 2010 – pièce 3 de leur dossier), M. et Mme Lokilo ne démontrent pas, dans le cas present, l’existence d’un élément d’extranéité.”

[5] Sentencia de 5 de febrero de 2013. STS 229/2013. Tribunal Supremo. Sala de lo Civil. http://www.iurismuga.org/es/bases-de-datos/jurisprudencia/144-jurisprudencia-derecho-espanol/8153-sts-n-de-resolucion-26-2013-de-05-02-2013-sentencia-baena. The case was invoked by the parents before the CFI but considered irrelevant because, according to the CFI, the contract between Baena and Barcelona was entered into by (on behalf of) the minor player.

[6] Vred. Ghent 16 September 2013, role n° 130318.

[7] The relevant decrees apply to amateur sports, not professional sports.

[8] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx

[9] Article 15 UNCRC

[10] Article 31 UNCRC

[11] Article 32 and 36 UNCRC. One may argue that, in the end, a child is used to generate money through (later) transfers and sponsorship deals.

[12] H. Stalford, Children and the European Union: Rights, Welfare and Accountability, Hart Publishing, [2012], 34.

[13] Belgian case law has been reluctant to grant direct effect to the UNCRC: cf. Cass. 11 June 2010, obs. S. Van Drooghenbroeck, Le droit international et européen des droits de l’homme devant le juge national, Larcier, [2014], 196 and following.

[14] Article 24 (2) of the EU Charter of Fundamental Rights

[15] Handbook on European law relating to the rights of the child, European Union Agency for Fundamental Rights, 75.

[16] Article 1 of ECHR First Protocol: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. (…)”.

[17] Article 8 ECHR

[18] Article 23 Constitution

[19] Article II.9 of the Economic Code. This is one of the oldest Belgian public policy principles, previously laid down in the famous Decree D'Allarde of 2 - 17 March 1791

[20] C.E. 12 July 1993, JLMB [1993], 1442, note J.F. NEURAY

[21] Cass. 29 September 2008, C.06.443.F, JTT [2008] 464.

[22] CJEU 16 March 2010, Olympique Lyonnais v Olivier Bernard and Newcastle United.

[23] i.e. the ratio of players who need to be trained to produce one professional player.

[24] S. Weatherill, European Sports Law, T.M.C. Asser Press [2014], 485 and following.

[25] The tax and social security authorities may e.g. argue that these payments relate to the (future) employment contract of the player.

[26] The surety undertaking’s ‘nephew’, the money lending contracts, in addition pose problems under Belgian finance law since clubs as a rule do not possess the necessary licences or authorisations.

Editor’s note: Kester Mekenkamp is an LL.M. student in European Law at Leiden University and an intern at the ASSER International Sports Law Centre.

On 17 February 2016, the Landesarbeitsgericht Rheinland-Pfalz delivered its highly anticipated decision in the appeal proceedings between German goalkeeper Heinz Müller and his former employer, German Bundesliga club Mainz 05.[1] The main legal debate revolved around the question (in general terms) whether the use of a fixed term contract in professional football is compatible with German and EU law. 

In first instance (see our earlier blog posts, here and here), the Arbeitsgericht Mainz had ruled that the ‘objective reasons’ provided in Section 14 (1) of the German Part-time and Fixed-term Employment Act (Gesetz über Teilzeitarbeit und befristete Arbeitsverträge, “TzBfG”), the national law implementing EU Directive 1999/70/EC on fixed-term work, were not applicable to the contract between Müller and Mainz 05 and therefore could not justify the definite nature of that contract.[2] In its assessment the court devoted special attention to the objective reason relating to the nature of the work, declining justifications based thereupon.[3] Tension rose and the verdict was soon labelled to be able to have Bosman-like implications, if held up by higher courts.[4]

The Landesarbeitsgericht Rheinland-Pfalz has however taken a different road, one going in the (radically) opposite direction, by deciding that the contested fixed term contract period between a Bundesliga football club and a professional player can in fact be justified based on the objective reason of the nature of the work.[5] This case is an example of how the successful reliance on EU law ultimately depends on the interpretation of a national implementing measure by the competent national courts.[6]

