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