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It was an exciting political-sporting act that took place on the morning of 13 November 2020 at the headquarters of the German Football Association (DFB). At 10.45 am, an extremely tight request from the industry leader, FC Bayern, arrived via e-mail, the simple request to postpone the DFB Cup match against second division Holstein Kiel to January 13, scheduled for January 23. December. Less than three hours later, the responsible department of the DFB had updated the football date as required – this shows the information the clubs have received in advance. Whatever happened in this short period of time: it can hardly have been a formally appropriate decision. So it was a decent act of courtesy on the part of the association because the mighty record champions knocked south? This suspicion now seems well supported, the Federal Supreme Court of the DFB has just included it in a decision: namely in a verdict that reveals a lot about a shift in the balance of power in the national football business.
The federal court of the DFB was summoned because after the sudden change of date for the Munich team, Bayer Leverkusen called the DFB shortly after with the same request: their second round against Eintracht Frankfurt is also expected to be postponed to January . With which the Rhinelander demanded equal rights for all – and at the same time kept the reprogrammed television schedule in motion. The ARD had planned to broadcast the match to Leverkusen on Christmas Day in the absence of Bayern’s transfer.
But: the DFB administration was suddenly unkind. The game committee rejected Bayer’s transfer request last week. The Leverkusen-based company filed an administrative complaint with the federal court, which resulted in the highest instance reading the riot deed to association officials.
The judges overturned the DFB administration’s verdict on Thursday and decided on Leverkusen: the Bayer’s Cup match against Frankfurt will be postponed to January 12 or 13. In the resolution they say conclusively that some sort of arbitrary act has taken place here, which is unacceptable on the basis of the claim of equal treatment. The DFB did not explain in detail or even prove that a violation of television contracts and possible consequential damages were in the room.
It is also true that the cup as an independent competition requires compact matchdays, but the DFB itself has shown that this is not an irrevocable principle – postponing Bayern’s second match in the current cup event (previously the First Round Match against FC Düren of the renewed fifth division). Finally, the federal judges disenchanted all arguments about the threat of overloading the Munich series title winners. Apart from the fundamental question of whether special rules should be created for this: indeed, such a disadvantage for Bayern players compared to their colleagues at Leverkusen is indistinguishable.
For 2021, the number of national and international commitments potentially foreseen for both clubs is almost identical, although it could involve different competitions. It’s funny that the DFB overview also shows: both teams have played the same number of games in the current season. The overall inadequate argument reduces the DFB’s margin of appreciation to “zero” and allows the Federal Supreme Court to decide independently in the specific case.
There is evidence that the Federal Supreme Court overturned a “Lex Bayern” here. Because the leaders of the DFB have new questions. In response to specific SZ inquiries, the association declined to comment on how its various decisions had been made, or whether it had been politically influenced “from above”.
Observers note that the unconditional fulfillment of Bayern’s unfounded wish occurred in the vicinity of another event. On 11 November, the long-term champions had called up most of the Bundesliga and second-tier Hamburger SV clubs for a reunion. It was a show of strength – ultimately unsuccessful – to which the clubs of Stuttgart, Bielefeld, Mainz and Augsburg were not explicitly invited; previously they had publicly suggested a more social distribution of television money. During the meeting, Bayern CEO Karl-Heinz Rummenigge not only criticized the advance of absent dissidents, but also backed Fritz Keller. The DFB president has been the focus of mounting criticism for months, accusations ranging from Keller’s handling of interim results on the ongoing general inventory to his opaque tactics on whether national team manager Joachim Löw should remain in office. Internally, the DFB is divided like never before, President Keller, who has only been in office for 15 months, and the old guard around Secretary General Friedrich Curtius are completely divided. A little favorable wind from the professional field can do no harm. Especially not when it blows from the south.
The strange cup issue is decided from the point of view of sports law. Politically, it still needs to be enlightened.
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