Bundesliga referees must
retire at 47 – is this age discrimination?
German professional football is back in the focus of employment lawyers. This time, Manuel Gräfe, a recently retired Bundesliga referee and widely acclaimed as being one of the best in Germany has been reported as suing the German Football Association (“DFB”) alleging discrimination.
Herr Gräfe was required to retire from refereeing Bundesliga games at the end of the 2020/2021 season as he has recently reached the maximum age limit of 47 as stipulated by the DFB. We understand that he has now filed a claim and is presumably arguing that he has been discriminated against. If he is successful, he will be unable to force the DFB to allow him to continue refereeing. He would though be entitled to damages and the DFB would need to rethink its rather rigid rule.
From the outside, it would appear to us that Herr Gräfe has a good chance of succeeding with his claim. There are probably three main legal issues within the case.
Are referees protected under the General Equal Treatment Act (AGG)?
Referees are protected under the AGG. It is not relevant in this context whether referees are classified as employees or not. They enter into framework agreements with the DFB for the respective season and each match assignment is based on an additional agreement. Considering this, employment courts have in recent years repeatedly held that referees are not employees.
However, referees fall within the definition of self-employed persons within the meaning of sec. 6 para. 3 AGG and enjoy therefore a certain level of protection under the AGG.
Is the DFB’s rule justified discrimination?
According to sec. 1, 7 AGG, discrimination on the grounds of age is prohibited. However, such discrimination may be justified if the age constitutes a determining occupational requirement due to the nature of the job or the context it is performed in, provided that the purpose is legitimate, and the requirement is proportionate (sec. 8 AGG).
The DFB will therefore likely argue that Bundesliga referees must be match fit and that it needs to retain an overall balanced age structure. They will presumably argue that anyone over the age of 47 is likely to struggle to maintain the required mental and physical fitness to referee regular for this league of games over the course of a 10-month season. However, 47 does seem to be somewhat arbitrary without taking individual performance into account.
Remedies
If Herr Gräfe succeeds with his claim, he will be entitled to pecuniary damages including “loss of profit”. Currently, the basic fees of a referee per season can be up to € 80,000 with an additional fee of up to € 5,000 per game. Furthermore, Herr Gräfe would be entitled to appropriate compensation for immaterial damage according to sec. 15 para. 2 AGG. This would be calculated by considering all circumstances of the individual case.
In addition, any judgement may compel the DFB to rethink its enforced retirement approach.
We will continue to follow the development of this case. It remains to be seen whether there will be a settlement or whether the case will continue to full trial with the final decision then likely over this winter with considerable repercussions for Bundesliga referees.
