Referees as Employees

Facts of the Case

The plaintiff was a 28-year-old referee who had been officiating in the Regionalliga (Regional Soccer League) since the 2021/2022 season. The defendant was a subsidiary of the German Football Association (Deutscher Fußballbund – DFB), responsible for assigning referees to the professional leagues of the German Football League, including the 3. Liga.

To assign referees and referee assistants (hereinafter collectively: “referees”), the defendant maintains referee lists. Referees included on such a list enter into a contract with the defendant and are additionally subject to the DFB Referee Regulations (Schiedsrichterordnung – SchO). Under the contractual terms, a referee is not obligated to accept a match assignment. If assigned to a match, he may decline. However, if a referee repeatedly declines assignments without sufficient justification, § 11 SchO grants the referee committees certain sanctioning powers, up to and including removal of the referee from the referee list. Referees are also obliged to wear the prescribed uniform (§ 8(1) SchO), attend training courses and maintain physical fitness through regular athletic training (§ 7 No. 2 SchO). A referee does not receive a fixed regular base salary but is compensated per match officiated.

For the 2024/2025 season, the defendant did not include the plaintiff on the referee list for the 3. Liga. The plaintiff filed a claim before the ArbG Bonn (Labor Court Bonn), seeking compensation and damages for age discrimination against the defendant pursuant to § 15(1) and (2) AGG (General Equal Treatment Act).

The ArbG Bonn dismissed the claim, holding that the referee was not an employee and thus had no standing before the labor courts.

Legal Basis: Definition of “Employee”

The plaintiff may only take legal action before the labor courts if a referee qualifies as an employee (§ 2(1) No. 3(c) ArbGG (Labor Court Act)). The decisive issue is the distinction between employees and independent, self-employed contractors.

An employee is one who performs work in personal dependence, subject to instructions and under the control of another, in exchange for remuneration. A person is considered subject to instructions if he is not essentially free to determine his own activity or working time. Ultimately, a comprehensive assessment of all circumstances of the individual case is required.

Decision of the LAG Köln (Regional Labor Court Cologne) of June 16, 2025 (Case No. 5 Ta 58/25)

The LAG Köln held that the referee is an employee. In its overall assessment, the court found that the referee was subject to a sufficient degree of personal dependence.

The decisive aspect for the court’s decision was that the referee was, in effect, obligated to accept assignments. Because of the sanctioning powers of the referee committees, he could not simply decline an assignment at will. In particular, he had to expect removal from the referee list if he declined without adequate justification. The court emphasized that the defendant held a monopoly position in assigning referees. Whether and how often such sanctions are imposed in practice was irrelevant; their mere existence exerted behavioral pressure such that a referee would not decline an assignment.

For the court it was also significant that the referee had to perform his duties personally. Moreover, the court considered the additional obligations under the SchO, such as mandatory participation in training courses and continuing education, athletic training, and wearing the prescribed uniform.

According to the LAG Köln, the lack of a base salary and the defendant’s discretion to not assign the referee at all did not preclude employee status. On the contrary, for this reason the protection of labor law should apply according to the court. The referee’s contractual relationship was designed in such way that he would be assigned to matches, would not refuse, and would acquire payment claims through performance.

Conclusion

That the LAG Köln classified referees as employees was rather unexpected. The LAG Niedersachsen (Regional Labor Court Lower Saxony, Case No. 2 Sa 172/19) and the LAG Hessen (Regional Labor Court Hesse, Case No. 9 Sa 1399/16) had previously reached the opposite conclusion, holding that referees are not employees. These courts based their decisions mainly on the fact that referees are not obligated to accept assignments and that the sanctioning powers of the referee committees are merely “sports law” sanctions. They also emphasized that referees are not bound by instructions when officiating a match.

The LAG Köln’s decision appears to have been influenced by the BAG (Federal Labor Court) in its so-called “Crowdworker” decision of December 1, 2020 (Case No. 9 AZR 102/20), in which the BAG classified crowdworkers as employees. These workers were also not contractually obliged to accept assignments, but were integrated into a special organizational structure within the framework of an online platform. Whether referees are in fact so closely integrated into an organizational structure that they are to be classified as personally dependent remains questionable.

Since the LAG Köln’s decision there is no consistent line of case law on whether referees are to be classified as employees or as independent, self-employed contractors. To avoid unequal legal treatment of referees depending on the jurisdiction of the respective LAG, clarification by the BAG would be desirable.

Bild: Adobe Stock