Even with some politicians such as Bavarian Governor Markus Söder and new Nordrhein-westfalen Premier Hendrik Wüst (both CDU) calling for footballer vaccine mandates, it does not appear as if Germany's F.A. has the legal precedence to install such a mandate.
In an interview with Thiemo Müller of German footballing magazine Kicker, Mannheim-based labor law professor Dr. Philipp S. Fischinger explains why the DFL cannot force players to get vaccinated, along with how withholding salaries from unvaccinated footballers is nevertheless legal.
|Photo: Marco Verch|
Amid the ever-shifting patchwork quilt of public restrictions in force now across the German Bundesrepublik, German football finds itself at the center of a civil controversy about which there appears very civil discourse. This week, German footballing executives such as Christian Heidel (FSV Mainz 05) and Max Eberl (Borussia Mönchengladbach) reiterated that they could not conceive of forcing their players and staff to get a COVID vaccine.
In separate interviews of the past few weeks, both Heidel and Eberl divulged that the had one employee (potentially player of staff) who had held out against getting vaccinated, but stressed that they were strongly against forcing anyone to do so. FC Bayern sporting director Hasan Salihamidzic echoed this policy shortly before kickoff against Augsburg last Friday night.
Being the most internationally recognizable German football club that happens to carry the most German national team players on its roster, FC Bayern stands at the center of this storm. The non-vaccination status of four players forced into quarantine last Sunday were quickly leaked that very evening.
Since then, despite some pleas for privacy from FCB head-coach Julian Nagelsmann, every development involving these players has been blockbuster front page news in the Bundesrepublik. So it is likely to remain.
By all accounts, with respect to the Bundesliga, it looks as if the template for the future will follow that of the FC Bayern's current "soft power" model. Players will be compelled to get vaccinated by facing more stringent isolation requirements, for which they will not receive their regular compensation.
Thiemo Müller of German footballing magazine Kicker asked legal expert Dr. Philipp S. Fischinger why the DFL/DFB cannot implement vaccine mandates. The labor law specialist also explained how it is nevertheless legal for clubs to suspend pay for their unvaccinated footballers.
We're pleased to supply a translation of the interview transcript.
[Journalist Müller]: After politicians brought up the idea of a possible vaccine mandate for professional athletes, there are some now that the DFL could issue such a rule as an autonomous organization, independent of [state] legislatures or even [votes] of individual clubs. That's your view on this?
[Professor Dr. Fischinger]: I'm very skeptical. Of course, the association's autonomy if fundamentally protected, but is not without limits. In this case, the player's right to self-determination and protection of the physical integrity of his body stands in the way. There is a balance of interest, and in my opinion it favors the players.
In terms of the association's position vis-a-vis the club as an employer, the F.A. isn't in a stronger position. On the contrary, any decision by the association would run up against not only fundamental human rights, but also anti-trust-law. The European Court of Justice (ECJ) could even get involved in such a case.
[Journalist Müller]: Nevertheless, players who refuse a blood test in an anti-doping context, for example, would not be allowed to play. Why is it not possible to proceed in the same manner in the case of a refused vaccination?
[Professor Dr. Fischinger]: Because a vaccination constitutes a much more serious interference with the rights of a player. The risks associated with a COVID vaccination, while very small compared to an actual COVID infection, are already greater than that of a blood draw.
Additionally, we must take into consideration: Is the intervention truly appropriate? When attempting to attain a certain goal, we must select the least intrusive of equally suitable means.
[Journalist Müller]: And what does that mean more concretely?
[Professor Dr. Fischinger]: The first question is, can the specific risk of infection be minimized just as effectively as with measures such as distancing and masking indoors in tangent with the testing used in current training and match operations?
All of these less intrusive measures would have to be exhausted first. The DFL's current hygiene concept doesn't even require masking in the locker room or tunnel. It wouldn't make sense to go straight to a vaccine mandate. There's a second question: Would the measure even be conducive to reaching the legitimate goal?
[Journalist Müller]: What "legitimate goal" are we speaking of?
[Professor Dr. Fischinger]: The association obviously has the legitimate interest of of carrying out the business of the game, i.e completing the season. But is that truly at risk at the moment? Every club has set up its squad so that it can compensate for absences to a certain extent.
Whether players are missing because of a muscle injury, corona, or quarantine is irrelevant. And the vaccination rate among professional footballers is so high, at around 90 percent, that the unvaccinated players are no longer relevant to the completion of the season.
Furthermore, it's November now. There's still enough time between now and the end of the season to catch up on games. And even an extension of the season is possible in principle, as the 2019/20 campaign demonstrated. All of this speaks against the appropriateness of mandatory vaccination, whether its the association or club introducing it.
[Journalist Müller]: FC Bayern and other clubs have now announced that they will not pay the salaries of unvaccinated players who have to enter quarantine during this phase. Some affected players are now reportedly considering taking legal action against this. Do they stand much of a chance.
[Professor Dr. Fischinger]: I don't think so. Section 616 of the German Civil Code (BGB) is clear on this point. This states that an employee does not lose the right to renumeration if he/she is "prevented from working for a relatively insignificant period of time", even through "no fault of their own".
A week in quarantine like qualifies as a "relatively insignificant period of time". Then question then becomes, is "the short-term quarantine" that an unvaccinated individual must enter as a contact person his fault or not? I would argue yes, because whoever doesn't accept the generally recognized sensible offer of a vaccine shoulders the blame.
This proves true as well if the lost time adds up to over two weeks, as is the case with Joshua Kimmich. In this case, section 616 of the German Civil Code no longer applies, rather section 56 of the Infection Protection Act. This expressly excludes claims to compensation if the use of the publicly recommended COVID vaccination would have prevented an outbreak.
And if one of the unvaccinated players finds himself unfit for work because of infection with COVID-19, nothing else applies in my opinion. Paragraph Three of the 1994 National Statutes on Wage Renumeration for Illness excludes cases where preventive treatment was available.
[Journalist Müller]: So the only way to proceed now it to utilize measures like pay-cuts to persuade the remaining professional footballers to get vaccinated and hope they succumb to reason?
[Professor Dr. Fischinger]: Yes, because a club ban on vaccine refusers--such as the one called for by Steffen Effenberg--would be unlawful if it were intended solely to sanction the unvaccinated. The clubs should thus opt for a mixture or carrot and stick. They should continue to try and convince the players whilst also exerting financial pressure to get them to comply.
In neither one of these works, the only legal option is legislation. A legal obligation to vaccinate professional footballers (and not others) would be of spurious legality under the equality clause in Article 3 of the German constitution. Ultimately, then, the only way to end the discussions in football would be to legislate a national vaccine requirement for all citizens.