No extension of the fixed-term employment contract of a professional football player based on a deployment-dependent renewal clause in the event of a season interruption due to a pandemic

BAG, judgment of 24 May 2023 – 7 AZR 169/22

Facts

The plaintiff had concluded a fixed-term employment contract with the defendant as a professional football player, under contract for the period from 1 September 2019 to 30 June 2020. In this context, clause 10 (3) of the employment contract included a provision for extending the contract by a further season, provided that the plaintiff would make at least 15 appearances, with a respective minimum playing time of 45 minutes, in championship matches in the season 2019/2020.

However, based on an evaluation of the performance and capability of the players under contract by the defendant’s managers and coaching team, the plaintiff's athletic performance was rated as unsatisfactory. This evaluation was confirmed by two further game appearances of the plaintiff and then it was finally decided that the plaintiff, due to sporting considerations, should no longer be used for the coming matches.

Thus, by 15 February 2020, the plaintiff had recorded a total of only 12 of the 15 required minimum appearances in championship matches. Subsequently, the plaintiff received no more match appearances until the interruption of match operations due to the Coronavirus pandemic on 14 March 2020. Finally, on 26 May 2020, the 2019/2020 season was ended prematurely.

In his lawsuit, the plaintiff claimed that his employment contract had been extended by a further season until 30 June 2021. In this respect, the plaintiff took the position that, due to the unforeseeable pandemic-related cancellation of the season, he had already provided the necessary number of compulsory matches for the contract extension with the twelve match appearances. The parties would have adjusted the minimum number of match appearances or agreed on a quota for the minimum stake instead if they had been able to foresee the premature cancellation of the season when concluding the contract.

The Labor Court (Arbeitsgericht, ArbG) and the Regional Labor Court (Landesarbeitsgericht, LAG) had already dismissed the lawsuit. The plaintiff's revision to the BAG now also remains unsuccessful.

No supplementary interpretation of the contract (Sections 133, 157 of the German Civil Code (Bürgerliches Gesetzbuch, BGB)) and no adjustment of the renewal clause due to an interference with the basis of the transaction (Section 313 (1) BGB)

In its press release, the BAG stated that the parties had made the extension of the contract dependent on the attainment of an absolute minimum number of match appearances, which the plaintiff was unable to provide. In this context, there was neither a correction of the absolute minimum number of stakes by way of supplementary interpretation of the contract (Sections 133, 157 BGB), nor was there a claim by the plaintiff for an adjustment of the contractual clause due to an interference with the basis of the transaction (Section 313 (1) BGB).

A supplementary interpretation of the contract in accordance with Sections 133, 157 BGB has priority over the adjustment of the contract in accordance with Section 313 (1) BGB, although the boundaries are fluid. The supplementary interpretation of the contract is possible in principle if the parties have consciously or unconsciously not made a contractual provision for the case that has occurred. In this respect, the content of the employment contract is to be interpreted according to the will of the parties. On the other hand, the contract may be adjusted in accordance with the principles of interference with the basis of the transaction if, due to a fundamental change in circumstances, it is not possible to assess the contract in accordance with the parties' intentions.

The LAG Hesse (judgment of 14 March 2022 – 18 Sa 141/21) stated that a supplementary interpretation of the contract to deal with the consequences of the Coronavirus pandemic may be possible in individual cases if the contract indicates the discernible intention of the parties and the contractual distribution of risk corresponds to this intention. However, it must be considered that the pandemic has certainly led to fundamental changes in the circumstances, so that a corresponding party intention for this unforeseeable situation cannot be assumed for every case. This is also supported by the fact that Article 240 of the Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche, EGBGB) laid down special rules for contract adjustments, while the pandemic was ongoing.

Furthermore, it was not sufficiently apparent from the employment contract what the parties would have wanted and therefore would have agreed if it had already been certain at the time of conclusion of the contract that the 2019/2020 season could end prematurely. In this respect, the defendant had also denied that she would have made the extension of the contract dependent on a reduced minimum number of matches in percentage terms. Consequently, it could not be assumed that it would have been the parties' intention to extend the employment contract by a further season if the plaintiff had only achieved a minimum quota of match appearances, adjusted to the season ending due to the pandemic.

The ArbG Offenbach (judgment of 9 December 2020 – 4 Ca 270/20) had already denied a claim by the plaintiff for adjustment of the renewal clause pursuant to Section 313 (1) BGB, on the grounds that it was not unreasonable for the plaintiff to adhere to the unchanged employment contract. Even if one assumes that, due to the pandemic, the circumstances of the conclusion of the contract changed in such a way that the parties would not have concluded the deployment-dependent renewal clause (or would have concluded it with different content), for it to be unreasonable, adherence to the contract must lead to intolerable results that are incompatible with law and justice. The plaintiff would not have achieved the minimum number of match appearances due to the coaching team’s decision not to use him until the end of the 2019/2020 season, even regardless of the interruption and subsequent premature cancellation of the season due to the pandemic. In those circumstances, it was not unreasonable to adhere to the deployment-dependent renewal clause.

The effectiveness of the deployment-dependent renewal clause was not relevant for the BAG's decision. However, the specific considerations of the BAG remain to be seen until the reasons for the judgment are available.

Importance for practice

Even if it is to be hoped that a season cancellation due to a pandemic will long be a thing of the past, the BAG's decision does point the way for the future: employers of professional football players should define the requirements for deployment-dependent renewal clauses more precisely to avoid uncertainties in the interpretation of contracts. In the end, the secure drafting of employment contracts pays off not only in times of crisis.