Editor's note: Anna Antseliovich heads the sports practice at the Moscow-based legal group Clever Consult. She also works as a senior researcher at the Federal Science Center for Physical Culture and Sport (Russia).

The Olympic Games have always been a source of genuine interest for spectators as Olympians have repeatedly demonstrated astounding capacity of the human body and mind in winning Olympic gold, or by achieving success despite all odds.

At the ancient and even the first modern Olympic Games, there was no concept of a national team; each Olympian represented only himself/herself. However, at the 1906 Intercalated Games[1] for the first time, athletes were nominated by the National Olympic Committees (‘NOCs’) and competed as members of national teams representing their respective countries. At the opening ceremony, the athletes walked under the flags of their countries. This was a major shift, which meant that not only the athletes themselves competed against each other, but so too did the nations in unofficial medal standings.  

The nomination and selection of athletes by their NOCs to compete under their national flag and represent their country is a matter of pride for the vast majority of athletes. However, to what extent does such a scheme correspond to the ideals which the Olympic Games were based on in ancient times? Is it possible to separate sport and politics in the modern world?

Olympic Principles

The ancient Olympics began as a religious celebration in honor of the ancient Greek god Zeus. All freeborn male citizens of Greece could participate. The modern Olympics no longer maintain religious significance and are based on modern ideas and principles.

The principles of Olympism are enshrined in the Olympic Charter under “Fundamental Principles of Olympism”. The first paragraph of the Charter reads: “Olympism is a philosophy of life, exalting and combining in a balanced whole the qualities of body, will and mind. Blending sport with culture and education, Olympism seeks to create a way of life based on the joy of effort, the educational value of good example, social responsibility and respect for universal fundamental ethical principles.” Thus, it should seem obvious that Olympism is centered on a human, his/her body, will, and mind. Nations are not mentioned at all in this section. On the contrary, “sports organizations within the Olympic Movement shall apply political neutrality.”

Moreover, the Olympic Charter enshrines the practice of sport as an inherent human right: “Every individual must have the possibility of practicing sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.”  Paragraph 6 continues with “The enjoyment of the rights and freedoms outlined in this Olympic Charter shall be secured without discrimination of any kind, such as race, color, sex, sexual orientation, religion, political or other opinion, national or social origin, property, birth or other status.”

Based on the above, we can conclude that anyone has the right to participate in competitions covered directly or indirectly by the Olympic Charter, and no one person or entity can be deprived of this right. The only limitation on participation is an individual athlete’s qualification and eligibility.  

Entering by NOC

The Olympic Charter Rule 40 provides that “the competitor, team official or other team personnel must be entered by his NOC” to participate in the Olympic Games.

Rule 41 and its By-law deal with cases where there are issues with the nationality of an athlete, such as a change of nationality, a change in the status of the territory on which an athlete resides, etc., but clearly states that, as a general rule, an athlete shall be a national of the NOC that is selecting him/her.

In previous years, the IOC allowed so-called independent athletes to participate in the Olympic Games (such teams had different names but the same status). In 1992 they were athletes from Macedonia and Yugoslavia, in 2000 from East Timor, in 2012 athletes from the Netherlands Antilles and South Sudan, in 2014 from India, in 2016 from Kuwait and Russia, and in 2018 from Russia. These athletes competed as independent/neutral athletes for various reasons, such as the absence of the NOC, the suspension of the NOC from the IOC, doping scandals, or international sanctions.

The increased role of the State that is expressed by the appearance of the national symbols on the athletes' uniform, the playing of national anthems, and the flying of the national flag at the award ceremony has given rise to an unofficial medal count, which now - whether the IOC wants it or not - plays an extremely important role at each Olympic Games. Spectators intensely monitor which country is leading the medal count - sometimes even more than the competition itself. More and more countries are competing against each other, drawing up medal plans in an attempt to prove that their training system is the best and the most progressive, which, in turn, shows the superiority of their political and/or financial system. This all takes the spectators’ attention away from the purity of revelling in the capabilities of the human body and spirit and admiring the achievements of athletes.

