“The FC Bayern is one of the world’s most successful soccer clubs.”
What a beautiful superlative.
But if you look really closely, then this statement is rather imprecise, isn’t it? FC Bayern München is a registered club with many members. Additionally, there is an enterprise in the entertainment business also named FC Bayern München AG. As an incorporated company, the FC Bayern München AG is a subsidiary of the soccer club.
Other shareholders are the concerns Audi, Adidas and Allianz SE. So, basically, the FC Bayern München AG is first and foremost a very normal business enterprise with turnover and profit and consequently it has to do a balance sheet at the end of each year. And for this enterprise, the same legal rules apply as for all others.
And like all enterprises, the FC Bayern AG also has and needs employees with varieties of tasks in varieties of roles. Among others, the FCB needs persons who kick a ball – the soccer players.
If an enterprise is looking to employ new people, German law gives them only limited freedom for shaping the contract. Either their new recruits are salaried, then they are employees (long-term or temporary) or they are paid a fee, quasi as service providers. Then they would be freelancers.
Due to our laws, the freelancer concept is an absolute no-go. Even if you would interpret the respective legislation very broad-mindedly, you would have to assume that the soccer players employed as freelancers would be fake self-employed (taking orders, being dependent, etc.).
Consequently, the only alternative is to make the same sort of salaried contract with the soccer players as with all other employees. Actually, the FC Bayern does the same as all other soccer clubs. Consequently, the professional soccer players are employed like all other employees. For many decades, the soccer clubs have been drawing up temporary contracts with their soccer players. Those contracts will then be extended according to need and situation, sometimes to cover more time, sometimes less.
And this is where the problem lies. Because temporary contracts are employee’s contracts with a fixed end! And those underlie strict legal rules as written down in the “part-time and temporary employment act”. It covers all employees, be it craftsmen, engineers, programmers or soccer players. Consequently, the law could not care less about the actual income or the kind of work involved. For temporary contracts, you have laws and those have to be adhered to. NO TWO WAYS ABOUT IT! Those rules used to be a lot more restricting than they are today, which means that violations of the law were rather more obvious than they are now!
In fact, this concept in sports contracts already stroke me as illegal and unjust when I founded the InterFace Connection GmbH in 1983. I never understood why something that is forbidden for normal enterprises should be fine in professional sports. Just like one of the reasons why Wolf and yours truly, when we founded the company in 1984, chose to develop a product because we were not sure how long the system would continue to tolerate the practice of “body leasing”, which clearly violates the AÜG law (fake self-employment).
Now we are more than 30 years down the road – and suddenly something happens in the area of “fake self-employment”. Because now, the legal service departments of the huge DAX enterprises (as we know, some of them are shareholders at the FC Bayern AG) have found out that what has been common practice over decades was not always in accordance with the law of employee rental. Now they are looking to protect themselves.
And now, a soccer player actually found out that the contracts of employed soccer players often violate the “part-time and temporary employment act”. It is true that this law is mostly ignored in professional sports. The former major league goal-keeper Heinz Müller – or perhaps some of his cunning counsellors – now had the idea to sue the club at the Mainz Labour Court. The Mainz Labour Court – simply following the clearly written law – allowed the procedure and came down with a favourable judgement. This judgement rules that the prevalent practice of temporary contracts in professional soccer is clearly a violation of the law.
Because the goal-keeper had had a three-year-contract with Mainz between 2009 and 2012. The contract was prolonged by two more years in summer 2012. And that is clearly against the law. After the first contract, Heinz Müller sued for “stating that the temporary contract is now automatically a non-temporary contract” and, naturally, the judgement was in his favour.
Mind you, with this article, I do not wish to annoy professional soccer playing or even the great FC Bayern München. Basically, we all know that such an unimportant person as Roland Dürre cannot do so, anyway. But I would like to show what nonsense some laws are. Because they simply no longer meet social reality.
These kinds of laws are then ignored and circumvented by “reasonable contract parties” (like here professional clubs and professional soccer players). Until someone like here Herr Müller violates the secret codes by suing for what is legally possible. And those are situations that, naturally, you do not only get in professional sports, but also in many other sectors.
Being a cunny entrepreneur, I am offering three different ways how to solve the problem. In applying them, you can both meet and circumvent the current legal requirements.
In order to satisfy German law, you could solve the problem by calling the phenomenon leased labour. The soccer players would have to be employed as regular employees by an enterprise, for instance the FCB, the German Soccer League (for example BFV). And then they could be leased by the clubs following the leased labour rules.
Legally, this would be a very simple procedure – however, the dismissal protection might cause a future problem for the DFB.
A special labour agreement:
Just like in normal business, they could come up with a special labour agreement between an employees’ organization and an employers’ organization, both of which would have to be created. If something like this would be practicable in a system reigned by the FIFA, UEFA and DFB is another question.
Soccer players become managing directors:
If the employer, such as the FC Bayern AG, is an incorporated company, then the problem can be avoided elegantly. All you have to do is make the players managing directors. For them, temporary contracts up to five years are permitted. And on top of this, you would avoid having to pay the social insurance for the placers. This might not be what the law actually intended, but it would be perfectly legal. After all, Thomas Müller is certainly qualified to become managing director, isn’t he?
The last three proposals are correct; however, they are not really meant seriously. Yet you can see what absurd ideas a sub-optimal legal situation can give you.
There will be another new law which will affect professional sports – the minimum wages. If you measure the working time correctly, quite a few youngsters among the professionals will end up working more than fifty hours each week (with all the practice, matches, travel times, additional training, coaching, homework).
Incidentally, I know quite a few pupils and students who spend a lot more than fifty hours each week working for their education and future. Yet for them, the minimum wages and working time legislations is not relevant.
But only fifty hours per week makes more than 200 hours each month. That would mean an income of 200 times 8.50 €, which is at least 1,700 €. And I assume that quite a few clubs cannot or do not wish to spend this kind of money. But then, the education of young soccer players or other athletes is already a profound violation of various laws, anyway.
(Translated by EG)
The first picture was taken during a home match of SpVgg Unterhaching against Chemnitz on November, 23th, 2013. The picture was taken by Stefan Kukral in the Sportpark. The other pictures, too, were taken by Stefan. The SpVgg gave permission to publish them in the IF Blog.
With these pictures, I want to remind you that the SpVgg is my club. I also wish to ask as many friends and readers as possible to come and watch the last three home matches of this third-league season in the Sportpark. We need to support the team in its struggle against relegation.