In February 2016 we reported on a ruling of the Higher Labour Court Rheinland-Pfalz (Landesarbeitsgericht, LAG) in regard to a case of a goalkeeper who sued his former Bundesliga soccer club for unlimited employment and payment of missed bonuses (https://blogs.dlapiper.com/employmentgermany/2016/02/18/no-second-bosman-total-relief-at-bundesliga/). Almost two years later, the Federal Labour Court (Bundesarbeitsgericht, BAG) has now confirmed on 16 January 2018 (docket-number: 7 AZR 312/16), that the established practice of employing professional soccer players only on a fixed-term basis does not violate German employment laws, as those fixed-term contracts with soccer players of the Bundesliga are generally justified in accordance with sec. 14 para. 1 sentence 2 no. 4 Part Time and Fixed-Term Employment Act (Teilzeit- und Befristungsgesetz, TzBfG) due to the characteristics of the work.
The plaintiff had been with the defendant club since July 2009. His last employment contract dated 7 July 2012 stated fixed-term employment until 30 June 2014 as well as an option to prolong the contract until June 2015 if he played in at least 23 out of the 34 Bundesliga matches that season. In addition, the plaintiff was entitled to bonus payments for each game that he was starting goalkeeper or played at least 45 minutes. The plaintiff did nine out of the first ten games of the season, before he got injured and did not play another Bundesliga match for the whole season.
Similarly to the Higher Labour Court’s argument, the Federal Labour Court dismissed the claims for unlimited employment and payment of missed bonuses by reasoning that in commercialized professional soccer with its public attention every professional player is expected to deliver athletic peak performances. However, since it cannot be expected that players deliver such performance up to the age of retirement, the court held, that the characteristic of modern professional soccer gives cause for fixed-term employments.
At first, the ruling seem odd, given the fact that employees performing very heavy work may also not be able to do their work up to the age of retirement, but still fixed-term employments in such industries are not justified by the characteristics of the work performed. However, taking into account the enormous wages that professional soccer players are paid, they may be considered less worthy of protection, and other circumstances such as the public image of the sport are considered more important.