Assistant Referee in the 3rd League: No Employment Relationship According to Current BAG Ruling
The Federal Labour Court (BAG) in a recent ruling (decision of September 13, 2023, 9 AZB 18/25) addressed the legal classification under employment law of assistant referees in professional football. The core issue was whether the activity of an assistant with the German Football Association (DFB) in the 3rd football league is to be qualified as dependent employment within the meaning of employment law.
Background of the Proceedings
Duties and Contractual Structure
The assistant referee concerned regularly officiated matches in the 3rd league. The basis for his engagement was so-called referee agreements with the DFB, which regulated, among other things, deployment modalities, remuneration, and certain obligations of conduct. Within the framework of these contractual relations, he was subject to various instructions from the association – particularly regarding deployment schedules, meeting points, and dress codes.
Objective of the Proceedings
Through his lawsuit, the assistant sought a judicial declaration of the existence of an employment relationship. One of his motives for this was to claim rights granted to employees – for example, with regard to protection against dismissal or statutory social security coverage.
Decision of the Federal Labour Court
Decisive Distinction
The Federal Labour Court clarified that the existence of an employment relationship depends on a personal dependency in the sense of integration into the contractual partner’s work organisation. In particular, this includes a far-reaching obligation to follow instructions regarding the content, implementation, time, and place of the activity undertaken.
In the specific case, the BAG denied such a dependency relationship. The activity of an assistant referee is characterised by a maximum degree of personal responsibility and freedom of decision during their assignment, with only organisational requirements from the association – for example, concerning scheduling or uniform appearance – being binding. A personal dependency exceeding these framework requirements could not be established.
Legal Consequences of the Classification
The determination that an employment relationship does not exist has significant legal consequences under employment law. Assistant referees therefore cannot claim typical employee rights. These include in particular the provisions of the KSchG, entitlement to continued payment in the event of illness, or certain statutory social protections. At the same time, they are not covered by the protective mechanisms of employment law concerning working time or protection against dismissal.
The BAG confirmed with this decision the view adopted by the lower courts and dismissed the applications of the assistant referee.
Significance for Practice and Further Developments
The decision of the Federal Labour Court is of wide-ranging significance for comparable situations in the sports sector. It provides clarity on the legal status of referees and assistants who regularly work for associations or clubs, and draws a clear line between their activities and an employment relationship. The distinction between typical subordination in an employment relationship and the usual framework requirements in sports operations is explicitly emphasised by this decision.
Further developments in this area and possible changes through future legal developments remain to be seen. It is particularly recommended, in cases of borderline forms of engagement, to thoroughly examine the individual contractual design.
For in-depth questions regarding the distinction between employment relationships and the legally sound structuring of contractual arrangements in sports and beyond, MTR Legal offers individual support in employment law. Further information is available under employment law legal advice.