Such an approach to the formation of Olympic teams (at least in individual sports) does not comply with the principle enshrined in Rule 6 of the Olympic Charter “the Olympic Games are competitions between athletes in individual or team events and not between countries..” and it seems that it is unfair for several reasons.

First, while for most athletes the very opportunity to represent their country at the most important sporting event is a source of great pride, for other athletes, it is not. For example,  refugees who have fled their homeland, for fear of torture and/or death. For them, it is unacceptable to compete under the flag of their country. Their “national” NOC could not enter them in any event. To circumvent this problem, the IOC created a team of 10 refugee athletes who competed under the IOC flag and anthem for the first time at the Rio de Janeiro 2016 Olympic Games. In 2018, at the 133rd session of the IOC in Buenos Aires, it was confirmed that the Tokyo Olympics will also feature a refugee team. However, refugees are not the only group of athletes who have difficult relations with the authorities and/or political regimes. There are many places in the world where people are struggling for independence or with repressive regimes. For these athletes to compete under the national symbols used by such authorities is fundamentally and morally impossible because it contradicts their political views (for example, some of the Kurds may not be happy to represent Turkey, some of the Basques may be happy to see any flag but not a Spanish one, some individuals residing in Northern Ireland may feel themselves hurt and unhappy to compete under the Union Jack, the flag of the United Kingdom, Tibetans and Uighurs hardly want to glorify the flag of China that suppresses any attempts to show their national identity, etc.).

Second, despite the requirement of the Olympic Charter to observe political neutrality by NOCs, in reality, this is not always respected. A vivid example is a current situation in Belarus, where until February 2021 the NOC was headed by President Aleksandr Lukashenko, after whose election mass protests broke out in the country resulting in numerous human rights violations. Since February 2021, the NOC has been headed by his son, Viktor Lukashenko. Athletes who took part in the protests were persecuted and sometimes even imprisoned. It is obvious that such athletes have no chance to be selected by the NOC for the Tokyo Olympics and even if they were to be entered, they would unlikely be proud to perform under the symbols of a regime that they consider illegitimate.

The two examples demonstrate that performing under a national flag can sometimes have grave significance. Athlete can either be completely barred from competing in the Olympics should they not hold the correct political allegiance, or be forced to compete under a national flag that does not reflect their political views.

The author considers that a solution to the abovementioned problem consists in the registration of an athlete, if he/she meets sports criteria for participation in the Olympic Games, directly by the IOC in the personal capacity. Each athlete will then be able to independently decide to use the national symbols that correspond to his political views, or to refuse to use any symbols in general. This approach is consistent with the abovementioned principles.

Conclusion

The Olympic Games have evolved enormously from local games as part of a religious celebration to a worldwide sports festival watched by millions of people. The Olympics are the epitome of international competition between athletes and between nations. Political controversy and scandals surrounding the Olympics often overshadow athletes' successes. To remove the political underlying basis of the Olympics, the approach of entering athletes by the NOCs should be abandoned, and athletes (at least in individual sports) should be allowed to compete in a personal capacity stripping away political connotations that ought to be extraneous to sports competitions. 

[1] Intercalated Games were supposed to be a series of international competitions held in Athens halfway between Summer Olympic Games. The only such games were held in 1906.

Introduction
The first part of the present blog article provided a general introduction to the compatibility of fixed-term contracts in football with Directive 1999/70/EC[1] (Directive). However, as the Member States of the European Union enjoy a considerable discretion in the implementation of a directive, grasping the impact of the Directive on the world of football would not be possible without considering the national context. The recent ruling of the Arbeitsgericht Mainz (the lowest German labour court; hereinafter the Court) in proceedings brought by a German footballer Heinz Müller provides an important example in this regard. This second part of the blog on the legality of fixed-term contract in football is devoted to presenting and assessing the Court’s decision.