This blog post will try to provide an insight in the court’s reasoning, addressing the four main arguments raised in the judgment. Followed by some point of criticism, making comparisons with the ruling in first instance, as well as the Dahmane v KRC Genk case.[7]  

The reasoning of the court

The Landesarbeitsgericht turns to the concept of the specificity of the work (“Eigenart der Arbeitsleistung”) in the second part of its decision.[8] It thereby immediately stresses that every ‘employment relationship’ has its particularities, which thus prohibits a broad interpretation of the nature of the work. It elucidates:

It therefore must be a specificity, the nature of which transcends in an exceptional way the particularities inherent to every (normal) employment relationship, wherein also industry specific features have to be considered.[9]

Thus, for the justification of Section 14 (1) (4) TzBfG to apply, it has to be a special ‘employment relationship’, which in an extraordinary way transcends the particularities inherent to any normal form of employment. The court follows by stating that the employment relationship between a Bundesliga club and a professional football player is characterized by specific features rendering it such special status.[10] The following arguments are substantiating this claim: 

1. Extraordinary high degree of uncertainty 

At the time of concluding the contract, there is an extraordinary high degree of uncertainty regarding the timespan the player can be employed successfully in the pursuit of the club’s sporting and thereto related economical goals.[11]

In the field of professional football, however, there are special features which lead to a degree of uncertainty significantly exceeding the one present at the conclusion of other employment contracts.[12]

The court substantiates this by referring to the possibility of injuries, leading to potential constraints on the player’s future performance. The latter is in any case dependent on many factors and thus only partially predictable. Other unforeseeable circumstances are put forward by the court that may affect the player’s use and performance in a team. It depends in particular on the manager’s tactical approach, the changes therein and the player’s adaptability to those changes. Group dynamics can negatively influence the individual performance. Moreover, in their constant strive for improvement, clubs take on new players, which may cause a previously valuable player to be no longer suited to the raised performance level of the team and the associated increased sporting objective of the club. This leads the court to believe that there is a legitimate interest for the club to use fixed term contracts.[13]

2. The particular need for a balanced age structure of the professional squad

A legitimate interest, to limit the contracts of professional players, derives from professional football’s immanent nature of the particular need, guided by the sporting goal, for a balanced age structure of the squad.[14]

From this a legitimate interest to use fixed term contracts can be derived. For reasons of competitiveness, clubs are constantly striving to “refresh” their squad. They achieve this by signing young players, introducing skilled players from their own youth department in the first team and possibly endow them with a professional contract. The court states that if professional players would have indefinite contracts, this would inevitably lead (in a certain time) to an immense inflation and total oversizing of the squad, which for most teams then would no longer be financeable.[15]

3. The public’s need for variety

Taking into account the public’s variety-need in assessing the legality of a fixed-contract is justified in light of the increasing commercialization of professional football and it having many similarities with the entertainment industry.[16]

Referring to case law in the area of theatre and stage arts, the court considers sports fans’ need for variety to be a specific feature of professional football. This aspect, in view of the increasing commercialization of professional football, further justifies the use of definite contracts. Fans of course want excellent performing players and crowd favourites (“Publikumsliebling”) to stay with the club on a long-term basis, yet this cannot be foreseen at the time of the conclusion of the contract. The court is however adamant that fans strive for variety with regard to the composition of the team as such.[17]

The public expects the club’s management to, from time to time, if not in every transfer window, improve and thus change the team by attracting new players.[18]

Thus, according to the court, the public expects the club’s management to attract new players and thus periodically change the composition of the team. Likewise it notes that, when concluding a contract, clubs and players need to start from the assumption that fans want change and, hence, want to see different players over time.[19] 

4. The player’s interests

Even from the player’s perspective, according to the court, the use of fixed term contracts is beneficial.

