Germany: Social media in the workplace: Between football star and private individual – employee and role model

The comments made by professional footballer Felix Nmecha on social media have recently caused quite a stir. The German international, who plays for Borussia Dortmund (BVB), regularly shares publicly visible posts about his Christian faith, some of which are politically charged and spark controversial discussions. According to consistent media reports, BVB has now informed its player that he must coordinate his posts with the club in advance from now on. The following article examines the extent to which this is legally permissible.

The obligation to check posts in advance: a chronology

The controversy surrounding Nmecha's social media activities began even before he was signed by BVB in the summer of 2023. Among other things, in February 2023 he shared a video by self-proclaimed "theocratic fascist" Matt Walsh, and in June he shared a post equating the word "pride" with the devil.

Various BVB fan groups sharply criticised the planned signing in advance, pointing to the club's code of values, which enshrines diversity and coexistence without discrimination. Despite the opposition, BVB signed Nmecha. After the signing, a mournful post in September 2025 about the murdered MAGA activist Charlie Kirk caused renewed controversy. According to media reports, Nmecha must now coordinate his posts with the club in advance, and Nmecha's employment contract also contains a clause imposing sanctions for statements contrary to the club's values.

But can an employer actually demand that an employee submit their private social media posts to their employer for approval in advance? The answer can vary: while an employee's private life is generally beyond the employer's influence, the line may shift in the case of public figures whose statements can directly reflect on the employer. 

Advance review only permissible with consent

In principle, an employee's behaviour in their private life is beyond the employer's influence. As a consequence of the freedom of expression under Article 5(1) of the Basic Law for the Federal Republic of Germany (Grundgesetz), private individuals are also free to post whatever they like on their social media channels, provided that these posts are covered by fundamental rights. 

However, a different principle may apply if private behaviour has an impact on the workplace. This is probably the case for professional athletes who are in the media spotlight. 

According to current case law (e.g. BAG, judgment of 29 August 2013 – 2 AZR 419/12; BAG judgment of 24 August 2023 – 2 AZR 17/23), a connection to the workplace is assumed if the employer is associated with the posts – for example, through a link or profile information that enables the employer to be identified. This was not the case in the posts made by Nmecha. However, a different standard may apply to high profile employees, such as professional footballers and national team players. As a rule, these individuals can be identified as players for a particular club, and thus as employees of that club, even without links, profile information or similar details. 

The decisive factor is whether the post violates the ancillary obligation of consideration under Sec. 241 (2) German Civil Code (BGB). The obligation of consideration requires both parties to the employment relationship to take appropriate consideration of the rights, legal interests and interests of the other party.

In labour law, this secondary obligation is specified in particular in the employer's duty to protect the life, health and property of the employee and in the employee's duty to safeguard the legitimate interests of the employer.

The legitimate interests of the employer may be impaired if posts are likely to damage the employer's reputation. In such cases, depending on the severity of the breach of duty, the employer may issue a warning or even terminate the employment relationship. This may be the case with polarising posts, especially if they occur in an environment where the employer is perceived as cosmopolitan.

However, general prior monitoring of all posts by the employer and thus an obligation on the part of the employee that goes beyond consideration is only permissible with the employee's consent. In the Nmecha case, it can be assumed that a corresponding agreement was reached by mutual consent – possibly within the framework of the sanction clause already existing in the contract.

Limits to freedom of expression 

If an employee violates a validly agreed prior review clause, this in itself can have consequences under labour law – ranging from a warning to dismissal in the event of a repeat offence. In addition, the content of the post itself may also be subject to labour law measures. With such clauses, therefore, both the "if" and the "how" can be violated.

Even the freedom of expression protected by Article 5(1) of the Basic Law does not necessarily preclude such interventions. 

This is based on the fundamental right to freely express and disseminate one's opinion in speech, writing and images and to obtain information from generally accessible sources without hindrance. 

These rights are limited by the provisions of general laws, the legal provisions for the protection of young people and the right to personal honour.

According to case law, the secondary obligation to show consideration under Section 241(2) BGB constitutes a general law within the meaning of Article 5(2) of the Basic Law, which is suitable for setting limits on freedom of expression.

In this light, employers can also assert positions protected by fundamental rights (such as freedom of enterprise), which is why both interests must be balanced appropriately. In extreme cases, this can also lead to a ban on the expression of opinions if the limits of tolerable expression are exceeded due to the requirement of consideration.

Purely private accounts that are actually only visible to a private circle of friends, on the other hand, remain exempt from labour law. However, this circle must be exclusively private – if it also includes work colleagues, this protection would no longer apply.

What employers need to bear in mind: 

Employers can take preventive action to minimise risk and establish clear social media guidelines that protect both the legitimate interests of the company and the personal rights of employees. It is advisable to establish transparent rules when the contract is concluded. These can define which statements are incompatible with the company's values and what consequences may result from their violation. 

It is important that such clauses remain proportionate and do not prohibit all private expressions of opinion across the board – nevertheless, it remains essential to examine each case individually, weighing up the conflicting interests. 

In the best-case scenario, employers can regularly train and sensitise their employees in order to avoid conflicts from the outset and create a common understanding of the boundaries between legitimate expressions of opinion and reputation-damaging posts. This seems particularly sensible in these fast-paced times of social media.