I. Facts and Procedure
Heinz Müller, the main protagonist of this case, was a goalkeeper playing for 1.FSV Mainz 05 a club partaking to the German Bundesliga. He was employed by the club as a licensed football player since 1 July 2009. His first 3-year contract ended on 1 July 2012 and was renewed for two years until 30 June 2014. It included an option for a one-year extension if the player took part in a minimum of 23 Bundesliga fixtures in the 2013/2014 season. Despite a good start of his last season (he participated in 10 out of the first 11 games), Heinz Müller got injured and was then set aside from the professional team and relegated to the reserve team. He attributed this relegation to the despotism of his manager and the fall-out in their professional relationship. Due to this relegation to the reserve team, he was unable to attain the 23 Bundesliga games necessary for a one-year prolongation of his contract, which ended on 30 June 2014. Thus the player decided to bring 1.FSV Mainz 05 to court claiming both the payment of the bonuses he would have obtained if he had been allowed to continue playing with the Bundesliga team and the establishment by the tribunal that his employment contract was an indefinite contract and, therefore, still valid.

In its ruling,[2] the Arbeitsgericht Mainz gave way to his demand that the contract should be qualified as an indefinite contract, though it refused to award him the lost bonuses. The decision was widely commented in the mainstream German press (here, here and here), including the biggest German tabloid Bild which featured a report on the case. Fears of a new “Bosman” started to spread in the German football community. The reactions have ranged from utter incredulity from the part of the clubs, to calls for a true collective bargaining agreement from the side of the players’ union. The ruling was immediately appealed and it is likely that the appeal court will nuance the decision rendered in first instance. Yet, this remains an important case highlighting the relevance of the European rules regarding fixed-term contracts in the realm of football. As we will see, it offers a suitable legal blueprint to assess the potential impact of the EU directive on fixed-term work on professional football.

II. Decision of the Court
The Court scrutinized the validity of the subsequent fixed-term contract concluded between the club and the player against the Part-Time and Fixed-Term Employment Act (TzBfG),[3] the national law implementing the Directive, and in particular, Section 14(1) thereof which provides that, in principle, contracts for a definite period are allowed only when justified by an objective reason. Section 14(2) TzBfG, however, stipulates that objective reasons are not required for fixed-term contracts the duration of which does not exceed two years. After finding that the said exception no longer applies to the contract concluded between Müller and the club, the Court focused on Section 14(1) TzBfG which provides that an objective reasons exist ‘in particular’ when i) the employer’s need is temporary; ii) the definite period of contract is to facilitate the employee's entry into subsequent employment following a training or study; iii) the employee substitutes another employee; iv) the nature of the work justifies the fixed-term of the contract; v) the definite period is to serve testing the employee; vi) when grounds related to the employee himself or herself justify a fixed-term contract; vii) the employee is to be paid from the budget intended for fixed-term employment and he/she is employed on that basis; or viii) the definite term of the contract is based on an amicable settlement before a court. In this respect, the Court referred to both the Directive’s aim of limiting recourse to fixed-term contracts, and the interpretation of clause 5 of the Directive adopted by the Court of Justice of the European Union (CJEU) in Angelidaki[4]. Subsequently, the Court turned to the assessment of the validity of the contract at dispute. Here, it first focused on the grounds related to the employee’s personal status, and the nature of the work as provided under Section 14(1) TzBfG.

A. The personal status
Concerning the former, the Court indicated that neither the age of the employee, nor his wish to conclude a contract for a definite period could constitute personal grounds in the case at hand.[5] Moreover, as the argument relating to the age of the player was brought up by the Court and not the club itself,[6] the Court elaborated only on the latter claim. In this regard, it provided that a genuine interest in concluding a fixed-term contract exists when the employee is offered a choice between a contract for a definite and indefinite term and choses the former.[7] According to the Court, the player’s wish to prolong his contract could not be considered as pointing at the existence of such a genuine interest.[8] In addition, the Court stated that Müller’s alleged interest in the flexibility of his engagement by concluding a fixed-term contract could not constitute a valid argument due to the fact that employees in general are not prohibited from terminating indefinite employment contracts.[9]