From the player’s side it is to be considered, that by the orderly conclusion of fixed-term contracts that cannot be terminated, the player’s risk of losing his job is, at least temporarily, lifted.[20]

Again referring to the imminent threat of possible injury, the court puts forward that a fixed term contract protects players particularly against early termination of the employment contract by personal compulsory redundancy. Furthermore, it is the court’s view that the ending of fixed term contracts creates room for possible subsequent transfers, deemed in the football player’s interests.[21]

Next, the court shortly addresses the typically extraordinary amount of remuneration paid in professional football (in the Bundesliga annually amounting to an average of 1.5 million euros). It takes note of the aim of EU Directive 1999/70/EC, being the improvement of the situation of weak and thus socially vulnerable workers and to prevent the emergence of a ‘precariat’ of always only temporary salaried workers. It subsequently notes that, in balancing the interests, the exceptionally high remuneration completely changes the scale in application of Section 14 TzBfG, however unfortunately without giving any further guidance.[22]

In an overall consideration of all these circumstances the court finds that the fixed term contract signed between Müller and Mainz 05, and thus the use of fixed term contracts in professional football in general, corresponds to the view of a sensible and reasonable contractual partner.[23] 

Und Jetzt? Some points of criticism

The Landesarbeitsgericht seems to have felt the need to soothe the debate that has arisen after the ruling in first instance. In direct opposition to the Arbeitsgericht Mainz, it has concluded that the contested fixed term contract period between a Bundesliga football club and a professional player can in fact be justified based on the objective reason of the nature of the work.[24] The protective stance in favour of the player provided by the Arbeitsgericht, together with the bulk of that court’s argumentation, has now been abandoned. Although the rationale given by the Landesarbeitsgericht for its ruling, especially the first and second argument (being for large parts in consensus with a commentator of the first instance ruling),[25] seems convincing to this author. Altogether, it still leaves room for further debate. 

On the one hand, with regard to the extraordinary high degree of uncertainty, the Landesarbeitsgericht even could have gone further by developing an argument based, not on the uncertainty of successful performance, but on the inevitability of a decline in physical performance.[26]

On the other hand, the court’s claim that the use of definite contracts is in the player’s own best interest seems rather circular, when it states that the ending of definite contracts at clubs makes room for subsequent transfers.[27] It moreover does not explain the precise influence of the high remuneration received in professional football in the balancing of interests under Section 14 TzBfG.[28] This author would have also liked some further elaboration on the courts assumption of the fans’ variety-need.[29]

Perhaps most importantly, by separating these ‘special employment relationships’ in professional football from normal employment, the Landesarbeitsgericht seems to have taken away the protective shield of labour law from the hands of the players/workers (supported in the ruling in first instance) and placed it right back at the feet of the clubs. It may be that the system of fixed term contracts is the most suitable in addressing the particularities of professional football,[30] and yes, the court has provided some valuable arguments for granting a justification based on the nature of the work. Still, the court must tread warily not to give clubs a carte blanche established on this special status of sport. Because, what would be the limits of this autonomy and how would these limits be policed?

In a previous Belgium case, the Dahmane v KRC Genk case (see our earlier blog post), the outcome was somewhat different. There, the Belgian court had to rule on a player’s unilateral termination of his labour contract with his club. In relation to this matter, the court decided, first, against a differentiation between football players and other professional athletes, and second, against a differentiation between professional athletes and normal workers. According to the Belgian court sport does exhibit certain particularities, however a perceived ‘specific nature of sport’ was not a decisive factor leading it to deviate from other labour relationships.

This reasoning is more in line with the Arbeitsgericht’s view in first instance regarding the question of the nature of the work. Be that as it may, the Landesarbeitsgericht does not concur, leaving us with yet another twist in this ongoing debate since the Bosman ruling. Can we speak of this perceived separate creature, being football or sport, and should this have a special status? And, if so, what should be the implications of this special status in relation to (EU) (labour) laws? These questions are far from settled.