B. The nature of the work
Next, the Court decided that the subsequent fixed-term contract between Müller and the club may not be justified on the basis of an objective reason relating to the nature of the work. The Court referred to literature arguing, first, that it is necessary for coaches to implement their vision through the choice of adequate athletes which in turn requires flexibility in replacing players, and second, that contracts for a definite period are needed due to the progressive decline of employees’ (players) ability to perform at a certain level throughout their careers.[10] In this respect, the Court did not really address the first limb of the argument and focused on the latter. Here, the Court referred to the established jurisprudence according to which fixed-term contracts for coaches are permissible due to the risk of degradation of the relationship between coaches and athletes.[11] Only in such a situation, according to the Court, can a fixed-term contract be properly justified. Yet, the decline caused by the long-term exercise of a profession was not regarded by the Court as a factor specific to football.[12] Furthermore, the Court provided that, pursuant to both national and European law, contracts for an indefinite period are the general form of employment, and that specific interests of sports clubs, unlike those of broadcasters, press and artists, have not been granted a protected status under the German Constitution.[13] By referring to the prohibition of discrimination based on age the Court also declined to accept the club’s argument concerning age-related uncertainty as to the quality of the work performed by the player.[14] 

C. Other objective reasons
Lastly, the Court addressed the arguments concerning the customary nature of fixed-term contracts in sports, the need to satisfy fans by changing the composition of teams, the level of footballers’ remuneration, and the impossibility to dismiss a player on a fixed-term contract. The custom of signing players for a definite term contract was not deemed by the Court a valid justification pursuant to Section 14 TzBfG.[15] Changing the composition of teams according to the needs of supporters was regarded as of minor importance, in comparison to the need to safeguard the interests of employees.[16] Also, high wages were not identified as a proper justification for the recourse to fixed-term contracts since Section 14 TzBfG does not provide for such an exception, and the higher level of remuneration is not capable of alleviating the negative consequences connected to a lack of employment security.[17] Lastly, the Court declined to accept the argument that the fixed-term period of the employment agreement could be justified by the fact that the contract cannot be terminated. According to the Court, the argument not only fails to fall within the scope of Section 14 TzBfG, but also the impossibility for the employer to terminate the contract does not provide an adequate counterweight to the employee’s interest for continued employment.[18] Based on all of the above the Court decided that the contract is of an indeterminate nature, and therefore still valid.

III. A critical analysis of the judgment
The Court’s ruling is not entirely convincing. This concerns, in particular, the Court’s failure to consider a number of factors which lay at the core of football and are inherent to this particular activity.

A. The personal status
The rejection of the argument concerning the personal grounds connected to the alleged wish of the player to conclude a fixed-term contract does not seem to be controversial. An extensive interpretation of Section 14 TzBfG in this regard could potentially be liable of considerably limiting the protection afforded to fixed-term workers under European and national law. Moreover, in its ruling the Court relied on previous case-law which indicates that for the exception to apply it must be established that the employee concerned, when granted a choice between a fixed-term and a permanent contract, would have chosen the former.[19] Therefore, the Court’s findings that, first, the player wished to prolong his employment relation with the club, and second, that his interest in maintaining flexibility could have been safeguarded under a contract for an indefinite period, seem to exclude the possibility of applying the exception.

B. The nature of the work
The Court’s assessment of the existence of an objective reason stemming from the nature of the work of a professional footballer is less convincing. First, the Court failed to address the argument concerning the necessity of maintaining flexibility as to the choice of players included in the squad. Indeed, this flexibility is needed for a coach to be able to adapt and modify its strategy over the years. In case of a change of the coach, a permanent pool of players would necessarily drastically reduce the potential for variations in the team’s strategy. This concerns not only the characteristics of footballers in terms of their physical attributes and skills, but also their ability to perform in several competitions which often requires playing a number of games every week. Introducing contracts which would bind clubs to their players for an indefinite period could thus be liable of ‘freezing’ football as a result of the coaches’ limited abilities to experiment, adjust and improve line-ups, and to implement new tactics. This situation should be considered analogical to the one concerning artists and comedians. In this regard, the competent national court indicated that fixed-term contracts for comedians and actors were necessary to enable theatre directors to be flexible with regard to their program.[20]

Second, by stating that work-related decline in output cannot justify recourse to fixed-term contracts as it does not constitute a feature specific to football, the Court explicitly aligned professional football players with workers in other professions. The Court’s reasoning in this regard, together with the Court’s findings that age-related uncertainty as to the quality of work may not be relied upon as a justification for fixed-term contracts as it constitutes discrimination on the basis of age, are problematic. In order to exercise their profession football players, and sportspeople in general, are required to maintain the highest level of physical fitness, a factor which does not play a key role in many sectors or industries. It is common knowledge that physical capabilities deteriorate with age, making it gradually more difficult and challenging for athletes not only to preserve a high level of performance but also, as mentioned above, to compete in several sporting competitions. One should also mention that employers outside the sporting world are usually keener on hiring individuals with considerable experience acquired during their professional careers. However, the situation in the football industry is opposite. While footballers improve their skills and broaden their experience with time, aging is the very cause that undermines their ability to perform at the highest level. This explains why football players over the age of thirty are often considered as ‘old’, and provides the underlying rationale for granting shorter contracts to such players. If deterioration due to age does not constitute a relevant factor, why would clubs consciously decide to deprive themselves of the possibility of securing long-term services of top thirty-plus footballers by offering them contracts for periods shorter than those given to younger players, and additionally, undermine their own ability to secure a future transfer fee? The answers is simple: age-related physical decline constitutes a specific factor inherent to the exercise of football, and disproportionately important in comparison to other professions, which influences the capabilities of players to perform, and thus, should not be disregarded as a specific justification for the recourse to fixed-term contracts.

Third, and considering the above, the nature of the industry requires an influx of young talents.[21] In this regard, introducing permanent contracts as a standard would diminish the possibility of young players having a chance to enter the market. Indeed, one has to keep in mind that the football labour market is closed, with a strictly limited number of employees due to the pre-defined number of professional teams active on this market. Thus, the use of indeterminate contracts would have the consequence of freezing the labour market and drastically reduce the incentive to train young players and to improve the squads.

Fourth, providing players with contracts for an indefinite period would also entail the possibility for footballers to terminate their employment agreements pursuant to statutory notice periods. Such an eventuality would affect the stability of contracts between professionals and club, with negative effects on clubs’ planning security in both sporting and financial matters.[22]

Fifth, the fact that contracts for an indefinite period are regarded as the general form of employment and that interests of sport clubs have not been granted protection under the German Constitution should not constitute a reason for precluding the application of Section 14 TzBfG. In this respect, the social partners indicated that ‘fixed-term contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers’.[23] Also, the national implementing measure do not make reliance on Section 14 TzBfG conditional upon the employer falling within one of the sectors protected under the German Constitution. On the contrary, the exception established pursuant to national law seems rather broad. It refers to, inter alia, the nature of the work and the list of objective grounds does not seem to be exhaustive.[24]

Sixth, the rejection by the Court of the argument concerning the customary nature of the recourse to fixed-term contracts in football is not surprising. However, the fact that the needs of the public (supporters) were regarded as being of minor relevance is more questionable. The need to replace players is based not only on the reasons mentioned above, but also necessary from the perspective of maintaining a stable fan base and attracting new supporters by, inter alia, increasing clubs’ competitiveness. Allowing flexibility in signing new players, and conversely in parting with those footballers who are no longer (effectively) able to contribute to the team effort, enables clubs to, at least, increase their chances of success, and thus, fulfils the desires of the supporters. In this respect, the Court mentioned itself that popularity of clubs depends on sporting success. Therefore, it is unfortunate that the Court did not hesitate to disregard this particular factor and failed to scrutinize it in more detail.

C. Other objective reasons
Arguments relating to high wages that professional footballers receive, or the fact that an employment agreement between a club and a player concluded for a definite period may not be dissolved have not been accepted by the Court as constituting objective grounds justifying successive fixed-term contracts. In this regard, it is difficult to criticize the Court. The Court correctly pointed out that these arguments find no support in grounds explicitly mentioned in Section 14 TzBfG. And even though the national law implementing the Directive indicates that successive fixed-term contracts may be justified based on ‘in particular’ the grounds enumerated in Section 14 TzBfG (which might be interpreted as not fully meeting the criteria established in the CJEU’s case-law),[25] thus leaving a possibility for employers to argue the existence of justifications not covered by the provision, accepting such arguments could not only threaten workers’ employment stability, but would also be liable of undermining the system established for the purpose of preventing abuse stemming from recourse to successive fixed-term contracts.