[1] Landesarbeitsgericht Rheinland-Pfalz: Urteil vom 17.02.2016 – 4 Sa 202/15 (Appeal decision Heinz Müller case)

[2] FIFPro Press Release,Müller case is a wake-up call for football, 8 April 2015

[3] P. Drabik, Compatibility of fixed-term contracts in football with Directive 1999/70/EC on fixed-term work: the general framework and the Heinz Müller case, Int Sports Law J (2016).

[4] “Successful lawsuit threatens time-limited contracts in football” http://www.dw.com/en/successful-lawsuit-threatens-time-limited-contracts-in-football/a-18341045.

[5] Landesarbeitsgericht Rheinland-Pfalz: Urteil vom 17.02.2016 – 4 Sa 202/15 (Appeal decision Heinz Müller case), II.1.b

[6] P. Drabik, “Compatibility of fixed-term contracts in football with Directive 1999/70/EC on fixed-term work: the general framework and the Heinz Müller case”, Int Sports Law J (2016), p. 153, 157

[7] A.R. 2009/AH/199 (6 may 2014), Dahmane v KRC Genk

[8] Appeal decision Heinz Müller case, II.1.b

[9] “Es muss sich daher um eine vertragstypische, die jedem Arbeitsverhältnis innewohnende Besonderheit in einem außergewöhnlichen Maß übersteigende Eigenart handeln, wobei jedoch auch branchenspezifische Merkmale bzw. Gesichtspunkte zu berücksichtigen sind“ Ibid, II.1.b

[10] Ibid, II.1.b

[11] Ibid, II.1.b.aa

[12] “Im Bereich des Profifußballs bestehen indes Besonderheiten, die dazu führen, dass das Maß dieser Ungewissheit das insoweit bei Abschluss sonstiger Arbeitsverträge gegebene Unsicherheitsrisiko erheblich übersteigt“, Ibid, II.1.b.aa

[13] Ibid, II.1.b.aa

[14] “Ein berechtigtes Interesse, die Verträge der Lizenzspieler zu befristen, ergibt sich auch aus der dem Profifußball immanenten Eigenart der besonderen Notwendigkeit einer ausgewogenen, der sportlichen Zielsetzung gerecht werdenden Altersstruktur des Spielerkaders“ Ibid, II.1.b.bb

[15] Ibid, II.1.b.bb

[16] “Die Berücksichtigung des Abwechslungsbedürfnisses des Publikums bei der Befristungskontrolle ist im Hinblick auf die zunehmende Kommerzialisierung des Profifußballs, der mittlerweile vielerlei Ähnlichkeiten mit der Unterhaltungsbranche aufweist, gerechtfertigt“ Ibid, II.1.b.cc

[17] Ibid, II.1.b.cc

[18] “Das Publikum erwartet von der sportlichen Leitung des Vereins, dass diese von Zeit zu Zeit, wenn nicht sogar in jeder Transferperiode, die Mannschaft durch Verpflichtung neuer Spieler verbessert und damit zugleich auch verändert“ Ibid, II.1.b.cc

[19] Ibid, II.1.b.cc

[20] “Auf Seiten des Spielers ist zu berücksichtigen, dass diesem durch den Abschluss eines befristeten, ordentlich unkündbaren Arbeitsvertrages zumindest vorübergehend das Risiko des Verlustes seines Arbeitsplatzes genommen wird“ Ibid, II.1.b.dd

[21] Ibid, II.1.b.dd

[22] Ibid, II.1.b.dd

[23] Ibid, II.1.b.ee

[24] Ibid, II.1.b

[25] Piotr Drabik, “Compatibility of fixed-term contracts in football with Directive 1999/70/EC on fixed-term work: the general framework and the Heinz Müller case”, International Sports Law Journal (2016), 15; 3-4, page 156

[26] As advocated in: Ibid, p. 152, 156,

[27] Appeal decision Heinz Müller case, II.1.b.dd

[28] Ibid, II.1.b.dd

[29] Ibid, II.1.b.cc

[30] As advocated in: Piotr Drabik, “Compatibility of fixed-term contracts in football with Directive 1999/70/EC on fixed-term work: the general framework and the Heinz Müller case”, International Sports Law Journal (2016), 15; 3-4, page 153