Concluding remarks
The ruling in the Müller case clearly illustrates that for the purpose of evaluating the compatibility of fixed-term contracts in football with the Directive it is absolutely necessary to assess its practical implementation at the national level. In this regard, the focus of the legal debate, which the present blog aspires to spark, has to be placed on the issue of successive fixed-term contracts in football being capable of falling under the objective reasons justification. It cannot be denied that a number of arguments pertaining, in particular, to the specific nature of football as an economic activity may constitute basis for retaining the current system. However, recourse to such arguments will only be possible where national implementing measures allow for it, which therefore implies a specific assessment of the situation in each Member State. Moreover, in those Member States in which national laws prevent objective reason justifications from being relied upon in the professional football sector, successive fixed-term contracts could only be valid through the introduction of amendments to national legislation, (broad) interpretation of the applicable rules by national courts, or by providing room for social partners to agree on a specific status of sports regarding fixed-term contracts. The Müller case has undoubtedly kick-started a much-needed legal discussion. Nevertheless, its intensity will probably depend on the substance of the appeal decision in the Müller case, and whether or not similar cases will appear before national courts outside of Germany.

[1] Council Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP [1999] OJ L 175/43 (Directive)

[2] ArbG Mainz, AZ: 3 CA 1197/14, 13.03.2015 (Heinz Müller Judgment)

[3] The German text of the Teilzeit- und Befristungsgesetz is available in full at https://dejure.org/gesetze/TzBfG

[4] Joined cases C-378/07 to C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarchiakis Autodioikisis Rethymnis, Charikleia Giannoudi v Dimos Geropotamou and Georgios Karabousanos and Sofoklis Michopoulos v Dimos Geropotamou [2009] ECR I-3071

[5] Heinz Müller Judgment, para 3.1.

[6] Ibidem

[7] Ibidem

[8] Ibidem

[9] Ibidem

[10] Ibidem, para 3.2.1.

[11] Ibidem

[12] Ibidem

[13] Ibidem, para 3.2.2.

[14] Ibidem

[15] Ibidem, para 3.2.3.

[16] Ibidem

[17] Ibidem

[18] Ibidem, para 3.3.

[19] BAG 19.01.2005, 7 AZR 115/04

[20] BAG 02.07.2003, AP BGB §611 Nr.39. See also BeckOK TzBfG §14 at Rn. 55

[21] The CJEU held that considering the social importance of sporting activities, and especially football, in the European Union the objective of encouraging the recruitment and training of young players must be accepted as legitimate and thus capable of justifying restrictions on free movement of workers. See Case C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman [1995] ECR I-4921, para 106; Case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC [2010] ECR I-2177, para 39

[22] Diego F. R. Compaire, Gerardo Planás R. A., Stefan-Eric Wildemann, ‘Contractual Stability in Professional Football: Recommendations for Clubs in a Context of International Mobility’, July 2009. http://www.lawinsport.com/pdf/ContStabinProfFoot.pdf. Accessed 17 July 2015; also FIFA regulations provide for rules introduced for the purpose of facilitating contractual stability between clubs and players, see FIFA, ‘Regulations on the Status and Transfer of Players’, 2015, Chapter IV. Maintenance of contractual stability between professionals and clubs

[23] Annex to the Directive, ETUC-UNICE-CEEP Framework Agreement on Fixed-Term Work, recital 8

[24] Section 14 TzBfG indicates that objective grounds exist ‘in particular’ in situations provided for in the provision. The wording of the provision thus grants considerable flexibility to employers

[25] In case C-212/04 Konstantinos Adeneler en anderen tegen Ellinikos Organismos Galaktos (ELOG) [2006] ECR I-6057, para 72 the CJEU ruled, inter alia, that regarding the concept of objective reasons as provided under the Directive national provisions may not be of a purely formal nature, but must justify recourse to successive fixed-term contracts ‘by the presence of objective factors relating to the particular features of the activity concerned and to the conditions under which it is carried out […]’